There Was Some Controversial News In Planning This Week But Instead Let’s Focus On the Latest Ruling In The Epping Forest Asylum Seekers Litigation

The Secretary of State finally said it out loud on 11 November 2025: the proposed National Development Management Policies will be non-statutory. There will be more detail in a speech he will give “in a couple of weeks” and consultation as part of consultation on the NPPF (which presumably the NDMPs will either form part of or partly replace) “later this year” (which I take to mean Christmas Eve, again).

So, sections 93 and 94 of The Levelling-up and Regeneration Act 2023 will not be brought into force, we assume. What a lot of wasted energy that was. I’m not going to comment in this post on the rights and wrongs of statutory versus non-statutory NDMPs (even I’m getting bored of that one). But simply to note this latest reminder that we can place too much weight on legislation as an agent of change. Rolling forward, I hope people appreciate that it will take years for much of the Planning and Infrastructure Bill to come into force and to have any real effect. And that some of it inevitably will either never get that far or will be subsequently repealed. How much of the long running debate over Part 3, environmental delivery plans, will turn out to be time well spent?

Anyway, let’s move quickly on to my main topic, because I never want to be controversial.

One thing that the government has steadfastly declined to address by way either of legislation, policy or guidance is the question of whether the accommodation by the Home Office of asylum seekers in hotels constitutes, in planning law terms, a material change of use. It would have been easy to signpost a position in one direction or the other. The conclusion that must have been reached is that sometimes the best thing to say is to say nothing at all.

When I last wrote about the saga in my 29 August 2025 blog post Court of Appeal Cuts Down Epping Forest the Court of Appeal in August overturned the interim injunction that the High Court had imposed earlier that month (see my 20 August 2025 blog post Planning Law Is Being Used For Politicking About Asylum Seekers), that would have required the use of the Bell Hotel in Epping for the accommodation of asylum seekers to cease, pending a full hearing into its claim for a final injunction and a declaration that the use was in breach of planning control.

We now have the High Court’s judgment as to whether a final injunction and/or a declaration should be granted: Epping Forest v Somani Hotels Limited  (Mould J, 11 November 2025). And the High Court’s ruling is: no and no.

Mould J set out the position under section 187B of the Town and Country Planning Act 1990, which provides that where “a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction” and that, whilst “the court must not re-assess for itself the local planning authority’s planning judgment which formed the basis for that authority’s decision to apply for the injunction … the factors which, on the evidence before the court, weighed with the local planning authority in making their planning judgment may properly be considered by the court, in the context of reaching its own judgment as to whether the circumstances of the case are such as to justify the grant of an injunction. Moreover, where as in the present case, the Defendant questions the validity of the local planning authority’s decision to apply for an injunction on public law grounds, the court may properly consider the points raised in the exercise of its discretion whether or not to grant the injunction.”

Mould J went through the various considerations:

  • whilst he was prepared to accept that the “local planning authority had at least a reasonable basis for alleging and asserting that the current use of the Bell as contingency accommodation for asylum seekers is in breach of planning control”, this “is not a case in which conventional enforcement measures taken by the local planning authority over a lengthy period of time have failed to secure the effective remediation of a clear breach of planning control, which has resulted in and continues”
  • there were serious gaps in the record of the decision making which led to the conclusion that an injunction should be sought;
  • contrary to the council’s assertions, in the light of the actual chain of events and communications the hotel had not “acted in flagrant breach of planning control”
  •  any harm to the green belt and conservation area by way of the security fencing in place was “limited by the fact that it is localised and very likely to be temporary in its duration, with the fencing likely to be removed no later than by April 2026, when the Defendant’s current contract with CTM comes to an end. Moreover, the fencing was installed in response to street protests, rather than being an integral requirement of the use of the Bell as contingency accommodation for asylum seekers”
  • in terms of retaining existing visitor accommodation “the degree of harm resulting from that can be argued to be limited both by the temporary nature of the current use of the Bell and by virtue of the economic advantage to the Defendant of that current use, which is expected to assist in bringing the hotel back into conventional use in the longer term”
  • “I have heard no evidence to support the concern that the current use of the Bell is placing local GP, health, social and community services under undue pressure, to the detriment of the settled population of Epping. There is no evidential basis at all for the assertion that asylum seekers as a cohort have a greater propensity than the settled population to engage in criminal or anti-social behaviour”
  • “I have carefully considered the degree of planning and environmental harm which may reasonably be said to result from the actions or alleged actions of the three individuals accommodated at the Bell who have been convicted or charged with criminal offences since April 2025 … I accept that, in the light of those actions or alleged actions, the fears and concerns of local residents of which I have been made aware in evidence have a reasonable basis. However, the resulting degree of planning and environmental harm is limited, in my view. It has not been established that those fears and concerns are grounded in the use of the Bell as contingency accommodation for asylum seekers. They are properly to be regarded as the understandable reaction of local residents to the well-publicised criminal behaviour, actual and alleged, of three individuals who happen to have been accommodated there”
  • “Public opposition to the development of land, even if that opposition manifests itself in street protests, is not in itself evidence of planning or environmental harm generated by the development to which there is such strong objection”
  • “There are countervailing factors in this case which are properly to be weighed in the balance against the planning and environment harm which may reasonably be said to result from the postulated breach of planning control. In particular, the evidence before me clearly establishes that there is a continuing need to source contingency accommodation for asylum seekers from hotels, to enable the Home Secretary to discharge her statutory responsibilities under the 1999 Act. That consideration carries significant weight”
  • There is “no duty as such placed upon a local planning authority to enforce against unauthorised development simply because it is considered to be in breach of planning control. An informed planning judgment is required of the local planning authority as to whether enforcement action is appropriate; and, if so, as to whether the harm caused by the unauthorised development is of such a degree as to merit restraint by injunction. Proper and effective planning control is not undermined by the normal enforcement regime, which permits a person served with an enforcement notice to appeal against that notice and, unless a stop notice is served, to continue with the alleged breach of planning control at least until that appeal has been determined by the Secretary of State”

Bringing all that together:

“I have reached the clear conclusion that this is not a case in which it is just and convenient for this court to grant an injunction. I give due respect to the Claimant’s judgment that the current use of the Bell as contingency accommodation for asylum seekers constitutes a material change in the use of those premises which requires planning permission. Nevertheless, I have not been persuaded that an injunction is a commensurate response to that postulated breach of planning control. The breach is far from being flagrant. Conventional methods of enforcement have not been taken. Taking a broad view, the degree of planning and environmental harm resulting from the current use of the Bell is limited. The continuing need for hotels as an important element of the supply of contingency accommodation to house asylum seekers in order to enable the Home Secretary to discharge her statutory responsibilities is a significant counterbalancing factor. This is decidedly not a case in which there is an abuse of planning control resulting in serious planning or environmental harm which now demands an urgent remedy. In my judgment, it is not appropriate to grant an injunction on the Claimant’s application for the purpose of restraining the use of the Bell as contingency accommodation for asylum seekers.”

“It remains open to the Claimant as local planning authority to consider the expediency of taking enforcement action by issuing an enforcement notice. It is also open to the Defendant to reconsider whether it would be appropriate to apply for retrospective planning permission; or to apply to the Claimant for a certificate of lawfulness of the existing use of the Bell pursuant to section 191 of the 1990 Act. Each of those possible courses of action would enable the planning issues raised by this case to be evaluated by the local planning authority, through the transparent and consultative decision-making processes with public participation which apply under the 1990 Act and its attendant regulations.”

As for the application for a declaration that “the current use of the Bell does not amount to use as a hotel within the meaning of Use Class C1”:

Given the statutory procedures available for this to be determined, either by way of applications for certificates of lawfulness or by way  of the making of an enforcement notice (and if necessary the determination of appeals to the Planning Inspectorate) “it will  rarely be appropriate for this court to seek to resolve them beforehand through the grant of declaratory relief. In the present case, I consider that there is at least a real possibility that the Claimant and the Secretary of State on an appeal may be called upon, in the context of those statutory procedures, to determine the ongoing dispute as to whether the current use of the Bell constitutes development requiring planning permission. I have found it to be neither necessary nor appropriate to reach my own conclusions on those questions for the purpose of determining the Claimant’s application for an injunction. Instead, I have ultimately deferred to the Claimant’s judgment as local planning authority in alleging and asserting a breach of planning control. I have already addressed the propriety of the Claimant’s conclusion that it was necessary or expedient for that alleged and asserted breach of planning control to be restrained by an injunction.”

Practical outcome: the question remains unanswered by the courts as to whether, and in what circumstances, the accommodation of asylum seekers in a hotel amounts to a material change of use. Indeed, I would venture to suggest that the judgment seeks, by way of its dissection of the issues, to dampen down the moral panic that led to officer and councillor decisions to bring this litigation in the first place instead of relying on the usual statutory planning framework and processes.

Will the legal question ever be determined by the courts? I suppose it might, but most likely by way of a legal challenge to an inspector’s decision following an appeal arising from an enforcement notice or from refusal of a certificate of lawfulness. And even then, that determination will be specific to the facts and to the application of relevant local policies.

Finally, for the avoidance of doubt, I do like flags as much as the next person. I flagged these two passages in particular:

“There is no evidential basis at all for the assertion that asylum seekers as a cohort have a greater propensity than the settled population to engage in criminal or anti-social behaviour”

“Public opposition to the development of land, even if that opposition manifests itself in street protests, is not in itself evidence of planning or environmental harm generated by the development to which there is such strong objection”

Simon Ricketts, 15 November 2025

Personal views, et cetera

4 Key Asks For The London Housebuilding Support Package Consultation

Most chats this week have been about the 23 October 2025 homes for London policy note.

tl;dr summary: positive direction but concerns about potential complexities, uncertainties and as to whether it will all be in place speedily enough.

