Angelic: Public Benefits Of Unlawful Demolition In Conservation Area

There was an interesting piece this week by Sarah Townsend on the Planning Resource website: Why planning enforcement notices have dropped to their lowest-ever level (subscription only, 29 August 2019).

There was also an interesting ruling from the High Court, London Borough of Tower Hamlets v Secretary of State and Angelic Interiors Limited (in administration) (Kerr J, 27 August 2019), which will have made every enforcement officer, and indeed conservation officer, blink. Although perhaps the facts are unusual.

In June 2016, enforcement officers at the London Borough of Tower Hamlets were tipped off that the buildings comprising 2, 4 and 6 East Ferry Road London E14, within the Coldharbour conservation area, had been demolished without planning permission. It is of course a crime, as well as a breach of planning control, to cause or permit demolition of a building in a conservation area without planning permission.

The council wasn’t certain who had done it, although an individual has since admitted responsibility, and it did not prosecute.

As was reported at the time (BBC website, 27 September 2017), the council served various enforcement notices, requiring that within 18 months the owner was to “rebuild the building so as to recreate in facsimile the building as it stood immediately prior to its demolition on 26 June 2016 with reference to the photographs and plans (LBTH file reference PA/84/00512 & PA/81/00497 originals of which are available at the Tower Hamlets Council’s Town Hall)

In fact there had been a long-running dispute as to who owned the property, which was only resolved in October 2018, in favour of a company called, ironically, Angelic Interiors Limited, which had been in administration since July 2016. Angelic’s administrators appealed against the enforcement notices.

Enforcement appeal decision letter

The inspector, Simon Hand, allowed the appeals in a decision letter dated 17 December 2018.

In order to place Kerr J’s judgment this month into context, it is illuminating to read the decision letter.

Here are some key passages:

Nos 2-6 were the last surviving remnant of the once large area of Victorian workers housing in Cubitt Town which occupied the whole of the south-eastern side of the Isle of Dogs.”

There is […] no dispute the removal of the buildings causes less than substantial harm to the Coldharbour conservation area. The conservation area is a designated heritage asset and paragraph 193 of the NPPF makes it clear that great weight should be given to any less than substantial harm to the significance of a heritage asset. Paragraph 194 goes on to say that any loss of significance to a heritage asset should require clear and convincing justification (my emphases). Paragraph 196 explains that where there is less than substantial harm to a heritage asset is should be weighed against the likely public benefits arising from that harm.”

If they were to be rebuilt then they would undoubtedly be very nice, but the issue is what role do they play in the significance of the conservation area and the answer would seem to me to be very little.”

Had the demolished buildings been of historic interest in their own right they would have been worth preserving simply for that reason, but they would still have told us little or nothing about Cubitt Town, its development, or its morphology. The development of Cubitt Town does not seem to have been unusual in any way, nor any of its buildings particularly special, it is not until this Inquiry that anyone at the Council has made any mention of it at all. To my mind the dwellings were not the last fragment of a historically significant but now lost development. They were simply three remnant buildings in a sea of modern development. To suggest that this makes it all the more important to preserve them is to adopt a collector’s mentality, particularly as they seemed to have no great historic significance themselves due to the substantial modern changes they had undergone.”

Both parties accepted the loss of the buildings had caused less than substantial harm to the significance of the conservation area, and I would not like to suggest their loss causes no harm at all, but I consider that the harm is very much at the lowest end of that scale. It was argued that if the site is left vacant or redeveloped there would be no reason to retain it in the conservation area and this would seem to be true, but it does call into question the motivation for extending the conservation area in the first place. Had it been deliberately to protect this remnant of Cubitt Town, then I would have expected somewhere for this to have been explained. I accept the conservation area appraisal is lacking in detail, but if Cubitt Town was of such importance as Mr Froneman argued, then I find it hard to believe the reason for the extension to this allegedly key part of the Isle of Dogs is deliberately not mentioned as the appraisal explains only that the extension was in order to protect Glen Terrace. It seems to me more likely the Council just saw these Victorian looking buildings and took the opportunity to include them, as there was nothing else of any historic interest in the area. Whatever the truth of the matter whether or not the vacant site remains worthy of conservation area status is of little importance in this case.”

The inspector found this to be an area of high housing need and “there would appear to be no constraints that would prevent a housing scheme of significantly greater density than 3 units from being successful on the site.”

it would seem highly likely that a suitable development proposal could be found and there are no obvious reasons why the landowner would not want to realise the development potential of the site.”

Paragraph 196 of the NPPF requires that the harm should be weighed against any public benefits. In this case those benefits are the redevelopment of the site with a much larger number of dwellings than would be the case if the demolished houses were rebuilt, including much needed affordable housing, all of which would be in accord with the prevailing policy ethos for the area. I accept these benefits are speculative, but in my view there is a good chance they would be realised. It seems likely to me that even had the buildings still been in place, given their poor condition and lack of any historic significance, they would have been demolished to make way for a comprehensive redevelopment scheme. Consequently, I consider these benefits outweigh the harm identified. The demolition of the three dwellings is thus in accord with the NPPF and the development plan for the area and so I shall grant planning permission accordingly.

So he found that the potential for redevelopment for housing purposes of the unlawfully cleared site amounted to a sufficient public benefit to outweigh the “great weight” to be attached to the (very much) less than substantial harm that had been caused to the character or appearance of the conservation area.

High Court

The council challenged the decision letter.

Kerr J identified the main issue before him as “whether the “public benefits of the proposal” (in the words of NPPF paragraph 196) should extend to likely benefits of new development of a site, facilitated by demolition of buildings on the site, where there is no current application for planning permission to develop the site; or whether those words are restricted to the public benefits of demolishing the buildings, without considering any likely future development.

The judge did not find this to be an easy case:

It is counter-intuitive to propose that unlawful (and criminal) demolition of buildings forming part of a conservation area, harming the significance of that conservation area, can do more good than harm. No sensible planning application to demolish would be made on that basis and a planning consultant suggesting such an application would soon be short of clients.

Still, for the inspector’s decision to be lawful, and for the challenges to fail, it has to be a defensible conclusion that demolition without replacement, leaving the site razed to the ground and vacant, without any replacement development, and doing harm to the significance of the conservation area, is more good than bad. Baldly stated in that way, the proposition is remarkable.

My first thought on hearing argument was that the proposition cannot be correct. If only demolition is on the table, and demolition is harmful, how then can it do more good than harm? Can it be good and bad at the same time, and more good than bad?

The judge concluded that it was simply a matter for factual evaluation for the inspector.

I accept the respondents’ interpretation of the heritage provisions in the NPPF with a degree of hesitation. I am conscious that it is a liberal construction and not a strict pro-heritage construction such as the council is advocating. Nevertheless, on balance I think the respondents’ is the correct one, bearing in mind that the NPPF provisions are statements of policy not law and the language of the provisions is not restricted in the way the council contends.”

He considered whether the inspector’s decision could be said to have been irrational:

I reject the council’s free standing contention that, quite apart from the interpretation of the NPPF provisions, it was irrational to decide that the market would produce suitable and beneficial housing development soon. It is true that the inspector could not say what type of development that would be, nor that it would certainly occur; but those were points he was entitled to weigh when considering the public benefit side of the balance.

I do not see any want of rationality in reasoning that the site would soon attract developers like flies to a honeypot and that this would probably have led to demolition of the three houses soon anyway. The circumstantial evidence supporting that finding was not lacking: the prime location, the pressing need to build housing in the borough, the appetite shown by other housing developments nearby, the indicative Turner scheme and the intention to sell and strong likelihood of sale of the site for development.”

Lastly, he considered whether the inspector’s decision was adequately reasoned:

As for the reasons challenge, did the inspector properly set out his thinking? Manifestly, he did. The reasoning need not be discursive. It is commendably succinct but clear and full. He explained exactly why he was confident that delivery of the public benefit he anticipated could be left to the market. He made all the points I have just mentioned, in support of his conclusion. The council cannot complain that it does not know why it lost the appeals.

I did consider carefully whether the reasoning touches adequately on the possibility of a development scheme that would leave the three houses intact, whereby the developer would build round them and keep them in place. If the inspector had simply assumed, without considering the issue properly, that the public benefits derived from anticipated development would be lost unless the demolition were permitted, that could have been a flaw in the reasoning.

However, I have concluded that the inspector did adequately, though briefly, consider this point and that it was a matter for his planning judgment. His consideration of likely development proposals such as the one illustrated by the Turner scheme (involving 22 new dwellings) included the council’s 2005 discussions which would have involved demolition of the three houses.”

He dismissed the challenge, albeit with a final bit of judicial hand-wringing:

I do so without much enthusiasm, reminding myself that the enforcement system is remedial not punitive. I must put aside the affront to the rule of law and criminal activity seen in this case, as well as the loss of the three houses and their contribution to our historic environment, however limited some may consider it. My discomfort does not make the inspector’s decision unlawful and I must and do uphold it.”

Implications

Plainly, unlawful actions should in principle not go unpunished and it is disappointing that there have been no prosecutions.

Plainly also, Angelic’s administrators now have an unearned windfall by virtue of a cleared site for development with no obligation to reconstruct the buildings that others had unlawfully demolished on the site.

That is not to say that the enforcement notices should have stood and that replicas of these apparently unexceptional buildings should have been required, simply to discourage others from similar conduct, but what is there in this unfortunate chain of events to encourage appropriate behaviour on the part of future Angelics?

Simon Ricketts, 31 August 2019

Personal views, et cetera

Prior Approval Deadlines: An Important Judgment

Your planning law question for today is:

Where the General Permitted Development Order 2015 provides that you have deemed planning permission for a category of development within Schedule 2 of the Order, subject to your applying to the local planning authority for a determination as to whether its prior approval is required as to specified matters, and the Order sets out a specific deadline for that determination (failing which development may proceed), can you agree an extended deadline with the local planning authority?

When you look at Schedule 2, Part 3 (changes of use) for instance, paragraph W specifies as follows:

(11) The development must not begin before the occurrence of one of the following –

(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;

(b) the receipt by the applicant from the local planning authority of a written notice giving their prior approval; or

(c) the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused.”

There is no hint of any power for the parties to agree an extended time period.

