There Is No E In Inquiry

As the motivational cliche goes, there is no I in team. That’s as maybe. But, where I = Inquiry, nor is there yet any I on Teams (or on Zoom, on Skype, on BlueJeans, or even on Google Hangouts).

The Planning Inspectorate’s 28 April 2020 update Planning Inspectorate casework continues as first pilot digital hearing to take place in May makes interesting reading:

“We are continuing to issue decisions where we can and 1,625 have been issued across all case types since lockdown restrictions started. Not being able to visit sites and hold public events has, however, clearly had an impact on our ability to process cases and the time it is taking to reach a decision.

As explained in our guidance, to limit the spread of the Coronavirus we have postponed site visits up to the middle of May, as well as most hearing and inquiry physical events where these would otherwise have taken place in May. Our case officers have notified parties of event postponement until further notice. We will be issuing updated information on arrangements for postponed events as soon as practicable in line with latest government advice.

We have been able to progress cases where:

• the physical event was concluded prior to lockdown restrictions;

• no physical event is required to make a decision; or

• a physical event is still further in the future and preparatory activity can continue (e.g. via telephone case conferences).

New cases continue to arrive at normal levels and are being registered and processed as far as possible. As at 23 April, there were 9,591 open cases. In the last three weeks we have seen the number of open cases rise by 337.”

(It is encouraging, in passing, to note that appeals are still being made at normal levels – that is our experience too).

The Planning Inspectorate is anxious to reassure that it is moving quickly to catch up:

• “The first fully ‘digital’ hearing is due to take place on 11 May.

• We are preparing for additional cases to be heard by digital hearings/inquiries in May/early June with a view to scaling up digital events further over June/July.

• We are assessing postponed cases to establish whether they can proceed by digital, traditional or a ‘hybrid’ approach, in order to re-arrange these in due course accordingly.

• A trial of ‘virtual site visits’ is underway involving thirteen Inspectors.

• Five local advisory visits have taken place remotely (critical for helping Local Planning Authorities to progress local plans and reduce the length of examinations).”

But is this fast enough? Can more be done? Could we see a leap forward in the way that planning hearings and inquiries are conducted?

After all, the planning inquiry process has been constantly adapting. Planning inquiries were first introduced in the Housing, Town Planning etc Act 1909 to consider objections to town planning schemes. The right to appeal against a planning decision was introduced in the 1932 Act, and the 1947 Act provided that all appeals were to be determined by public inquiry. Weirdly to us now, the procedures followed and the reasoning for decisions was kept secret until changes were made to implement some of the recommendations of the 1957 Franks Committee on Administrative Justice. We still refer to the three Franks Principles, of openness, fairness and impartiality.

This is what was said by the minister of the time in a 1957 Commons debate on the report:

“I must, however, return to a point I made in the opening of my remarks, that we must not complicate the procedures more than we can help. The great majority of objectors and appellants are small people. Quite a few present their own cases without professional assistance and for most people it is essential that the procedure should be simple, intelligible, quick, and cheap, as well as fair.”

Dear reader, of course we did then complicate those procedures, often through changes made with the best of intentions. When I started practice, there was no advance exchange of proofs of evidence. We all read the documents for the first time as they were being read out by the witness. No rebuttal proofs, no laboriously prepared cross-examinations or written closing submissions. Every procedural step that has been introduced, introducing frontloading of appeal preparation and evidence (good), minimising surprises (good), has by a sidewind elongated and complicated the processes (bad). There may now be a much more forensic and detailed examination of the issues, but where have we left those “small people”?

The Planning Bar is obviously at the sharp end of the current slowdown and has been trying to move things along.

⁃ Various Landmark Chambers barristers published a really excellent paper on 21 March 2020, Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis

⁃ On 1 April 2020 Kings Chambers put out this statement, Kings Chambers team up with Turley and Pegasus Group to record remote public inquiry test.

It is of course hugely frustrating that the massive improvements to the inquiry appeals system brought about by the Rosewell review (see eg my 25 May 2019 blog post Pace Making: Progress At PINS) have been undone by this pandemic. The Rosewell changes, unlike possibly every previous reform of any aspect of the planning system, did not add complications, but modernised and streamlined it in many ways, with telephone case management conferences and the like now the norm. I assume that everyone saw the interview with Bridget Rosewell on last week’s second episode of Have We Got Planning News For You? Her frustration with the Inspectorate’s present apparent slowness to get virtual hearings and inquiries underway was apparent, talking about the need to “move forward as soon as possible” and extolling the “fairer access” that can be achieved in a “virtual environment”.

We should listen to Bridget.

(Indeed, to go off on a tangent, if I were Secretary of State for the day, I would presently quietly shelve “Planning For The Future” and instead ask Bridget, very nicely, to carry out “Rosewell 2”, this time a review, with similar practical focus, in relation to the planning application process, so as to identify opportunities for simplification and reduction of unnecessary paperwork. Step by step there are surely simple opportunities for improvement. Off the top of my head:

– Recommended word limits for supporting documents such as Planning Statements, Design and Access Statements and Environmental Statements (or application fee linked to size of the documentation)

– Removal of need for multiple hard copies of documents

– Modernisation of publicity requirements

– Recommended word limits for officers’ reports to committee

– Standardisation of wording of planning conditions

– Updated model section 106 agreement template (the Law Society’s current so-called template draft agreement dates from 2010!)

– Updated advice as to the types of application which properly should be dealt with by way of officers’ delegated powers

Do it!)

But of course, moving to virtual appeals, even on a temporary basis, is not easy. The interests of all participants, and potential participants, in the appeals process need to be taken into account. Whilst justice delayed is justice denied, justice has to be both done and be seen to be done.

I was struck by an assertion in the Landmark Chambers paper:

It is safe to proceed on the basis of a presumption that every participant in a planning appeal will have reasonable access to a means of participating in a remote hearing session unless they provide evidence to the contrary. Virtually every household has a telephone, and the vast majority of people have access to a computer or mobile device on which video conferencing is possible.”

This isn’t still true for a few members of my own family (well they all have a land line – but certainly couldn’t be expected to follow proceedings on a telephone). And indeed whilst the chattering classes are currently going on about Zoom and the rest of it, I know that many are finding it very difficult to access or be at ease on these platforms, surrounded by us lawyers and others who inevitably spend much of every day now speaking with a variety of people on screen and unwittingly developing new social norms and cues.

Any procedural solution does needs to meet the three principles set out in the paper:

– The common law requirements of fairness;

⁃ Article 6(1) ECHR – the right to a fair trial in civil cases;

⁃ Article 6 of the Aarhus Convention (“public participation in decisions on specific activities”).

But decisions as to procedure also need to have regard to “protected characteristics” under the Equality Act 2010, which of course include age and disability. Bridget is right that virtual hearings and inquiries would allow many to engage with the process who currently cannot, which is great as long as there are protections to make sure that some are not excluded.

