Quantity Street Fudge

On 16 December 2020 the Government abruptly abandoned its proposed revised standard method for calculating local housing need, in the face of political and media pressure from those who saw the method increasing substantially the figure for their particular areas. I covered the consultation as to the proposed revised method in my 29 August 2020 blog post, asking whether we might see a fudged outcome.

My piece referred to press pieces such as the article by Conservative MP for Harborough, Neil O’Brien, The next algorithm disaster – coming to a Conservative constituency near you. This time, it’s housing growth. (ConservativeHome, 24 August 2020)and Planning algorithm may destroy suburbia: Tory MPs warn Boris Johnson. (Times, 29 August 2020). “Mutant algorithm” they all said.

So the Government has decided to stick to its previous 2017 method (just as much of an algorithm, equally “mutant”), one based on out of date household formation figures from 2014 (2014!), but with a heavy handed readjustment of the figures to ensure that they still add up to 300,000 homes (a number which itself has no empirical basis – but reflective of the extent of the, plain to see, housing crisis). The heavy handed-adjustment? To increase the relevant figure by 35% for England’s 20 largest towns and cities, including London.

Imagine if a local planning authority attempted to include housing numbers in its plan in such a way, without evidence! (Or indeed if it introduced a blanket “approve it all” policy equivalent to the effect of the new class E to C3 PD right!).

If anyone knows about planning and housing, it’s Chris Young QC. He had put forward constructive suggestions for improving the proposals given the unduly low numbers the draft revised method would have achieved for much of the north. His subsequent LinkedIn post was incandescent:

“- Confused about the “new” Standard Method?

– Baffled why it fails to address levelling up across the North?

– Mystified why in an economic crisis, Govt would focus on the largest cities where apartment prices are falling?

– Troubled by the urban focus, when overcrowded housing is a key factor for the UK having the highest Covid 19 death rate in Europe?

Well, here’s what just happened

Govt introduced Standard Method 1 in 2017 to make housing targets simpler. But it added up to less than its own 300,000 annual target, and collapsed housebuilding in the North

In August, Govt consulted on a revised version. But it contained a double affordability uplift which piled the numbers into the Shires, causing a Tory revolt

Then experts in this field came up with a more appropriate set of numbers focussing on achieving 300,000 and levelling up the North.

And then Ministers bottled it

They decided to leave the formula, which they know doesn’t work, the same. But add 35% to the major constrained cities nearly all of which are Labour controlled, pinning their hopes on a collapse in the office market and town centres and the use of PD rights

Housing policy in this country is not about housing people. Its now 100% about politics”

I’ve no problem with an urban focus, but what really is the point when those higher numbers will not be achieved, meaning an inevitable failure to achieve the overall target?

Let’s take a step back (watch out for the Christmas tree though).

The Government’s NPPF tells local planning authorities this:

“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.” (paragraph 60).

The new standard method is incredibly important, both for this purpose, and because it will form the basis for the new plan-making system proposed in the white paper, where local planning authorities will have to plan, without deviation, for the numbers handed down to them (numbers which will be based on this standard method and then tweaked by government by way of an as yet undevised process).

To understand the detail what has now been introduced, and the justifications given, there are four relevant documents, all published on 16 December 2020:

⁃ press statement, Plan to regenerate England’s cities with new homes 16 December 2020

written ministerial statement

changed planning practice guidance

the Government’s response to the local housing need proposals in “Changes to the current planning system”

The response document tries to downplay the role of the numbers – making them out not to be a “target” but a “starting point”:

“Many respondents to the consultation were concerned that the ‘targets’ provided by the standard method were not appropriate for individual local authority areas. Within the current planning system the standard method does not present a ‘target’ in plan-making, but instead provides a starting point for determining the level of need for the area, and it is only after consideration of this, alongside what constraints areas face, such as the Green Belt, and the land that is actually available for development, that the decision on how many homes should be planned for is made. It does not override other planning policies, including the protections set out in Paragraph 11b of the NPPF or our strong protections for the Green Belt. It is for local authorities to determine precisely how many homes to plan for and where those homes most appropriately located. In doing this they should take into account their local circumstances and constraints. In order to make this policy position as clear as possible, we will explore how we can make changes through future revisions to the National Planning Policy Framework, including whether a renaming of the policy could provide additional clarity.”

Weaselly words! Of course they are a target. This methodology can no longer be said to be a proper methodological assessment of local need based on demographics and household formation rates – if nothing else, the 35% uplift for the major towns and cities puts paid to that. The justification given for the uplift is a policy justification:

“”First, building in existing cities and urban centres ensures that new homes can maximise existing infrastructure such as public transport, schools, medical facilities and shops. Second, there is potentially a profound structural change working through the retail and commercial sector, and we should expect more opportunities for creative use of land in urban areas to emerge. Utilising this land allows us to give priority to the development of brownfield land, and thereby protect our green spaces. And third, our climate aspirations demand that we aim for a spatial pattern of development that reduces the need for unnecessary high-carbon travel.”

I quoted Chris Young earlier. For an equally brilliant, expert and authoritative analysis how about Lichfields? This is a superb post by Matthew Spry and Bethan Hayes Mangling the mutant: change to the standard method for local housing need on the day of the announcement, including indications as to what the new numbers will mean for the 20 largest towns and cities:

Courtesy of Lichfields

How quickly will the changes come into effect? The Government’s response document says this:

“From the date of publication of the amended planning practice guidance which implements the cities and urban centres uplift, authorities already at Regulation 19, will have six months to submit their plans to the Planning Inspectorate for examination, using the previous standard method. In recognition that some areas will be very close to publishing their Regulation 19 plan, these areas will be given three months from the publication date of the revised guidance to publish their Regulation 19 plan, as well as a further six months from the date they publish their Regulation 19 plan to submit their plan to the Planning Inspectorate for examination, to benefit from the transition period.

The standard method has a role not only in plan-making, but is also used in planning decisions to determine whether an area has identified a 5 year land supply for homes and for the purposes of the Housing Delivery Test (where strategic policies are more than five years old). Where this applies, the revised standard method (inclusive of the cities and urban areas uplift) will not apply for a period of six months from the publication of the amended planning practice guidance. After 6 months, the new standard method will apply.

For London:

“It is clear that in London, in the medium term, there will need to be a much more ambitious approach to delivering the homes the capital needs. The Secretary of State for Housing, Communities and Local Government expects to agree the London Plan with the Mayor shortly. This new plan, when adopted, will set London’s housing requirement for the next 5 years. The local housing need uplift we are setting out today will therefore only be applicable once the next London Plan is being developed. In order to support London to deliver the right homes in the right places, the government and Homes England are working with the Greater London Authority to boost delivery through the Home Building Fund. Homes England has been providing expertise and experience to support the development of key sites in London. Sites like Old Oak Common, Nine Elms and Inner East London provide opportunities to deliver homes on significant brownfield sites. The Secretary of State for Housing, Communities and Local Government will consider giving Homes England a role in London to help meet this challenge, working more closely with the Greater London Authority, boroughs and development corporations to take a more direct role in the delivery of strategic sites in London and the preparation of robust bids for the new National Homebuilding Fund.”

A final musing for the lawyers. It has become a bit of a knee jerk reaction to proposals to question whether strategic environmental assessment was in fact required but…was it?

The criteria were recently set out again in R (Rights : Community : Action) v Secretary of State (Divisional Court, 17 November 2020):

“From the statutory framework it can be seen that a plan or programme is only required to be the subject of an environmental assessment if all four of the following requirements are satisfied:-


(1) The plan or programme must be subject to preparation or adoption by an authority at national, regional, or local level, or be prepared by an authority for adoption, through a legislative procedure by Parliament or Government;


(2) The plan or programme must be required by legislative, regulatory or administrative provisions;


(3) The plan or programme must set the framework for future development consents of projects; and


(4) The plan or programme must be likely to have significant environmental effects.”

It was held in that case that the GPDO and Use Classes Order changes did not require SEA because they do not set the framework for future development consents.

The previous challenge to NPPF changes in Friends of the Earth v Secretary of State (Dove J, 6 March 2019) had also failed. Dove J held that, whilst it did set the framework for subsequent development consents, the NPPF was not a measure “required by legislative regulatory or administrative provisions“.

But what is wrong with the following analysis?

⁃ criterion 1 – standard method = a plan prepared by government

⁃ criterion 2 – standard method = a plan required by administrative provisions, i.e. required by NPPF paragraph 60

⁃ criterion 3 – standard method sets framework for local plans and for decision making – e.g. onus on the major towns and cities in their next plans to plan for 35% more homes or suffer consequences via the tilted balance and housing delivery test – indeed geographically specific in a way which the NPPF and PPG has previously largely avoided

⁃ criterion 4 – standard method likely to have significant environmental effects – of course.

In any event, wouldn’t some evidence be helpful, as well as a proper assessment of impacts and alternatives, before lurching to a new system that has moved a long way further away from being any methodological assessment of local housing need?

Merry Christmas!

Simon Ricketts, 19 December 2020

Personal views, et cetera

Where’s The Harm In That? Misreporting Heritage Effects

A few recent cases illustrate how vulnerable planning permissions can be to judicial review where there are material errors or omissions in the officer’s report to committee.

R (Wyeth-Price) v Guildford Borough Council (Lang J, 8 December 2020) is a classic example, and Lang J sets out in her judgment a textbook explanation of the legal framework, established by caselaw, in relation to decision making and officers’ reports.

It seems to me that the most risk-prone areas of an officer’s report will be:

⁃ summaries of the conclusions of often detailed and highly technical analysis, where the decision maker must not be “significantly misled” by the summary or indirectly by the material on which the summary is based – classic areas for scrutiny being effects on daylight and sunlight, viability, air quality, and noise

⁃ the interaction with other legal regimes, for example environmental impact assessment, the Conservation of Habitats Regulations or the public sector equality duty

⁃ application of legal or policy tests – classic areas being the NPPF tilted balance, green belt, AONB and heritage.

Wyeth-Price is another in a rich seam of cases where the High Court has quashed a planning permission due to the failure of the officer properly to apply the heritage tests in the NPPF, which must have been frustrating to Bewley Homes, which had achieved, so it thought, planning permission for 73 dwellings at Ash Manor, Ash Green, Guildford, following a committee resolution on 4 December 2019 on the basis of a 49 page officer’s report.