But then you look at Article 7 of the Order:

7. Prior approval applications: time periods for decision

Where, in relation to development permitted by any Class in Schedule 2 which is expressed to be subject to prior approval, an application has been made to a local planning authority for such approval or a determination as to whether such approval is required, the decision in relation to the application must be made by the authority –

(a) within the period specified in the relevant provision of Schedule 2,

(b) where no period is specified, within a period of 8 weeks beginning with the day immediately following that on which the application is received by the authority, or

(c) within such longer period as may be agreed by the applicant and the authority in writing.

Does this enable that 56 day period to be extended? Most commentators have previously assumed so. My experience is that agreed extensions are not uncommon. After all, a developer would often rather allow the authority further time to determine an application (perhaps on the basis of further information being provided to assist in its consideration of the issues) rather than to face a 56th day refusal and the need to re-apply and/or appeal.

It’s a binary question. The High Court in R (Warren Farm (Wokingham) Limited v Wokingham Borough Council (Mr C M G Ockelton, 31 July 2019) has ruled that article 7 (c) does not enable specific deadlines in schedule 2 to be extended.

In Mr Ockleton’s view (Mr Ockleton is Vice President of the Upper Tribunal but regularly sits as a High Court judge), article 7 (c) only enables extension of time in relation to categories of prior approval application which fall under article 7 (b) ie where Schedule 2 does not specify a deadline and therefore article (b) imposes a deadline of eight weeks.

He goes on to say this:

There is of course a certain artificiality in the discussion: I was not shown any provision of the GPDO to which article 7(b) applies and it follows from the view that I have reached that if there is (at present) none, there is also no provision to which article 7(c) applies. But that does not impact on my conclusion. Where a period is specified, the deemed grant of planning permission takes place at the end of that period, so the authority’s decision must be before that. If no period be specified, the deemed grant takes place only when a decision is made, and there is therefore scope for agreeing a time within which the authority has to make a decision. Article 7(c) is to be read as an alternative to article 7(b) only, not to article 7 (a).”

(Obviously I took that as a challenge to go rooting through the Order. For a prior approval procedure in schedule 2 without a specified deadline for the prior approval process you need to go 200 or so pages into the document to classes B and following classes in Part 17 (“mining and minerals operations”)).

I am not at all sure that Parliament intended article 7 (c) to have such limited effect. I would suggest that MHCLG review the implications as a matter of urgency. Particularly if we are going to see further or amended permitted development processes in due course with additional matters for prior approval, are the current determination deadlines appropriate if they can’t be extended by agreement?

Furthermore, what are the implications for existing applications? The claimant in the Warren Farm case had agreed an extended period of determination for its prior approval application in connection with a proposal to use an agricultural building as a dwelling. The application was subsequently refused but it successfully challenged the refusal on the basis that in fact the purported agreement to extend time had not been legally effective and that there was therefore an automatic deemed approval at the end of the 56 days.

There may be other decisions in the same circumstances, subject to the usual judicial review deadline.

However, isn’t there legal uncertainty as to what is the case in any event, if there was a purported agreement to extend the time period and then an (as it now transpires) unlawful refusal? Even if the issue of that refusal is not (or cannot now be) challenged by way of judicial review, does (in the case for instance of changes of use) paragraph W (11) (c) allow the development to be carried out in any event because there has been “the expiry of 56 days following the date on which the application under sub-paragraph (2) was received by the local planning authority without the authority notifying the applicant as to whether prior approval is given or refused”. The 56 days expired without any refusal and is that sufficient, even if there was subsequently a refusal? Open question – what do you think?

I think we shall be seeing further litigation. In any case, the wording of the Order needs to be clarified.

Simon Ricketts, 24 August 2019

Personal views, et cetera

Gestation Of An Elephant: Plan Making

Keith Hill, then housing and planning minister, once described the process to Royal Assent of what became the Planning and Compulsory Purchase Act 2004 as “the gestation of an elephant”. It took 17 months. Given that the average gestation period for an Asian elephant is 18 to 22 months he wasn’t far off.

However, he would have been more accurate using the metaphor in relation to the local plan examination processes that were conceived by way of the Act. Lichfields’ January 2019 statistical report Planned up and be counted: Local Plan-making since the NPPF 2012 concludes that the average examination length under the 2012 NPPF has been 18 months.

My 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism attempted to go into some of the reasons for that.

15 years on from the 2004 Act, it is interesting to set what the aspirations of the Government of the time were, as against some examples of current examination processes up and down the country.

Barbara Roche in the House of Commons on 17 December 2002, introducing the Bill for a second reading:

We want to make the system fairer, faster and more predictable and to bring to planning clarity, certainty and more strategic direction.”

Lord Rooker in the House of Lords 6 January 2004:

“…the Bill sets out a reform planning system for this new century that will help us to deliver sustainable communities faster and more fairly—it is no good being faster unless it is fairer.”

What will the Bill do? It simplifies the plan-led process by abolishing the middle tier of planning—the structure plans—that exists in some areas; that is to say, areas where there are county councils and two-tier local government. The new system will have two linked levels of planning: regional spatial strategies and local development frameworks. The local development frameworks will be made up each of a set of local development documents, which each authority will be required to prepare. Together, these documents will replace local plans and unitary development plans. They will set out development proposals and have a clear map so that everyone can see what goes where.”

The Conservative peer Lord Hanningfield in response:

In introducing the legislation, the Minister pointed out that the Government seek to make the planning system simpler and quicker, aims which we support. However, we believe that the proposals risk achieving the opposite outcomes. This legislation will unleash regional spatial strategies, local development schemes, local development frameworks, local development documents, action area plans, simplified planning zones and statements of community involvement. How will all these plans and schemes, with their different timetables, consultations, inspections and appeals, make the system more transparent or streamlined? This level of complexity and fragmentation will accelerate public disenchantment with the system. It will lead to uncertainty, delay and planning by appeal.”

Looking back at the scrutiny of the Bill in Public Bill Committee on 23 October 2003 for instance, Geoffrey Clifton-Brown, then shadow spokesman for Communities and Local Government, responding to planning and housing minister Keith Hill, also pretty much called it right (but it was what we all said at the time):

I accept a lot of what the Minister said in his long speech about the deficiencies in the existing system, such as the inflexibility as well as the time and difficulty in getting a revision due to the need to revise the whole plan. We feel that the existing system with amendments could have been made to work and that tearing it up and replacing it with a highly complicated new system will make a paradise for lawyers. We will see judicial reviews and all manner of case law created as a result of the Bill, which will add to the delay that it will bring.”

I accept absolutely, however, what the Minister said about the existing system being inadequate, in that it is too slow and that 31 authorities do not have a plan in place. The Committee will not be surprised to learn that a number of practitioners and large developers who use the planning system have been through my offices in the last few weeks. The one thing they all say is, ”For goodness’ sake, we hope that this new system is going to be quicker and clearer, but we don’t think it is.” The test of time will prove that, but we need to ensure that the system will operate.”

Time will tell whether that new system works, but I have a new acronym— CHAOS, which stands for ”Can Hill’s Alternative Objectives Succeed?” I submit that they will not.”

Nothing is black and white in planning. It is not that there is chaos, but, guess what, the system is no quicker or clearer. We no longer have lengthy adversarial local plan inquiries but we are seeing increasingly lawyer-heavy local plan examinations (cross-examination having been replaced by duelling legal opinions), that can turn into utter sagas of successive rounds of inspectors’ preliminary findings, further work, further consultation and rescheduled hearing sessions. Outcomes are unpredictable. There is a lack of statistical transparency across the piece as to how the system is performing.

It took 28 months from submission of the Cambridge and South Cambridgeshire local plans for examination on 28 April 2014 to publication of the inspectors’ final report on 3 September 2018. Is that a record?

If so, it won’t be for long. From those plan examinations that I am immediately aware of:

Welwyn Hatfield will soon overtake that. Its plan was submitted for examination on 15 May 2017. During the course of the hearing sessions, the inspector was not satisfied that the council had allocated sufficient housing sites and the council embarked on a further call for green belt sites for possible release but misjudged how long the process would take, or simply failed to manage the process properly, leading the inspector to issue his 8 August 2019 letter to the council. You can sense the frustration in his tone. There is now no likelihood that the examination will be completed by May 2020, as the council had suggested back in March. If the council is not able to revise the timetable, “putting forward realistic time periods and milestones for the conclusion of all the outstanding tasks, including the hearings…or slippage continues to occur [beyond April 2020] then I think we should consider the option of you withdrawing the plan with a view to re-submitting it for Examination when the work is finally completed and there are no obvious soundness issues accompanying it”.

The North Essex Authorities section 1 local plan will run and run. The plan was submitted for examination on 9 October 2017. The inspector was not satisfied with the sustainability appraisal work underpinning identification of three new garden cities and raised concerns as to soundness in his 8 June 2018 letter. He gave the options of removing the garden cities from the plan on the basis of a commitment to an early review, or doing further working and undertaking further consultation. The authorities chose the latter course. Consultation starts on Monday until 30 September 2019 before further hearing sessions are then arranged, according to the inspector’s August 2019 update.

The Windsor and Maidenhead local plan was submitted for examination on 31 January 2018. The council has had to do various strands of further work since the stage 1 hearings which took place last year. Another frustrated inspector – her letter dated 21 June 2019 presses the council for “as much detail as possible” as to the likely implications for the plan of each strand and the number and nature of changes that it is likely to propose:

In making this assessment, please consider whether continuing with the examination of the submitted Plan is the most prudent course of action in light of the work you are doing and of the potential issues reported in our previous correspondence. If you remain of the view that the examination should continue, please set out clearly the steps necessary before hearings can resume along with a realistic timetable for the process. I would also ask you to consider whether a procedural hearing might be a useful means of clarifying the process for all parties and, if so, when it could take place.”

The St Albans local plan was submitted to the Secretary of State for examination in March 2019, following the failure of the previously submitted plan on the basis of the inspector finding that the duty to cooperate had not complied with. The hearing sessions were due to begin in October 2019 but already the examination has run into the sand. The council responded in detail on 31 July 2019 to initial questions from the inspectors. When I say “in detail”, their response as to its approach to proposed green belt releases runs to over 70 pages (an explanation that should surely have been available when the plan was initially submitted). The council has now confirmed that the stage hearing sessions will not be taking place until January and February 2020.

The York local plan was submitted for examination in May 2018, following years of delay and political disagreements. 15 months on, there is no sign of any hearing sessions. Consultation closed on 22 July 2019 in relation to a proposed revised housing need figure and other documents as well as a number of proposed consequent modifications to the plan.