In my view this is perfectly achievable for the majority of hearings and inquiries. I accept that (1) the inquiry process is very different from the court process and we cannot simply “read across” and (2) even in relation to the court process, there were some words of warning this week from the Court of Appeal in a family law case, Re A (Children) (Court of Appeal, 30 April 2020) – see paragraphs 49 to 56. However, let’s analyse the real position:

The only parties entitled to appear at a hearing are the appellant, the local planning authority and defined statutory parties. Everyone else is at the discretion of the inspector. As long as the inspector is confident that there is no third party, from whom the inspector feels he or she should hear, and who cannot participate adequately by some remote means, why should not virtual hearings proceed, as long as the proceedings are able to be viewed remotely (perhaps also with a transcript of what is said – not difficult at all – where there is any doubt as to whether there may be interested parties without adequate screen access)?

At inquiries, the parties only entitled to appear are the appellant, local planning authority, defined statutory parties and those who have (at their own request) become rule 6 parties. Again, if all of those parties are in agreement (with possible adverse costs award consequences for those who unreasonably refuse) and as long as the same approach can be taken in relation to other parties, why cannot inquiries proceed?

Site visits are less of a problem, whether accompanied or unaccompanied, and whether in fact still always needed, in the light of visual material now available.

Furthermore, as long as there are indeed adequate protections for those who should be heard at the hearing and genuinely cannot reasonably be expected to participate remotely, the change to a virtual process has the benefit of opening up access to so many other people. And imagine the benefits in future of being able to offer a “virtual” evening session at the next inquiry at your local town hall? That surely would be participative democracy.

Which is a long way of saying: I agree with Bridget.

Simon Ricketts, 2 May 2020

Personal views, et cetera

Housing Schemes Approved By Secretary Of State In April 2020

Five out of five proposals for housing development have been approved by the Secretary of State so far in April 2020, in each instance in accordance with his inspectors’ recommendations.

Chronologically:

1 April – Vauxhall Cross Island, Lambeth

The Secretary of State approved a called in application for “the construction of a mixed-use development comprising two towers of 53 storeys (185m) and 42 storeys (151m), with a connecting podium of 10 storeys (49m), containing office (B1), hotel (C1), residential (C3) and flexible ground floor retail and non-residential institution (A1/A2/A3/A4/D1) uses plus plant, servicing, parking and other ancillary space, the provision of hard and soft landscaping, the creation of a new vehicular access point on Wandsworth Road, a vehicular layby on Parry Street and other works incidental to the development”.

“The proposal would deliver 257 homes onsite, including 23 affordable, alongside a Section 106 payment of £30m for further off-site affordable housing provision. The Secretary of State notes that, citing LB Lambeth’s past record of utilising such payments, the Inspector was satisfied this would deliver a further 54 homes and provide a total of 30% affordable… The Secretary of State notes that a viability assessment demonstrated that this was the maximum amount achievable, and was accepted by LB Lambeth.”

The Secretary of State found that the proposals would be in accordance with the development plan. The market and affordable housing components of the scheme attracted “significant weight in favour. There would also be hotel, office and retail uses in an area identified for all three, alongside a new public square. All of these would contribute to the development plan’s goal of creating a new district centre in Vauxhall. This also attracts substantial weight in favour.

(Town acted for the applicant).

1 April – Station Road, Long Melford, Suffolk

The Secretary of State allowed an appeal by Gladman Developments Limited for “outline planning permission for the erection of up to 150 dwellings with public open space, landscaping and sustainable drainage system (SuDS), and vehicular access point from Station Road, with all matters reserved except means of access”.

The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:

“The site is outside the settlement boundary, and would result in the development of a greenfield site into housing, which would cause visual harm. However, the settlement boundary is out of date, and the visual harm would be confined to the site itself, with limited impact on the wider settlement. This carries moderate weight against the proposal.

The proposal would provide up to 150 new homes, including around 53 affordable homes. Although the local authority can now demonstrate a supply of housing land above 5 years, this figure is a baseline and not a ceiling. Relevant to this appeal, the appellant has demonstrated there is a local need in this settlement, in line with the expectations of the development plan, for both market and affordable housing. The Secretary of State recognises that there is now a five-year supply of housing land supply. However, in the light of the identified local need, and the Government’s objective of significantly boosting the supply of homes (Framework paragraph 59), he considers that the housing delivery should carry significant weight. The proposal would provide land for a new early years centre, which attracts significant weight in favour. There would be economic benefits provided by the construction of the homes and from the new residents, which attract moderate weight. Improvements to existing public rights of way, public space and play areas, and biodiversity benefits each attract moderate weight in favour. Improvements to bus stops and footway connections attract limited weight in favour.”

7 April – Barbrook Lane, Tiptree, Colchester

The Secretary of State allowed an appeal by Gladman Developments Limited (again) for “outline planning permission for the development of up to 200 dwellings (including 30% affordable housing), provision of 0.6ha of land safeguarded for school expansion, new car parking facility, introduction of structural planting and landscaping and sustainable drainage system (SuDS), informal public open space, children’s play area, demolition of 97 Barbrook Lane to form vehicular access from Barbrook Lane, with all matters to be reserved except for access”.

The Secretary of State found that the proposals were not in accordance with the development plan. In terms of other material considerations:

“As the local authority are unable to demonstrate a five-year supply of housing land, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The proposal is an undeveloped agricultural site outside the settlement boundary, and the rural character of the site would change. This carries moderate weight against the proposal.

The proposal would provide up to 200 dwellings, with 30% affordable, helping the local planning authority achieve a five-year supply of housing land. This attracts significant weight in favour of the proposal. The proposal includes informal open space and safeguarded land for a school expansion, which carry limited weight. Although the site would change from rural to a housing estate, there would be little wider impact on the setting of the village as the site is well-screened. The scale of the proposal would not harm or prejudice local services, highways or residential amenity, and the site represents a sustainable location for access to jobs and services.

The Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed. The Secretary of State considers that the adverse impacts of the proposal do not significantly and demonstrably outweigh the benefits.”

22 April – Stanley Road, Cheadle Hume, Stockport

The Secretary of State allowed an appeal by the Seashell Trust “for the erection of a new school with associated kitchen and dining facilities, swimming and hydrotherapy facilities, infrastructure, drop-off parking, access, landscaping and ancillary works; the demolition of the Chadderton building, Orchard/Wainwright/Hydrotherapy/Care block, Dockray building, part of existing college, 1 Scout Hut and 1 garage block, and erection of new campus facilities (Use Class D1/D2 – Reception, Family Assessment Units, Family Support Services/Administration/Training/Storage Facility Sports Hall and Pavilion) with associated infrastructure, parking, landscaping and ancillary works; and up to 325 dwellings (Use Class C3) in northern fields with associated infrastructure, parking, access, landscaping and ancillary works”.

The site is in the green belt and the Secretary of State found that the proposals were not in accordance with the development plan. However, these were his overall conclusions:

“As Stockport Borough Council cannot demonstrate a five year housing land supply, paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The Secretary of State considers that the harm to the Green Belt carries substantial weight, the ‘less than substantial’ harm to the setting of the listed building carries great weight and harm to the landscape carries moderate weight. The Secretary of State considers the proposal will harm agricultural land, habitat, non-designated heritage assets and demand for mainstream school places and attributes very limited weight to each of these harms.