The effect on nearby listed buildings was a central issue in the consideration of the application. To quote from Lang J’s judgment:

“Adjacent to the Site…there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings, known as Ash Manor and Old Manor Cottage. The Oast House lies to the south of it and its stables are Grade II listed. To the south of this is a further residential dwelling known as Oak Barn which is also Grade II listed. The significance of Ash Manor is derived from its historic and architectural interest as a moated manor house, thought to have thirteenth century origins, with successive phases of development dating to the sixteenth, seventeenth and mid-twentieth centuries. According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.”

The importance of the heritage aspect in resisting the proposal had not been lost on objectors – see for example a 2017 Guildford Dragon article Grade II* Listing for Ash Manor House May Scupper Development Proposals:

“A homeowner in Ash Green is hoping that a new Grade II* listing from Historic England may prevent proposed developments that would surround his moated 13th-century manor house with nearly 200 houses, possibly more if further envisioned development phases are built out.

David Weller, who owns Old Manor Cottage, half of the original medieval Ash Manor House, off Foreman Road, said: “If the proposed developments go ahead the setting of our historic house will be ruined for good.”

The challenge was brought by a local resident who was formerly the chair of the Ash Green Residents’ Association. There were three grounds:

“i) Ground 1: Failure to apply section 66(1) of the PLBCAA 1990 and failure to take account of paragraphs 193 and 194 of the Framework.


ii) Ground 2: Failure to have regard to a relevant consideration, namely, the advice of Surrey Wildlife Trust in respect of a veteran tree at the Site, and acting irrationally in departing from the advice without reasons.


iii) Ground 3: Failure to have regard to material considerations concerning flooding at the Site and/or acting irrationally by ignoring expert evidence on this matter”

Grounds 2 and 3 failed and so I am just focusing on ground 1, relating to section 66(1) of the Listed Buildings Act (“In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority…shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”) and paragraphs 193 and 194 of the NPPF:

“193. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.

194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:

a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;

b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.”

Lang J sets out the relevant tests and case law in her judgment before summarising the problems with the report:

“The Claimant submitted that the planning officer’s report seriously misled the Planning Committee by failing to advise members on the weight to be given to the harm to heritage assets in the balancing exercise. Although he set out section 66(1) PLBCAA 1990, he did not explain that a finding of harm to a listed building is a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. He failed to refer at all to paragraph 193 of the Framework, which requires “great weight” to be given to the asset’s conservation and the more important the asset, the greater the weight should be. He also failed to refer to paragraph 194 which requires a “clear and convincing justification” for any harm. Applying the approach of Sales LJ in Mordue, the Claimant submitted that there were positive indications in the report that the officer had not taken paragraphs 193 and 194 into account.”

“The planning officer expressly referred to the duty under section 66(1) PLBCAA 1990, both in his advice on the statutory framework and at the critical stage of the balancing exercise. However, he did not advise members on how they were required to apply the section 66(1) duty to the balancing exercise. The application of the section 66(1) duty is not explicitly clear from the wording of section 66(1), as demonstrated by the fact that it was only after the case of Barnwell that it was fully appreciated by experienced planning inspectors and lawyers that section 66(1) imposed a duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise and that it was not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment.”

“Can it be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the Planning Committee to take them into account?

In my view, there were several positive indications to the contrary…”

“Thus, in 2017, members were advised that the effect of section 66(1) PLBCAA 1990 was that a finding of harm to a listed building was a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. Members were also reminded, for the second time, of the guidance in the Framework that “great weight” should be given to the asset’s conservation – the more important the asset, the greater the weight should be – and that any harm or loss required “clear and convincing justification” for any harm. None of this advice was given in the October 2019 report. The fact that, in 2017, the planning officer was recommending refusal of permission, whereas, in 2019, he was recommending a grant of permission, ought not to have had any bearing on whether or not to include this advice in the report, and it was not suggested that it did.

“I now return to the question whether the advice was seriously misleading, thereby misleading the members in a material way so that, but for the flawed advice, the Planning Committee’s decision would or might have been different. In my judgment, the planning officer must have been aware of the guidance given by the Court of Appeal in Barnwell on the application of the section 66(1) duty to the balancing exercise and the guidance in paragraphs 193 and 194 of the Framework, as it is well-known among professional planners and he advised on it in the 2017 report. However, on a fair reading of his October 2019 report, he did not advise members of the Planning Committee on this guidance and he did not apply it when he undertook the balancing exercise on this occasion.

At the hearing I asked the parties whether an experienced member of the Planning Committee, who had been referred to this guidance in other applications, perhaps even the 2017 application, might have been aware of the guidance, even though it was not to be found in the planning officer’s report. When I raised this possibility with the parties, Mr Williams for the Council did not wish to rely upon it. Mr Fitzsimons for the Claimant rejected it on the basis that busy Committee members relied upon the officer’s report and did not do their own research. On instructions, he said that new members had recently been appointed to the Planning Committee, following elections, and so it could not safely be assumed that they were aware of the guidance, from the 2017 application or any other. It seems to me that if a member of the Planning Committee did consider that the planning officer’s report did not give accurate and/or sufficient advice on how to conduct the balancing exercise, the matter would have been raised at the meetings. The minutes of the two meetings of the Planning Committee do not record that members sought further clarification or guidance on how to conduct the balancing exercise at those meetings. Therefore I conclude that members of the Planning Committee relied only upon the advice given in the planning officer’s reports.”

There was also a short addendum report addressing amendments made to the scheme but this “report repeated the error of advising members to undertake an untilted balancing exercise, weighing the less than substantial harm to the heritage assets against the public benefits of the proposal without apparently taking into account the requirement to accord “considerable importance and weight” to a finding of harm to a listed building and “great weight” to the asset’s conservation, as a Grade II* listed building, and the need for a “clear and convincing justification” for any harm.”

Care needed!

In concluding that the effect of the officer’s balancing exercise was to “play down the part of the exercise represented by [paragraph 193 and 194] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance“, Lang J draws upon another case earlier this year R (Liverpool Open and Green Spaces Community Interest Company). Liverpool City Council (Court of Appeal, 9 July 2020) where the Court of Appeal quashed planning permission on the basis that there was a “substantial doubt” as to whether the section 66(1) duty had been met where the officer’s report had failed to refer to objections to the proposals from the council’s Urban Design and Heritage Conservation team, a conclusion “only strengthened by the absence, at least from the section of the officer’s report in which his assessment is set out, of any steer to the members that a finding of harm to the setting of the listed building was a consideration to which they must give “considerable importance and weight“.

In fact, omissions from a report of a reference to relevant objections – or misleading inferences from a lack of an objection – are a particularly high risk area. The Court of Appeal in the Liverpool case refer back to R (Loader) v Rother District Council (Court of Appeal, 28 July 2016) where the officer’s “report had indicated that the Victorian Society, which had objected to a previous application, had made no comments on the new proposal. In fact, they had not been consulted. The appellant argued that the committee might have been left, wrongly, with the impression that the Victorian Society were now satisfied with the revised design. This court accepted that “[in] the context of the duty [in section 66(1)], … in taking this misinformation into account, [the committee] could be said to have proceeded on the basis of an error of fact”, but that “the unlawfulness [was] better described as the taking into account of an immaterial consideration” (paragraph 57). This was enough to justify quashing the planning permission (paragraph 58).”

We now have an even more dramatic example in the case of the One Eastside development in Birmingham, a proposal for 667 apartments in a 51 storey tower near Curzon Street station.

The scheme was the subject of a 5 December 2019 Committee report (from page 122 of the pdf) but the resulting planning permission was challenged by nearby land owner LaSalle (See e.g. BD Online Glancy Nicholls tower faces judicial review ((9 November 2020).

Greg Jones QC and Esther Drabkin-Reiter have been acting for LaSalle and it seems from Francis Taylor Building’s 9 December 2020 press statement that the council has consented to judgment on the basis that “an objection to the proposed development made by the Victorian Society was not reported to the Planning Committee and further that the objection made by the Victorian Society went beyond those matters identified by Historic England which were reported to the Planning Committee.

How precarious a planning permission can be until it has passed the deadline for a legal challenge (time again to tout my proposal that the judicial review pre-action protocol should encourage early identification by claimants of these sorts of points, before planning permission is issued – my 30 May 2020 blog post Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated? – whilst recognising that in some cases, including possibly the One Eastside example, the extent of the errors and omissions may only in fact become clear through the litigation process itself).

Simon Ricketts, 12 December 2020

Personal views, et cetera

Extract from site location plan courtesy of Guildford Borough Council’s 5 December 2019 report to committee

E = C3

Or, The Theory Of Residential-Rather-Than-Retail-Activity.

MHCLG’s consultation paper Supporting housing delivery and public service infrastructure (3 December 2020, consultation deadline 28 January 2021) sets out various proposed new permitted development rights, but, in what has been a disastrous week for traditional retail chains, guess which proposal has attracted the most attention?

The new class E was introduced into the Use Classes Order in July 2020 (see my 24 July 2020 blog post E Is For Economy) and took effect from 1 September 2020, forming a new, amalgamated commercial, business and service use class that includes the old A1 (with small exceptions), A2, A3, B1, some D1 and some D2).

It was always anticipated that new permitted development rights would be subsequently introduced that allowed changes from the new class E without the need for planning permission. At the moment, until 31 July 2021 the existing permitted development rights apply to whatever the relevant use would have been categorised as before class E was introduced.

But in updating the existing development rights so that they apply to the new class E from 1 August 2021, the Government now intends to allow significantly greater freedoms.

“It is proposed that the right would allow for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

So, there will for the first time be the right to convert restaurants, indoor sports centres, creches and so on to residential use.

But the radical part of the proposal is that there should be no size limit on the scale of the conversions allowed:

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

Whilst there is currently no size limit for conversion of offices, for retail and light industrial the limits are currently small (150 sq m and 500 sq m respectively). The new right would enable change of use of the very largest shops and light industrial buildings to residential, subject to similar prior approval requirements as presently apply. Whilst permitted development rights do not apply to development that would require environmental impact assessment, it will surely be very rare that the conversion of a building, however large, would require environmental impact assessment.