And so it goes on. The North Warwickshire local plan was submitted for examination in March 2018. The inspector’s letter dated 24 June 2019 following the hearing sessions sets out various unresolved issues, the main one being the plan’s reliance on a HIF funding bid of around £58m which has not yet been awarded. The inspector puts forward three possible options for the council and recommends that in the first instance the council pursues option (a), which “may mean suspending the examination for a short period”:

a. await the outcome of the HIF bid and unambiguously identify the likely source(s) of funding for the dualling of the A5; or

b. put forward alternative sites that do not rely on highways improvements for which funding is not certain or unknown; or

c. withdraw the plan

The inspectors’ approach with the West of England joint spatial plan (submitted for examination in April 2018) – to recommend, after the first hearing sessions, withdrawal of the plan, in their letter dated 1 August 2019 – was perhaps a more realistically decisive response than the make-do-and-mend pragmatism that is leading time and time again to these prolonged examination processes, although equally unsatisfactory for the participants. They will provide more detailed reasoning later this month, but the inspectors have a series of concerns as to how the “strategic development locations” in the plan were selected against reasonable alternatives. They question whether further work could be carried out “with the necessary objectivity, rather than being an exercise to justify a predetermined spatial strategy.

It would obviously be better for all concerned if work is done to the necessary standard before plans are submitted. Why isn’t it? The problems can’t all be laid at the door of the 2012 NPPF and the uncertainties arising from the 2012 system of assessing housing need. Or of the prescriptive requirements of strategic environmental assessment.

Is it a lack of guidance, too many fudged compromises pre-examination or simply a system that is not fit for purpose?

Or, to mix mammalian metaphors, is it that, if the system was an elephant, perhaps now it is a camel? For example, crucial components of the 2004 brave new world were (1) the setting of numbers by way of regional spatial strategies (a process that proved slow and difficult, with little public appetite for directly elected regional assemblies), abolished once the coalition government took control in 2010, and (2) the concept that the local development scheme would comprise a variety of development plan documents, being updated at different times, but now encouraged to be bundled back together as local plans and thereby as cumbersome as the complex documents the 2004 system sought to replace. Tinkering has not necessarily improved.

An elephant would never forget the meandering way in which we ended up with our present planning system.

One hump or two?

Simon Ricketts, 17 August 2019

Personal views, et cetera

Pic courtesy of Wikipedia

The Big CC

I’m on holiday and it’s hot. There was going to be no blog post this week.

But the hotel room world news channels were covering the latest IPCC report, published on Thursday, and I realised I needed to join some dots for myself on climate change. So here is another blog post after all, before I lose the thread again.

I’m no expert but I hope the links at least are helpful. Many of you will know all this and more, and will find my summarising simplistic. I have tried to remain factual, or at least evidence-based, but there is inevitably some subjectivity in selecting passages to quote from long reports.

Some preliminary thoughts:

⁃ Allowing average global temperatures to rise more than 1.5 degrees C above pre-industrial levels is not a sensible option. The implications have now been mapped out to a high level of scientific certainty.

⁃ Through an unprecedented amount of international effort, ground work has been done to work out how temperature rises can be contained. But achieving international consensus is slow, lagging behind the science, and given the absence, pretty much, of any international supervisory regime, it is

now for each country to work out how, and whether it wants, to play its part.

⁃ It is not that successive UK governments have done nothing. But have they done enough? How best do we move forward at the right pace, potentially no longer in coordination with our nearest trading partners (in the way that many measures to date have been) and given that this Government, and governments to come, are focused on Brexit and its practical and economic implications?

⁃ Business will not be as usual, but if we get it right, many outcomes will be beneficial in any event – more pleasant places to live, healthier lifestyles.

⁃ The challenge will inevitably increasingly influence much of national policy-making as well as our funding and taxation regimes – the only arguments are about how hard and how fast the measures should be. If we are not very careful, those arguments will become increasingly entrenched and politicised.

⁃ Much of our approach to infrastructure and planning will be affected.

⁃ All of this will help to define what it means to be a planning lawyer for the rest of my career.

Think Global

Some important stepping stones.

Creation of the IPCC, 1988

The Intergovernmental Panel on Climate Change was established in 1988 by the World Meteorological Organisation and United Nations Environment Programme. As set out in its principles:

The role of the IPCC is to assess on a comprehensive, objective, open and transparent basis the scientific, technical and socio-economic information relevant to understanding the scientific basis of risk of human-induced climate change, its potential impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they may need to deal objectively with scientific, technical and socio-economic factors relevant to the application of particular policies.”

The IPCC does not carry out its own original research but bases its extremely detailed assessment reports (of which there now have been five, as well as a special report last year which I’ll come to in a moment) on peer-reviewed analysis, by thousands of scientists, working on a voluntary basis, of published scientific literature.

The IPCC has proved essential to climate change thinking, where the science is liable be hijacked by those with their own agendas.

Rio, 1992

The United Nations Framework Convention on Climate Change was adopted at the Rio Summit in 1992.

Article 2 sets out that the “ultimate objective” of the Convention is “to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent

dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.”

Developed countries agreed that they would stabilise their greenhouse gas emissions at verified 1990 benchmark levels by 2000.

Kyoto, 1997

The Kyoto Protocol extended the scope of the Convention. Whilst negotiated in 1997, it did not come into force until 2005. Its parties, which included the UK and the EU, were committed to reducing emissions of six identified greenhouse gases from the 1990 benchmark in the initial commitment period of 2008 to 2012, each by an identified percentage, that for the UK being 12.5%.

Doha, 2012

An amendment to the Kyoto Protocol was adopted by a number of states, including the UK and EU, in 2012. It covers the second commitment period under the Kyoto Protocol, from 2013 to 2020, with commitments to more stringent reductions – 20% from 1990 levels for EU states.

Paris, 2016

The Paris agreement was negotiated in 2015 and signed by almost 200 participating countries in 2016.

For the first time there was a defined target in an international treaty, of holding global warming below 2 degrees above pre-industrial levels, despite there being a large amount of international consensus well before that this was an appropriate target (for example, this was an outcome of a 1996 Council of the European Union conference in Luxembourg, as well as 2009 and 2010 UN Copenhagen climate change conferences in Copenhagen and Cancún respectively). However, understanding of the science was moving on: the evidence in the IPCC’s Fifth Assessment Report, published in 2014, implied that 2 degrees might not be an adequate target.

The objectives of the agreement are set out in Article 2:

1. This Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by:

(a) Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and

(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.

2. This Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.”

Cutting and pasting from Wikipedia (I’m on holiday):

Under the Paris Agreement, each country must determine, plan, and regularly report on the contribution that it undertakes to mitigate global warming. No mechanism forces a country to set a specific target by a specific date, but each target should go beyond previously set targets. In June 2017, U.S. President Donald Trump announced his intention to withdraw the United States from the agreement. Under the agreement, the earliest effective date of withdrawal for the U.S. is November 2020, shortly before the end of President Trump’s current term. In practice, changes in United States policy that are contrary to the Paris Agreement have already been put in place.”

IPCC special report, October 2018

The sixth IPCC assessment report is not due until 2022, but as part of the Paris agreement negotiations the IPCC was requested to publish a special report on the impact of global warming of 1.5°C above pre-industrial levels . The evidence in the report sets out plainly the relative implications and likelihoods of a 1.5 or 2 degrees rise in global warming and the consequences, largely projected with a stated high degree of certainty. The evidence inevitably points to the need for the current Paris agreement cap of 2 degrees being reduced to a cap of 1.5 degrees – just a more ambitious longterm target of 1.5 degrees in the agreement.

Global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate. (high confidence).”

Climate-related risks for natural and human systems are higher for global warming of 1.5°C than at present, but lower than at 2°C (high confidence). These risks depend on the magnitude and rate of warming, geographic location, levels of development and vulnerability, and on the choices and implementation of adaptation and mitigation options (high confidence).”

Climate models project robust differences in regional climate characteristics between present-day and global warming of 1.5°C, and between 1.5°C and 2°C. These differences include increases in: mean temperature in most land and ocean regions (high confidence), hot extremes in most inhabited regions (high confidence), heavy precipitation in several regions (medium confidence), and the probability of drought and precipitation deficits in some regions (medium confidence).

By 2100, global mean sea level rise is projected to be around 0.1 metre lower with global warming of 1.5°C compared to 2°C (medium confidence). Sea level will continue to rise well beyond 2100 (high confidence), and the magnitude and rate of this rise depend on future emission pathways. A slower rate of sea level rise enables greater opportunities for adaptation in the human and ecological systems of small islands, low-lying coastal areas and deltas (medium confidence).

On land, impacts on biodiversity and ecosystems, including species loss and extinction, are projected to be lower at 1.5°C of global warming compared to 2°C. Limiting global warming to 1.5°C compared to 2°C is projected to lower the impacts on terrestrial, freshwater and coastal ecosystems and to retain more of their services to humans (high confidence).

Limiting global warming to 1.5°C compared to 2°C is projected to reduce increases in ocean temperature as well as associated increases in ocean acidity and decreases in ocean oxygen levels (high confidence). Consequently, limiting global warming to 1.5°C is projected to reduce risks to marine biodiversity, fisheries, and ecosystems, and their functions and services to humans, as illustrated by recent changes to Arctic sea ice and warm-water coral reef ecosystems (high confidence).

Climate-related risks to health, livelihoods, food security, water supply, human security, and economic growth are projected to increase with global warming of 1.5°C and increase further with 2°C.

Most adaptation needs will be lower for global warming of 1.5°C compared to 2°C (high confidence). There are a wide range of adaptation options that can reduce the risks of climate change (high confidence). There are limits to adaptation and adaptive capacity for some human and natural systems at global warming of 1.5°C, with associated losses (medium confidence). The number and availability of adaptation options vary by sector (medium confidence).”

IPCC special report, climate change and land, 8 August 2019

As part of the Paris agreement negotiations, the IPCC was also asked to prepare a special report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security, and Greenhouse gas fluxes in Terrestrial Ecosystems”. Its report was published on 8 August 2019.