We’re all now waiting for the consultation to start “over six weeks from November” (fair play, at least no “by the end of Autumn” fudge).

There are plenty of detailed issues arising, and differing interests will want to re-prioritise the measures in different ways, but I thought I would set out four key asks that I have, which in my view should be specifically addressed in the consultation documents:

  1. Should there be more focus on stalled sites that already have planning permission?

This is the lowest hanging fruit. And yet all we have (in paragraphs 33 and 34) is a reference to the potential for renegotiating previously agreed arrangements by way of deed of variation and discouragement as to the use of section 73.

This isn’t enough. I set out the current procedural constraints in my 18 October 2025 blog post London Stalling.

Procedurally, bar reintroducing section 106BA or, for a temporary period, amending section 106A to reduce the 5 years’ requirement, at the very least we need:

  • Specific encouragement for local planning authorities to accept developers’ requests to engage with the process of varying existing agreements where specific criteria (consistent with the direction of the policy note) are met, linked to some sort of oversight, monitoring and/or route for complaint where authorities refuse to engage (given that unless your section 106 agreement is at least five years’ old, or unless this is in the context of a section 73 application (of which more in a moment) there is no right of appeal on the part of the developer)
  • Not the current suggestion that the section 73 process “should no longer be used as an alternative means of reconsidering fundamental questions of scheme viability or planning obligations” but rather a proper recognition of the real challenge of keeping planning permissions, and associated planning obligations packages, up to date as against changing circumstances and the important role that section 73 plays in this. Attempts to make currently unviable schemes viable invariably involve an intertwined mix of scheme changes and changes to planning obligations. Section 73B, introduced by the Levelling-up and Regeneration Act 2023, is less useful as only the implications of the proposed changes are to be taken into account rather than considering the amended proposal holistically against the current development plan and other material considerations. This all needs to be connected up with the continuing problem that Hillside creates for amendments to projects (I was pleased to see Baroness Taylor confirm this week, on behalf of the government, in response to Lord Banner’s tabled amendment to the Planning and Infrastructure Bill, that the government will “explore with the sector” a “statutory role for drop-in permissions to deal with change to large-scale developments”. This is so important!).
  1. Is late stage (as opposed to early stage) review necessary in relation to the proposed “time-limited planning route”?

In basic summary, this route is where a residential scheme can commit to at least 20% affordable housing with a 60/40 social rent/intermediate tenure split with planning permission issued by the end of March 2028. If the first floor of the scheme has not been built by 31 March 2030 (in the case of larger phased schemes, in the case of any phase where the first floor of buildings providing at least 200 dwellings has not been built by that date), “a late review will be undertaken once 75 per cent of homes within the scheme or the final phase are occupied to determine whether a higher contribution for affordable housing can be made”.

Why the late stage review mechanism in these circumstances, rather than the early stage review that is currently the case with fast track schemes that don’t achieve substantial implantation by the specified deadline under London Plan policy H5? Late stage reviews unnecessarily spook funders and lenders, leaving the eventual outcome too late in the process – and also having the public policy disbenefit of being too late to allow for any further affordable housing, that can be unlocked via the review, to be accommodated within the scheme. There is also inconsistency with paragraph 30 which suggests another approach for multi-phase schemes: “For multi-phase schemes, a review of the scheme will apply prior to the start of each phase for which the milestone in paragraph 27 has not been reached, to determine whether additional affordable housing can be provided in subsequent phases.”

Isn’t it better to keep things simple and follow, where possible, the existing mechanisms within policy H5, just with the thresholds temporarily reduced?

  1. Are there unnecessary difficulties with introducing a viability test into the proposed CIL relief?

Permissions which are secured via the new time-limited planning route that commence after the relief is in place and but before December 2028 will qualify for at least 50% relief from borough CIL (NB is this 50% after reliefs and exemptions have been applied and what will be the calibration to work out the higher level of relief where the scheme is delivering more than 20% affordable housing?), but the relief would be “contingent upon meeting proportionate qualifying criteria to ensure relief is targeted at schemes which would otherwise remain stalled or fail to come forwards, with a lower relief applicable where the full available amount is shown not to be warranted.” This sounds complicated. With this hurdle in place, not only would the developer not know whether they will qualify for the relief until planning permission is granted and they receive their liability notice, but it means that the purported advantage with the time-limited planning route of not having to undertake viability assessment is illusory, because the work will be needed in any event to secure the CIL relief – and the requirement will surely be very hard to turn into workable legislative drafting – we know how difficult exceptional circumstances relief is to secure due to the various criteria and requirements built into that particular mechanism.

  1. Are the proposed additional powers to be given to the Mayor enough?

Boroughs would be required to “refer planning schemes of 50 units or more where the borough is minded to refuse the application – this would be a more streamlined process operating alongside the existing referral threshold of 150 units which applies regardless of a borough’s intended decision, and would ensure that the Mayor was able to review whether the right decision had been reached in the context of the housing crisis.”

But there may well be cases where schemes are being held up at borough level, either pre-resolution or post resolution whilst for instance the section 106 agreement is being negotiated, and where securing planning permission by the end of March 2028 will be critical under this package of measures. Here, speedy intervention, or threatened intervention, by the Mayor could really help. So, for this time limited period at least, why not allow the Mayor to intervene at any time after the end of the statutory determination period in relation to any scheme comprising at least 50 dwellings? Otherwise, that absolute cut of the end of March 2028 for grant of planning permission will need to some flex built in to allow for the possibility of appeal etc.

I’ll confine myself to those four although I have others, and I know that you do too…

NB none of this is to be churlish as to the scale of the task that MHCLG and the GLA have before them. It is of course by no means easy to get this package right and to avoid unintended consequences.

Simon Ricketts, 1 November 2025

Personal views, et cetera

Commons Select Committee: Land Value Capture

Today’s Commons Housing Communities and Local Government Committee’s report Delivering 1.5 million new homes: Land Value Capture (28 October 2025) contains recommendations which are more wide-ranging than the report’s title would suggest: some practical and, one would hope, uncontroversial; others touching on some raw political nerves at MHCLG no doubt.

Starting with the latter, do turn to the “epilogue” which comments directly on what were at that stage just media reports as to the “package of support for housebuilding in the capital” announcement which the government and the Mayor of London issued on 23 October 2025. The Committee expresses itself to be “seriously concerned by media reports that London’s affordable housing target could be cut” and “the Secretary of State may be considering suspending local authorities’ powers to charge the Community Infrastructure Levy to address concerns about development viability. None of the evidence to our inquiry—including from representatives of developers—advocated abolishing CIL entirely as a means of addressing viability concerns. On the contrary, we heard that the Government should reform CIL to extend its coverage where it is viable.”

“The Ministry must continue its work with the Greater London Authority to deliver an acceleration package, so that London boroughs are delivering housing in line with their local housing need targets. In response to this Report, the Ministry must provide its assessment of how changes to London’s affordable housing target may deliver more affordable housing units, by increasing the number of new homes built overall. Any reduction to London’s affordable housing target must be accompanied by a clawback mechanism to ensure developers return a portion of their profits to the local authority, ringfenced for affordable housing delivery, if a development surpasses an agreed benchmark profit. If London’s affordable housing target is reduced and the number of affordable housing units delivered declines, the Ministry and the Greater London Authority must commit to reinstating the 35% target.”

Perhaps this epilogue is slightly premature, given the actual announcement proved only to be a prologue to a consultation process that will run “from November” (late November is my guess). Perhaps the Committee should hear further evidence on that back of the consultation material to be published – it is slightly odd to be responding just to a newspaper report, particularly given that the actual announcement has been made.

But that epilogue does point to the fundamental policy tension in the current economic environment: what matters most – affordable housing delivery by percentage, or by absolute numbers? See for instance its recommendation that the government’s “forthcoming reforms to its guidance on viability assessments must ensure developers reliably deliver on their agreed affordable housing commitments, with viability assessments only used to alter these commitments retrospectively in the most exceptional circumstances. To support this, we recommend that all local authorities in England must be encouraged to set a minimum percentage target for affordable housing in their local plan [NB what don’t?], with a ‘fast-track’ route planning route for developments which meet this local target.”

“Too often, site-specific viability assessments are used by developers to negotiate down affordable housing requirements in circumstances where this is completely unjustifiable. Affordable housing contributions are frequently the first provision to be cut following a viability assessment, even where a developer may be making other significant contributions through Section 106 agreements and CIL. In areas with high land values, viability assessments should only be used in this way in very exceptional circumstances. Currently, not all local authorities have their affordable housing requirements clearly set out in local policy. Greater clarity from local authorities would provide developers with the right incentives to avoid lengthy viability negotiations, and ensure more applications are meeting local affordable housing requirements from the outset.

As part of its ongoing review of the viability planning practice guidance, the Government must consider how different types of developer contribution could be re-negotiated following a viability assessment, to protect affordable housing contributions. The Government must also update national policy to encourage all local authorities to set a minimum percentage target for affordable housing in their Local Plan for all major developments that include housing. This figure should be based on a local need assessment for affordable housing in each local authority, with particular regard for the local need for Social Rent homes. Local authorities should be encouraged to offer a ‘fast-track route’ for developments which meet the local affordable housing target, by making those developments exempt from detailed viability assessments and re-assessments later in the development process. This would encourage developments with a high percentage of affordable housing and speed up the delivery of housing of all tenures.