The Secretary of State considers the need for the redevelopment of the Special Educational Need school carries substantial weight, the housing benefits overall carry very significant weight, and the provision of employment and community benefits each carry moderate weight.

The Secretary of State considers that the above benefits clearly outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances exist to justify this development in the Green Belt. In the light of his conclusion on this and the heritage test is paragraph 18 above, the Secretary of State considers that there are no protective policies which provide a clear reason for refusing the development proposed and further considers that the adverse impacts do not significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole. Paragraph 11(d) of the Framework therefore indicates that planning permission should be granted.”

Paul Tucker QC led the case for the appellant and this is a statement on the decision published by Kings Chambers.

23 April – Wheatley Campus, College Close, Wheatley, Oxford

The Secretary of State allowed an appeal by Oxford Brookes University for outline planning permission for “demolition of all existing structures and redevelopment of the site with up to 500 dwellings and associated works including; engineering operations, including site clearance, remediation, remodelling and deposition of inert fill material arising from demolition on site; installation of new and modification of existing services and utilities; construction of foul and surface water drainage systems, including SuDS; creation of noise mitigation bund and fencing; creation of public open space, leisure, sport and recreation facilities including equipped play areas; ecological mitigation works; construction of a building for community/sport use and associated car parking; construction of internal estate roads, private drives and other highways infrastructure and construction of pedestrian footpaths”.

Again this is a green belt site. Whilst the Secretary of State agreed with the inspector that the appeal should be allowed, he differed as to his reasoning. I set out the Secretary of Statement’s application of the planning balance and overall conclusions as follows:

“For the reasons given above, the Secretary of State considers that the appeal scheme is in accordance with the following policies of the development plan: CS Policy CSEN2, LP Policy GB4. He has identified an overall benefit to heritage assets, so has found no conflict with heritage policies CSEN3, CON5 and CON11. He has found no conflict with CS Policy CSEN1 or LP Policies G2, C4 and C9 insofar as they seek to protect the district’s countryside and settlements from adverse development. While he has found conflict with policies CSS1 and CSH1 regarding the amount and spatial distribution of housing, he has found these policies to be out of date. He has therefore concluded that the appeal scheme is in accordance with the development plan overall. He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

At IR13.118, the Inspector, having concluded that the proposed development would not conflict with the development plan, states that it should be approved without delay in accordance with paragraph 11c) of the Framework. The Secretary of State disagrees. Paragraph 11 c) of the Framework refers to “development proposals that accord with an up-to-date development plan”. As the Secretary of State has concluded that the policies which are most important for determining this appeal are out-of-date, he considers that paragraph 11 c) of the Framework does not apply.

Paragraph 11(d) of the Framework indicates that planning permission should be granted unless: (i) the application of policies in the Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or (ii) any adverse impacts of doing so significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.

The Secretary of State considers the harm to the Green Belt on that part of the site where development is considered inappropriate carries substantial weight.

The Secretary of State considers that the significant visual benefit to openness over a wide area of the South Oxfordshire Green Belt and the delivery of up to 500 houses, 173 of which would be affordable, are both considerations that carry very substantial weight.

The Secretary of State considers that the economic benefits of the scheme should be afforded significant weight.

The Secretary of State has considered the development in terms of its impact on heritage assets and on accessibility and considers that both offer benefits that should be afforded significant weight.

The net benefit to biodiversity that would be delivered by the scheme is a consideration of moderate weight, and the reinvestment of the proceeds arising from the sale of the land into the education sector should be afforded significant weight.

Given his findings in this letter, the Secretary of State considers that the proposal meets the emerging Neighbourhood Plan site-specific development principles in respect of Green Belt, affordable housing and accessibility, and public open space.

Having concluded at paragraph 39 of this letter that very special circumstances exist the Secretary of State considers that there are no policies in the Framework that protect areas or assets of particular importance that provide a clear reason for refusing the development proposed. He also concludes that any adverse impacts of granting permission do not significantly and demonstrably outweigh the benefits, when assessed against policies in the Framework taken as a whole.”

Chris Young QC led the case for the appellant and this is a statement on the decision published by No 5 Chambers.

Quite a month so far!

Two quick plugs:

⁃ If on Thursday you watched the first Planning In Brief web event hosted by Charlie Banner QC, Chris Young QC, Sasha White QC, Paul Tucker QC and Town’s Mary Cook you would have heard some discussion about the Seashell Trust decision. I wouldn’t be surprised to hear some coverage of the Oxford Brookes decision this coming week. Another reason to make the charity donation and tune in.

⁃ Do subscribe to Town Legal’s weekly, comprehensive, inquiry appeal decisions updates. Subscriptions to this and our other update services are still free.

Simon Ricketts, 25 April 2020

Personal views, et cetera

Handy lockdown calendar
(H/t @instachaaz)

Key Worker Affordable Housing

The Clap for Our Carers phenomenon reflects heartfelt gratitude for what is currently being done, for all of us, by NHS staff, carers and others carrying out essential services. But clapping is glib. Many of us no doubt feel uneasy. After all many or most of those to whom we owe so much:

⁃ are in jobs in the public sector, or are employed by companies contracted to the public sector, and have seen particular and significant pressure on their incomes for many years;

⁃ are doing those jobs in the absence of adequate facilities and equipment, due to longstanding restrictions on public spending, lack of investment at necessary levels and/or a lack of organisational foresight;

⁃ are not UK nationals and have had to suffer an increasingly hostile environment, catalysed by Brexit;

⁃ due to the loss over time of traditional indentured accommodation and massive house price inflation, particularly in London, have found themselves unable to live in decent accommodation convenient to their work, despite often needing to work at unsocial times or being “on call”.

Plainly there will be a reckoning on many fronts when this immediate crisis is over but will one consequence be a fresh focus on the role of key worker affordable housing?

The NPPF affordable housing definition includes housing for “essential local workers” but, whilst many individual local authorities and registered providers may still prioritise some applications from local key workers, variously defined, there has been no central Government encouragement, let alone funding, for key worker accommodation for many years.

In fact the background to the demise of any focus on accommodation for key workers is well described in a November 2019 presciently topical Policy Exchange paper, Revitalising Key Worker Housing by Jack Airey (now of course a No 10 policy advisor) and Sir Robin Wales (previously leader, and then mayor, of Newham Council).

Back in 2000, the Blair Government launched the Starter Home Initiative, which aimed to provide low cost home ownership for key workers, primarily nurses, teachers and police officers.

The then housing minister Tony McNulty, responded to a question in the Commons as to what progress had been made on providing key workers with affordable housing in central London:

The Government recognise the importance of affordable housing for key workers in London in maintaining balanced and successful communities.