First of all, it sets out its findings as to the present position:

A1.1. People currently use one quarter to one third of land’s potential net primary production for food, feed, fibre, timber and energy. Land provides the basis for many other ecosystem functions and services, including cultural and regulating services, that are essential for humanity (high confidence). In one economic approach, the world’s terrestrial ecosystem services have been valued on an annual basis to be approximately equivalent to the annual global Gross Domestic Product (medium confidence). {1.1, 1.2, 3.2, 4.1, 5.1, 5.5, Figure SPM.1}

A1.2. Land is both a source and a sink of greenhouse gases (GHGs) and plays a key role in the exchange of energy, water and aerosols between the land surface and atmosphere. Land ecosystems and biodiversity are vulnerable to ongoing climate change and weather and climate extremes, to different extents. Sustainable land management can contribute to reducing the negative impacts of multiple stressors, including climate change, on ecosystems and societies (high confidence). {1.1, 1.2, 3.2, 4.1, 5.1, 5.5, Figure SPM.1}

A1.3. Data available since 1961 show that global population growth and changes in per capita consumption of food, feed, fibre, timber and energy have caused unprecedented rates of land and freshwater use (very high confidence) with agriculture currently accounting for ca. 70% of global fresh-water use (medium confidence). Expansion of areas under agriculture and forestry, including commercial production, and enhanced agriculture and forestry productivity have supported consumption and food availability for a growing population (high confidence). With large regional variation, these changes have contributed to increasing net GHG emissions (very high confidence), loss of natural ecosystems (e.g. forests, savannahs, natural grasslands and wetlands) and declining biodiversity (high confidence). {1.1, 1.3, 5.1, 5.5, Figure SPM.1}

A1.4. Data available since 1961 shows the per capita supply of vegetable oils and meat has more than doubled and the supply of food calories per capita has increased by about one third (high confidence). Currently, 25-30% of total food produced is lost or wasted (medium confidence). These factors are associated with additional GHG emissions (high confidence). Changes in consumption patterns have contributed to about 2 billion adults now being overweight or obese (high confidence). An estimated 821 million people are still undernourished (high confidence). {1.1, 1.3, 5.1, 5.5, Figure SPM.1}

A1.5. About a quarter of the Earth’s ice-free land area is subject to human-induced degradation (medium confidence). Soil erosion from agricultural fields is estimated to be currently 10 to 20 times (no tillage) to more than 100 times (conventional tillage) higher than the soil formation rate (medium confidence). Climate change exacerbates land degradation, particularly in low-lying coastal areas, river deltas, drylands and in permafrost areas (high confidence). Over the period 1961-2013, the annual area of drylands in drought has increased, on average by slightly more than 1% per year, with large inter-annual variability. In 2015, about 500 (380-620) million people lived within areas which experienced desertification between the 1980s and 2000s. The highest numbers of people affected are in South and East Asia, the circum Sahara region including North Africa, and the Middle East including the Arabian peninsula (low confidence). Other dryland regions have also experienced desertification. People living in already degraded or desertified areas are increasingly negatively affected by climate change (high confidence). {1.1, 1.2, 3.1, 3.2, 4.1, 4.2, 4.3, Figure SPM.1}

As to future risks:

Climate change creates additional stresses on land, exacerbating existing risks to livelihoods, biodiversity, human and ecosystem health, infrastructure, and food systems (high confidence). Increasing impacts on land are projected under all future GHG emission scenarios (high confidence). Some regions will face higher risks, while some regions will face risks previously not anticipated (high confidence). Cascading risks with impacts on multiple systems and sectors also vary across regions (high confidence). {2.2, 3.5, 4.2, 4.4, 4.7, 5.1, 5.2, 5.8, 6.1, 7.2, 7.3, Cross-Chapter Box 9 in Chapter 6, Figure SPM.2}”.

What can be done?

Sustainable land management, including sustainable forest management, can prevent and reduce land degradation, maintain land productivity, and sometimes reverse the adverse impacts of climate change on land degradation (very high confidence). It can also contribute to mitigation and adaptation (high confidence). Reducing and reversing land degradation, at scales from individual farms to entire watersheds, can provide cost effective, immediate, and long-term benefits to communities and support several Sustainable Development Goals (SDGs) with co-benefits for adaptation (very high confidence) and mitigation (high confidence). Even with implementation of sustainable land management, limits to adaptation can be exceeded in some situations (medium confidence). {1.3.2, 4.1.5, 4.8, Table 4.2}.

Response options throughout the food system, from production to consumption, including food loss and waste, can be deployed and scaled up to advance adaptation and mitigation (high confidence). The total technical mitigation potential from crop and livestock activities, and agroforestry is estimated as 2.3-9.6 GtCO2e.yr-1 by 2050 (medium confidence). The total technical mitigation potential of dietary changes is estimated as 0.7-8 GtCO2e.yr-1 by 2050 (medium confidence). {5.3, 5.5, 5.6}”

“Future land use depends, in part, on the desired climate outcome and the portfolio of response options deployed (high confidence). All assessed modelled pathways that limit warming to 1.5oC or well below 2°C require land-based mitigation and land-use change, with most including different combinations of reforestation, afforestation, reduced deforestation, and bioenergy (high confidence). A small number of modelled pathways achieve 1.5oC with reduced land conversion (high confidence) and, thus, reduced consequences for desertification, land degradation, and food security (medium confidence). {2.6, 6.4, 7.4, 7.6; Cross-Chapter Box 9 in Chapter 6; Figure SPM.4}.

Policies that operate across the food system, including those that reduce food loss and waste and influence dietary choices, enable more sustainable land-use management, enhanced food security and low emissions trajectories (high confidence). Such policies can contribute to climate change adaptation and mitigation, reduce land degradation, desertification and poverty as well as improve public health (high confidence). The adoption of sustainable land management and poverty eradication can be enabled by improving access to markets, securing land tenure, factoring environmental costs into food, making payments for ecosystem services, and enhancing local and community collective action (high confidence). {1.1.2, 1.2.1, 3.6.3, 4.7.1, 4.7.2, 4.8, 5.5, 6.4, 7.4.6, 7.6.5}.

“The effectiveness of decision-making and governance is enhanced by the involvement of local stakeholders (particularly those most vulnerable to climate change including indigenous peoples and local communities, women, and the poor and marginalised) in the selection, evaluation, implementation and monitoring of policy instruments for land- based climate change adaptation and mitigation (high confidence). Integration across sectors and scales increases the chance of maximising co-benefits and minimising trade-offs (medium confidence). {1.4, 3.1, 3.6, 3.7, 4.8, 4.9, 5.1.3, Box 5.1, 7.4, 7.6}.”

There is a third special report that remains to be published, on “The Ocean and Cryosphere in a Changing Climate”.

Act Local

So what of the UK, in this international context?

It is striking to read this 1989 speech by then prime minister Margaret Thatcher, with her expressed concerns as to the risks of climate change and support for the work of the nascent IPCC.

In 2005, then Chancellor Gordon Brown commissioned economist Nicholas Stern to carry out a Review on the Economics of Climate Change. Published in 2006, the review sets out the economic benefits of acting sooner rather than later in combatting climate change.

The Climate Change Act 2008 received Royal Assent in November 2008. From its explanatory notes, a summary of the mechanisms in the Act:

The Act sets up a framework for the UK to achieve its long-term goals of reducing greenhouse gas emissions and to ensure steps are taken towards adapting to the impact of climate change. Its main elements are as follows:

Setting emissions reduction targets in statute and carbon budgeting. The Act establishes an economically credible emissions reduction pathway to 2050 and beyond by putting into statute medium and long-term targets. In addition, the Act introduces a system of carbon budgeting which constrains the total amount of emissions in a given time period. Carbon budget periods will last five years, beginning with the period 2008–2012, and must be set three periods ahead. The Secretary of State is required to give indicative ranges for the net UK carbon account in each year of a budgetary period, to set a limit on use that can be made of international carbon credits in each budgetary period and to develop and report on his proposals and policies for meeting carbon budgets.

A new reporting framework. The Act provides for a system of annual reporting by the Government on the UK’s greenhouse gas emissions. The new Committee on Climate Change will have a specific role in reporting annually on progress, with the Government required to lay before Parliament a response to this progress report.

The creation of an independent advisory body. The Act creates a new independent body, “the Committee on Climate Change”, to advise the Government and devolved administrations on how to reduce emissions over time and across the economy and, on request, on any other matter relating to climate change, including adaptation to climate change. This expert body will advise on the optimum trajectory to 2050, the level of carbon budgets, and on how much effort should be made by the part of the economy covered by trading schemes and by the rest of the economy, as well as reporting on progress.

Trading scheme powers. The Act includes powers to enable the Government and the devolved administrations to introduce new domestic trading schemes to reduce emissions through secondary legislation. This increases the policy options which the Government could use to meet the medium and long-term targets in the Act.

Adaptation. The Act sets out a procedure for assessing the risks of the impact of climate change for the UK, and a requirement on the Government to develop an adaptation programme on matters for which it is responsible. The programme must contribute to sustainable development. The Act also gives powers to direct other bodies to prepare risk analyses and programmes of action, and advisory and progress-reporting functions to the Committee on Climate Change.

Policy measures which reduce emissions. The Act will be used to support emissions reductions through several specific policy measures: amendments to improve the operation of the Renewable Transport Fuel Obligations; a power to introduce charges for single use carrier bags; a power to pilot local authority incentive schemes to encourage household waste minimisation and recycling; amendments relating to the Certified Emissions Reductions Scheme; powers and duties relating to the reporting of emissions by companies and other persons; a duty to make annual reports on the efficiency and contribution to sustainability of buildings on the civil estate.”

Section 1(1) provided as follows:

It is the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline.”

That duty was formulated after intense debate, against the context of the global objective of an average mean temperature rise of no more than 2 degrees. A 60% target was originally proposed before the minimum 80% target was introduced. Section 30 provides that the target excludes include greenhouse gases from international aviation or international shipping “except as provided by regulations made by the Secretary of State.

Immediately following the October 2018 IPCC special report, the government commissioned a report from the Committee on Climate Change:

This advice will inform consideration of the UK’s long term targets, and should include options for the date by which the UK should achieve a) a net zero greenhouse gas target and/or b) a net zero carbon target in order to contribute to the global ambitions set out in the Paris Agreement, including whether now is the right time for the UK to set such a target. Your advice should also provide options for:

• the range which UK greenhouse gas emissions reductions would need to be within, against 1990 levels, by 2050 as an appropriate contribution to the global goal of limiting global warming to well below 2°C above pre-industrial levels, and

• the range which UK greenhouse gas emissions reductions would need to be within, against 1990 levels, by 2050 as an appropriate contribution towards global efforts to limit the increase to 1.5°C above pre-industrial levels.