The Government must continue to develop its proposal to publish indicative benchmark land values to inform viability assessments on Green Belt land across England. The Government must publish different benchmark land values for each region of England, to reflect variation in land values. The Government must also ensure that the viability planning practice guidance contains clear advice on the “local material considerations” that would warrant local adjustments. The Government should continually review the effectiveness of the policy and consider how it may be extended to development on land that is not in the Green Belt.”

On land value capture itself:

“There is scope to reform the current system of developer contributions in England to capture a greater proportion of land value uplifts from development to deliver affordable housing and public infrastructure. There is a compelling case for such reforms—especially in the context of a deepening housing crisis and with public finances currently under strain. However, a radical departure from the Section 106/Community Infrastructure Levy (CIL) regime, which currently constitute the existing mechanisms of land value capture in England, would risk a detrimental impact on the supply of land in the short-term. We recognise that this would be disruptive to the Government’s housebuilding agenda.

Reforms to land value capture should be iterative, starting with improvements to existing mechanisms. Therefore, the Government must immediately pursue the reforms to Section 106 and CIL outlined in the chapters below. These reforms must optimise the system’s capacity to capture land value uplifts and deliver infrastructure and affordable housing—particularly homes for Social Rent—in line with the Government’s wider policy ambitions. The Government must also trial additional mechanisms of land value capture in areas where there are significant uplifts in land value which current mechanisms may not capture effectively. Specifically, the New Towns programme discussed in Chapter 5 presents a vital opportunity to test new ways of financing infrastructure delivery on large developments and learn lessons for future reforms.

Any reforms to land value capture should also be considerate of the wider tax system, to balance public needs and equitable charges on development. To support this work, the Government should publish updated land value estimates, which were last published in August 2020. If the Government does not intend to do so, it must explain why it no longer publishes this data.”

In essence, the Committee sees any radical change as likely to be disruptive to the government’s current agenda. Instead, it is recommending a number of changes which in my view are “no brainers”, for instance better resources for local planning authorities and looking to simplify the approach to section 106 agreements and to CIL:

Reforms to section 106 agreements

“There is a strong case for the introduction of template clauses for aspects of Section 106 agreements across England, as was recommended by the National Audit Office and others. Templates would allow local authorities to focus negotiations on site-specific factors rather than legal wordings. Template clauses would also allow for greater standardisation and clarity of requirements across all local authorities, and in turn reduce the workload of local authorities and Small and Medium-sized Enterprise developers.

As part of the site thresholds consultation that will take place later this year, the Ministry must seek views on how standardised Section 106 templates could most effectively streamline the negotiation process across sites of all sizes. Based on the consultation responses, the Ministry must work with the Planning Advisory Service to develop a suite of Section 106 template clauses and publish these within six months of the consultation closing. Alongside their publication, the Ministry must also update its guidance to local authorities on Planning Obligations to encourage local authorities to adopt these template clauses.”

I covered the same ground in my 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? Not only that, but my firm has also been working on an actual template draft for small and medium sized schemes and a specific set of proposals for ironing out the pinch points that currently exist at every step of the sway from arriving at heads of terms through to agreement completion. This was there to be grasped – it is a national embarrassment. We held a workshop on 30 September 2025, attended by a selection of thirty or so lawyers and planners from the public and private sectors, developers and representatives of industry bodies with MHCLG present in an observer capacity. If you weren’t invited I apologise but we were limited by the size of our meeting room! The draft output from the workshop will be released next month. If there is an organisation out there which is willing to make a larger space available in late November for a launch event please let me know.

Section 106 dispute resolution scheme

This may be why I write blog posts…. The Committee picked up on a reference I made in the blog post mentioned above to section 158 of the Housing and Planning Act 2016 which has never been switched on, allowing for a dispute resolution procedure to be able to be invoked where necessary during the course of negotiations.

“Local planning authorities across England have expressed concern that protracted Section 106 negotiations are causing delays to housing delivery. Drawn out negotiations do not benefit public outcomes and cause undue delays to development, which may impede the Government’s housebuilding ambitions. Whilst we recognise the Minister for Housing and Planning’s concerns that introducing a dispute resolution scheme may add complexity to the system, we believe the potential benefits to affordable housing delivery and unlocking stalled development outweigh this risk.

The Government should introduce a statutory Section 106 dispute resolution scheme, under the provisions of the Housing and Planning Act 2016. If the Government does not intend to pursue this, it should set out a detailed explanation as to why the Ministry has chosen not to implement the provision legislated for by Parliament in the 2016 Act. This should include setting out any specific technical or legal barriers to implementation which the Ministry has identified.”

Community Infrastructure Levy

Again, nothing earth-shattering. Rather, calls for more transparency as to which authorities are charging CIL and at what rates; widening opportunities for authorities to pool receipts (and recognising the opportunity that the reintroduction of strategic planning will bring) and greater focus on infrastructure funding statements.

On new towns:

The Committee calls on the government to set out where the funding is to come from (“The Government’s New Towns programme is likely to require billions of pounds of public and private investment over several decades, including millions from HM Treasury to establish development corporations during this Parliament”); greater use should be enabled of tax increment funding to fund infrastructure in cities and new towns. Specifically on the role that land value capture might play:

“There is significant potential to use land value capture as part of funding the proposed New Towns, especially on green field sites. However, we are concerned that the Government has announced substantial detail of the 12 potential sites without a planning policy to protect land value, contrary to the recommendation of the New Towns Taskforce. It appears that the Government has not yet established any delivery body to purchase land or enter agreements with landowners, which risks allowing developers considerable time to acquire sites for speculative development and immediately push up land values. The Taskforce said that, in the worst-case scenario, this could “jeopardise New Town plans”.

The Government must immediately conduct an analysis of Existing Use Values (EUV) on each of the 12 sites to maximise the capture of future land value uplifts, and develop plans for using appropriate mechanisms for land value capture on each site. This must include the option of development corporations using Compulsory Purchase Orders to assemble land where ownership is fragmented or negotiations stall. The Government must ensure arrangements for the purchase of land on New Towns sites are in place before it announces its final decision on locations by spring 2026.”

“The Ministry is right to prioritise New Towns which have the greatest potential to boost housing supply in the short-term, but its plan to “get spades in the ground on at least three new towns in this Parliament” does not match the scale of the Government’s housebuilding ambition. The New Towns programme can and must make a contribution towards increasing housing supply during this Parliament.

The Government must immediately clarify how housing delivery in New Towns will interact with local authority housing need targets. In its final response in spring 2026, the Government must include a roadmap for the New Towns programme, to show when each development corporation will be established, when development will commence on each site, and the estimated development timeline for each New Town.”

So will the government meet its 1.5m homes target?

“The housing sector is eagerly awaiting the Government’s Long-Term Housing Strategy, which it first announced in July 2024. Originally, this was to be published alongside the Spending Review in spring 2025. The continuing lack of a cohesive plan to deliver 1.5 million new homes has left the sector in the dark. We are also deeply disappointed that the Government has been unwilling to engage with us on the development of the Strategy, or provide any updates on its delayed publication, other than to tell us that it will be published “later this year”.”

“The Government can only begin to make significant progress towards its 1.5 million target once the sum of local housing need targets in Local Plans add up to that figure. Whilst the Government’s reforms to the National Planning Policy Framework seek to plan for approximately 370,000 new homes per year, local authorities will take several years to transition to this national annual target, as the currently Local Plans take seven years to produce and adopt on average. The Government has stated its ambition to introduce a 30-month plan-making timeline, but the relevant provisions in the Levelling-up and Regeneration Act 2023 to speed up plan-making have still not been implemented.

The Government must immediately bring forward its Long-Term Housing Strategy without further delay. It must set out an ambitious, comprehensive, and achievable set of policies that will deliver 1.5 million new homes by July 2029. The Strategy must prioritise implementing reforms to the plan-making system to move towards a 30-month timeline. The Strategy document must include an annex to provide the Ministry’s assessment of how many net additional dwellings each policy change will contribute towards annual housing supply, adding up to 1.5 million new homes over the five-year Parliament. If the Ministry is unable to supply this, the Government must make an oral statement to the House to confirm how many new homes it will deliver by the end this Parliament.”

There we have it. If nothing else, that will all spur us on with the work on the template section 106 agreements work and, related to that, I’m very keen to discuss how section 158 of the Housing and Planning Act 2016 might provide an effective, light touch, procedure.

Simon Ricketts, 28 October 2025

Personal views, et cetera

Some Week, Some Thoughts

This post will mostly be about judicial review but if instead you have come here for a summary of the implications arising from the joint government/Mayor of London package of support for housebuilding in London (23 October 2025) why not listen to my interview with Concilio’s Nick Dines and we’ll see you back here in 35 minutes?

Judicial review…

Depends which side you’re on doesn’t it.