£146 million of the £250 million Starter Homes Initiative has been allocated to London schemes and will help around 4,600 key workers to realise their aspirations of home ownership. We hope that the initiative will act as a catalyst, and encourage other innovative approaches to housing key workers.

The NHS in London is providing 2,000 units of affordable rental accommodation for health staff in the three years up to June 2003.”

However, as summarised in this 2004 Guardian article:

Uptake was slow and the help available often failed to keep pace with rapidly rising property prices. As it was confined to just nurses, teachers and police officers, it was also criticised as too narrowly focused.

In March 2004, the government devoted more resources to the problem and replaced the SHI with a £690m programme called Key Worker Living (KWL). Under the new scheme, eligibility for assistance was broadened to include social workers, fire-fighters, and prison and probation service staff.

The type of housing assistance offered under KWL was also expanded to include ‘intermediate’ rented housing – priced at levels above those of traditional social housing, but still below market rates.”

As described by Shelter, four products were available to key workers under KWL

⁃ equity (“Homebuy”) loans of up to £50,000 to buy a home;

⁃ higher-value equity loans up to £100,000 for a small group of London school teachers with the potential to become leaders in their field;

⁃ shared-ownership of newly built properties; and

⁃ intermediate renting at subsidised levels

Until April 2008, KWL leases contained a clawback provision where the beneficiary ceased to be a key worker.

In the affordable housing reforms, and grant cut backs, following the global financial crisis and the 2010 general election, there was no longer any specific key worker housing “pathway” promoted or funded by Government. The focus has instead been on “affordability” judged by reference to rental/income levels and without reference to the applicant’s occupation. Responsibility for affordable housing in London transferred to the Mayor in April 2012 and since his election in 2016 Sadiq Khan has pursued a specific approach, driven by the obvious concern that the Government’s definition of “affordable rent”, based on discount to market value, does not necessarily enable local housing needs in London properly to be met. On London’s Dave Hill has written a good explainer, What are London ‘affordable’ homes and who can afford them? (17th December 2018), subtitled “An attempt to explain the almost unexplainable”.

The specific challenges faced in London have been covered well in papers such as these:

Fair to middling: report of the Commission on Intermediate Housing (November 2015)

Estimating the Value of Discounted Rental Accommodation for London’s ‘Squeezed’ Key Workers (Dolphin Square Foundation, October 2016)

Back in December 2019 the Mayor promised a consultation in intermediate housing during the course of 2020 “which will seek views on a range of issues, including how we can ensure that key workers benefit from intermediate housing in the capital”.

From a national perspective, we did see reference to key workers in the Government’s February 2020 consultation document on its proposed First Homes programme, “prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers” (see my 29 February 2019) blog post (perhaps the Policy Exchange influence there, in the light of its December 2019 report?), but what is the Government’s stance more generally as to whether key workers should be given priority in relation to particular forms of affordable housing?

And indeed (the point at which the nice ideas start to stall), how do you even define “key workers”? The “essential workersdefinition may be appropriate for the purposes of the current Covid-19 crisis but would not necessarily be appropriate in the longer term – it is in some instances potentially too narrow and in other respects too wide.

The difficulty is possibly rooted in an uncomfortable fundamental truth. In a functioning market-based economy, who isn’t a key worker? The problem is rather that there are many people, some skilled some unskilled, carrying out relatively poorly paid roles, without which society certainly couldn’t function, and who cannot secure adequate, suitable and convenient accommodation due to the disparity between what they earn and the cost of renting or owning property.

The “correct” longer term solution is plainly a twofold one of significantly raising those earning levels (which is not going to be easy as presumably we enter another economically challenging period) and of reducing, or at least stabilising, property costs (also not easy, given lack of supply). We will only ever paper over part of the problem of inadequate salary levels by requiring developers to subsidise the affordability gap.

But in an imperfect world of course we do need an “incorrect” shorter term solution, which surely must be to ensure that those in defined categories of occupation are now given proper priority when it comes to affordable housing tenures of all kinds, and that developers who are prepared to make a meaningful commitment in that respect (particularly if supported by employers of key workers) are not faced with an overly restrictive application of local affordable housing policies until such time as those policies catch up.

Our carers (widely defined) certainly deserve a lot more than a badge at the end of this.

Simon Ricketts, 18 April 2020

Personal views, et cetera

NB Thank you to my Town colleague Lida Nguyen for some background research.

We Need Some Flex On CIL

Miles Gibson rightly spotted, in his good CBRE piece Community Infrastructure Levy – ten years old, but COVID-19 is its biggest test (7 April 2020), that the Community Infrastructure Levy Regulations came into force just over ten years ago, on 6 April 2010. (And who better to point it out, given that until 2011 Miles led on CIL at the Department of Communities and Local Government?).

Of course, after the regulations were brought into force, there was then a pause caused by the 6 May 2010 general election. Would the incoming coalition government scrap, or at least amend and rebadge, the system? In the end the system survived and, according to wikipedia at least, the London Borough of Redbridge was the first to adopt a CIL charging schedule, on 1 January 2012.

So CIL didn’t live through the global financial crisis, or previous recessions, as we have done. I have written before about the inherent inflexibility of the mechanism but, as Miles acknowledges in his piece, the current economic conditions are going to prove the big test for the levy.

He says “CIL’s inflexibility could prove its downfall if the forthcoming downturn is anything other than a short sharp shock. COVID-19 has created the biggest test which CIL has yet faced. If the downturn is lengthy, local authorities may need to hurriedly cut CIL rates to help return development to viability. Or, press the pause button on introducing CIL altogether.”

This may all be so, but there are also other, more nuanced steps which charging authorities could also be taking, with the encouragement of MHCLG, one would hope. For instance:

⁃ The switching on, within charging authorities, of the ability to apply for exceptional circumstances relief – and if there isn’t sufficient movement on this I would argue for its automatic national application by way of a change to the regulations. Whilst ECR is a cumbersome process, and there are state aid considerations to be borne in mind, if these aren’t “exceptional circumstances” what are? And I suspect that the application of ECR will be more palatable than the reintroduction of section 106BA, which enabled developers to reduce or remove section 106 affordable housing obligations on the grounds of viability.

⁃ The introduction of instalment schemes for payment (currently discretionary) and the review of existing instalment schemes to push back timescales.

I was interested to see, via an update by Ashfords (Covid-19: Mitigating the impact of Community Infrastructure Levy (“CIL”) on stalled developments, 7 April 2020) East Suffolk Council’s pragmatic response to current developer cashflow problems, basically stepping outside the procedural tramlines of the Regulations. In its statement, Coronavirus: Actions for CIL, it sets out a series of commitments, including these:

Where development has already commenced, CIL demand notices will shortly be re-issued to allow for a 3 month extension to the next instalment due date and to subsequent outstanding instalments. This position will be reviewed towards the end of June and any further extension to instalment payment periods will be communicated. It will take time for notices to be prepared and issued, but this work will be prioritised.

An individual, case by case review of late payment interest and surcharges will be made and a pragmatic approach adopted to support customers in these circumstances.