Your report should provide evidence on:

• how reductions in line with your recommendations might be delivered in key sectors of the economy; and

• the expected costs and benefits across the spectrum of scenarios in comparison to the costs and benefits of meeting the current target.”

The CCC published its report Net Zero – The UK’s contribution to stopping global warming on 2 May 2019. It advised as follows:

The UK should legislate as soon as possible to reach net-zero greenhouse gas emissions by 2050. The target can be legislated as a 100% reduction in greenhouse gases (GHGs) from 1990 and should cover all sectors of the economy, including international aviation and shipping

The report’s key findings are that:

• The Committee on Climate Change recommends a new emissions target for the UK: net-zero greenhouse gases by 2050.

• In Scotland, we recommend a net-zero date of 2045, reflecting Scotland’s greater relative capacity to remove emissions than the UK as a whole.

• In Wales, we recommend a 95% reduction in greenhouse gases by 2050.

A net-zero GHG target for 2050 will deliver on the commitment that the UK made by signing the Paris Agreement. It is achievable with known technologies, alongside improvements in people’s lives, and within the expected economic cost that Parliament accepted when it legislated the existing 2050 target for an 80% reduction from 1990.

However, this is only possible if clear, stable and well-designed policies to reduce emissions further are introduced across the economy without delay. Current policy is insufficient for even the existing targets.”

The report sets out in some details the options available to meet the 80% or 100% reduction targets, categorising them as follows:

Core options are those low-cost low-regret options that make sense under most strategies to meet the current 80% 2050 target. They also broadly reflect the Government’s current level of ambition (but not necessarily policy commitment).

• Further Ambition options are more challenging and on current estimates are generally more expensive than the Core options.

• Speculative options currently have very low levels of technology readiness, very high costs, or significant barriers to public acceptability. It is very unlikely they would all become available.

The report then analyses various business sectors individually. I set out some selective passages from the document, focusing on identified potential delivery mechanisms, ie what we may well see in practice by way of legislative and policy changes in due course:

Power

We find that emissions from the UK’s electricity system can be reduced to almost zero whilst meeting increased electricity demands from the transport and heat sectors, potentially doubling the size of today’s electricity system. Our findings in part reflect new research on the impact of heat pumps and electric vehicles on the UK’s electricity system.

Reducing electricity emissions close to zero will require sustained and increased deployment of renewables and possibly nuclear power and the decarbonisation of back-up generation. Improvements in system flexibility – such as battery storage, interconnection and flexible demands – can help accommodate large volumes of variable renewables in the system at low cost. However some flexible power generation will continue to be required and will need to be decarbonised, probably via carbon capture and storage (CCS) and hydrogen.

Hydrogen (as either hydrogen or ammonia) can be used as a low-carbon fuel in the buildings, industrial, transport (including shipping) and power sectors. Producing hydrogen at low cost can be done with low emissions, by the development of advanced methane reformation facilities with CCS. Our hydrogen analysis draws mainly on our 2018 hydrogen report.”

(See also the subsequent Department for Business, Energy and Industrial Strategy announcement Innovative funding models and technologies to drive investment in new wave of low carbon energy (23 July 2019)).

Buildings

Near-full decarbonisation of heat for buildings is one of the biggest challenges in reducing emissions from the energy system to net zero by 2050. The policies put in place to drive the required changes will determine how the costs of this decarbonisation are allocated between consumers and taxpayers. Government must review the plan for the distribution of these costs as an early priority to ensure that the wider transition – for workers and energy bill payers – is perceived to be fair.

It is critical that measures to reduce emissions are not viewed in isolation. A holistic approach is required to deliver buildings which are low-carbon, thermally-efficient, better adapted to a changing climate, with safe moisture levels and excellent indoor air quality”.

Industry

The Government must urgently establish an overall framework to support long- term industrial decarbonisation, as committed to in the Government’s Clean Growth Strategy, if it is to enable decarbonisation towards the Committee’s recommended net-zero target. Delay will mean less decarbonisation of industry is possible or a greater role for scrapping assets.

‒ The design of the policy framework to reduce UK industry emissions must ensure it does not drive industry overseas, which would not help to reduce global emissions, and be damaging to the UK economy. This will require either consumers or taxpayers to bear much of the cost of decarbonisation of industrial subsectors or sites so long as they are at risk of carbon leakage.

‒ Policies should include a funding mechanism for industry decarbonisation, to support near-zero emission technologies, including use of hydrogen, electrification and CCS (including BECCS), a mechanism to support CO2 transport and storage infrastructure by the end of 2019, and support for energy and resource efficiency.

‒ CO2 transport and storage infrastructure should be operational in at least one industrial cluster by 2026 and available to all major industrial clusters soon afterwards, alongside hydrogen for all clusters where it is the best fuel-switching option for some sites. A network to provide hydrogen to industry outside the main industrial clusters should be established by 2035, or potentially slightly later if ‘hydrogen-ready’ appliances can be deployed in industry prior to this.

‒ By providing an attractive investment environment, including stable policy, the UK can become a leader in production of low-carbon goods, attract increased investment in new and existing industries, and develop new businesses and products. This should involve encouraging subsectors and technologies where the UK may have a competitive advantage.”

Transport

The following priority actions should be taken as soon as possible to support the transition to zero emission technologies across road transport:

‒ Commit to end the sale of conventional cars and vans by 2035, including ending the sale of hybrid and plug-in-hybrid vehicles. End the use of petrol and diesel vehicles (including hybrid and plug-in-hybrid vehicles) on UK roads by 2050.

‒ Announce plans for the continuation of financial incentives for electric vehicles, through a commitment to continued grant schemes or through greater differentiation in the tax system, e.g. vehicle excise duty (VED), VAT and fuel duty, which will still be required in the near-term to support the early market.

‒ Continue development of charging infrastructure provision, especially improving reliability of current provision and rolling out of chargers in towns and cities to provide for people without off-street parking.

‒ Trials of zero emission HGVs with associated infrastructure within the UK

Aviation and shipping

A mix of UK and international policies will be required to deliver the Further Ambition scenarios in ways that avoid perverse outcomes (e.g. carbon leakage).

‒ Both aviation and shipping will need to strengthen the current internationally agreed policies. Aviation should set a global long-term objective for emissions. Shipping should put in place a policy framework to deliver the agreed target for 2050. A more ambitious global target in shipping would be needed to deliver the technical potential that exists in the Further Ambition scenario.

‒ The Government should ensure their forthcoming Aviation Strategy and Clean Maritime Plan support innovation, research and deployment to ensure new technologies are brought to market in a timely fashion. The Aviation Strategy will also need to set out an approach to limiting growth in aviation demand. We will set out our recommended approach for aviation in follow-up advice to DfT later in 2019.”

Agriculture, land use, land-use change and forestry

The following actions should be taken to support deep emissions reduction in agriculture and the LULUCF sectors:

‒ Develop a post-Common Agricultural Policy (CAP) framework that incentivises the take- up of low-carbon farming practices and promotes transformational change in land use that rewards land owners and managers for deep emissions reduction and removals and delivering wider ecosystem benefits.

‒ Continued investment in R&D, testing and piloting of options to deliver agricultural productivity improvements and enhanced forest productivity. Develop low-carbon agricultural machinery and robotics with artificial intelligence.

‒ Provide support to help land managers transition to alternative land uses through skills, training and information. Along with financial support for alternative land uses with high up-front costs and long pay-back periods.

‒ Government should introduce consumer-focused policies to encourage healthier diets and reduce food waste more proactively. The public sector should take a strong lead for example, by providing plant-based and lower-meat options in schools and hospitals.”

Waste

The following priority actions should be taken as soon as possible to support the transition to zero emissions across waste management:

‒ Government and the DAs [devolved administrations] should legislate a mandatory ban on biodegradable waste from key waste streams going to landfill by 2025 at the latest. In order to achieve this, separate waste collection should be introduced by 2023 and supporting measures to increase municipal recycling rates to 70% by 2030 at the latest.

‒ Policies and measures should be introduced to achieve a 20% reduction in avoidable food waste by 2025 including more proactive waste avoidance measures.

‒ Government and the DAs should work with waste water companies to develop a strategy to reduce non-CO2 emissions from waste water handling by at least 20% by 2050.”

Theresa May acted on the CCC’s recommendation that the minimum 80% reduction figure in the 2008 Act be amended to 100% ie net zero greenhouse emissions by 2050, with an announcement on 12 June 2019 and the making of the Climate Change Act 2008 (2050 Target Amendment) Order 2019 on 26 June 2019.

The target still excludes greenhouse gases from international aviation or international shipping. There is this statement in the explanatory notes to the Order:

The Government recognises that international aviation and shipping have a crucial role to play in reaching net zero emissions globally. However, there is a need for further analysis and international engagement through the appropriate frameworks. For now, therefore, we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets to ensure that emissions reduction strategies for international aviation and shipping can be developed within International Maritime Organisation and International Civil Aviation Organisation frameworks at the appropriate pace, and so that the UK can remain on the right trajectory for net zero greenhouse gas emissions across the whole economy.

Finally, the CCC has reacted (8 August 2019), to the IPCC’s land use and climate change report, referring back to its November 2018 report Land use: Reducing emissions and preparing for climate change, which made the recommendation that “land use policy should promote transformational land uses and reward land- owners for public goods that deliver climate mitigation and adaptation objectives. New policies should also reflect better the value of the goods and services that land provides. The key measures that have clear, multiple benefits are: afforestation and forestry management; restoration of peatlands; low-carbon farming practices; improving soil and water quality; reducing flood risks and improving the condition of semi-natural habitats. These measures should be rewarded if they go beyond a minimum standard that land-owners should already be delivering.”

The net zero greenhouse gas emissions by 2050 target is of course, save in relation to international aviation and shipping, in line with the CCC’s recommendations but there has been intense lobbying for more stringent measures.

The Extinction Rebellion campaign group has three published aims:

1. “Government must tell the truth by declaring a climate and ecological emergency, working with other institutions to communicate the urgency for change.”

2. “Government must act now to halt biodiversity loss and reduce greenhouse gas emissions to net zero by 2025.

3. “Government must create and be led by the decisions of a Citizens’ Assembly on climate and ecological justice.”