How better, it might be thought, both to find new uses for surplus floorspace and to add to housing stock? But of course such a right is going to have a huge effect on the real estate market and could itself help to accelerate the loss of retail where greater value can be extracted by residential conversion.

Unlike with most permitted development rights, this right would also apply in conservation areas. “However, in recognition of the conservation value that retail frontage can bring to conservation areas the right would allow for prior approval of the impact of the loss of the ground floor use to residential.”

These are proposed to be the necessary prior approvals:

“Similar to other permitted development rights for the change of use to residential:

• flooding, to ensure residential development does not take place in areas of high flood risk

• transport, particularly to ensure safe site access

• contamination, to ensure residential development does not take place on contaminated land, or in contaminated buildings, which will endanger the health of future residents

• To ensure appropriate living conditions for residents:

• the impacts of noise from existing commercial premises on the intended occupiers of the development

• the provision of adequate natural light in all habitable rooms

• fire safety, to ensure consideration and plans to mitigate risk to residents from fire

• To ensure new homes are in suitable locations:

• the impact on the intended occupiers from the introduction of residential use in an area the authority considers is important for heavy industry and waste management”

The usual concerns about the permitted development process remain, but now writ large, for instance:

⁃ How can the Government continue to justify not imposing on these permitted development schemes the requirements that would be applied by way of the section 106 planning obligations process to schemes that come forward by way of traditional planning application? Why no affordable housing requirements, or contributions to schools and other social infrastructure, and how is this fair for those developers struggling to deliver traditional projects in the face of policy requirements that permitted development schemes neatly sidestep?

⁃ How will associated applications for planning permission for external works to these buildings be dealt with? Coping with the fenestration, M&E and external aesthetic requirements arising from conversion of an office building is one thing, but imagine the challenges faced by the developer of a department store, supermarket or light industrial unit. And what of its curtilage? What principles should an authority adopt in determining such an application, so that adequate controls are maintained without making the right meaningless by giving the authority a de facto veto?

⁃ Aside from increasing their use of article 4 directions, how can authorities prevent the conversion of buildings in plainly unsustainable locations?

⁃ How can an authority influence its area by way of its development plan policies, when the authority is left with so little control?

⁃ To what extent will the use of the new right be stymied by conditions on existing permissions, disapplying the benefit of the General Permitted Development Order, or indeed Use Classes Order?

As it happens we are co-hosting a webinar with Landmark Chambers to answer questions such as these – and plenty of others that delegates have been sending in. Landmark’s Zack Simons will join Meeta Kaur, Victoria McKeegan and myself at 5.30 pm on 15 December, free registration here: https://us02web.zoom.us/webinar/register/WN_4SVkbXSeRsm6QJ9aDRBBDA .

Simon Ricketts, 4 December 2020

Personal views, et cetera

Remitted Development: Sending Back Faulty Plans

What happens when a development plan, or one or more of its policies, is found to be unlawful? There have been two instances of this in 2020: in relation to the Leeds Site Allocations Plan (in the Aireborough case, the subject of three rulings by Lieven J between January and August this year) and in relation to the Harrogate Local Plan (in the Flaxby case, the subject of a ruling by Holgate J last week).

My firm acted for the claimant in both cases (alongside Jenny Wigley in Aireborough and Christopher Katkowski QC and Richard Moules in Flaxby). Aside from the substantive issues arising, the cases are interesting examples of the flexibility that the court has when it finds against the plan making authority. By virtue of the changes made to section 113 of the Planning and Compulsory Purchase 2004 by the Planning Act 2008, the court no longer simply has to quash the plan, or relevant part of the plan (meaning that the authority would need to start again) but can “remit” the plan back to an earlier stage in its preparation so that decisions can be taken again, from the stage where the errors occurred.

I set out the relevant sub-sections of Section 113 as follows:

(7) The High Court may—

(a) quash the relevant document;

(b) remit the relevant document to a person or body with a function relating to its preparation, publication, adoption or approval.

(7A) If the High Court remits the relevant document under subsection (7)(b) it may give directions as to the action to be taken in relation to the document.

(7B) Directions under subsection (7A) may in particular—

(a) require the relevant document to be treated (generally or for specified purposes) as not having been approved or adopted;

(b) require specified steps in the process that has resulted in the approval or adoption of the relevant document to be treated (generally or for specified purposes) as having been taken or as not having been taken;

(c) require action to be taken by a person or body with a function relating to the preparation, publication, adoption or approval of the document (whether or not the person or body to which the document is remitted);

(d) require action to be taken by one person or body to depend on what action has been taken by another person or body.

(7C) The High Court’s powers under subsections (7) and (7A) are exercisable in relation to the relevant document—

(a) wholly or in part;

(b) generally or as it affects the property of the applicant.

Aireborough

There is a series of three judgments by Lieven J: Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 14 January 2020 – initial judgment on capacity of the claimant to bring the proceedings), Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 8 June 2020 – main ruling) and Aireborough Neighbourhood Development Forum v Leeds City Council (Lieven J, 7 August 2020 – remedies).

Judgment 1: Capacity of claimant

At an initial hearing Lieven J first considered arguments at by Leeds City Council and the two developer interested parties that as an unincorporated association the Aireborough Neighbourhood Development Forum did not have legal capacity to bring the claim. After a useful review of the caselaw on standing, the judge held that the Forum could indeed bring the claim: the “critical question in judicial review or statutory challenge is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision not to be a mere busybody.

Judgment 2: substantive issues

There was then the main hearing, which lasted two days.

The Site Allocations Plan (SAP) had initially been promoted on the basis of housing need evidence prepared in accordance with Leeds City Council’s 2014 core strategy. The significant level of housing need identified by the core strategy was used as the basis for exceptional circumstances justifying green belt releases. However, the housing need requirement was reduced during the course of the SAP examination based on changes to the government’s standard methodology for assessing housing need, and a much lower housing need requirement was therefore promoted the city council as part of a selective review of the core strategy (CSSR) being promoted at the same time as the SAP.

The city council proceeded with the adoption of the SAP, in accordance with the examining inspectors’ recommendation, notwithstanding the claimant’s submissions that the case for exceptional circumstances had been undermined given the lower housing need.

The claim was successful on three grounds. The judge found that the material change of circumstances had been insufficiently considered and its consequences insufficiently explained by the examining inspectors. This amounted to a failure to provide adequate reasons, which had been contended in two grounds of challenge. The inspectors also made an error of fact amounting to an error of law in calculating housing need figures.

The defendant was found also to have breached the Strategic Environment Assessment Regulations by failing to consider and consult upon a “reasonable alternative” to continuing with the SAP in materially changed circumstances. However, relief was not granted in respect of this ground of challenge because the failure was found not to have been likely to have resulted in a different outcome.

For a good perspective on the judgment, see Lichfields’ 16 June 2020 blog post Successful legal challenge to Leeds Site Allocations Plan – a consideration of potential implications.

Judgment 3: remedies

Following hand down of the main judgment Lieven J then needed to consider the parties’ written submissions as to the relief to be granted to give effect to her judgment: whether to quash all or part of the document or to remit it back to the city council or Secretary of State.

The dispute between the parties was as to the appropriate remedy under section 113 and the scope of any remedy, i.e. whether it should apply across the whole of Leeds rather than just the area for which the claimant was the neighbourhood development forum. Applying University of Bath v North Somerset Council (HHJ Alice Robinson, 7 March 2013), the judge determined that remittal was the appropriate remedy, as she held that it was appropriate to go back to the stage where the error of law occurred rather than back to the very beginning of the local plan process.

The judge also held that the scope of the remedy should be all Green Belt allocations in Leeds, rather than just those in Aireborough. Although the claim was focused on Aireborough, the claim was never limited to only those sites. The grounds of challenge went to the Green Belt allocations in their entirety. In the face of submissions from the Secretary of State, the allocations were remitted back to the inspectors and the judge indicated that it would be for the council to consider what modifications if any to make.

Flaxby

Flaxby Park Limited v Harrogate Borough Council (Holgate J, 25 November 2020) concerned the new settlements policy within the plan, which purported to identify a broad location for a new settlement within the borough, at Green Hammerton/Cattal. Flaxby Park Limited argued that that the council had not properly considered its alternative proposals.

The detailed chronology is set out at length in Holgate J’s judgment but in basic summary, the local plan inspector agreed with Flaxby that the council should carry out further sustainability appraisal to consider possible reasonable alternatives to the Green Hammerton/Cattal, including broad locations around Flaxby and other new settlement options.

The council carried out further work and consulted upon it, reported it and the consultation responses to the inspector who concluded that the plan was sound. The council then adopted the plan.

In summary, Flaxby’s complaints were partly as to the adequacy of the sustainability appraisal work and the extent to which it had been taken into account by the council, arguing that the council (1) had failed properly to consider the outcome of the assessment of alternative “broad locations” (and officers purported to carry out that consideration rather than the council itself) (2) had failed to compare the broad locations of Flaxby and Green Hammerton/Cattal on an equal basis because it did not include in the Additional sustainability appraisal work an additional 630 ha of land which had been identified by consultees and (3) had failed properly to examine viability and deliverability of the Green Hammerton/Cattal proposals.

The judge partly accepted the first complaint, in that, after an examination of the extent to which decisions in relation to the local plan process may lawfully be delegated, he found that “the full Council did not take into account the final SEA material and consultation responses, or a summary and analysis thereof, when they resolved to adopt the local plan”.

The judge has ordered that “the whole of Local Plan shall be remitted firstly, to the Defendant’s Cabinet to re-consider whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and secondly, to the Defendant’s full Council to consider the Cabinet’s decision, whether or not to accept the Inspector’s recommendations in so far as they related to the New Settlement Policies, and whether or not to adopt the Local Plan with those policies.”

For completeness while we are talking about local plan challenges…

Earlier in the year, Holgate J rejected a challenge to the Wycombe local plan, in Keep Bourne End Green v Buckinghamshire Council (Holgate J, 23 July 2020).