CIL debt recovery will largely be paused for 3 months and will be reviewed towards the end of June 2020 with a view to extending this position if required.

Are there any examples of other charging authorities taking an equivalent stance? Clearly there are risks in such an approach and I would be cautious as to the extent that, for example, a funder with millions of pounds at stake, could rely on such a commitment. It is unfortunate that the Regulations are so inflexible as to lead to such sticking-plaster solutions.

Stepping back, unless authorities are now going to move very quickly to propose reduced charging rates and take positive steps in relation to instalment policies and ECR, wouldn’t a solution in current circumstances be for the Government to legislate so as to allow authorities, both in relation to existing permissions and permissions which have not yet been issued, either to (1) defer payment of CIL for a defined period or (2) allow an emergency discount of say 50% to be applied, conditional upon development being commenced within a defined period of time and then completed within a defined period (the period to be agreed with the authority having regard to its projected build programme and if the deadline is missed there would be clawback)? To reduce the extent that the authority is as a consequence unable to deliver essential infrastructure, the Government would need to make additional funding available, because after all the economic and social benefits of ensuring that development gets started again will be immense.

I don’t have the answers – I would welcome your much better ones (except “abolish CIL” – let’s be practical). However, I do know that (1) CIL is a massive, inflexible, cash drain for any development early in its implementation and (2) some additional flexibility would surely reduce the risk that many development projects will remain on hold even once normal life starts to return around us all.

Simon Ricketts, 10 April 2020

Personal views, et cetera

Pause Not Delete: Extending Planning Permissions

Happily, last week’s blog post, on the the scope for remote planning committee meetings, was superseded by regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 although of course there will be some practical challenges for authorities now to grapple with.

This post focuses on another specific, urgent, issue. I assume that there is a large measure of consensus that deadlines for commencement of development under planning permissions (and equivalent deadlines other related consents) should be “on pause” for at least the duration of this present lockdown and its eventual gradual unwinding. Otherwise either applicants are going to need to embark on expensive lengthy and time-consuming (for everyone) applications for a fresh planning permission in due course (with a further hiatus on any construction in the meantime) or contractors are going to be out there doing unnecessary implementation works just to keep the existing planning permission alive.

(Some of you at this point will take the opportunity to have a swipe at applicants who have left it until near the deadline before implementing a permission or before submitting applications reserved matters approval, but these are old arguments which I have addressed before).

The current law

My 16 July blog post Unpacking UseItOrLoseIt considered the law on time limited planning permissions and the amendment that was made to section 73 by way of the Planning and Compulsory Purchase Act 2004 so as to prevent section 73 being used to extend the life of planning permissions.

In the wake of the 2008 global financial crisis, a procedure was allowed for, by way of the Town and Country Planning (General Development Procedure) (Amendment No. 3) (England) Order 2009, which sidestepped section 73 and provided for a simplified procedure for grant of a “replacement planning permission” for planning applications made for a planning permission to replace an extant permission, granted on or before 1st October 2009, for development which has not yet begun, with a new planning permission subject to a new time limit. For such applications, the requirement to provide a design and access statement was disapplied, consultation requirements were modified and plans and drawings did not have to be provided. Guidance was provided in the Government’s Greater Flexibility for Planning Permissions document.

As explained in the explanatory memorandum to the subsequent Development Management Procedure Order 2010:

7.6 In 2009, the Department became aware of a reduction in the implementation rate of major schemes that already have planning permission. If large numbers of permissions are not implemented and subsequently lapse, this could delay economic recovery. Developers would have to make new planning applications for those schemes, which could lead to delay and additional costs. Furthermore, local planning authorities could find themselves dealing with a sudden upsurge in applications as the economy moves out of recession.

7.7 Following calls from the Local Government Association, the Confederation of British Industry and the British Property Federation, SI 2009/2261 amended the GDPO to introduce a new power to allow the time limits for implementation of existing planning permissions to be extended. The amendment enabled existing planning permissions to be replaced before expiring, in order to allow a longer period for implementation (although the previous planning permission is not revoked, rather a new permission granted subject to a new time limit). For this new kind of application, the requirement for design and access statements was removed, and the requirements for consultation were modified. SI 2009/2262 made associated amendments to the Listed Buildings Regulations to allow the provisions to apply to linked applications for listed building and conservation area consents.”

The procedure was extended for a final year in 2012 (the impact assessment is interesting to look back to and compare with current circumstances).

The legislative options

It seems to me that there are two basic approaches which might be taken:

The “automatic” extension option

The Government could look to achieve an automatic extension, for a defined period in relation to all planning permissions – in relation to the deadline for implementation and possibly also any deadline for submission of reserved matters applications in relation to outline planning permissions – with the extension potentially only available where the deadline is going to expire within a defined period of time.

Surely, such a change would require primary legislation, to amend the operation of sections 91 and 92 of the Town and Country Planning Act 1990. The Coronavirus Act would have been a useful vehicle but possibly moved too quickly through its legislative changes for this potential measure to jump aboard in the way that was achieved with the provisions enabling local authorities to hold meetings remotely.

Such an approach has in fact been taken in Scotland, as explained in the Scottish Government’s Chief Planner letter dated 3 April 2020:

Some planning permissions will be due to expire over the coming weeks and months and, for various reasons caused by current restrictions, there will be difficulties in commencing development or carrying out necessary processes, such as the submission of applications for approval of matters specified in conditions, before deadlines pass.

The duration of planning permission is set out in primary legislation.  Recognising that activity is likely to slow considerably over coming months, we included provisions in the Coronavirus (Scotland) Bill which will extend the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.”

More detail is set out in the policy memorandum dated 31 March 2020, accompanying the Coronavirus (Scotland) Bill:

The coronavirus outbreak will affect the ability of both planning authorities and applicants to deal with planning permissions which are due to expire. Planning permissions can broadly be separated into two categories: full planning permission and planning permission in principle.

When planning permission is granted applicants have a period of 3 years to commence development (authorities can provide for a longer period). If development is not commenced then that permission lapses and a new planning application is required. Planning permission in principle also requires the approval of conditions before development can proceed.

It is expected that the current restrictions on movement and potential continuation of social distancing and self-isolation will mean that applicants may be unable to satisfy the conditions attached to their planning permission or to commence development due to the shutdown of non- essential construction.

Policy objectives

The aim is to ensure that where a full planning permission or planning permission in principle would expire then that permission should not lapse for a period of 12 months from the date on which the provisions come into force, irrespective of that development having not been commenced. The permission would only lapse if development has not commenced before the end of the 12-month period.

In relation to applications for approval of conditions, if the last date for making an application for an approval is within the emergency period then the time limit for making such an application is to the end of the 12-month period.

Necessity and urgency

It is important that when the current restrictions on movement are relaxed, developers are able to pick up where they left off, continuing with construction and having a pipeline of sites ready to move onto once current sites are completed. It is also important to reduce the burden on planning authorities who may otherwise be inundated with new applications to obtain a new permission.