There have been at least two interesting judgments in the last couple of weeks, interesting for different reasons which nothing to do with the substantive issues involved. I’m not going to summarise the actual cases because they are both covered well (by my Town Legal colleagues Archie Hunter and Adam Choudhury respectively) in Town Legal’s latest weekly planning judgments update (you can subscribe gratis via the button at the foot of the update):

All I wanted to say about CG Fry, given all the excellent summaries that are already out there (including Archie’s), was:

  • Fortune favours the brave. This is a case which was lost by CG Fry at first instance and in the Court of Appeal (all this of course following an unsuccessful planning appeal at which the same arguments were run). Who might have given up rather than carry on, with the exposure to costs arising? Great credit is due to Lord Charlie Banner KC. Would you in that position be resilient enough to hold to your initial opinion and to retain the trust of those relying on it? I’m thinking back to Richard Harwood KC in Dill v Secretary of State (Supreme Court, 20 May 2020) – where the stats were the same: LLW. I’m thinking back also to Estelle Dehon KC in R (Finch) v Surrey County Council (Supreme Court , 20 June 2024) – ruled unarguable on the papers, unarguable at renewal hearing, arguable by the Court of Appeal on two grounds, dismissed then by the High Court and then by the Court of Appeal before success in the Supreme Court: LLWLLW. Within boundaries (some cases are sure-fire losers), litigation is inherently uncertain. Judgments of lower courts may be overturned on appeal. It isn’t over till it’s over. I’ll come back to that theme in my comments on HyNot.
  • Isn’t it interesting that the outcome of the case turned upon the decision of a previous government that the “easy” way to give Ramsar sites the same protection as habitat sites that are protected under the Conservation of Habitats Regulations (special areas of protection and special protection areas) was simply to set that out in national policy rather than by way of amending the relevant legislation? That is now being rectified, belatedly, by way of a government amendment to the Planning and Infrastructure Bill. But isn’t there a lesson when it comes to the NPPF itself or rather the proposed National Development Management Policies, envisaged by mechanisms set out in the Levelling-up and Regeneration Act 2023 as being statutory documents with equivalence to statutory local development plans. Parliament clearly considered that it would not be enough for NDMPs to be given weight through policy-expression but we are all waiting to see in what form these NDMPs are finally going to emerge.
  • Lastly, it’s nice to read a Supreme Court judgment that is so straightforward and clear in its expression – and descriptive of the planning system in a way that any of us would recognise. It’s not always the case (mentioning no names, *coughs* Hillside).

Now to HyNot, again some excellent summaries out there (including Adam’s) so I just wanted to focus on the judge’s comments about “promptness” in bringing judicial review proceedings and on whether the “arguability” threshold should be higher in some cases:

  • This was a permission hearing, where the claimant simply needed to persuade the judge that the claim was arguable.
  • What was under challenge was the grant of consent by Secretary of State for Energy Security and Net Zero of the “HyNet Carbon Dioxide Transportation and Storage Project – Offshore” The project “comprises 3 geological gas storage sites in the Liverpool Bay Area beneath the East Irish Sea. The proposal is designed to store 109 million tonnes of carbon dioxide and is a core part of the Government’s legal commitment to Net Zero. It is expected to create 2,000 construction jobs. The Development (called the Liverpool Bay CCS project) is part of a nationally significant infrastructure development in the North West which will have a very significant regional and national economic impact.”
  • The second paragraph of the judgment describes the claimant as follows: “The Claimant company and the group of individuals behind it do not like CCS in relation to power generation. They oppose it because they believe that CCS in relation to power generation and ‘blue’ hydrogen production is a costly and time-consuming distraction that will lock society into continued fossil fuel use and prevent investment in other more proven climate solutions. The Claimant is a Company Limited by Guarantee which was incorporated the day before this claim was filed. The name chosen by the incorporators of their company, “HyNot”, reveals the nature of its opposition to what, as appears below, is loosely known as the “HyNet Cluster”. The Claimant represents a campaign group which its director, Nicky Crosby, describes as being a loose group of campaigners from different environmental and climate campaign backgrounds, such as Frack Free Dee, Friends of the Earth, Extinction Rebellion, Chester Sustainability Forum, and CAFOD.”
  • Unlike more usual planning cases where there is now a six weeks’ deadline for bringing judicial review proceedings, this was a claim where the traditional judicial review deadline applied that the claim must be brought “promptly … and in any event not later than 3 months after the grounds to make the claim first arose”. The claim was brought on the last day within the three months’ deadline.
  • After finding the claim to be unarguable, the judge found that he would also have refused permission on the basis that the claimant failed to act “promptly”: “challenges to major infrastructure call for particular urgency. Whilst the volume of documentation was substantial, that did not in my judgment justify the delay, especially in circumstances where the Claimant ultimately filed only on a protective basis, without a pleaded case. I consider that the Claimant was aware of all of the information it required to enable it to bring proceedings on the grounds pleaded approximately 8 weeks before it filed its ‘protective’ claim. Certainly, by the end of April 2025 it was aware of the essential substance of the grounds that would have been available to it, and that is all that was required (see British Gas at paras. [141]-[145]). Detailed disclosure normally follows the grant of permission for judicial review, which is the trigger for the duty of candour and cooperation with the court and is not necessary before a claim can be brought (see British Gas at [145]). There is no reason why the Claimant could not have filed (whether ‘protectively’ or with proper pleadings, to be amended if required) much sooner. It is apparent, however, that the Claimant took the position that it could simply wait until the last day of the three-month period to file. The courts have stated emphatically that that is not the case.”
  • Whilst Saini J found the claim to be unarguable, there is an interesting concluding passage in the judgment recording that counsel for the government had urged the judge in submissions “to apply a more demanding test of the Claimant at the hearing than the traditional arguability test familiar at the permission stage”, relying on case law starting with the 1994 Mass Energy case. Counsel (Charles Streeten) “argued that the Claimant must satisfy a heightened test described as a “reasonably good prospect of succeeding” at a substantive hearing. The following facts were said to justify this more onerous hurdle: (1) the urgency (illustrated both by the categorisation of this claim as Significant under CPR 54D paras. 3.1 and 3.2 and by the measure of expedition ordered by Mould J); (2) the fact that a decision on permission has been adjourned to a hearing listed for half a day; (3) that the Court will have the benefit of extensive written and oral submissions from all three active parties; and (4) that the claim substantially affects the interests of a third party (the Developer).”  Whilst this proved unnecessary for his reasoning, Saini J went on to consider this argument “obiter” as lawyers like to say, i.e. even though it was not determinative and therefore less binding in terms of creating any legal precedent, although in my view still interesting. He considered “that there was substantial force in Mr Streeten’s submissions. A court does retain the discretion to require more of a claimant in establishing the merits of its case at a hearing of the type convened before me concerning an urgent matter of national importance, where there has been substantial pre-reading, detailed skeletons and oral submissions over half a day from all relevant parties. The grant of permission in a planning case on the type of facts before me is in itself highly likely to cast a long shadow over a development of national interest, with substantial financing and construction arrangements involving many third parties. I can see the force of an argument that much more than mere arguability of a claim (such as establishing that the claim is more likely than not to succeed) should be required in circumstances where such prejudice will be caused. Uncertainty as to the legal position is itself highly prejudicial in commercial arrangements.”

All this is relevant in the light of continuing thinking by the government as to ways of closing down unmeritorious judicial review cases. I referred in my 25 January 2025 blog post to the government’s announcement as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects (now the subject of provisions within the Planning and Infrastructure Bill), following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs (NB there really are other barristers out there I feel sure, I’m not being sponsored or anything). Lord Banner had recommended that there may be a case for raising the permission threshold for judicial review claims challenging DCOs (“There is much to be said for raising the threshold for permission to apply for judicial review of DCOs, to the heightened Mass Energy threshold, so that only those claims likely to succeed are allowed to proceed to a substantive hearing. There is no right, either under UK constitutional principles or international law, for an arguable but weak or mediocre claim to proceed to a full hearing rather than being weeded out beforehand)”, but the government was not inclined to accept this; perhaps the courts are beginning to get there of their own volition in relation to challenges of nationally significant projects? (Although what is the risk that a claim such as that in Finch is prematurely ruled out?). The big question is of course: if these measures are appropriate for challenges to nationally strategic infrastructure projects, why should they not be introduced in relation to planning-related challenges more generally?

To my mind, it is good to see the tough line taken by Saini J on promptness. Given the six weeks’ deadline for planning-related judicial review cases, why is there even still the traditional “prompt but in any event within three months” test, which can be so uncertain in its practical application? I’m currently dealing with a case, in relation to a proposed commercial development, where the claimant (a public authority) filed a day out of time, the challenge delaying significantly a development project, resulting in, according to my client’s evidence, several million pounds of lost rental income. The court has taken over three months before finally allowing the claim to be filed out of time. What sort of signal does this send? Is there some sort of institutional bias towards large infrastructure developments?

And on the question of court delays, is anyone else experiencing unusually long delays before securing decisions at the permission stage on the papers? I have one case where we filed on 6 May. Still… nothing.

Getting the balance right in relation to sieving out unmeritorious judicial review cases is so important given the implications not just for the project under challenge but in terms of giving reassurance to all those operating in the planning system that every document does not need to be “gold plated” as an insurance against even unmeritorious challenge. The fear of a claim for judicial review (successful or otherwise) is skewing every stage of the system!

Finally,  as a result of an amendment to the Planning and Infrastructure Bill tabled by a conservative peer, also a working planning KC (*checks notes* him again!!), the government is put forward its own amendment which will build on the current provisions in the Town and Country Planning Act 1990 which allow for an extension of the time for implementing a planning permission which has been challenged by way of judicial review. At present, under section 91 (3), if proceedings are brought to challenge the validity of a planning permission, the deadline for implementation is extended by one year.  The amendment will extend the deadline by a further year if the proceedings have permission to go to the Court of Appeal and by two years if they have permission to go to the Supreme Court. In the case of outline planning permissions, reserved matters submissions will be extended by equivalent periods.