This claim focused on the Local Plan’s Policy BE2 which, in operation with other parts of the plan, releases from the green belt a site of approximately 32 hectares of mainly agricultural land at Hollands Farm, south-east of High Wycombe, allocating the majority of the site for housing (some 467 dwellings).

The main grounds of challenge were first that Policy BE2 releasing the Site from the green belt was adopted on a basis of misunderstanding or misinterpretation of national policy (including the National Planning Policy Framework 2012 paragraphs 47 and 50) and guidance (including the 2014 Planning Practice Guidance) regarding published household projections, in part involving erroneous calculations of “objectively assessed housing need” (“OAHN”) for the local area. Second, that that Policy BE2 releasing the Site from the green belt was adopted on a basis of misapplication of national green belt policy requiring exceptional circumstances for release of land from green belt, in part as there were no exceptional circumstances.

Holgate J rejected all grounds of challenge. He stated that “it is important for the court to emphasise … that its role is not to consider the merits of the Council’s proposed policy or of the objections made to it. The court is only able to consider whether an error of law has been made in the decision or in the process leading up to it.”

On the first ground, Holgate J held that the local plan had been adopted following proper consideration of applicable published household projections, without errors of law, and with appropriate planning judgment being exercised by decision-makers. In doing so, he commented that “There have been many attempts in the last few years to entice the courts into making pronouncements on the methods used to assess OAHN. Repeatedly the response has been that this is a matter of planning judgment for the decision-maker and not for the courts.”

On the second ground, Holgate J held that, on the basis of there being no definition of the policy concept of “exceptional circumstances”, the expression “is deliberately broad and not susceptible to dictionary definition. The matter is left to the judgment of the decision-maker in all the circumstances of the case. Whether a factor is capable of being an exceptional circumstance may be a matter of law, as an issue of legal relevance. But whether it amounts to such a circumstance in any given case is a matter of planning judgment”. He held that the relevant decision-maker’s (an Inspector) reasons for finding “exceptional circumstances” do not “raise any substantial doubt as to whether a public law error was committed”; the “overall package of considerations upon which the Inspector relied was plainly capable of amounting to “exceptional circumstances” and could not be described as simply “commonplace”. It is impossible to say that the judgment which the Inspector reached was irrational. It did not fall outside the range of decisions which a reasonable Inspector could reach.”

The Court of Appeal this month refused the claimant permission to appeal.

Finally, there is my self-explanatory 6 December 2019 blog post Unsuccessful Attacks On Guildford & Waverley Local Plans.

Simon Ricketts, 28 November 2020

Personal views, et cetera

NB For parts of this post I drew upon my colleagues Town Library case summaries – free subscription to our weekly updating service here: https://www.townlegal.com/news-and-resources/#the-town-library .

Faulty LP

Covid-19 As A Material Consideration

The idea for this blog post started by way of a search we did this week for inspectors’ appeal decision letters that take into account the economic and other effects arising from the current pandemic.

There does not seem to have been any proper analysis on that at present (and this post doesn’t fill the gap!). Instead most people’s focus has been on the specific legislative measures that have been introduced by the Government and its narrow policy exhortations (for instance in relation to limited aspects of the CIL regime).

Before I turn to that appeals search, can I say two more things on the legislative changes.

First, a further round of amendments to the GPDO were laid before Parliament on 11 November (the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020). Aside from extending some temporary permitted development rights (outdoor markets; takeaway food operations from restaurants, cafes and drinking establishments, and some emergency development rights), there are two permanent amendments:

⁃ introduction from 6 April 2021 of a requirement that dwellings created by way of the operation of permitted development rights must meet the nationally described space standard

⁃ Prohibition on the demolition of any building is used, or was last used, for the purpose of a concert hall, venue for live music performance or theatre. (“This permanent change is to protect these venues, preventing their unnecessary loss as a result of having to close due to the coronavirus pandemic.” As a trustee of the Theatres Trust I am particularly pleased to see this now in legislation, following the initial ministerial statement on 14 July 2020).

Secondly, I covered the Rights: Community: Action judicial review of the previous recent GPDO and Use Classes Order changes in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR. That claim was rejected by Lewis LJ and Holgate J last week in R (Rights: Community: Action) v Secretary of State (Divisional Court, 17 November 2020). There are plenty of other summaries of that judgment and there is nothing particularly novel about it but I was interested in the references to the evidence submitted by MHCLG as to the Covid-19 factors that led to the legislation being introduced in the form and way that it was, and the weight that was given to these matters in the judgment:

“Mr Simon Gallagher is the Director of Planning for MHCLG. In paragraph 10 of his witness statement he states that during the period January to March 2020 the first patients in the UK tested positive for Covid-19 and the first transmissions in the UK were confirmed. He says that the pandemic “has generated an economic emergency and upheaval of a scale and intensity not previously known in peacetime.” He continues by stating that, as a consequence, the Government has had to intervene urgently in the economy as a whole in unprecedented ways in order to avert or minimise potentially very severe and long term impacts on the lives of citizens and the prospects for future economic growth. Forecasts for economic growth were reduced substantially. Indeed, one key forecast made in summer 2020 predicted a reduction in the economy for 2020 of 9.9% (paragraph 13). Through regular discussion with representatives of the housing and construction sectors, the MHCLG became aware of particular difficulties faced by the construction sector as a result of the pandemic. There was a record monthly decline of 40.2% of construction output in April 2020. Whilst the output of that sector had increased in May, June and July, it was still 11.6% lower in July 2020 compared with February 2020 (paragraph 14).

On 20 July 2020 a submission was put to the Minister for Housing asking him to approve the three statutory instruments. The submission records that it had been decided that in order to support economic renewal and regeneration and to respond to the economic crisis caused by the pandemic, additional PD rights for the redevelopment of vacant buildings for residential purposes and a broad Use Class of business, commercial and service uses would be introduced without consultation (paragraphs 2 to 3). The Minister’s attention was drawn to criticisms that the recently enacted PD right for allowing the addition of 2 storeys to blocks of flats lacked any requirement for the provision of affordable housing (paragraph 7). The submission referred to the same point when discussing the application of the PSED to the proposed statutory instruments (paragraph 10). The PSED assessments and impact assessments for each statutory instrument were provided to the Minister.

The Explanatory Memoranda for SI 2020 No. 755 and SI 2020 No. 756 stated that the new PD rights were being introduced to speed up the delivery of housing, reduce the need to develop on greenfield land and to support economic recovery from the pandemic by encouraging development. The Explanatory Memorandum for SI 2020 No. 757 stated that the UCO 1987 was being amended to better reflect the diversity of uses found on high streets and in town centres, to provide flexibility for businesses to adapt and diversify to meet changing demands and to help town centres recover from the economic impact of the pandemic.”

The judges had in part to consider whether the lack of a further consultation stage, which had been previously intended in relation to some of the measures, was justified:

“The explanatory memorandum for the draft SI 2020 No 755 and SI 2020 No. 757 again summarised briefly the degree of support for, and opposition to, the proposal, and the concerns that had been raised. The explanatory memorandum for the draft SI 2020 No 756 referred to the consultation responses and noted that there was to have been a further consultation but it had been decided to introduce the PD right without further consultation in order to support economic regeneration. It noted that the Government had considered the range of matters to be left to planning authorities for prior approval while maintaining a simplified planning system. In those circumstances it is not arguable that the defendant failed conscientiously to consider the consultation responses. The decision on whether to proceed, and if so what provisions to include in the SIs, in the light of the consultation responses and other relevant matters were questions for the defendant to determine.”

The judges, did not consider that the Government had acted unlawfully in not carrying out further consultation:

“First, the defendant has established that there were good reasons for departing from the promise in the present case and not having a second consultation on the proposals for PD rights for demolition of commercial or residential buildings and rebuilding for residential use. The coronavirus pandemic had led to severe economic difficulties including a reduction in the rate of construction and planning applications. The government decided to grant the PD rights in order to stimulate regeneration at a time of great economic difficulty arising out of the pandemic. That appears from the terms of the explanatory memorandum to SI 2020 No. 576.The matter is fully explained in the witness statement of Mr Gallagher who refers to the large-scale public health emergency created by the coronavirus pandemic which in turn generated an economic emergency and upheaval on a scale not previously known in peacetime. The Government had sought to intervene in the economy in unprecedented ways to minimise the very severe effects of the pandemic. In the light of that, the decision was taken in favour of urgent action rather than further consultation.

Secondly, the reasons are proportionate in the circumstances. On the one hand, the decision to depart from the promise deprived the public of the opportunity of making further representations on the proposed PD rights and deprived the Government of further, potentially helpful, input into the policy decision. On the other hand, the economic situation was grave. The grant of PD rights was intended to encourage developers to start the process of taking steps to carry out developments. That in turn would contribute to addressing the economic effects arising out of the pandemic. That was a proportionate course of action in the circumstances. It is correct that developments could not be begun until prior approval of certain matters had been obtained. But the aim was to stimulate the process of development in circumstances of economic urgency. It is correct that the PD rights would continue after the end of the current pandemic (unless amending legislation is enacted) but that does not render departure from the promise of further consultation disproportionate. It is correct that there was a proposal to create PD rights which involved further consultation. But circumstances had changed because of the pandemic. The reasons given for departing from the promise of further consultation were good and were proportionate.”

The economic situation is indeed “grave”!

So how are inspectors responding to it in their appeal decisions, and in the absence of any general guidance from Government which might for instance have advised decision makers to give additional weight to the interests of economic development and the provision of housing? JLL’s Asher Ross drew attention on LinkedIn last week to the Government’s publication on 18 November 2018 of the latest Planning Inspectorate Statistics. I haven’t delved into them yet but reproduce below a table that Asher posted, showing the reduced percentage of appeals that have been allowed over a period when I would have hoped to see exactly the opposite.

One trend that is apparent from the appeal decisions is in the context of enforcement appeals, where a longer period is frequently being given for compliance because of difficulties residents may have finding alternative accommodation due to the pandemic, although not always – in a recent decision in Ealing the inspector held that the nature of the “cramped and sub-standard living conditions“ was such as to outweigh that consideration (10 Torrington Gardens, 17 November 2020).