Consultation

The expiry of planning permission is an issue which has been raised by industry representatives who had expressed concerns about the ability of applicants to submit required information, apply to amend a condition to in effect get a new permission or commence development. Engagement at official level has also been undertaken with Heads of Planning, Scotland, Society of Local Authority Chief Executives, Society of Local Authority Lawyers and Administrators and the Convention of Scottish Local Authorities. Those consulted understood and appreciated the reasons for taking this action and were supportive of this intervention being time restricted.

Alternative approaches

No alternative to primary legislation is possible, and no powers exist which would allow these changes to be made in this way.”

I can only think of one way of achieving an automatic extension without primary legislation. What about creating a new permitted development right to carry out development within x months of the expiry of planning permission for development, subject to the expiry being before a specified date? There may be issues in relation to EIA development but is this a runner? Standard conditions applicable to any such PD right would need to secure the continued effect of any conditions attached to the original planning permission and somehow ensure that any existing section 106 planning obligations continue to apply.

The “enabling individual extensions” option

The alternative approach that the Government could take would be to find a way of enabling individual applications to be made that can be dealt with by authorities more simply than a fresh application for planning permission (which for a major application is a six or even seven figure sum investment, appalling as that figure is). In my view that would be less helpful than the Scotland-style automatic extension – this is not like the 2008 global economic crisis – all development is currently affected. A “pause” on time limits across the board is surely cleaner and would avoid a mass of individual applications. However, the “enabling individual extensions” option may be a quicker fix.

The “enabling individual extensions” options might include:

⁃ reintroducing the “replacement planning permissions” route exactly as per the 2009 statutory instrument, backed by appropriate guidance

⁃ (I appreciate this may jar but bear with me, we need to be creative) use of section 96A, given that there is no express prohibition (as there is with section 73) on the use of the non-material amendments procedure to vary time limits on planning permissions. Plainly, in normal circumstances, the extension of a time limit on a planning permission would be material, but could the Government, with proper justification, issue guidance that in the current exceptional circumstances, subject to consideration by the relevant local planning authority of individual circumstances when an application is made, it considers that in principle an extension of time for a period not exceeding, say, the current lockdown period, could be regarded as “non material”? I have re-read R (Fulford Parish Council) v City of York Council (Court of Appeal, 30 July 2019) and don’t immediately see that such an approach would be inconsistent with the approach that the Court of Appeal took to section 96A in that case.

⁃ (More cumbersome but surely legally achievable) the use of local planning authorities’ powers in section 97 of the Town and Country Planning Act 1990 to modify planning permissions where they consider it expedient.

What have I missed? I’m hoping that, like its predecessor, this blog post will very soon be past its sell by date.

Simon Ricketts, 4 April 2020

Personal views, etc cetera

Keeping Calm & Carrying On: Planning Committee Meetings

[Subsequent note: much of this post is now superseded by regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020]

Things are moving fast. My blog post last week was titled What To Do? This week focuses on the solutions that we are seeing already coming forward in the face of local planning authorities’ practical inability at present to hold “normal” planning committee meetings.

It’s not straightforward because obviously any solution isn’t just about the law at all, but about the individual authority’s organisational priorities, operational resilience and access to technology.

I referred in last week’s blog post to the letter dated 17 March 2020 to MHCLG from ADSO (Association of Democratic Services Officers) & LLG (Lawyers in Local Government):

We have advised local authorities to hold only essential meetings and with the minimum number of people attending to satisfy a quorum. Where possible, Councils should be using urgency powers within their Constitutions to take decisions outside of public meetings. This will be possible in most instances but not in others. For example, Schedule 12 of the Local Government Act 1972 requires Councils to hold an Annual meeting during March, April or May depending on whether it is an election year or not. As you will be aware, important business is conducted at these meetings including the election of Mayor/Chairman of the Council and appointments to Committees etc to enable decision-making processes to function effectively.

Paragraph 39 of Schedule 12 to the Local Government Act 1972 states that any decision taken at a local authority meeting (including committees and sub committees) shall be decided by a majority of those present and voting. This means that it is impossible to have a meeting unless a quorum is present in the room. Whilst the law permits other members to join the meeting virtually, they cannot vote. This will become increasingly more difficult as further restrictions on peoples’ movements are imposed. For example, a high proportion of councillors are over 70 years of age and could be prevented from attending even essential meetings if currently publicised Government measures are imposed for that age group. We appreciate that this will require an amendment to the Local Government Act 1972, but we feel it essential to ensure continuity in local authority decision making and the provision of essential services. An alternative could be that local authority members could be counted as being present in a meeting if they are in a location where they can hear the conversation in the meeting room and persons present in the room can hear what they are saying.”

In order to enable “virtual” council meetings, an amendment was introduced to the Coronavirus Bill on 23 March 2020 before it was enacted as the Coronavirus Act 2020 on 25 March 2020. In consequence, section 78 of the Act includes a delegated power enabling the Secretary of State to make regulations relating to:

(a) requirements to hold local authority meetings;

(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;

(c) the places at which local authority meetings are to be held;

(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;

(e) public admission and access to local authority meetings;

(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.

In relation to (d) above, Section 78(2) of the Act enables provision to be made in the regulations for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place (i.e. remotely).

Section 78(3) of the Act provides that the special arrangements for Local Authority Meetings to be enacted in the regulations will only apply to meetings to be held before 7 May 2021.

Section 78(13) provides that the regulations to be made under this delegated power are to be subject to the ‘negative resolution procedure’. Under the negative procedure, the regulations become law on the day that the Secretary of State signs them and remain law unless a motion to reject it is agreed by either House of Parliament within 40 sitting days (highly unlikely in practice). Such regulations can also be laid when Parliament is not sitting (handy given that Parliament is currently prorogued until 21 April 2020).

So far so good but obviously (1) regulations are needed and (2) unless the regulations specifically provide (which I would not anticipate) they will not override each authority’s individual constitution which sets out the necessary procedures within that authority as to for instance the holding of meetings and the extent of officers’ delegated powers. Each constitution sets out the procedure to be followed for its amendment.

There are legal risks in any “short cuts” in decision making, where the procedure followed does not comply with legislative requirements, the authority’s own required processes as set out in its constitution or is in breach of wider administrative law requirements. There was an interesting discussion on this tension during today’s 50 Shades of Planning podcast episode Planning and Coronavirus (28 March 2020) featuring Anna Rose (Planning Advisory Service), Jonathan Easton (Kings Chambers) and Stefan Webb (FutureGov) – participants in the process may presently be “nice” in the face of the present Covid-19 crisis but what about in several months’ time when decisions are being crawled over, for instance by objectors?

Ahead of the implementation of the legislation, and after an initial wave of cancelled committee meetings, we are seeing authorities arrive at practical solutions. For instance:

Trio take over Manchester planning decisions (North West Place, 27 March 2020)

The power to decide on major Manchester planning applications has now been delegated to council chief executive Joanne Roney, alongside chair of the planning committee Cllr Basil Curley and deputy chair Cllr Nasrin Ali.