All good and necessary but any steps to speed up judicial proceedings, and to sieve out doomed claims as at early as stage as possible, would of course be more likely to address the root problem.

Simon Ricketts, 24 October 2025

Personal views, et cetera

London Stalling

This one is about the current position with London (non) development and some thoughts about what procedural steps may be open to you if you are a London (non) developer with a planning permission for a scheme that is no longer viable to build out.

On 14 October 2025, Molior published figures for Q3 2025 construction starts and sales in relation to schemes in London with 25+ homes for private sale or rent. Apologies for the extensive quoting but their summary is clearer than anything I can write:

“Between 2015 and 2020, there were 60-65,000 homes for private sale or rent under construction in London at any given time.

Today, that number has fallen to 40,000 … and 5,300 of those are halted part-built.

With a surge of completions expected in 2026, Molior forecasts that just 15-20,000 new homes will be actively under construction on 1st January 2027.”

“London had just 5,933 new home sales in Q1-Q3 2025.

Sales rates are weak across all local markets and at every price point.

At prices up to £600 psf – the level at which most London owner-occupiers can buy – sales to individuals are virtually non-existent.”

“Build-to-rent completions are about to plunge.

Interest rates rose during 2022, then the Liz Truss budget pushed them higher.

This stopped new money from funding London multifamily development.

Completions are set to disappear after 2027 because construction starts fell in 2023 / 2024.”

“There were 3,248 private starts in Q1-Q3 2025.

London is now on track for fewer than 5,000 private construction starts in 2025.”

“Starts have been falling for a decade because sales rates and profitability have been falling for a decade.

Building Safety Regulator delays have made things worse in 2025.”

“Development is unviable across half of London.

Development costs are high, so it is unviable to build profitably in half of London – areas under £650 psf.

This is even if the land is provided free and there are no planning obligations like CIL and affordable housing.”

“London has 281,000 unbuilt permissions.

These numbers are private + affordable C3 permissions.

The numbers include outline consents, detailed consents and unbuilt phases of schemes partly under way.

Also included are projects successful at committee but still waiting S106 sign-off.”

Set all that alongside the homelessness and rough sleeping crises in London. The BBC reported yesterday that more than 132,000 households were living in temporary accommodation on 30 June 2025, up 7.6% from the same time last year. Aside from the human cost, this is of course at a huge financial cost for London boroughs: £740m ‘black hole’: London’s temporary accommodation crisis draining local resources (London Councils, 13 October 2025). And at the sharpest end: Number of people “living on the streets” of London increases by 26% (Crisis, 31 July 2025).

Whilst I try not to wear out my two typing-fingers commenting on press speculation about forthcoming announcements, I think we can assume that the government and the Mayor of London will soon be announcing various measures to try to turn this around or at least provide some sort of jump-start (note to government press team, I suggest that we are in “jump-start” rather than “turbo-charge” territory). See for example the Guardian’s 17 October 2025 piece London developers to be allowed to reduce percentage of affordable homes.

The spectre in the press pieces of some temporary reduction in developers’ threshold for qualifying for the Mayor’s fast-track (i.e. basically avoiding the need for formal viability appraisal and a late stage viability review mechanism if they can commit to a level of affordable housing which is usually 35%, with a policy-compliant split of affordable housing tenure types within that – see policy H5 of the London Plan for more detail) down to perhaps 20% is being seen by some as amounting to an actual reduction in the amount of affordable (and particularly socially rented) housing that will be developed.  But this analysis is unfortunately wrong: very few schemes are currently proceeding with 35% or more affordable housing.  Viability appraisals either agreed or accepted after scrutiny on appeal (this is not developers cooking the books) are already coming out at way less than 20%, let alone 35% (which is why simply reducing the threshold alone wouldn’t be enough). See for instance the inspector’s decision in relation to the Stag Brewery appeal (summarised in my 4 May 2025 blog post (7.5% affordable housing) and the 29 May 2025 decision letter in relation to a proposed tower block in Cuba Street (16.6% affordable housing). Nor is this a purely London phenomenon, if you recall last month’s Brighton Gasworks decision (summarised in my 27 September 2025 blog post) (zero affordable housing).

20%, plus the other measures being whispered about such as increasing subsidies for socially rented housing and/or allowing councils not to charge CIL, may tip the balance so as to turn some non-developers back into being developers again and thereby deliver more affordable housing (including socially rented housing) in absolute numbers (which is what counts after all) than is currently the case.

But what about the many schemes consented on the basis of 35% or more, that simply aren’t proceeding, at least beyond basic operations to keep the permission alive (see my 7 September 2025 blog post The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive)?

If we look to amend existing, unviable, section 106 agreements, no longer do we have the benefit of section 106BA, a provision introduced in April 2013 via the Growth and Infrastructure Act 2013, to allow developers to apply to modify or discharge affordable housing obligations in Section 106 agreements where those obligations made a development economically unviable, and then repealed three years later in April 2016. That provision unlocked various stalled permissions at the time. Is it too late, or too unpalatable, for an amendment to the Planning and Infrastructure Bill simply to reintroduce it?

Instead, the main routes are:

  • If the section 106 planning obligation is at least five years’ old, a formal application to the local planning authority can be made under section 106 A of the Town and Country Planning Act 1990 on the basis that the relevant obligation, unless modified, “no longer serves a useful purpose”.  The test is expressed very generally which is unhelpful but the case would be that if the obligation is causing development, otherwise beneficial, not to proceed, it cannot be serving a “useful purpose”. There is the right of appeal to the Planning Inspectorate.
  • Seeking variation of section 106 planning obligations in the slip-stream of an application made under section 73 of the Town and Country Planning Act 1990 (an application, of course, for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted – and which is to be assessed against the current development plan and other material considerations). This was the route taken in the Cuba Street appeal I mentioned above. Full planning permission had been granted in December 2022. A section 73 application was made to amend the approved floor plans set out in the schedule referenced in condition 2 of that permission, to “provide an increase in the residential units from 421 to 434, and a reduction in the affordable housing (AH) provision from 100 (71/29 affordable rented to intermediate split as a ratio) to 58 (66/44 affordable rented to intermediate split as a ratio). In percentage terms the change in AH would be from 30.15 % to 16.6%. A consequence of these changes would be amendments to conditions 24 and 29, with respect to wheelchair accessible homes and cycle storage, given that they relate to the quantum of development subject to the original permission.”
  • Negotiating a deed of variation to the section 106 planning obligation, outside these formal procedures, without any recourse to appeal if the authority is resistant.
  • A fresh application for planning permission – utterly the nuclear option in times of cost, time and risk.

If there is indeed some form of announcement from MHCLG and the Mayor of London, I will be interested to see:

  • What is said about existing stalled permissions and any advice that is to be given to boroughs as to the approach they should take when approached by way of any of these procedural routes.
  • More generally, how will any announced (presumably temporary) relaxations with regard to the London Plan policy H5 threshold approach  or any other policy requirements sit as regards section 38 (6) of the Planning and Compulsory Purchase Act 2004 (“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise”)? Where there’s a will there’s a way but this is all another reminder, as if we needed it, that the process for reviewing and updating the London is so slow as not to be fit for purpose.

Oh and we still await MHCLG’s updated planning practice guidance on viability.

“London calling, at the top of the dial.

And after all this, won’t you give me a smile?”

Simon Ricketts, 18 October 2025

Personal views, et cetera

Hillside: Every Journey Starts With The First Step

Various people have asked me what I made of the amendment to the Planning and Infrastructure Bill that Lord Charlie Banner KC sought to introduce last month, seeking to lance the large boil that is Hillside (and if that word means nothing (1) lucky you, read no further, or (2) please read my 2 November 2022 blog post Running Down That Hillside).

The truth is that for a long time I couldn’t really face getting back into the subject, having failed to get traction for expansion of what became section 73B when the Levelling-up and Regeneration Act Bill was passing through its Parliamentary stages, and, before that, having sat behind Charlie at the Hillside Supreme Court hearing. The problem is real, but arriving at a workable solution is hard.

The amendment was as follows:

Huge credit to Charlie because, if nothing else, his amendment has put the issue back on the table with MHCLG. Baroness Taylor’s response in the debate on 11 September 2025 (see columns 1736 to 1741), contained the following passages:

“The Government recognise that the Hillside judgment and subsequent court decisions have caused concerns across the development sector, and the noble Lord was kind enough to send me some of the articles that have been written since, setting out which problems they are causing. It has made it more challenging to use the practice of drop-in permissions to deal with changes in development proposals for plots on large-scale residential and commercial development in response to changing circumstances.”

“We want to ensure that large-scale developments, where they need to change, can secure the necessary consents to deal with these changes effectively and proportionately. Unfortunately, we are not persuaded that Amendment 169 is the solution to Hillside for overlapping planning permissions. It is too broad in scope, and we must be absolutely sure that it would not undermine the integrity of the planning system. The long-standing principle that Hillside endorsed—that it is unlawful to carry out a development when another permission makes it physically impossible to carry it out—is a sound one. Decisions are made on the merits of the entire development proposal, and this amendment would allow developers to pick and choose what parts of an approved development they wanted to implement when they had a choice.

Similarly, we need to consider carefully the implications of legislating to deal with overlapping planning permissions and development consent orders in general terms. […]

“We want to ensure that there is sufficient flexibility to deal with change to large-scale developments. Clause 11 already provides a framework for a more streamlined and proportionate process to change development consent orders, but we also want to look at how the framework can be improved for planning permissions. We would welcome further discussions with your Lordships and the wider sector on this matter.”