Almost half the local authorities in the country have formally declared a “climate emergency.” The Campaign Against Change Change website has a list of authorities that have made a formal declaration and an indication of the contents of each declaration.

What do these declarations look like? Here is Cornwall’s, by way of example:

On the 22nd January 2019, a motion was passed by Cornwall Councillors to declare a climate emergency. The minutes of that meeting are available online for you to view. The motion resolved that the council would:

1. Declare a climate emergency

2. Call on Westminster to provide the powers and resources necessary to achieve the target for Cornwall to become carbon neutral by 2030 and commit to work with other Councils with similar ambitions

3. Provide adequate staff time and leadership to prepare a report within six months to establish how Cornwall can sufficiently reduce carbon emissions through energy and other Council Strategies, plans and contracts within a timescale which is consistent with an ambition to restrain Global Warming to 1.5oC. This will draw together the actions Cornwall Council is already and will continue to take; and where possible, outline partners’ commitments to move towards a carbon neutral Cornwall by 2030

No doubt we will be seeing statements such as these feed through into emerging policy. So what is it likely to mean for planning? The TCPA’s Planning for climate change: a guide for local authorities (May 2018) provides useful advice, but against the backdrop of the previous 80% reduction in net greenhouse gas emissions by 2050 target, not the new “net zero” target or the even more ambitious targets that these declarations would imply.

So, returning from holiday, plenty of practical questions:

1. What prospects for a new or amended international agreement reflecting a 1.5 degree target, particularly given the current stance of the US and others?

2. What will be the approach of Boris Johnson’s government, in its precarious, preoccupied, state, to the immediate challenges ahead?

3. What will be in the government’s aviation strategy, expected later this year?

4. How rapidly will business grasp some of the opportunities set out in some detail in the CCC’s May 2019 report and what will the government be doing to facilitate the necessary measures?

5. What will come of these local authority “climate emergency” declarations and to what extent will the Government seek to constrain individual authority stances, where they run contrary to other planning objectives?

Simon Ricketts, 10 August 2019

Personal views, et cetera

Bad Timing: More On Appropriate Assessment From Court & Govt Post POW

This is intended to be an update as to appropriate assessment under the Conservation of Habitats and Species Regulations 2017 rather than a blog post on the domestic effect of EU environmental law post-Brexit.

But I’ll address that briefly first:

EU environmental law post-Brexit

The position remains pretty much as summarised in my 18 September 2018 blog post Planning, Brexit, supplemented by my 22 December 2018 blog post The Office For Environmental Protection. Whilst there is a general initial saving for EU-derived domestic legislation and whilst section 16 of the EU (Withdrawal) Act 2018 sets a process for maintaining EU environmental principles, the “no deal” risks are still that:

(1) the latter depends on an Environment Bill being laid before Parliament and enacted (we so far have only seen draft provisions of the most directly relevant parts of what is proposed), a set of draft environmental principles being consulted upon and approved and the new Office for Environmental Protection being established, all before 31 October 2019 and

(2) post-Brexit, all EU-derived domestic legislation will be reviewed as to its continuing appropriateness and the degree of protection as regards this, presently provided by the environmental principles and governance mechanism in section 16, could easily be amended, replaced or sidestepped by this or a subsequent government.

DEFRA published an Environment Bill summer policy statement on 23 July 2019 but, whilst I am sure the war cabinet talks of little else, there simply is not the time available for the environmental principles and governance machinery to be up and running by the end of October 2019. Even when the machinery is established, it is susceptible to subsequent tinkering and dismantling by way of subsequent legislation.

Appropriate assessment

The immediate implications of the European Court of Justice’s ruling in People Over Wind were covered in my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening.

In England and Wales the main problems caused by the judgment have revolved around:

(1) authorities being caught out through no longer being able to screen out the need for appropriate assessment by relying upon commitments to introduce mitigation measures;

(2) until the February 2019 changes to the NPPF, the disapplication of the NPPF’s “tilted balance” where appropriate assessment is required.

MHCLG has now included within its Planning Practice Guidance a specific section dealing with appropriate assessment (22 July 2019).

By coincidence, two days after the new guidance was published, two separate judgments were handed down by the High Court on different aspects of the appropriate assessment regime, both cases stemming from People Over Wind issues and both cases examples of plain bad timing.

Gladman Developments Limited v Secretary of State (Dove J, 24 July 2019) was a challenge by Gladman to the dismissal by the Secretary of State of its appeal in respect of a proposed development of 225 dwellings in Cliffe Woods, Kent.

The inquiry had been held in November 2017, pre People Over Wind. The parties agreed that the tilted balance applied in favour of the proposal as there was a shortfall in the Medway Council’s five year housing land supply. The parties also agreed that a condition requiring an environmental construction management plan was sufficient to mitigate any ecological concerns. Following an HRA screening process that took into account a financial contribution towards a strategic access management and mitigation strategy (SAMMS) “no adverse consequences were identified in respect of the impact of any additional recreational pressures on the Thames Estuary Marshes SPA/RAMSAR and the Medway Estuaries and Marshes SPA/RAMSAR sites.”

The inspector recommended approval in his report dated 29 March 2018. The People Over Wind judgment was handed down on 12 April 2018. The Secretary of State invited representations from the parties as to whether appropriate assessment was now required in the light of the judgment, and on their views as to the correct application of planning policy in the light of it – a reference to paragraph 119 in the 2012 NPPF which disapplied the tilted balance in circumstances in the case of development requiring appropriate assessment.

Gladman submitted as part of its representations a report prepared by its ecologists, information to ensure that the inspector could carry out appropriate assessment and reach a conclusion that there were no likely significant effects on the integrity of of the SPAs. It also submitted that it would be “illogical and perverse to disengage the tilted balance in these circumstances”.

Before the Secretary of State reached his decision on the appeal, more generally on 26 October 2018 he embarked a technical consultation as to potential changes to the methodology for assessing local housing need and as part of that consultation he sought views on his proposal to amend the NPPF to make it clear that the tilted balance “is disapplied only where an appropriate assessment has concluded that there is no suitable mitigation strategy in place”, having missed the opportunity to make that change in the 24 July 2018 version (within which paragraph 177 simply replicated the old paragraph 119).

The Secretary of State’s decision letter was issued on 9 November 2018. He found that appropriate assessment was required and stated that on the basis of the appropriate assessment which he had carried out he could “safely conclude that the proposed development would not adversely affect the integrity of any European site”. He noted that under paragraph 177 of the 2018 NPPF “the presumption in favour of sustainable development does not apply where development requiring appropriate assessment is being determined”. He dismissed the appeal.

Gladman challenged the decision on a number of grounds, including irrationality in his application of paragraph 177 in the circumstances of the appeal, failure to have regard to the contents of the technical consultation, failure specifically to consult Gladman in relation to the technical consultation and contending that People Over Wind was wrongly decided, requiring a reference to the CJEU to clarify the position.

Dove J rejected all of the grounds. There was nothing unlawful in the way in which the Secretary of State had applied paragraph 177. It was “applied in a straight forward and uncomplicated manner to the circumstances of the present case”. The technical consultation was only a consultation. Indeed:

I see nothing wrong, and indeed much to commend, in an approach whereby a decision-taker continues to apply existing policy whilst it is subject to review, and await the outcome of a consultation process on the review of a policy before applying any new policy which might emerge. For a consultation exercise to be lawful it must be engaged in with an open mind. That must contemplate a number of potential outcomes from the consultation process, (including, potentially, no change to the policy) which could be undermined by the premature second guessing of its outcome through the application of a policy which was being consulted upon. In my view the First Defendant’s approach in applying his existing policy in the present case was in principle entirely correct.”

There was no basis for asserting that Gladman should have been specifically consulted as part of the technical consultation and in any event they had not been prejudiced by any failure to consult.

Lastly, he was unpersuaded that there was any justification for the reference sought to the CJEU or that People Over Wind was wrongly decided: “the need for full and precise analysis removing all reasonable scientific doubt, reflects a consistent line of authority in the CJEU emphasising these features of the requirements of the Habitats Directive…Whilst there may be cases in which the existence of significant effects could be addressed by the examination of mitigating measures at the Appropriate Assessment screening stage that is not, in principle, any justification for not undertaking the Appropriate Assessment itself.” Furthermore, as also relied upon by the CJEU in People Over Wind, “the taking account of mitigation measures and exclusion of the Appropriate Assessment process may also deprive the public of a right to participate in the decision-taking process.”

The final kick in the teeth for Gladman must have come when, after the 24 July 2018 version of the NPPF missed the obvious opportunity to resolve the widespread problems caused by People Over Wind, it was finally put right in the 19 February 2019 version. So if the decision letter had been issued either at least six weeks before the 12 April 2018 ruling in People Over Wind (such that the decision was beyond the legal challenge period) or after 19 February 2019, the chances are they would have had their permission. A Secretary of State who actually wanted to see housing would surely have sorted out the policy issue more quickly – or delayed the decision letter. Bad timing indeed.

The timing was similarly awkward in R (Wingfield) v Canterbury City Council & Redrow Homes South East (Lang J, 24 July 2019). Outline planning permission was obtained on 5 July 2017 for up to 250 dwellings and associated development at Hoplands Farm, Westbere, Kent. The site is near SPAs and an SAC. On the basis of mitigation proposals, Canterbury City Council concluded, having taken advice from Natural England, that appropriate assessment was not required.

The judicial review period expired without challenge and the site was sold to the interested party, Redrow Homes. Reserved matters approval was sought in December 2017 for the first phases of development. Then came that People Over Wind ruling on 12 April 2018. In the light of the judgment, the council carried out an appropriate assessment and concluded that, with mitigation, the project would have no adverse effect on the integrity of the European protected sites. Reserved matters approval was granted on 12 February 2019.

The claimants argued that “the Council acted in breach of EU law by failing to conduct an HRA before granting outline planning permission and impermissibly taking into account mitigation measures when screening the proposed development, contrary to the CJEU judgment in the People over Wind case. The effect of the judgment of the CJEU was to render the grant of outline planning permission a nullity, which could no longer be relied upon. Further or alternatively, when the Council realised its error, it should have revoked the outline planning permission and re-considered the application. Instead, it unlawfully conducted an HRA at the reserved matters stage, when it should have been conducted at the earliest possible stage, before the grant of outline planning permission.