The trio will decide whether to consent or refuse proposals for schemes based on recommendations from the director of planning, Julie Roscoe.

The delegation of power was confirmed at the council’s full meeting on Wednesday. 

A report to the meeting called for authority to be given to the chief executive to enable her to determine any planning application, listed building consent or tree preservation order which would otherwise have been decided by a planning committee.”

Team of just three Brighton councillors will make planning decisions (The Argus, 26 March 2020)

Brighton and Hove City Council’s three party leaders agreed one councillor from each of the Labour, Green and Conservative groups will make urgent decisions rather than leave them to officers.

Three councillors sitting as the Planning Committee on Monday, 23 March, agreed to create the urgency sub-committee to decide on any major developments that need a decision during the Coronavirus (Covid19) pandemic emergency.

For those concerned as to the implications of decisions being left within a small caucus of members, Luton Borough Council has an approach (recounted by David Gurtler on twitter) whereby four members are physically present, with officers presenting virtually and with other members able to log in and participate in the debate (although not vote).

These options seem pretty practical to me. Concerns have been expressed as to whether options such as these constrain the ability for the public to participate. In my view, this concern is overdone. Participation amounts to (1) having the papers in advance (2) being present in order to hear what is said and (3) (subject to what is provided for in the individual authority’s constitution) being allowed to speak. The papers will still be available in advance. If meetings are available on webcast, as many have been for some time, the second concern is addressed. The right to speak is already tightly constrained, invariably with requirements as to advance notification and strict time limits for a presentation and the relevant individual (whether applicant, supporter or objector) could easily join remotely by telephone or web link to say his or her piece in exactly the same way as if present. As for the presentation of schemes to committee and the ability for members to understand the implications of a proposal without the need for a site visit, the possibilities of technological solutions such as Vucity are almost boundless.

Of course, there is no reason why less controversial applications should not be determined by delegated powers as indeed most already are – see my 14 January 2017 blog post The Rest Of The Iceberg: Delegated Decisions.

Various authorities are looking to focus on the use of delegated powers, with additional oversight/ sign-off at chief executive and/or committee chair level. See this statement by Wychavon District Council, for instance:

Planning Committee meetings have been cancelled for the foreseeable future. To make sure planning decisions can continue to be made at the current time, we will be using emergency decision making powers, as delegated within our constitution to the Managing Director, Deputy Managing Director, Planning Committee Chair or Vice-Chair. 

 

These individuals will work with planning officers  to make what would have been Planning Committee decisions. We are working to minimise the overall level of applications that are required to be considered by the Planning Committee in accordance with the Council’s constitution regarding delegated powers.

 

Officers will not be carrying out site visits at this time. Instead we will be requesting  applicants provide photographic and/or video evidence as may be necessary. If insufficient evidence is made available to allow officers to adequately assess the applications, we will seek to agree extensions of time with applicants, to deal with their planning applications.  Officers will not themselves  be placing site notices at this time, but will ask applicants to display these and provide evidence to confirm this.”

All of this chimes with the advice in Steve Quartermain’s final chief planners letter (24 March 2020):

It is important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy.

We ask you to take an innovative approach, using all options available to you to continue your service. We recognise that face-to-face events and meetings may have to be cancelled but we encourage you to explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We also encourage you to consider delegating committee decisions where appropriate. The Government has confirmed that it will introduce legislation to allow council committee meetings to be held virtually for a temporary period, which we expect will allow planning committees to continue.

We encourage you to be pragmatic and continue, as much as possible, to work proactively with applicants and others, where necessary agreeing extended periods for making decisions.”

One side effect of this period has been to jolt many of us finally into more modern and efficient ways of working and communicating. As a result of new processes having to be used, it could well be that the planning committee process, and indeed local democratic process more generally, will also operate rather differently in the longer term and for the better – perhaps a wider cross-section of the community might even be prepared to play a role as elected councillors if fewer hours needed to be spent physically in the council chamber and committee rooms?

Simon Ricketts, 28 March 2020

Personal views, et cetera

With thanks to Michael Gallimore (who will spot that I cut and pasted passages from a client note that he prepared earlier in the week), Rebecca Craig and Safiyah Islam.

What To Do?

When, as it will, this current terrible phase of the Covid-19 pandemic passes, what needs to be done to ensure that we catch up on efforts to provide housing and resume economic activity?

The main purpose of this blog post, into which a number of my partners at Town have contributed their thoughts (although all errors and omissions are mine), is to try to answer that question.

But first, what is presently being done to make sure that our system continues to operate, efficiently but fairly?

It is encouraging to see the great efforts being made by many local planning authorities to keep going with decision making, by way of innovative approaches to decision making and greater use of officers’ delegated powers, and the commitment of so many officers and members, continuing to work from home against a background of other domestic pressures and technological constraints. It will be excellent to see proactive moves by authorities to amend their constitutions, with necessary safeguards such as chief executive oversight, where there are specific rules against certain categories of application being dealt with other than by committee. Some of the options are set out in a piece by barrister Jonathan Easton, Local authority decision making in a time of crises, 19 March 2020. The Government has also confirmed that it “will consider bringing forward legislation to allow council committee meetings to be held virtually for a temporary period” (Robert Jenrick reaffirms support for councils in their coronavirus response, MHCLG press release, 16 March 2020); the Association of Democratic Services Officers and Lawyers in Local Government wrote jointly to the Secretary of State on 17 March 2020 setting out the full extent of changes that would be needed for local government decision making to function properly during this period of social distancing. The quicker the better please!

It is frustrating after the resounding success of the Rosewell reforms to see planning appeal inquiries, as well as informal hearings and local plan examinations, postponed as a result of the virus (see Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 18 March 2020) – but of course the reason is plain. So far the postponements only relate to those scheduled up to 23 April but surely this will roll forward in due course. The Bar has made much of discussions with the Planning Inspectorate for greater use of video conferencing – which is the stock in trade for all of us at the moment – microsoft teams, zoom, you name it, we’re all on it! But keeping the professionals communicating with the inspector in a structured way is one thing – what about the “public” element of a public inquiry? [subsequent addition to blog post: see this subsequent excellent Landmark Chambers paper Fairness and public participation in video or telephone hearings for planning appeals during the COVID-19 crisis]. For all but the most controversial or complex appeals (so perhaps not those which have been recovered by the Secretary of State), should appellants be given the option of having their appeals determined by written representations, even if until now the appeal has been identified as appropriate for a hearing or inquiry?

The courts have also been quick to consider how to respond. An update from the Lord Chief Justice on 17 March 2020 spoke of the “urgent need to increase the use of telephone and video technology immediately to hold remote hearings where possible”, the “considerable flexibility” provided for in the Civil Procedure Rules and the courts’ “immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters”. Indeed, colleagues had an early taste of this on 19 March, with Deputy High Court Judge Alice Robinson handing down judgment from open court in a section 288 challenge (following a hearing earlier in the week), with the advocates and parties at the other end of the telephone. Clause 53 and Schedule 24 of the Coronavirus Bill (introduced into the House of Commons on 19 March 2020) proposes greater flexibility in relation to the use of live video and audio links, with appropriate protections, for a temporary period of two years (whoch period may be shortened or extended). I also recommend this excellent piece, Tim Buley QC shares his thoughts on the Public law courts during the coronavirus crisis, which pulls together much of what is currently being done, or contemplated.