All this stuff about considering carefully and further discussions is all well and good but perhaps the next step now should be to keep a number of planners and planning lawyers in a locked room until they have arrived at a refined version of the proposal which is watertight, legally and in public policy terms? What situations are people actually worried may arise? How can those outcomes be designed out?

I don’t want to be locked in the room but to start the discussion…

I think we need a bit of clarity as to how an authority actually states in the later permission or in a section 106 agreement that the lawfulness of past and future development carried out pursuant to one of those planning permissions shall be affected. This wouldn’t really appropriately be done by way of a planning condition. Nor would it be part of the operative part of the permission. A statement of the legal effect of implementation of the permission on another permission or permissions sounds more like a role for an informative (although to have such a declaration with legal effect within an informative would be unprecedented and something for subsequent purchasers’ solicitors to root around for in acquisition due diligence processes) but what are the guardrails, for instance:

(1) Surely the local planning authority shouldn’t by this route be able to affect the lawfulness of past development (the Supreme Court in Hillside ruled out any potential effect on the lawfulness of development which has already happened)?

(2) Surely a statement as to the lawfulness of future development to be carried out under an existing permission should only be possible where otherwise Hillside could cause a problem ie where there would potentially be materially inconsistent development? Otherwise this could end up being potentially more constraining, dependent on the attitude of the relevant local planning authority.

(3) How can the rights of a landowner with the benefit of at least part of the existing planning permission be protected rather than find out after the event that another party has secured a permission with a statement that (potentially without justification) affects that landowner’s ability to continue to rely on that earlier permission?

(4) What is to prevent the outcome being a planning permission which allows plainly inconsistent planning permissions to be built out free even of the traditional Pilkington constraints?

These are the sorts of real-world issues the final version of any legislative provision would need to cover off. The drafting will be gnarly…

Secondly, we need to think about what procedural mechanisms would need to be put in place. For instance:

  • Should the planning application form include a question asking if within the planning application red line area there are any planning permissions on which the applicant still wishes to rely alongside implementation of any planning permission granted pursuant to this application, warning that if this question is not answered correctly, the consequence of implementing the planning permission sought may be that previously granted planning permissions may no longer be able to relied upon?
  • Should Planning Practice Guidance direct a local planning authority, in determining an application for planning permission, specifically to consider in a section of its relevant officer’s report whether there are any existing planning permissions, which relate to some or all of the land the subject of this planning application, and if so whether or not it would be appropriate in planning terms for further development to be carried out under each of those permissions should this application be approved and implemented? And might digital planning, possibly even the Extract tool, make this less of a paperchase than traditionally it certainly would be?

It’s good that people are thinking about all this again. But it is darned hard! Mountain not hill.

Simon Ricketts, 3 October 2025

Personal views, et cetera

Just What Is It About Today’s Planning System that Makes Appealing So … Appealing?

On 22 September 2025 the Secretary of State allowed two recovered appeals, granting planning permission for proposals which local authority members had refused against their professional officers’ opinions. In one of those cases, a full award of costs was ordered against the authority which I guess will amount to several hundred thousands of pounds. Development was unnecessarily held up in both cases for what turned out to be no good reason, in one case the decision to refuse having been in March 2024 following submission of the application in September 2022 and the other in May 2024 following submission of the application in November 2021. Both decisions were made in accordance with the relevant inspector’s recommendation.

I’m thinking back yet again to the Lichfields May 2025 research paper for the LPDF and Richborough Estates, How Long Is A Piece Of String? which found not only that applications for major development are taking twice as long to determine as 10 years ago but that it is now on average quicker to achieve permission via appeal than via the local planning authority.

I’m also thinking of the latest 50 Shades of Planning podcast episode Who’s In Control? (27 September 2025) where a number of us discuss, amongst other things, the ethical position of officers whose advice is overturned by councillors.

And I’m thinking that neither the proposed move to an increased number of applications being determined by way of delegated powers, and increased training for members, would have been likely to change the position with these two appeals. Do awards of costs influence behaviour? I would welcome your views. From the outside I’m not sure they really register either with councillors or, perhaps most importantly , with voters.

The two decisions were as follows:

Brighton Gasworks

Planning application submitted to Brighton and Hove Council in November 2021 by St William for a scheme that, following amendments,  included 495 residential units and 2,791 square metres of commercial space. It was recommended for approval in May 2024 but in the face of significant local opposition was resolved to be refused. The reasons for refusal (1) alleged the development would represent overdevelopment of the appeal site by virtue of excessive massing, density and height thereby harming the townscape of the area including its heritage assets; (2) related to the proposed housing mix (subsequently withdrawn) and (3) concerned the effect of the appeal scheme on the living conditions of future residents with particular regard to amenity and light.

St William appealed. The appeal was recovered by the Secretary of State. The inquiry sat for six days in March 2025. The Secretary of State’s decision letter accepted the inspector’s recommendations and allowed the appeal. The Secretary of State’s conclusions are worthy of note on issues such as character and appearance, density and height (paragraph 14),; the current negative effect of the “underused and despoiled” site on the “varied and robust urban townscape of east Brighton” (paragraph 15); daylight and sunlight and living conditions more generally (paragraphs24 to 28); and acceptance of the agreed position between the appellant and the council that the development would not be able to provide affordable housing given the high cost of remediating the site (paragraph 30).

In his accompanying costs decision letter, again accepting his inspector’s recommendation, he orders a full award of costs in favour of St William, on the basis that:

* the Council prevented or delayed development which should clearly be permitted, having regard to its accordance with the development plan, national policy and all other material considerations (CR48);

* the Council failed to produce evidence to substantiate each reason for refusal on appeal, made vague, generalised or inaccurate assertions about a proposal’s impact and failed to determine similar cases in a consistent manner (CR49); and

* there were substantial procedural failings on the Council’s part including an obstructive and untimely approach to the Statement of Common Ground, the submission of a Statement of Case which was bereft of meaningful detail and a failure to review.

When it comes to any councillor training programme I hope this appeal decision will be part of the study materials, including, verbatim, these conclusions from the inspector’s costs report:

“Had the Council had proper regard to its own Development Plan, the NPPF, other material considerations and carried out a proper balancing exercise, the application would most likely have been approved notwithstanding the concerns raised by Members. The Council therefore prevented or delayed development which should clearly be permitted, having regard to its accordance with the development plan, national policy and all other material considerations.

The Council’s objections did not stand up to scrutiny and therefore I find that the Council failed to produce evidence to substantiate each reason for refusal on appeal, made vague, generalised or inaccurate assertions about a proposal’s impact and failed to determine similar cases in a consistent manner. It goes without saying that a decision to refuse planning permission on an allocated site against the professional advice of officers requires very careful consideration and highly robust reasoning.

There were also substantial procedural failings on the Council’s part including an obstructive and untimely approach to the SoCG, the submission of a Statement of Case which was bereft of meaningful detail and a failure to review its case promptly following a material change in national policy.

The above unreasonable behaviour resulted in unnecessary or wasted expense, as described in the PPG. I therefore conclude that a full award of costs is justified.

While I understand that the above will come as a bitter blow to the Council, it is right that I acknowledge the important work of officers during what was a long preapplication and determination period. That work culminated in the production of a Committee Report which was of the very highest order. Officers were also beyond reproach for the way they assisted the inquiry.”

Sky Studios Elstree expansion proposal

Planning application submitted in September 2022 for a film and television production studio (use Class E(g)(ii)) with ancillary floorspace, backlot, new access arrangements, car parking, landscaping, infrastructure and associated works in the green belt north of the existing Sky Studios Elstree complex. Hertsmere Borough Council members had resolved to refuse the application in March 2024 against officers’ recommendations, concluding that the “very special circumstances” test had not been made out for inappropriate development in the green belt.

Sky Studios appealed in October 2024 and the appeal was recovered by the Secretary of State. The inquiry sat for four days in March and April 2025. The Secretary of State’s decision letter accepted the inspector’s recommendations and allowed the appeal. Following the introduction of the grey belt policy designation into the NPPF in December 2024, the Secretary of State found that the site was indeed grey belt. The only real issue was whether there was unmet need for the development, on which issue his findings were as follows:

“For the reasons given at IR14.20-IR14.23 and IR14.43, the Secretary of State agrees with the Inspector that Sky Studios Limited has identified a need to enlarge its current operation at SSE, that there is a reasonable and probable outcome that if the appeal is allowed, the type of development that would take place would be for an extension of the existing studio site at SSE, and that there is an unmet need for studio space related directly to the expansion of SSE (IR14.23).

In reaching this conclusion, the Secretary of State has taken into account that the description of development does not specify that the development would be used as an extension to the existing SSE site, and no condition requiring the development to be an extension has been put forward either (IR14.17). He acknowledges that it is conceivable that the proposed development could be operated as a standalone studio business separate to SSE without any restrictions imposed by the description and any planning conditions (IR14.19). However, taking into account the matters set out at IR14.20-14.23, the Secretary of State considers that the proposal is highly likely to be brought forward as an extension and that it is appropriate to proceed on this basis. He considers on that basis that unmet need has been demonstrated and carries substantial weight in favour of the proposal, and that the requirement in NPPF155(b) is met.

The Secretary of State has also considered what the need position would be on the basis of a standalone studio. He has noted the position set out at IR14.24-14.25, but like the Inspector considers that national and local economic policy seeking to grow the sector, and an increased spend in productions, do not in themselves equate to unmet need.”