Lang J rejected both arguments. The submission that “the effect of the judgment of the CJEU in People Over Wind was to render the grant of outline planning permission a nullity was both contrary to authority, and wrong in principle. A decision made by a public body is valid unless and until it is quashed”. Further, “the Council could lawfully conduct an appropriate assessment at the reserved matters stage, in the circumstances of this case”.

In considering whether the Council could legitimately remedy its earlier error by conducting an appropriate assessment at reserved matters stage, instead of revoking the grant of outline planning permission, I have taken into account that the consequences of revoking planning decisions long after they have been made, and the time limits for challenge have expired, are disruptive and undermine the principle of legal certainty. As Laws J. said in R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd [1998] Env LR 415, at [424], applicants for judicial review must act promptly, so as to ensure that the proper business of government and the reasonable interests of third parties are not overborne or unjustly prejudiced by litigation brought in circumstances where the point in question could have been exposed and adjudicated without unacceptable damage.

In this case, the IP acquired its interest in the Site after outline planning permission had been granted and the time for bringing a judicial review challenged had expired. Although building operations have not yet commenced, time and money has been spent in bringing this project to fruition. The Council considers that the development will bring tangible benefits to the community, although local residents, such as the Claimant, take a different view.

In my judgment, the Council’s decision to remedy its earlier error by conducting an appropriate assessment at reserved matters stage was permissible under EU and domestic law, and it was a proportionate and effective remedy for the breach of EU law […]

Alternatively if my analysis is not correct, I would nonetheless refuse relief in this case. The Court may refuse relief where there has been a breach of EU law, if the substance of the EU right has been complied with.”

The claimant also sought to argue that the HRA was deficient. It was not:

the HRA conducted by the Council was appropriate for the task in hand, particularly bearing in mind that the Council was able to draw upon the detailed research and assessment in the ‘Report to inform a Habitats Regulations Assessment’, as well as the further reports submitted by the IP. Its findings were complete, precise and definite and there were no significant lacunae. The Council was entitled to rely upon Natural England’s endorsement of its HRA, particularly since Natural England had initially raised concerns about the evidence-base provided by the applicants, and those concerns were addressed by the further evidence produced by the IP. Natural England, as the custodian of the Stodmarsh designated sites, was particularly well placed to judge the risks from the proposed development. In my view, the Claimant’s challenge did not come close to meeting the high threshold of Wednesbury irrationality; it was primarily a disagreement with the Council’s exercise of its planning judgment.”

So bad timing in this case for the claimant, unable to take advantage of the windfall that People Over Wind appeared to represent.

Even if we leave the EU, I suspect that we will not be leaving behind these sorts of arguments for a good time yet – and it is apparent from the Gladman case that (1) the resulting trip hazards are as often those introduced by our own domestic policies and (2) when it comes to CJEU cases such as People Over Wind, however inconvenient, our domestic courts are not going to be turning the clock back.

Simon Ricketts, 2 August 2019

Personal views, et cetera

New Cabinet, Poor Doors, No Windows

La Sagrada Familia = our planning system. Never finished, it now has new architects.

I don’t know what new extrusions, reversals or pauses to expect from Robert Jenrick, Esther McVey and the rest of the MHCLG ministerial team yet to be announced.

I do know that Robert Jenrick was a member of the Commons Public Accounts Committee which published a report Planning and the broken housing market (19 June 2019). From the introduction:

The government has an ambitious target of delivering 300,000 new homes per year by the mid-2020s, but inherent problems at the heart of the housing planning system are likely to jeopardise this target. If the Government delivers 300,000 new homes per year, this would be a significant increase in the rate of house building, with the number built a year averaging only 177,000 in the period 2005–06 to 2017–18. While the Ministry of Housing, Communities and Local Government (the Department) has made some recent reforms to the planning system, much more needs to be done and it still does not have a detailed implementation plan for how it will scale-up house building.”

He knows something of the task ahead.

The report also says this:

We were concerned about poor quality in the building of new homes and of office accommodation converted into residential accommodation through permitted development rights. The Department stressed that it was critical that quality was good enough. It agreed that there are issues—particularly when dealing with large office blocks— that the number of homes created out of that office block can be too high, with inadequate space standards and build quality. The Department told us that it has committed to a review of permitted development rights which turn commercial properties into residential accommodation. This review will look at the quality of those homes and what should be built.

In the lead up to the new premiership, May’s Government seemed to have a renewed focus on the quality of homes and communities. I wanted to write something on the various strands within this theme, if only to capture a series of links to documents, before we lose the thread in a slew of new announcements.

Minimum dwelling sizes

My 23 March 2019 blog post We Have Standards referred to previous Secretary of State James Brokenshire’s March 2019 statement that he intended to “review permitted development rights for conversion of buildings to residential use in respect of the quality standard of homes delivered. […]. We will also develop a ‘Future Homes Standard’ for all new homes through a consultation in 2019 with a view, subject to consultation, to introducing the standard by 2025.”

Theresa May suggested in her 26 June speech to the Chartered Institute of Housing that, whilst it would ultimately be a matter for her successor, the nationally described space standard should apply “by regulation” to all new homes. As explained in my 23 March 2019 blog post, it is presently for each local planning authority to decide whether to incorporate the standard in their local plan as a policy requirement such that an applicant for planning permission then needs to demonstrate compliance.

I do not accept that, in 2019, we can only have sufficient and affordable housing by compromising on standards, safety, aesthetics, and space.

That is why I asked the Building Better, Building Beautiful Commission to develop proposals for embedding beautiful, sustainable and human-scale design into the planning and development process.

I look forward to reading the interim report next month.

It is why the Ministry of Housing will shortly be launching a consultation on environmental performance in new build homes, with a Future Homes Standard that will give all new homes world-leading levels of energy efficiency by 2025.

And it is why I want to see changes to regulations so that developers can only build homes that are big enough for people to actually live in.

It was the Addison Act that brought modern space standards to English housing law for the first time.

During the Bill’s second reading, the architect of the standards, Sir Tudor Walters, urged MPs to “take care that the houses planned in the future are planned with due regard to comfort, convenience, and the saving of labour”.

It is a message we would do well to return to today.

Because in the years since, the pendulum has swung back and forth between regulation and deregulation, leading to a situation today where England does have national standards – but ones that are largely unenforceable and inconsistently applied.

Some local authorities include the Nationally Described Space Standard in their local plans, making them a condition of planning permission.

But others do not.

And even where they are applied, as planning policies rather than regulations they are open to negotiation.

The result is an uneven playing field, with different rules being applied with differing levels of consistency in different parts of the country.

That makes it harder for developers to build homes where they are needed most.

And it leaves tenants and buyers facing a postcode lottery – if space standards are not applied in your area, there is no guarantee that any new homes will be of an adequate size.

Now I am no fan of regulation for the sake of regulation.

But I cannot defend a system in which some owners and tenants are forced to accept tiny homes with inadequate storage.

Where developers feel the need to fill show homes with deceptively small furniture.

And where the lack of universal standards encourages a race to the bottom.

It will be up to my successor in Downing Street to deal with this.

But I believe the next government should be bold enough to ensure the Nationally Described Space Standard applies to all new homes.

As a mandatory regulation, space standards would become universal and unavoidable.

That would mean an end to the postcode lottery for buyers and tenants.”

[Creating space for beauty: The Interim Report of the Building Better, Building Beautiful Commission was published in July 2019, sans its now reinstated chairman Sir Roger Scruton, who will be able to influence the tone of the Commission’s final report, due in December 2019. The interim report is a wide-ranging discursive read ending with 30 “policy propositions”. There is much good stuff about, in Theresa May’s words, “embedding beautiful, sustainable and human-scale design into the planning and development process”. None of its policy propositions urge prescription as to dwelling size, although there is this passage within its commentary:

Above all, polling and pricing data show that people are looking for homes that meet their needs and are in the right place. Every academic or commercial study we have been able to find has shown that, other things being held equal, bigger homes are worth more and so are better connected ones. For example, a study of every single property sale in six British cities showed that in, say, Liverpool, every additional bedroom brought an additional £15,000 of value. Similar patterns were visible in Leeds, Newcastle, Manchester, Birmingham and London. In their response to our call for evidence, the RIBA also highlighted their polling research into user needs that highlighted the importance of generosity of space, high ceilings, windows that flood principal rooms with light and detail that adds character”.]

Some I know disagree, but to my mind Theresa May’s statement missed the real target in relation to minimum dwelling sizes. At present authorities can apply the nationally described space standard if they so choose. But what authorities cannot prevent (other than by removing the relevant permitted development rights in the first place by way of Article 4 Direction) is the creation of very small dwellings pursuant to the General Permitted Development Order, the adequacy of the accommodation to be created not being one of the matters in relation to which prior approval is required under the Order. Either this needs to be a matter for which prior approval is required or it needs to be addressed by way of separate regulation.

Other minimum standards in relation to permitted development rights schemes

There is still so much misunderstanding as to the operation of permitted development rights. General horror has been expressed as to the permitted development appeal in Watford for the proposed conversion of a light industrial unit to apparently windowless bed-sit/studio accommodation, allowed by an inspector in his decision letter dated 5 July 2019:

Overall, I recognise that the proposed units are small and that, for example, living without a window would not be a positive living environment. However, the provisions of the GPDO 2015 require the decision makers to solely assess the impact of the proposed development in relation to the conditions given in paragraph PA.2. The appellant has also made clear that they are not proposing any external works at this stage.”

Photo: Watford Observer

The absence of any control over size of the proposed dwellings is indeed appalling, see my point above. But I am prepared to bet that the developer, now that he has prior approval to the use of the building as dwellings, will come back with an application for planning permission for the installation of windows and for the general recladding of the building. If it had all been applied for as one planning application, the authority would no doubt have objected to the principle of the change of use – just look at the sequencing of applications with most PD schemes and there is surely nothing wrong in that – the permitted development right just relates to use – and of course does not override other regulatory requirements.

Part B of the Building Regulations requires that every habitable room up to 4.5m from ground level either (1) has an openable window with dimensions of at least 45cm by 45cm, no more than 110cm above the floor or (2) (on the ground floor) opens directly onto a hall leading directly to an exit or (above the ground floor) with direct access to a protected stairway. Adequate ventilation is also required.