An appeal in relation to a proposed single dwelling in the countryside in Horsham District was dismissed in part because the inspector accepted the concerns of a nearby dog kennel business that the construction noise could affect the health of their dogs and indirectly affect the business economically if it had to close during this period, especially when considered in conjunction with the downturn in business they had generally suffered due to the coronavirus pandemic (The Mount, Ifield, Crawley, 27 July 2020).

An appeal in relation to five proposed flats in Cambridge was dismissed with the inspector noting that, although the appellant claimed that there was a need to promote economic growth as a result of the Covid -19 pandemic, this did not justify allowing harmful development (Mere Way, Cambridge, 1 October 2020).

An appeal to allow changes to proposed dwelling layouts in Eastbourne was allowed. Whilst the nationally described space standard was breached for a three bedroom home, the inspector placed weight on the need for a ”home office”, noting Covid-19 – a separate room was recognised as useful also for homework and hobbies, noting the “open plan” living room layout at present (land south of Langney shopping centre, 10 September 2020).

An appeal in relation to three proposed self build dwellings in Breckland was dismissed, with the inspector noting that there was little substantive evidence to demonstrate the longer term effects of Covid 19 on housing delivery rates or that that these developments would not be deliverable over the five year period , rather than just delayed (land to the north east of Fakenham Road, Beetley, 9 September 2020).

An appeal in relation to the proposed redevelopment as 27 residential apartments of the Flapper and Firkin music venue in Birmingham was dismissed. Whilst the venue had closed in January 2020 and therefore the minister’s July 2020 statement on preventing the loss of such venues was not directly relevant, the inspector concluded that the community harm arising from the loss of the venue outweighed the social and economic effects of the new homes (Flapper and Firkin, Kingston Row, Birmingham, 2 September 2020).

An appeal in relation to 216 proposed new homes in Wokingham district was rejected, with the inspector not accepting the appellant’s case that the assumed housing supply should be reduced by almost 500 dwellings due to the effects of the pandemic. He considered that the pandemic’s impact would be short-term and that five-year supply would recover (land east of Finchampstead Road, Wokingham, 25 August 2020).

An appeal in relation to a proposed staff car park in connection with a hotel in North Somerset was dismissed, the inspector considering that approval would not significantly contribute towards the economic recovery of the hotel business (Doubletree by Hilton Bristol South Cadbury House, 17 August 2020).

There are earlier appeal examples as well, but with equivalent themes and none that I could see were allowed with any weight given to Covid-19 considerations.

A proper analysis of the patterns emerging would be useful. For instance, how should the effects of the pandemic be taken into account in assessing whether there is five years’ supply of housing land? Is any Government advice required as to particular issues, such as live-work accommodation? Is any temporary advice required on enforcement issues, and on deadlines for compliance? Should Government for instance encourage a liberalised approach in relation to particular types of proposals, with shorter implementation deadlines for permissions approved in that way?

Simon Ricketts, 21 November 2020

Personal views, et cetera

Thank you to my Town colleague Lida Nguyen for the appeal searches, carried out via Compass Online.

Minister Knows Best

Why at the moment do ministers conclude so often that they have to reject their inspectors’ recommendations in relation to planning proposals and major infrastructure projects?

Something is clearly wrong when there can be a hugely expensive, time consuming inquiry or examination, followed by a lengthy, considered and reasoned report, only for the decision letter to arrive at a different balance. Is it the fault of inspectors? Has Government not communicated its up to date policy priorities? Are these decisions driven by political convenience? The problem is that we don’t get to find out – the minister’s decision is inevitably as bland as bland, with differences cloaked by “legal cover” explanations as to the different weight applied to particular considerations. Is it any wonder that the losing party so frequently then embarks on a legal challenge?

Anglia Square, Norwich

Yesterday (13 November 2020), Robert Jenrick issued his decision letter refusing, against his inspector’s recommendations, a called in application for planning permission in relation to the proposed development at Anglia Square, Norwich of “up to 1250 dwellings, hotel, ground floor retail and commercial floorspace, cinema, multi-storey car parks, place of worship and associated works to the highway and public realm areas”. The proposal included a 20 storey tower. Inspector David Prentis had held an inquiry over 15 days in January and February 202, providing his 206 page report to the Secretary of State on 6 June 2020. Russell Harris QC appeared for the applicant (Weston Homes and others), Tim Corner QC appeared for Norwich City Council and Historic England (represented by Guy Williams), Save Britain’s Heritage (represented by Matthew Dale-Harris), the Norwich Society and the Norwich Cycling Campaign were all rule 6 parties.

Photo from Save Britain’s Heritage website (credit: Dan Glimmer)

Why was the inspector’s recommendation not accepted?

“The Secretary of State has carefully considered the Inspector’s assessment at IR468- 469 of the building typologies proposed, and their height. While he recognises that there has been an effort to place the taller buildings within the site rather than on the edges, the Secretary of State considers that the bulk and massing of the built form proposed is not sympathetic to its context. In particular, he is concerned that the frontage to St Crispins Road would include 8, 10 and 12 storey buildings, and he finds, like the Inspector at IR607, that Block F, which would have frontages to Pitt Street and St Crispins Road, would appear strikingly different and unfamiliar, to an extent that would cause harm. The Secretary of State also concurs with the advice of Design South East as quoted in the evidence of Historic England (IR269 and IR474) that:

“with blocks of over 10 storeys, it is only in comparison with the tower that these could be considered low rise, and in the context of the wider city they are very prominent. These blocks are not just tall, but also very deep and wide, creating monoliths that are out of scale with the fine grain of the surrounding historic urban fabric”

He “finds that the tower would be of an excessive size in relation to its context, and does not demonstrate the exceptional quality required by Policy DM3(a).

The Secretary of State “disagrees with the Inspector on the scale of the heritage benefits of the proposal set out in IR542, specifically the second bullet given his concerns over the design of the proposal. Taking account of the wider heritage impacts of the scheme as set out in paragraphs 27 to 59 of this letter, the Secretary of State disagrees with the Inspector and finds that, while the benefits of the scheme are sufficient to outweigh the less than substantial harm to the listed buildings identified at IR536-540, when considered individually, they do not do so when considered collectively, given the range and number of heritage assets affected, and given the increased harm found in comparison to the Inspector. He therefore finds, like the Inspector, that the proposals would conflict with policy DM9. He has also found conflict with elements of policies JCS1 which states that heritage assets, and the wider historic environment will be conserved and enhanced through the protection of their settings, and conflict with elements of policy DM1 which states that development proposals will be expected to protect and enhance the physical, environmental and heritage assets of the city.

“Overall the Secretary of State concludes that the benefits of the scheme are not sufficient to outbalance the identified ‘less than substantial’ harm to the significance of the designated heritage assets identified at IR536-537 and in paragraphs 27-59 above. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.”

Bob Weston of Weston Homes has indicated that the decision will be challenged (Norwich Anglia Square: Robert Jenrick ‘sided with Nimby brigade’, BBC website, 12 November 2020).

A303 Stonehenge DCO

Yesterday (12 November 2020) Grant Shapps overturned the examining authority’s recommendation and confirmed the A3030 Stonehenge DCO. The examining authority comprised no fewer than five inspectors (Wendy McKay, Alan Novitzky, David Richards, Ken Taylor and Edwin Maund).

Why was their recommendation rejected?

“ It is the ExA’s opinion that when assessed in accordance with NPSNN, the Development’s effects on the OUV of the WHS, and the significance of heritage assets through development within their settings taken as a whole would lead to substantial harm [ER 5.7.333]. However, the Secretary of State notes the ExA also accepts that its conclusions in relation to cultural heritage, landscape and visual impact issues and the other harms identified, are ultimately matters of planning judgment on which there have been differing and informed opinions and evidence submitted to the examination [ER 7.5.26]. The Secretary of State notes the ExA’s view on the level of harm being substantial is not supported by the positions of the Applicant, Wiltshire Council, the National Trust, the English Heritage Trust, DCMS and Historic England. These stakeholders place greater weight on the benefits to the WHS from the removal of the existing A303 road compared to any consequential harmful effects elsewhere in the WHS. Indeed, the indications are that they consider there would or could be scope for a net benefit overall to the WHS [ER 5.7.54, ER 5.7.55, ER 5.7.62, ER 5.7.70, ER 5.7.72 and ER 5.7.83].”

“Ultimately, the Secretary of State prefers Historic England’s view on this matter for the reasons given [ER 5.7.62 – 5.7.69] and considers it is appropriate to give weight to its judgment as the Government’s statutory advisor on the historic environment, including world heritage. The Secretary of State is satisfied therefore that the harm on spatial, visual relations and settings is less than substantial and should be weighed against the public benefits of the Development in the planning balance.”

See also his overall conclusions at paragraphs 80 to 86.

Again, as with Anglia Square, the position of Historic England proved influential, as was that of the National Trust and other bodies.

A legal challenge from campaigners appears inevitable.

Manston Airport

On 9 July 2020 Grant Shapps also overturned the examining authority’s recommendation and confirmed the Manston Airport DCO. The examining authority comprised four inspectors (Kelvin MacDonald, Martin Broderick, Jonathan Hockley and Jonathan Manning).

The proposals would permit the reopening and development of Manston Airport, enabling it to become a dedicated air freight facility handling at least 10,000 air cargo movements each year, with the offer of some passenger, executive travel, and aircraft engineering services.

Why was the examining authority’s recommendation to reject the proposals not accepted?

“For the reasons above, the Secretary of State disagrees with the ExA’s recommendation to refuse development consent. As set out above in paragraphs 20 and 21, the Secretary of State considers there is a clear case of need for the Development and this should be given substantial weight. He considers the Development would support the government’s policy objective to make the UK one of the best-connected countries in the world and for the aviation sector to make a significant contribution to economic growth of the UK and comply with the Government’s aviation policy that airports should make the best use of their existing capacity and runways, subject to environmental issues being addressed. Substantial weight is given by the Secretary of State to the conclusion that the Development would be in accordance with such policies and that granting development consent for the Development would serve to implement such policy. The Secretary of State also considers that there are significant economic and socio-economic benefits which would flow from the Development, which should also be given substantial weight.