“…if considered as a standalone studio, the Secretary of State considers that unmet need has not been demonstrated. On that basis, the requirement in NPPF155(b) would not be met, the proposal would therefore be inappropriate development in the Green Belt and very special circumstances would need to be demonstrated. As set out at paragraph 21 above, in that scenario the Secretary of State considers that the harm to the Green Belt in terms of inappropriateness, harm to openness and harm to purposes would have carried substantial weight. Although he has not proceeded on that basis, for the avoidance of doubt, he considers that the harm to the Green Belt and any other harm would be clearly outweighed by the benefits of the scheme such that very special circumstances would exist and development in the Green Belt would be justified.”

A textbook application of green belt principles. (Incidentally, in the unlikely event that you need a primer on grey belt I think you can still access a webinar I gave this week on that subject via Inside Housing – see here for more details).

Perhaps the outcome of the Sky Studios appeal only became obvious once we had the December 2024 NPPF but perhaps the big question for MHCLG should be, rather than further tweaks to law or policy, how to make sure that many more appeals like these two are not needed before the message gets through as to how the current legislation and policy framework is to be applied? Otherwise, whether through members’ overturns, or through non-determination appeals, schemes will be continuing to come before the Planning Inspectorate, with all the delay, expense and unnecessary risk thereby arising, that really should be determined appropriately at a local level. It’s reassuring that the appeal route is available but the relative attractiveness of that route versus waiting for a local outcome is not good in public policy terms – as I said at a breakfast discussion that we held at Town Legal this week alongside Shared Voice and Rupert Warren KC and attended by the interim chief planning inspector Rebecca Phillips (for which thanks for her participation), it’s the equivalent of people being unhappy with the service at their local GP and instead going straight to A&E…

Simon Ricketts, 27 September 2025

Personal views, et cetera

Just what is it that makes today’s homes so different, so appealing? 1956 collage by Richard Hamilton

Pragmatic Planning Guidance: The Revised Flood Risk PPG

The application of the flood risk sequential approach to development proposals has been watered down this week.

From being part of a sensible risk-based assessment as to where it is safe to locate development, the process has (like so much that we deal with) grown over time to become a technocratic obstacle course with plenty of traps for the unwary. See for instance my 19 July 2025 blog post A PPG Change Could Easily Mop Up This Surface Water Flood Risk Sequential Test Mess. As of 17 September 2025 we now have that revised planning practice guidance.

My Town Legal colleague Tom Brooks provided a mark up of the changes from the previous guidance. They are as follows:

The important change is that we move from a position where the sequential approach is still required where the site is currently at risk of flooding, even where that risk would be removed as a result of development, to a position where it is not required as long as “a site-specific flood risk assessment demonstrates clearly that the proposed layout, design, and mitigation measures would ensure that occupiers and users would remain safe from current and future surface water flood risk for the lifetime of the development (therefore addressing the risks identified e.g. by Environment Agency flood risk mapping), without increasing flood risk elsewhere.” So, if your flood risk consultant is in a position to reach such a conclusion, no longer does there need to be a wide trawl for other sites, currently at lower risk of flooding, where the development might be situated. Might developers still hedge their bets and engage in a sequential testing just in case an issue arises? I suspect so, but this change is certainly going to simplify applicants’ case as to flood risk matters in many instances – particularly, I suspect, where the only potential risk arising is by way of the accumulation on site of surface water.

Whilst not stated in the revised guidance, I note that disapplication of the need to follow the sequential approach also has the effect of relieving developers as well from complying with the two limbs of the “exception test” that have to be followed once the sequential approach has been navigated:

“a) the development would provide wider sustainability benefits to the community that outweigh the flood risk; and

b) the development will be safe for its lifetime taking account of the vulnerability of its users, without increasing flood risk elsewhere, and, where possible, will reduce flood risk overall.“

The reference in the revised guidance to the fact that, if a sequential approach is followed, housing considerations, including housing supply, should be weighed in the balance against the outcome of that process, is helpful express recognition of the approach already taken by various appeal inspectors (see again my July blog post): planning permission may still be granted even if the test is failed – if there are sufficient weighty counterveiling considerations.

The other amendments to the guidance give further clarity to the parameters of the search for alternative sites to be carried out under the sequential approach:

As with MHCLG’s February 2025 planning practice guidance on grey belt, at a time where the need to simplify and rationalise our current sprawling system is so acute and urgent, isn’t it interesting how pragmatic changes can still be be made without recourse to legislation or indeed even lengthy consultation processes?

Simon Ricketts, 21 September 2025

Personal views, et cetera

The Only Way Is Ethics – What Is The Role Of The Professional Witness?

In preparing for a 50 Shades of Planning podcast episode we are recording this week on the wider subject of ethics in planning I looked back on an interesting case on the position of those who give evidence as an expert in the High Court on planning issues in circumstances where they have previously been involved as a consultant in the project.

The position under the High Court’s Civil Procedure Rules is certainly tighter than the position in relation to those giving evidence at planning inquiries, for instance, but perhaps there are still lessons, or reminders at least, for the latter. The case is Freeman & Others v Home Farm Ellingham Limited (HHJ Claire Jackson (sitting as a High Court Judge in the Business and Property Courts in Newcastle-upon-Tyne, 17 April 2025) and it was brought to my attention by a LinkedIn post by James Maurici KC who I hope I will not mind my reproducing it in full as follows:

“Interesting recent judgment that I have just come across for those who give expert evidence in the High Court on planning and development related issues.

In Freeman v Home Farm Ellingham Ltd [2025] EWHC 878 (Ch) the Court was considering a claim for specific performance of an obligation to procure the adoption of an access road to a housing development. Of wider interest is the decision of the Court (HHJ Claire Jackson sitting as a Deputy High Court Judge) to rule inadmissible the evidence of one of the experts for the parties. The expert evidence for the claimant was challenged on the basis that he was partisan in his evidence and failed to therefore comply with his duties as an expert under CPR Part 35: see paras. 32 – 44 of the judgment.

The Court noted that the expert was heavily involved in the planning processes which led to the housing development in issue but that this did not in itself preclude his acting as an expert in the Court proceedings under CPR Part 35. The Court gives a useful summary of the principles applicable to the issue of independence of experts (see paras. 36 – 39). The Judge went on to rule the expert evidence inadmissible on the basis that (see para. 40) the claimant’s expert “was a partisan witness who both wrote his report and gave evidence at trial for his client in a non-impartial way” and that he (ibid) “did not act simply as an expert in the case, he acted as an advocate for the Claimant. This was obvious both from his written report and his oral testimony, where frequent criticism can be made of [the expert] for the tenor, tone and content of his evidence.” The Judge gives a list of examples of her concerns with the evidence (including among a number of matters that he “orchestrated the production of what appears to be factual evidence”). She concluded (see para. 41) he was “not impartial but rather acted to prefer the interest of the Claimant as his client and to advocate a case for it. This lack of impartiality affected both the preparation and presentation of [his] evidence, his assessment of the evidence and his findings” and (see para. 42) that the “partiality and desire to act as an advocate for the Claimant” had “permeated his entire report and his oral evidence and therefore it is not on this occasion appropriate to admit [his] report or oral testimony as admissible“.  

So an important case for those who give expert evidence in the development field at High Court level. And it is a reminder that the requirements of CPR Part 35 are perhaps more stringent than those that apply to the giving of expert evidence at planning inquiries and similar processes: see PEBA’s “Good Practice Memorandum 2: Guidance for barristers on dealing with experts at Planning and Other Similar Inquiries“.

The issue is a practical one: the local planning authority’s expert witnesses will often have been heavily engaged in the matter at application stage and sometimes may have publicly given advice to councillors on the issues, only for the advice to have been overturned. But it is potentially no easier for the appellant’s expert witnesses: the planning witness may have been heavily engaged in advising their client initially on the suitability of the site, perhaps making representations through the local plan process, coordinating the preparation of the application and so on – often having a long term relationship with the client, which may be affected by the outcome of the appeal (and of course may indirectly benefit from a successful outcome by way of follow-on work in relation to the project). In a system where professional, objective, opinions are at a premium, how to ensure that the inspector or Secretary of State gives weight to the evidence which professionals give on relatively subjective matters, where they are not coming at the issues from a fresh, entirely independent, perspective?

The Planning Inspectorate’s Planning Appeals Procedural Guide has only brief advice:

“15. Expert evidence

15.1. Expert evidence is evidence that is given by a person who is professionally qualified to express an opinion on a particular subject. It can be used in all appeals.

15.2. It is the duty of an expert to help the Inspector. This duty overrides any duty the expert may have to the party that involved them in the appeal or that is paying them.

15.3. The evidence should be accurate, concise, and complete and should represent the expert’s honest and objective opinion. If the expert belongs to a professional body that has a code of practice on professional conduct dealing with giving evidence, the expert is expected to comply with the code.

15.4. Expert evidence should include an endorsement such as that set out below or similar (such as that required by a particular professional body):

“The evidence which I have prepared and provide for this appeal reference APP/xxx (in this proof of evidence, written statement or report) is true [and has been prepared and is given in accordance with the guidance of my professional institution] and I confirm that the opinions expressed are my true and professional opinions.” This will enable the Inspector and others involved in an appeal to know that the material in a proof of evidence, written statement or report is expert evidence.

15.4.1. Giving expert evidence does not prevent an expert from acting as an advocate so long as it is made clear through the endorsement or otherwise what is expert evidence and what is not.”

For the purposes of this post I am just focusing on expert planning evidence, rather than other professional disciplines (but the same holds true right down the expert witness batting order).