Since 20 March 2019 the Homes (Fitness for Human Habitation) Act 2018 also imposes specific requirements on landlords letting residential property for a period of less than seven years. In determining whether a dwelling is unfit for human habitation regard will be had to, amongst a range of matters, natural lighting and ventilation. MHCLG has published specific guidance for landlords as to the operation of the Act.

In considering whether further legislation or guidance is needed, ministers will need to consider carefully the extent to which the planning system should duplicate systems of protection provided in other legislation and where genuinely there are gaps that would allow unacceptable outcomes.

The Future Homes Standard

What of James Brokenshire’s reference in March of consultation on a proposed Future Homes Standard this year, with a view to introducing the standard by 2025? This was a reference to the commitment in the then Chancellor’s Spring budget to:

A Future Homes Standard, to be introduced by 2025, future-proofing new build homes with low carbon heating and world-leading levels of energy efficiency. The new standard will build on the Prime Minister’s Industrial Strategy Grand Challenge mission to at least halve the energy use of new buildings by 2030“.

There has not yet been any consultation. The House of Commons Business, Energy and Industrial Strategy Committee, in its 9 July 2019 report, Energy efficiency: building towards net zero, urged a greater sense of urgency:

We welcome the announcement of a Future Homes Standard. Any attempts by housebuilders to water down the standard should be blocked by the Government. The only barrier precluding housebuilders developing to higher standards before 2025 is a preoccupation with profit margins and shareholder returns. Despite receiving billions in taxpayer funds, most housebuilders will only raise the energy standards of their stock if forced to do so. Progressive housebuilders who want to go further are being held back by the laggards who actively lobby the Government to boost their profits, rather than help meet carbon reduction obligations.

We recommend that the Government legislates for the Future Homes Standard as soon as practically possible—and by 2022 at the very latest—to guarantee that no more homes by 2025 are built that need to be retrofitted. We recommend that the Government considers policy drivers at its disposal to drive early uptake. At a minimum, the Government should put in place a compulsory ‘learning period’ from 2022 in a subset of properties in preparation for the full-scale deployment. The Government should oblige bigger housebuilders to undertake regional demonstration projects to show how they will achieve the standard.”

Communities framework

MHCLG published a “communities framework” on 20 July 2019, entitled By deeds and their results:

How we will strengthen our communities and nation , expressed to be the “next step in refreshing the government’s aspirations for stronger, more confident communities. It provides a framework to build on a range of government activity that is contributing to stronger communities in different ways – from the implementation of the Civil Society Strategy and Integrated Communities Action Plan, to our efforts to boost productivity and inclusive growth through the Industrial Strategy and by supporting local industrial strategies across the country.

It promised that the Government will:

• Hold a national conversation with communities across England about their view of who we are as a nation, their vision for the future of their community and our country, and what local and national government can and should be doing to support their community to thrive.

• Establish a series of Civic Deal pilots to test how the Ministry for Housing, Communities and Local Government and the Department for Digital, Culture, Media and Sport put into practice the principles set out in this document in partnership with local areas.

• Publish a Communities White Paper to renew government’s focus on building stronger communities across England. The scope of the White Paper will be developed in partnership with communities and informed by the national conversation and Civic Deal pilots.”

Poor Doors

I referred in my 23 March 2019 blog post to widespread concerns over development projects where affordable housing tenants are prevented from using facilities provided for private market housing residents, for example children’s play areas and entrance/lift lobbies.

The basis for such arrangements may well be economically rational to the developer (preventing service charge leakage and/or preserving a sales premium in relation to the market units), to the registered provider (which would not be in a position to impose service charges high enough to cover the cost of the facilities provided for the market housing) and to the local planning authority (usually keen to protect the profitability of the development so as to secure the maximum amount of affordable housing that can be viably be delivered). But of course there can be wider, more damaging, implications.

On the same day as the communities framework was published, an MHCLG press statement Brokenshire unveils new measures to stamp out ‘poor doors’ announced there would be “measures to tackle stigma and help end the segregation of social housing residents in mixed-tenure developments…planning guidance will be toughened up and a new Design Manual will promote best practice in inclusive design.”

Meanwhile, as to we wait to see what the new ministerial team at MHCLG delivers, the Mayor of London’s new London Plan edges forward. We await the inspectors’ conclusions following their examination sessions but in the meantime the Mayor has published a Consolidated suggested changes version of the plan July 2019.

A specific policy has now been included to require that proposals likely to be used by children and young people should include good quality, accessible play provision that “is not segregated by tenure” (policy S4 B (f)).

Conclusion

With due deference to the list of banned words circulated by Mr Rees-Mogg:

Due to the ongoing change in ministers, with the old lot out, apparently unacceptable and no longer fit for purpose, I can only speculate as to the future of these initiatives. Hopefully I will ascertain more very soon.

I understand your concerns.

Simon Ricketts, Esq. 27 July 2019

Personal views, et cetera

Photo: Go UNESCO

Secretary Of State Throws Another Curve Ball

My 15 June 2019 blog post National Lottery: 2 Problematic Recovered Appeal Decisions focused on two appeals dismissed by the Secretary of State against inspectors’ recommendations.

Well, here is another one, in relation to the Chiswick Curve scheme on the Great West Road within the London Borough of Hounslow, the 19 July 2019 decision letter out just before Parliament rises on 25 July (by which date we will have a new prime minister). Another long inquiry (15 days), long delays (the initial application was made over three and a half years ago, the inquiry was a year ago), detailed analysis from an experienced inspector who had heard the evidence and seen the site first hand, ultimately counting for nothing.

The Secretary of State’s decision followed an inquiry held by inspector Paul Griffiths BSc(Hons) BArch IHBC, into appeals by Starbones Limited against the decisions of the London Borough of Hounslow to (i) refuse planning permission for a mixed use building of one part 32 storey and one part 25 storeys comprising up to 327 residential units, office and retail/restaurant uses, basement car and bicycle parking, residential amenities, hard and soft landscaping and advertising consent with all necessary ancillary and enabling works and (ii) refuse to grant advertising consent for 3x digital billboards. The applications were dated 11 December 2015 and amended in October 2016.

The differences of judgment as between the inspector and Secretary of State appeared to boil down to the following:

⁃ The Inspector considered “that the proposal would bring a massive uplift to the area around it” and would be in accordance with various local plan policies. “While the Secretary of State recognises that public realm improvements and the publicly accessible elements of the scheme…do offer some improvement to current conditions, in terms of accessibility and movement, he does not agree that this constitutes the massive uplift as described by the Inspector.

⁃ Both agreed that the harm to designated heritage assets (the Strand on the Green Conservation Area plus its listed buildings; Kew Green Conservation Area plus its listed buildings; Gunnersbury Park Conservation area plus its listed buildings and Registered Park and Garden, and the Royal Botanic Gardens Kew World Heritage Site plus its listed buildings) would be less than substantial but the Secretary of State disagreed with the inspector’s finding that the public benefits of the proposals would be sufficient to outweigh the harm.

⁃ The Secretary of State disagreed with the Inspector that there would be no conflict with a local plan policy concerning the impact of tall buildings proposed in sensitive locations such as conservation areas, listed buildings and their settings, and World Heritage Sites.

⁃ Accordingly the Secretary of State disagreed with the Inspector and found that the proposals did not comply with the development plan when read as a whole.

⁃ The Secretary of State “considers that the site has a strategic location, and he recognises the constraints and challenges associated with it. While he agrees with the Inspector […] that the proposed design seeks to respond to those challenges in a positive way, he does not find the proposal to be of such high quality as to be a brilliant response to its immediate context. He finds the scale and massing of the proposal to be such that the proposal does not relate to its immediate surrounding. While he recognises that attempts to minimise this impact have been taken with regard to glazing and fins, the building would still dominate the surrounding area. He considers the design to be a thoughtful attempt to respond to the challenges and opportunities of the site, but due to its scale, he disagrees with the Inspector […] that it is a significant benefit of the scheme.”

⁃ The Secretary of State considered that the proposals “would not provide the levels of private and communal amenity space that [the relevant local plan policy] requires. While he has found this to be a limited departure from this policy, the Secretary of State also recognises that the on-site provision, supplemented by the relative proximity of Gunnersbury Park does reduce the weight to be attached to this conflict.”

⁃ Given his finding that the proposals would not be in accordance with the development plan he went on to consider whether whether there were any material considerations to indicate that the proposals should be determined other than in accordance with the development plan. After a detailed analysis in paragraphs 34 to 38 of the decision letter, he concludes:

Overall, the Secretary of State disagrees with the Inspector […], and finds that the moderate weight to be attached to the benefits of the appeal scheme in terms of housing provision, workspace provision and economic benefits, are not collectively sufficient to outweigh the great weight attached to the identified ‘less than substantial’ harm to the significance of the above heritage assets. He considers that the balancing exercise under paragraph 196 of the Framework is therefore not favourable to the proposal.

Local MPs Ruth Cadbury (Labour) and Zac Goldsmith (Conservative) were recorded as having objected to the proposal. The objectors appearing at the inquiry included Historic England, the Royal Botanic Gardens Kew and the Kew Society (the first two instructing Richard Harwood QC and James Maurici QC respectively). Russell Harris QC and Richard Ground QC appeared for the appellant and for the London Borough of Hounslow respectively.

I note that on 19 July 2019, the Secretary of State also refused, against his inspector’s recommendation, Veolia’s called in application for planning permission for an energy recovery facility in Ratty’s Lane, Hoddesdon, Hertfordshire.

The Secretary of State accepted that there is an “urgent and pressing need” for the facility, that there is “no obvious alternative site”. “Given the urgent and pressing need, the Secretary of State considers that the provision of an ERF with sufficient capacity to accommodate the waste demands of the county carries substantial weight in favour of the proposal, and the climate change benefits of the proposal also carry substantial weight”. However, he considered that in view of the fact that the proposal was contrary to the development plan and there were unresolved concerns over highways matters, together with “significant adverse landscape and visual impacts”, the application should be refused. I thought that “need” means “need” but there we go.

Not much getting past this Secretary of State is there? An inference of his recent letter to the Planning Inspectorate (see my 13 July 2019 blog post Less Than Best Laid Plans: Political Pragmatism) might be that he considers that inspectors may on occasion be too robust in their examination of local plans and yet an inference of his approach on recovered appeals and call-ins might be that he considers that on occasion inspectors are not robust enough in assessing development proposals that are before them at inquiry. For my part, neither inference would be justified.

Simon Ricketts, 20 July 2019

Personal views, et cetera