The Secretary of State accepts that there is the potential for short term congestion and delays on the local road system caused by the Development to occur before appropriate mitigation is delivered; however, he considers that the residual cumulative impacts would not be severe and gives limited weight to these effects. He concludes that the need and public benefits that would result from the Development clearly outweigh the heritage harm and the harm that may be caused to the tourist industry in Ramsgate. The Secretary of State also concludes that with the restrictions imposed by him in the DCO and also through the UUs only limited weight should be given to noise and vibration adverse effects.

For the reasons set out in paragraphs 24-26 above, the Secretary of State is content that climate change is a matter that should be afforded moderate weight against the Development in the planning balance. He does not agree with the ExA that operational matters weigh moderately against the grant of development consent being given for the Development.

The Secretary of State is content that the impacts of the Development in terms of air quality [ER 8.2.28 – 8.2.43]; biodiversity [ER 8.2.44 – 8.2.62]; ground conditions [ER 8.2.76 – 8.2.82]; landscape, design and visual impact [ER 8.2.104 – 8.2.120]; and water resources [ER 8.2.219 – 8.2.227] are of neutral weight in the decision as to whether to make the DCO.

When all the above factors are weighed against each other either individually or in- combination, the Secretary of State is satisfied that the benefits outweigh any adverse impacts of the Development.”

An objector, Jenny Dawes, has challenged the decision. Her crowdfunding page gives some basic information.

The claim was filed on 20 August and was granted permission by the High Court on about 14 October to proceed to a full hearing. It doesn’t seem that a hearing date has yet been set. The barristers are Paul Stinchcombe QC, Richard Wald QC and Gethin Thomas.

Norfolk Vanguard offshore windfarm

On 1 July 2020 Alok Sharma overturned the examining authority’s recommendation and confirmed the Norfolk Vanguard offshore windfarm DCO. The examining authority comprised four inspectors (Karen Ridge (Lead Member), Caroline Jones, Gavin Jones and Grahame Kean).

Why was their recommendation to reject the proposals not accepted?

“The Secretary of State notes that the ExA determined that consent should not be granted for the proposed Development because of potential impacts on habitats and species afforded protection under the Habitats Directive. In determining that it was not possible on the basis of the information available to it to rule out an AEoI on two sites protected by the Directive – the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area – the ExA concluded that the proposed Development would not be in accordance with NPS EN- 1 and could not therefore be granted consent.

However, in other respects, the ExA concluded that, while there would be impacts arising from the proposed Development across a range of issues (including on local landscape and traffic and transport), those impacts were not of such significance or would be mitigated to such a degree as to be not significant as to outweigh the substantial benefits that would derive from the development of a very large, low carbon, infrastructure project. The ExA notes that, if one set aside the conclusion on Habitats-related issues, then in all other matters, the proposed Development would be in accordance with the National Policy Statements and national policy objectives. This conclusion was subject to some clarification on specific points, including mitigation proposals.

As is set out elsewhere in this submission, in light of the ExA’s Report to the Secretary of State, the Secretary of State consulted a range of parties including the Applicant about the Habitats-related issues and other relevant matters that had been raised in the ExA’s Report. On Habitats, further information on potential bird impacts such that the Secretary of State is now able to conclude that, on balance, there would be no Adverse Impact on Integrity for the Flamborough and Filey Coast Special Protection Area and the Alde-Ore Estuary Special Protection Area.

The Secretary of State notes that there were a range of views about the potential impacts of the Development with strong concerns expressed about the impacts on, among other things, the landscape around the substation, traffic and transport impacts and potential contamination effects at the site of the F-16 plane crash. However, he has had regard to the ExA’s consideration of these matters and to the mitigation measures that would be put in place to minimise those impacts wherever possible. The Secretary of State considers that findings in the ExA’s Report and the conclusions of the HRA together with the strong endorsement of offshore wind electricity generation in NPS EN-1 and NPS EN-3 mean that, on balance, the benefits of the proposed Development outweigh its adverse impacts. He, therefore, concludes that development consent should be granted in respect of the Development.”

Lang J granted permission on 2 July 2020 in relation to a crowdfunded legal challenge brought by an objector, Ray Pearce.

Drax Power Station Re-Powering Project

These DCO overturn instances are of course not new. On 9 October 2019 Alok Sharma overturned the examining authority’s recommendation and confirmed the Drax Power Station Re-Powering Project DCO. A challenge to the decision failed: ClientEarth v Secretary of State (Holgate J, 22 May 2020).

Nor of course are such instances new when it comes to planning appeals and call-ins.

Might I suggest that a review be carried out as to why they are occurring so often?

Finally, given the infrastructure theme to much of this post, please can I recommend my Town partner Duncan Field’s recent paper in the Journal of Urban Regeneration and Renewal, Overcoming obstacles to planning major infrastructure projects.

Simon Ricketts, 14 November 2020

Personal views, et cetera

Multiple planning permissions, antique planning permissions: Hillside

There is so much that planning legislation does not address and where principles have had to evolve from case law. One of those is the extent to which development pursuant to one planning permission can be carried out without jeopardising the ability of a developer to carry out work pursuant to another planning permission which was granted over the same area of land.

The principle established in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 has been essential to the modern planning system. In that case, Lord Widgery CJ set down the test as follows:


“One looks first of all to see the full scope of that which is being done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”

The case turned on a simple situation of two planning permissions that were granted for the construction of a bungalow on the same plot of land, one positioning the bungalow at the centre of the site and the other in one corner.

The principle is now routinely applied to much more complex situations, for instance where outline planning permission has been granted for a large multi-phase development, a “drop-in” planning permission is often secured for a different form of development on part of the site and permission secured under section 73 for any necessary amendments to conditions attached to the main permission so as to ensure that if development is carried on part of the site under the drop-in permission rather than the main permission, there will be no breach of any conditions attached to the main permission. Any other procedural route, for instance requiring planning permission to be applied for afresh for the whole outline planning permission area would be unnecessarily unwieldy.

The same principle is also relevant when reliance is sought on what I might term “antique” planning permissions, planning permissions which may be hugely valuable if still determined to be live, because they were granted in a more liberal policy climate and when development was not so constrained in terms of planning conditions and obligations. Whilst Parliament legislated for a comprehensive review and modernising of old minerals permissions, it has not done this in relation to permissions for other forms of development.

Last week, in Hillside Parks Limited v Snowdonia National Park Authority (Court of Appeal, 3 November 2020), in a judgment by Singh LJ, the Court of Appeal considered the question of whether one such antique planning permission was still “live”, a 1967 permission for the development of 401 dwellings on 29 acres of land at Balkan Hill, Aberdyfi, granted by Merioneth County Council, as was. The development, governed by a master plan which has been repeatedly varied, has still only been partly built out. In 1987 there was litigation as to whether the permission could still be relied upon and Drake J held that it could. As summarised by the Court of Appeal in the latest proceedings, Drake J held as follows:

“First, the full planning permission of 10 January 1967 was lawfully granted. Secondly, the 1967 permission was a “full permission which could be implemented in its entirety without the need to obtain any further planning permission or planning approval of details”. Thirdly, “the development permitted by the January 1967 Permission has begun; and that it may lawfully be completed at any time in the future”. The fourth declaration concerned the satisfaction of the condition attached to the 1967 permission.”

Snowdonia National Park Authority became the local planning authority in 1996.

“Departures from the Master Plan were granted by the Authority on:


(1) 27 June 1996 for a single dwelling house as a variation to the 1967 Permission.


(2) 20 June 1997 for “two terraces forming: 1 attached dwelling, six apartment units and 8 garages with apartments over” as a variation to the 1967 permission.


(3) 18 September 2000 for a two-storey detached dwelling house and garage on Plot 5 of the Site.


(4) 24 August 2004 for 5 detached houses and 5 garages as a variation to the 1967 permission.


(5) 4 March 2005 for the erection of a 2-storey dwelling and detached garage on Plot 17 on the Site.


(6) 25 August 2005 for the erection of a detached dwelling at Plot 3 of “Phase 1” on the Site.


(7) 20 May 2009 for the erection of 3 pairs of dwellings.


(8) 5 January 2011 for 1 dwelling at Plot 3 on the Site.”

The facts are frustratingly unclear from the judgment, as to the precise nature of these permissions, and indeed the extent to which they were in fact variations of the masterplan approved by way of the 1967 permission.

“On 23 May 2017, the Authority contacted the Appellant, stating that, in its view, the 1967 permission could no longer be implemented because the developments carried out in accordance with the later planning permissions rendered it impossible to implement the original Master Plan. The Authority required that all works at the Site should be stopped until the planning situation had been regularised.”

Hillside sought a declaration from the High Court that the authority was bound by the ruling of Drake J back in 1987, that the permission could still be relied upon and that the “planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development”. The claim was rejected by HHJ Keyser QC at first instance. He held that the 1987 order was not wrongly made but that “the development which has occurred since 1987 now renders the development granted by the 1967 permission a physical impossibility and that future development pursuant to that permission would no longer be lawful.”

The Court of Appeal did not consider that there had been anything inappropriate about the way that the judge had dealt with Drake J’s ruling and did not consider that the authority should be prevented from raising the “Pilkington” issue even though its predecessor had not raised it before Drake J. In weighing up whether to allow that issue to be raised, the court recognised that “there are undoubtedly important private interests, including the commercial interests of the Appellant. However, there are also important public interests at stake, including the public interest in not permitting development which would be inappropriate in a National Park.

Singh LJ’s next comments are of interest, and perhaps of some concern, if they are to be interpreted in any way as casting doubt on effectiveness of the modern “drop-in permission plus section 73 permission” process I referred to earlier:

“Furthermore, I would accept the submission made by Mr Lewis on behalf of the Respondent that there have been significant legal developments since the decision of Drake J in 1987. In particular, the decision of the House of Lords in Sage has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required.

In Sage the main opinion was given by Lord Hobhouse of Woodborough, although there was also a concurring opinion by Lord Hope of Craighead. Mr Green emphasised that, on the facts of that case, what Lord Hobhouse was considering in terms was a planning permission for “a single operation”: see e.g. para. 23. It was in that context, submits Mr Green, that the House of Lords held that a planning permission must be implemented “fully” and that a “holistic approach” must be taken. Mr Lewis observed that, at para. 6, Lord Hope used the word “totality of the operations” (plural rather than singular). In my view, the important point of principle which arises cannot be determined according to semantic differences between the different opinions in the House of Lords. I would accept Mr Lewis’s fundamental submission that the decision in Sage made it clearer than it had previously been that a planning permission should be construed “holistically.”