RTPI members are subject to its code of conduct which includes the following:

“Independent professional judgement

11. Members must exercise fearlessly and impartially their independent professional judgement to the best of their skill and understanding.

12. Members must not make or subscribe to any statements or reports which are contrary to their own genuine professional opinions, nor knowingly enter into any contract or agreement which requires them to do so.

13. Members must base their professional advice on relevant, reliable and supportable evidence and present the results of data and analysis clearly and without improper manipulation.”

There is also more specific practice advice on ethics and professional standards, within which section 5 specifically deals with giving evidence at inquiries:

“The Code requires RTPI Members to act with integrity and express their own professional view.  As an ‘expert witness’ at a planning inquiry or hearing, you are there to give evidence in the form of facts and professional opinion. Facts must be true and professional opinion must be first hand. If the evidence is someone else’s opinion e.g. an assistant planning officer giving evidence of a chief officer’s recommendation to the local authority they can only do so as evidence of a matter of fact. There may be times where you must deal with a situation where your professional view is under scrutiny.

For RTPI Members employed by a public body (such as a local planning authority) in particular, you may be asked to defend a decision that differs from the public report you wrote recommending an alternative view. This can sometimes be referred to as a ‘committee overturn’. For RTPI Members employed in a private consultancy, a client may commission you to represent or ‘advocate’ their interests where, on balance, in your opinion the proposal that is being tabled at appeal needs improvement.

Dealing with committee overturns

When appearing as an expert witness you must disclose your independent professional opinion and should endorse this upfront in your witness statement or report. Advice from the Planning Inspectorate on ‘what is expert evidence’ and how to endorse the evidence you give is a useful guide for any professional planner regardless of which legal system you work within.

RTPI Members representing a decision that is a committee overturn and therefore contrary to their officer report should take care to avoid giving the impression any evidence they are presenting is their own professional view. Instead you may feel comfortable stating information as the ‘council’s view’ and therefore acting as an advocate for the case.

Clearly the RTPI Member whose professional opinion does not conform with recommendations the evidence is supposed to support is unlikely to be the best witness in such circumstances. You should discuss this possible situation with your manager who will want to consider the consequences for the employer if any difference in professional judgement comes to light during the appeal process. Concerns should be raised in good time to allow for any changes in personnel to be arranged.

The authority may still consider asking the officer to give technical evidence at the inquiry, but call someone else who is in the position to speak with conviction of the planning reasons for the authority’s decision. This could be either another council employee who is quite appropriately able to form a different professional view or, in some instances, the local politician who, as Chair of the Planning Committee, made the decision.

An authority may alternatively employ a planning consultant to undertake the task who can weigh up the information, development plan policy and other material considerations and also form a different professional view.

Planners as advocates

The role of an advocate is quite different from acting as an expert witness and involves taking the wider role of presenting to the inquiry or hearing what the authority or client would say for

themselves. An RTPI Member who takes on the role of advocate will need to have skills in advising on case content and presenting a case, and may need to seek further legal advice.

It is possible that you may be asked to act as an advocate and appear as an expert witness at a hearing or inquiry. You must decide whether the two roles are reconcilable, possibly after discussion with colleagues. You must have confidence that you are able to retain professional integrity, whilst serving the best interests of your client or employing organisation.

RTPI Members may still act as an advocate in cases where their professional views differ from the evidence being advanced, provided that they do not wilfully mislead the inquiry or fail to give the inspector or other officer the help they are entitled to receive.”

Still quite brief.

RICS members are subject to more detailed professional requirements, set out in a practice statement and guidance note for expert witnesses. I’ve previously noted – see my 20 October 2018 blog post Planning Inquiries: Expert Witnesses & Success Fees that was written on the back of a judgment of Holgate J (as he then) was in relation to a business rates case- that, unlike with the RTPI, the RICS professional guidance expressly prohibits success fees tied to the relevant dispute outcome, although surely this impliedly applies across the board.

It seems to me that transparent, enforced, rules governing the conduct of professional expert witnesses are essential given the nature of our system where ultimately most decisions on appeals turn upon issues of professional judgment. And in practice surely the more that the expert can demonstrate their professional independence and integrity and that their evidence is not influenced by any desire to advocate the client’s position, the more likely it is that the decision maker will give due weight to that evidence.

Sorry, that was all a bit dull. Hashi Mohamed is chairing our podcast chat – it will be much better. Stay tuned.

Simon Ricketts, 13 September 2025

Personal views, et cetera

The Stressful & Sadly Often Necessary Task Of Keeping Planning Permissions Alive

At a time when political focus is on the actual delivery of development projects, sadly much of our time as planning lawyers is still spent on keeping planning permissions alive ready for some future time when the particular project may be viable or otherwise able to proceed.

Planning permissions take an age to secure. My 14 June 2025 blog post Why Does Negotiating Section 106 Agreements Have To Be Such A Drag? referred to the May 2025 Lichfields research work How long is a piece of string? which found that the average determination period for outline planning applications for ten or more dwellings in 2024 was 783 days (up from 284 days in 2014).

So, maybe two or three years after scheme design freeze, the developer achieves its planning permission. By which time the market and/or technical requirements may have changed. If a full planning permission it may well have the default implementation deadline of three years, failing which it will lapse. If an outline planning permission it may well have the default reserved matters submission deadline of three years and a default implementation deadline of the later of five years from grant and two years from the last reserved matters approval to be secured.

The Planning and Compulsory Purchase Act 2004 tightened the screw on developers in two ways:  first by removing the ability to use section 73 applications to extend the deadline for implementation and the submission of reserved matters applications (subject to temporary extensions first allowed for in the wake of the financial crisis and secondly in the light of the Covid pandemic) and secondly by reducing the default implementation deadline to three years from five.

I would argue that those measures have not served to increase or speed up the delivery of development, nor has it cleared the system of planning permissions which are no longer ever likely to be built out. All it has done is increase the extent to which developers, when they are not ready to proceed with development, are driven to carry out a limited implementation strategy simply to keep the planning permission alive.

After all, relatively minor works pursuant to the planning permission may serve to keep it alive;  a list of “material operations” is included in section 56 of the Town and Country Planning Act 1990:

“(a) any work of construction in the course of the erection of a building;

(aa) any work of demolition of a building;

(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)  any operation in the course of laying out or constructing a road or part of a road;

(e)  any change in the use of any land which constitutes material development.”

However, care is needed, because the works carried out must not be in breach of any pre-commencement conditions on the planning permission (unless particular exceptions apply that have been established by case law). Often therefore, prior to works being carried out, it will be necessary to discharge various conditions or to vary them so as to allow for the implementation works to be carried out pre-discharge.

The Building Safety Act has given rise to an additional complexity in the case of “higher-risk buildings”, namely (in basic summary) buildings that are to contain at least two residential dwellings and which are either at least 18 metres in height or at least seven storeys. Under regulation 3 of the Building (Higher-Risk Buildings Procedures) (England) Regulations 2023, works can’t start to construction until building control approval has been secured, meaning that what may have been a straight-forward implementation strategy – perhaps digging a trench for part of the foundations of the building – may need to be ruled out given the current delays in the Building Safety Act gateway checks processes. (What is and isn’t determined to be a start to construction is left a little hazy, given that HSE guidance states that “carrying out of site set up, demolition of previous buildings, stripping out works or the excavation of trial holes or installation of test piles would not be considered as starting work“).

Thought will also need to be given to whether the implementation works trigger any onerous section 106 agreement obligations, bearing in mind that the agreement is likely to have excluded certain types of preliminary works from the definition of “commencement of development” in the agreement.

If the scheme is in an area where a CIL charging schedule is in effect, thought will also need to be given to the extent to which a community infrastructure levy payment is triggered and for how much: is this a phased permission where CIL for the relevant phase will be triggered, or will these limited works trigger payment of CIL for the entire development?

Lastly, how to have a document trail that can be relied upon in the future to demonstrate that the planning permission has been kept alive? There are well-trodden strategies for securing a certificate of lawfulness under section 191 or 192 of the 1990 Act (the two processes entail different strategies, with different risks and indeed even sometimes very different application fees).

Does it all have to be quite like this? What public policy purpose is served? I was interested recently to learn that in Northern Ireland, for instance, the position is different:

First, rather than the long list of material operations within section 56 of the 1990 Act, section 63 (2) of the Planning Act (Northern Ireland) 2011: “development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out—

  1. where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;
  1. where the development consists of or includes alterations to a building, any work involved in the alterations;
  1. where the development consists of or includes a change of use of any building or other land, that change of use;
  1. where the development consists of or includes mining operations, any of those operations.”

Decisions of the Planning Appeals Commission in Northern Ireland have determined that for instance the laying out of an access or the digging of a trench is not sufficient to meet this test.

Secondly, there is a specific procedure in Northern Ireland for renewing planning permissions: Regulation 3 of the Planning (General Development Procedure) Order (Northern Ireland) 2015 , with Department for Infrastructure advice as follows:

“As a general rule, such applications should be considered and refused only where: (a) there has been some material change in planning circumstances since the original permission was granted (e.g. a change in some relevant planning policy for the area, or in relevant highway considerations, or the publication of new planning policy guidance, material to the renewal application); (b) continued failure to begin the development will contribute unacceptably to uncertainty about the future pattern of development in the area; or (c) the application is premature because the permission still has a reasonable time to run. This is not an exhaustive list and each application must be considered on a case by case basis.”

Is this a better approach? What do we think?

Simon Ricketts, 7 September 2025

Personal views, et cetera