As a matter of principle, I would endorse the approach taken by Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another [2010] EWHC 1621 (Admin), in particular at paras. 19-20, where Sage was cited. Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:


“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful.”

At the hearing before us there was an interesting debate about a point which ultimately this Court does not need to resolve on this appeal. That issue is whether, in the circumstances envisaged by Hickinbottom J, all the development which has already taken place, apparently in accordance with the first grant of permission, is rendered unlawful simply by virtue of the fact that subsequent operations take place pursuant to another permission which is inconsistent with the first. The phrase used by Hickinbottom J (“subsequent development”) might suggest that it is only the later development which would fall to be regarded as unlawful. Mr Lewis contended that as a matter of principle it must be the whole of the development, including any development that has already taken place. That would have the consequence that there could be enforcement action, and potentially criminal liability, in relation to the development that has already taken place, even though it was at the time apparently in accordance with a valid planning permission. Mr Lewis submitted that in such circumstances it would be unlikely that enforcement action would be taken in practice. Even if that is right, that would mean that whether or not enforcement action is taken would be a matter of discretion rather than law. These are potentially important questions on which we did not receive full argument because they do not need to be decided on this appeal. I would therefore prefer to express no view on them.”

This concept of the planning permission having to be built out as a whole surely needs to be unpacked a little bit more. Sage v Secretary of State (House of Lords, 10 April 2003) was a case about the part-construction of a dwelling. Care needs to be taken in extending any concept that the development needs to be “implemented in full” and is to be regarded as authorising a “single operation” to modern multi-phase permissions. There is no specific requirement that such a development, once started, must be completed – if the local planning authority has a concern in that respect it can serve a completion notice (although of course that procedure is not without its difficulties).

Singh LJ rejects Hillside’s reliance on another old case, F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, as part of its argument that development pursuant to the 1967 permission on parts of the site was not inconsistent with development on other parts of the site pursuant to other permissions, but was he right to? As summarised by Singh LJ:

“Lucas was decided by Winn J in 1964. In that case, in 1952, planning permission was granted to develop a plot of land by the erection of 28 houses in a cul-de-sac layout. Later the plaintiffs applied for permission to develop the same plot by building six detached houses, each on a plot fronting the main road. Permission for this later development was granted in 1957 and two houses were built in accordance with it. Later, however, the plaintiffs proposed to proceed in reliance on the earlier permission from 1952 by building the cul-de-sac and the 14 houses on the southern side of it. That land was still undeveloped at that time. The plaintiffs sought a declaration that the earlier permission was still effective and entitled them to carry out the proposed development on that part of the site where it could still take place. Winn J concluded that the 1952 permission was not to be regarded in law as a permission to develop the plot as a whole but as a permission for any of the development comprised within it. Accordingly, it did authorise the “partial” development proposed by the plaintiffs.”

Surely this was exactly the effect of Hillside’s permission, and certainly how I would categorise modern planning permissions for multi-phase development. As long as conditions are not breached and there is adequate assessment of the cumulative effects, what is the problem?

Singh LJ says this about Lucas:

“…Lucas was a highly exceptional case. It has never been approved by an appellate court. It has never been followed or applied, so far as counsel have been able to show us, by any court since. Furthermore, it was described as being an exceptional case by Lord Widgery CJ (a judge with immense experience in the field of planning law) in Pilkington. Both this Court and the House of Lords have had the opportunity in the many decades since Lucas to consider whether it should be regarded as setting out a general principle or not.

In my view, it would not be appropriate for this Court now to overrule Lucas. In order to do so we would have to be satisfied that it was wrongly decided on its particular facts. It is not possible to be satisfied of that, not least because we do not have the advantage of seeing the precise terms of the planning permission which was granted in that case. It suffices to say that the case should be regarded as having been decided on its own facts.

As Hickinbottom J observed in the case of Singh, at para. 25, it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented.”

Lawyers: what do you make of all this? Further thought is required but I am concerned that this judgment may have introduced further uncertainty into our system, which is complicated enough thank you!

Simon Ricketts, 7 November 2020

Personal views, et cetera

Flag of Merioneth/Meirionydd

If You’re Gonna Do It, Do It Right: Final Thoughts On White Paper

Sorry for starting with an earworm.

Despite its passionate and urgent advocacy, George Michael probably didn’t have planning system reform in mind when he wrote I’m Your Man, but that “If You’re Gonna Do It, Do It Right” chorus has certainly been on an internal loop while writing this post.

We finally nearing the 29 October 2020 deadline for consultation responses in relation to the Planning White Paper.

One small benefit of this Covid-19 period has been the extent of on-screen engagement by some of those behind the proposed reforms, and wider webinar discussions, most of them freely available on YouTube. Congratulations to MHCLG for being prepared to engage in this way.

For me the most illuminating sessions have included (to pick a few):

⁃ Christopher Katkowski QC on Have We Got Planning News For You on 7 August 2020 (13,000 views!) and Christopher being interviewed on 19 October 2020 by Steve Quartermain and Nick Kilby (Cratus). In the second interview, drawing on two and a half months of public discussion during the consultation period, Steve is able to home in on a number of the key unresolved issues. (Particular thanks to Chris for the huge amount of work and thinking he has put into these proposals and for being prepared to speak on so many platforms).

⁃ Steve Quartermain’s hour long discussion with the Secretary of State.

⁃ (I’m biased here) a Town/No 5 chambers webinar on the likely practical implications of the reforms and MHCLG’s director of planning Simon Gallagher participation in a Town webinar on 7 October on the proposed Infrastructure Levy.

What about Parliament? Well, there was a Commons debate on 8 October 2020 into the following motion by Conservative MP for the Isle of Wight, Bob Seely:

“I beg to move,

That this House

welcomes the Government’s levelling up agenda and supports appropriate housing development and the Government’s overall housing objectives;

further welcomes the Government’s consultation, Planning for the Future, updated on 6 August 2020, as a chance to reform housing and land use for the public good;

welcomes the Government’s commitment to protect and restore the natural environment and bio-diversity;

and calls on the Government to delay any planned implementation of the changes to the standard method for assessing local housing need proposed by the Government’s consultation, Changes to the Current Planning System, published on 6 August 2020, and Proposal 4 of the Government’s consultation, Planning for the Future, on a standard method for establishing housing requirement, until this House has had the opportunity to hold a debate and meaningful vote on their introduction.”

39 members spoke in the debate – let nobody think that any stage of the proposed reforms will be uncontroversial – many of the members raising individual constituency issues.

The non-binding motion was agreed without a vote, with MHCLG minister Christopher Pincher making assurances in his speech in response that:

“We will reflect carefully on what we have heard and the feedback we receive. As we advance, we will endeavour to keep the House well-informed of these important changes, because make no mistake: they are important. They are what we need to do to deliver 300,000 good-quality new homes a year in the places that need them, and in the long run, they are what we need to do to build back better after covid-19. They are what we need to do to meet the aspirations of the people we serve now and in the generations to come.”

On the same day, the Housing, Communities and Local Government Commons Select Committee launched an inquiry into the future of the planning system in England. The call for evidence has a deadline of 30 October 2020 and invites responses on the following issues:

“ 1 Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?

2. In seeking to build 300,000 homes a year, is the greatest obstacle the planning system or the subsequent build-out of properties with permission?

3. How can the planning system ensure that buildings are beautiful and fit for purpose?

4. What approach should be used to determine the housing need and requirement of a local authority?

5. What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?

6. How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?

7. What changes, if any, are needed to the green belt?

8. What progress has been made since the Committee’s 2018 report on capturing land value and how might the proposals improve outcomes? What further steps might also be needed?”

I’m reluctant to put down here my own concluding thoughts but I supposed they can briefly be summarised as follows:

1. All credit to those who have put so much work into the proposals, and I have no complaint about the objectives set out in the paper. However, the task is too vast to be dealt with as proposed.

2. The so-called white paper falls short of the necessary detail to be any practical account of what changes are proposed. Those behind the proposals admit as much. There are big gaps, which go beyond being details to join the dots but which rather need to be addressed so that there is proof of concept.

3. The next step should be a full white paper, or sequence of white papers (reform of CIL and section 106 for instance is a huge undertaking which needs its own spotlight), developed through more detailed discussion involving a much wider group of (ugh) stakeholders – including wider representation from the development industry, planners (yes, include planners!), local government, communities.

4. If we rush headlong to legislation it will be botched. We know this to be true!

5. The changes are reliant on changes to EIA and SEA procedures, for which we do not yet have any proposals (they are promised “this Autumn”). They need to move forward in tandem. Again, there is not yet any proof of concept. How can the procedures be simplified without watering down protections?

6. On a similar theme, the changes will be facilitated by the local government organisational changes that were to be included in the devolution and local recovery white paper (see my 25 September 2020 blog post). Again, there is merit in proceeding in tandem so that we are clear as to the role for the London Mayor, for combined authorities and indeed for counties (which seem to be featuring again in discussions in the continued absence of any proper regional approach).

7. Some objectives may be able to be achieved by simple changes, for instance introducing model development management policies into the NPPF alongside guidance that local planning authorities should not duplicate these in their individual plans without good reason.

8. The biggest unanswered questions for me are:

⁃ the process by which Government will give each authority the housing number that it must plan for, what proxy there will be for the current duty to co-operate and how the process can be on the one hand swift but on the other hand transparent, fair and open to challenge.

⁃ the practicality of defining all land as opportunity, renewal or protection and particularly: (a) whether outline permission for opportunity areas is achievable as part of the plan process within the timescale and providing a worthwhile level of detail (b) whether an enhanced presumption in favour of the plan for renewal areas will be counter-productive in killing off any development that is not in accordance with the authority’s wishes and (c) what we really mean by protection areas (see Zack Simons’ spot-on 15 October blog post – one in fact of a brilliantly questioning series which deserve detailed answers).

⁃ the proposed infrastructure levy and in particular the realism or otherwise of the “it will be simpler than CIL” mantra.

I hope that we are not proceeding to construction stage with this new planning system, before we have resolved some fundamental structural elements. (Apologies, I know George Michael would have put that better).

Simon Ricketts, 24 October 2020

Personal views, et cetera

Do Your Conditions Have Symmetry In Mind?

A judgment of the Court of the Appeal yesterday – DB Symmetry Limited v Secretary of State (Court of Appeal, 16 October 2020) – has potentially wide implications.

The court ruled that a condition on a planning permission cannot as a matter of law require land to be dedicated as highway. Unless a realistic interpretation can be given to the condition which avoids that outcome, and if the condition is not considered to be severable from the permission as a whole, in some circumstances the validity of the planning permission may be at risk.

Such a requirement needs instead to be included in that endangered species, the section 106 agreement.

The case arose from the first planning permission to be granted for part of the Swindon New Eastern Villages urban extension (“NEV”), which will eventually comprise 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses. The planning permission in part authorised the construction of a section of spine road envisaged eventually to connect through the wider development.

The report to committee in relation to the planning application explained “that the application site was part of a wider development proposal. It was to “integrate physically and functionally” with adjoining development. The NEV was to come forward as “a series of new interconnected villages.” Each scheme had to demonstrate how it fitted into the wider NEV. The proposal “must provide connections to future development within the [NEV] in the interests of enabling the comprehensive and sustainable development of the NEV as a whole”.

A condition was attached to the planning permission, condition 39:

Roads

The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.

Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety.”

The developer took the position that this condition did not require the dedication of the roads as public highway. I do not know why: perhaps wishing to retain greater control over their maintenance as private roads, perhaps wishing to retain the ability to charge a premium to those who might in the future wish to connect into the roads, including other developers.

As explained by Lewison LJ in the judgment, “the developer applied to Swindon for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of private access roads as private access roads would be lawful. Swindon refused the certificate; and the developer appealed. On 6 November 2018 Ms Wendy McKay LLB, an experienced planning inspector, allowed the appeal. She certified that the use of the access roads for private use only would be lawful.”

The council challenged the decision and at first instance Andrews J quashed it.

The Court of Appeal disagreed in no uncertain terms, regarding itself as bound by a 1964 Court of Appeal judgment, Hall & Co Ltd v Shoreham by Sea Urban DC:

“In Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240 sand and gravel importers and the owners and occupiers of land in an area scheduled for industrial development, applied for planning permission to develop part of their land for industrial purposes. The land adjoined a busy main road which was already overloaded. The highway authority intended to widen it at a future date and to acquire for that purpose a strip forming part of the developer’s land. The planning authority granted planning permission subject to a condition requiring the developer to “construct an ancillary road over the entire frontage of the site at their own expense, as and when required by the local planning authority and shall give right of passage over it to and from such ancillary roads as may be constructed on the adjoining land.” It is to be noted that the condition did not require the transfer of the land itself.

This court held that the imposition of that condition was unlawful. At 247 Willmer LJ summarised the developer’s argument as follows:

“It is contended that the effect of these conditions is to require the plaintiffs not only to build the ancillary road on their own land, but to give right of passage over it to other persons to an extent that will virtually amount to dedicating it to the public, and all this without acquiring any right to recover any compensation whatsoever. This is said to amount to a violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute.

“The defendants would thus obtain the benefit of having the road constructed for them at the plaintiffs’ expense, on the plaintiffs’ land, and without the necessity for paying any compensation in respect thereof. Bearing in mind that another and more regular course is open to the defendants, it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended.”

“Harman LJ said at 256: “It is not in my judgment within the authority’s powers to oblige the planner to dedicate part of his land as a highway open to the public at large without compensation, and this is the other possible interpretation of the condition. As was pointed out to us in argument, the Highways Acts provide the local authority with the means of acquiring lands for the purpose of highways, but that involves compensation of the person whose land is taken, and also the consent of the Minister.”

In the light of Hall, Lewison LJ concluded:

“I consider that, at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition. Whether the unlawfulness is characterised as the condition being outside the scope of the power because it requires the grant of rights over land rather than merely regulating the use of land; or whether it is a misuse of a power to achieve an objective that the power was not designed to secure; whether it is irrational in the public law sense, or whether it is disproportionate does not seem to me to matter. In my judgment Hall establishes a recognised principle which is binding on this court.”

“If the judge interpreted [advice in a previous Government circular] as authorising the imposition of conditions which not only required a developer to provide an access road, but also to dedicate it to public use as a highway, I consider that she was wrong. Such an interpretation would be flatly contrary to consistent government policy for nearly 70 years. In my judgment Hall does impose an absolute ban on requiring dedication of land as a public highway without compensation as a condition of the grant of planning permission. I also consider, contrary to Mr Harwood’s submission, that there is no difference for this purpose between dedicating a road as a highway and transferring the land itself for highway use. As I have said, the condition in Hall did not require the land itself to be transferred, yet it was still held to be unlawful.”

The reference to “at least at this level in the judicial hierarchy” is interesting – has the council the appetite to apply for permission to appeal to the Supreme Court? Hall was decided in another time and is it right that the operation of conditions should continue to be constrained in this way? Whilst Hall and Symmetry were both cases about conditions that potentially required the dedication of land as highway, the same principle would apply to conditions requiring the dedication, disposal or transfer of land for other purposes, e.g. open space or affordable housing. Care is required! The distinction nowadays between the “imposition” of planning conditions and the “agreement” of section 106 planning obligations is surely somewhat artificial – on major schemes, conditions are negotiated by the parties to almost an equivalent extent as planning obligations may be – and if the applicant isn’t happy with a condition that has been imposed, section 96A and section 73 are always available. Furthermore, Willmer J’s 1964 reference to the relevant condition amounting to a “violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute” looks quaint from a 2020 perspective, where the price of planning permission for any significant scheme entails multiple violations of those so-called “fundamental rights” – and, on proposals within areas allocated for comprehensive development, in my view “anti-ransom” arrangements are essential planning prerequisites – why shouldn’t a condition be enabled to achieve that objective?

Once the Court of Appeal had concluded that the condition could not lawfully have the effect of requiring roads to be dedicated as public highway, it needed to consider whether another interpretation could realistically be given to the condition.

“In her decision letter, the inspector expressed her conclusion at [20] as follows: “Whilst the term “highway” usually means a road over which the general public have the right to pass and repass, the phrase “fully functional highway” cannot be divorced from the beginning of the sub-clause which states “shall be constructed in such a manner as to ensure…”. In my view, Condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public. I believe that a reasonable reader would adopt the Appellant’s understanding of the term “highway” as used in the context of the condition with the clear reference to the construction of the roads as opposed to their use or legal status. The distinct inclusion of the term “public highway” in the reason for imposing Condition 39 reinforces my view on that point.”

Lewison LJ:

“I do not think that the judge really appreciated the consequences of her decision. In my judgment, if the judge was right in her interpretation of the condition, the condition (and probably the whole planning permission) is invalid. In those circumstances, the validation principle comes into play. The question, then, is whether the inspector’s interpretation of condition 39 was realistic (even if not the most obvious or natural one).”

“In my judgment, the interpretation adopted by the inspector is, to put it no higher, a realistic one even if it is not the most natural. The validation principle therefore applies; and condition 39 should be given the meaning that she ascribed to it.”

Surely if the court had not managed to get to this interpretation of the condition it would not have quashed the whole consent? For the council that would have certainly been a “You’re only supposed to blow the bloody doors off!” moment.

What if the condition had been negatively worded: not to occupy more than x dwellings until defined roads had been constructed and satisfactory arrangements had been made for their adoption as public highway? Any different outcome?

The obvious practical lesson is to document these sorts of dedication and land transfer requirements other than by condition but let’s see if there’s a further appeal.

Simon Ricketts, 17 October 2020

Personal views, et cetera

Adonis blue (image from Wikipedia)

Planning Law For The Future

A Town/Landmark Chambers webinar on the Planning Court in practice and the future implications of the Faulks review is taking place at 5.30pm on 14 October, when I will be joined by Landmark Chambers’ John Litton QC, Tim Buley QC and Jenny Wigley, together with my Town partner Duncan Field. Free registration here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

The webinar is in part a follow-on from the development of the Town/Landmark Chambers Case Explorer (a case searching and statistical analysis tool containing every judgment of the Planning Court since its creation in 2014 to June 2020, together with appellate judgments) and in part will consider the likely implications of the Faulks Review Of Administrative Law, which I covered in a 12 September 2020 blog post . The call for evidence deadline of 19 October 2020 is fast approaching.

But what I wanted to give you a taste of in this short post is how, with data scientist Joseph White of legal engineers Simmons Wavelength, we’ve begun to play around with new ways of exploring the contents of the Planning Court Case Explorer, and in particular the ways in which case law develops – the Planning Court Case Network.

The following images illustrate a visualised “citation network” of Planning Court cases. Each circle or ‘node’ represents a case, and each line or ‘edge’ between two nodes represents where one case has cited another (a line that curves clockwise from one case represents where that case has cited another, and a line that curves anti-clockwise represents where it has been cited). The more times a case has been cited, the larger the node.

The lone nodes on the perimeter represent cases that do not cite other cases and which have not been cited in subsequent cases.

Selecting an individual case node allows you to see some case topic keywords (extracted with a data science technique for language processing), a link to Bailii and all “incoming” links (later cases that cite the selected case) and “outgoing” links (earlier cases that the selected case cites itself).

In terms of the network layout, citations between cases draw them closer together, so what naturally emerges is dense groups or ‘clusters’ of cases that are closely related to each other (which is also represented to a certain extent by the colours).

The connections are fascinating. Whilst the data is not guaranteed to be 100% accurate we can see what are the most influential cases: Suffolk Coastal assumes centre stage as the most cited case in the whole network (62 citations!). Champion, has its own network of 30 citations, and Dover District Council v CPRE Kent has 22 citations.

Just pretty images or can I be the first to say… PlanLawTech?!

Simon Ricketts, 10 October 2020

Personal views, et cetera