Some ideas, looking ahead

Just a week or so ago seems like an age away. The Secretary of State set out a range of proposals for further reform of the planning system in his Planning for the future document (12 March 2020). He announced:

In the Spring, we will publish a bold and ambitious Planning White Paper. It will propose measures to accelerate planning. It will maximise the potential of new technologies to modernise the system. It will make it easier for communities to understand the planning system and play a role in decisions that affect them. Together, the measures it puts forward will set out a pathway to a new English planning system which is fit for the future”.

That talk of a “new English planning system” seemed to herald some of the thinking from the Policy Exchange’s paper Rethinking the Planning System for the 21st Century (27 January 2020) and, after all, its co-author Jack Airey is now a 10 Downing Street advisor. I wrote a critique of the paper in the Estates Gazette (Let’s rethink the rethink, 5 March 2020) but perhaps I was being a little premature. Because maybe, once all this subsides, it is time to look at for instance:

⁃ the potential for more of a zoning-style approach, which could begin to be introduced fairly simply by placing a proper duty on authorities to prepare brownfield land registers (as well as making it mandatory for local authorities to import into their registers all sites identified by the Government in its promised national brownfield sites map) and then increasing the scope for use of the ‘permission in principle’ procedure e.g. by allowing it to be used for more than just housing-led development and allowing permission in principle to be established through site allocations in a local plan.

⁃ greater use, this time with better safeguards against abuse, of permitted development rights. After all, setting aside the problems caused by that lack of appropriate safeguards, since the permitted development right to convert offices to residential was initially introduced for a temporary three year period from May 2013 (following an initial announcement in the March 2011 budget), many thousands of new homes have been created at much greater speed than traditional planning application routes would have achieved. Desperate times call for desperate measures. Planning For The Future announces that the Government will introduce “new permitted development rights for building upwards on existing buildings by summer 2020, including to extend residential blocks by up to two storeys and to deliver new and bigger homes. We will also consult on the detail of a new permitted development right to allow vacant commercial buildings, industrial buildings and residential blocks to be demolished and replaced with well-designed new residential units which meet natural light standards.” Devil’s question: if we are to have permitted development rights to demolish and rebuild, why not go further and have permitted rights, with equivalent safeguards, to carry out residential development on already cleared brownfield land (as an alternative to the enhanced brownfield land register/permission in principle proposal above)?

Surely, all these ideas will need to be considered, against the backdrop of months of lost housing delivery and a severe knock to economic confidence.

But I would suggest that, ahead of that promised White Paper, which will surely now slip considerably, there are a number of shorter-term measures to make adjustments in order to make up for the time that has been lost as a result of this crisis. In considering these, I recognise the inevitable tension between on the one hand measures that seek to “put on hold” aspects of our system, particularly time limits, and on the other hand measures to keep the system moving.

We need to learn from recent history. In the wake of the global financial crisis, on 1 October 2009 the Government introduced a temporary measure “to make it easier for developers and local planning authorities to keep planning permissions alive for longer during the economic downturn so that they can more quickly be implemented when economic conditions improve.” Guidance as to the operation of the provisions was set out in Greater flexibility for planning permissions (23 November 2009, amended 1 October 2010 and eventually withdrawn 7 March 2014). (The same document gave guidance as to the operation of the helpful section 96A non-material amendments procedure, introduced at the same time.)

We urgently need an equivalent measure reintroduced or, perhaps more simply, an automatic six months’ extension to all planning permission time limit conditions. After all there is already a year’s automatic extension under section 91 (3A) of the Town and Country Planning Act 1990 where a planning permission is subject to judicial review proceedings. The thinking should extend to other fixed deadlines, for instance in relation to the implementation of compulsory purchase orders and NSIPs.

There are various section 106 obligations which provide for ongoing financial contributions or measures with significant ongoing costs, not linked to progress with stages of development. The Government should surely provide firm guidance to authorities that they must readily agree to the renegotiation of such provisions to take into account the current standstill period if the evidence is, for any specific development, that this is necessary and justified.

In London, there is a particular issue with the early stage viability review mechanism required by the Mayor. The review is triggered if “substantial implementation” (usually development above ground floor level) has not happened within two years of planning permission being issued. Surely we should be avoiding the unnecessary bureaucracy inherent in that process where we can and for most major schemes the 24 months’ deadline is challenging even with a fully deployed design and construction team. Again, boroughs and the Mayor should surely be urged to agree to vary such arrangements so as to allow for an appropriate extension, whether it turns out to be three months, six months, or longer. Flexibility is also urgently needed with agreements that are currently being negotiated and we have been considering various potential drafting options so as to secure that outcome.

Publicity and consultation arrangements for planning applications need to be adapted to fit this world of social distancing and self-isolation: much of this can occur anyway through innovative use social media and other online consultation tools but there should be a temporary lifting of legislative requirements which will currently serve little purpose and may prove difficult to fulfil, such as the deposit of physical copies of Environmental Statements in the community (under Regulation 23 of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017) and the erection of site notices under Article 15 of the Development Management Procedure Order.

Any such proposal would need underwriting from the Government but, as part of any planned economic bounce-back, should there be a year’s window within which schemes can commence free from CIL or with a significant deferment of payments (subject to clawback unless the chargeable development is completed within a specified number of years)? Should the three years period for the “in use” exemption be extended (surely the answer is yes)?

Given the disruption and in some cases the reduction in the capability of local authorities to determine planning applications and in light of the current postponement of hearings and inquiries by PINS there must also be a case for easing the burden on the current system and deferring costs for applicants and would-be appellants by introducing a temporary extension of the statutory period for determination of planning applications and the time limit for appealing against refusal or deemed refusal of planning permission under Articles 34 and 37 of the Development Management Procedure Order.

There will surely need to be adjustments to the operation of the housing delivery test so as not to unfairly penalise authorities facing, for no fault of their own, a slow down in housing starts.

Some have called for the Government to suspend litigation deadlines and limitation periods for the duration of the crisis. It is difficult to see how an across the board standstill would not cause substantial injustices, but should the usual judicial review and statutory challenge periods be extended in relation to decisions taken after a specified date, or perhaps for a temporary period to extend the deadline to three months?

Finally, taking into account the consequences of its social distancing measures, the Government has already announced on 17 March 2020 that permitted development rights will be extended for a period of 12 months to allow the temporary change of use of pubs, bars and restaurants to hot-food take aways; one can readily see that further temporary extensions of permitted development rights might be necessary – e.g. change of use of offices, industrial buildings or warehouses to use for the sale of food and other convenience goods and change of use of hotels and hostels to hospitals or healthcare centres. Planning law will need to be nimble.

It’s times like these we learn to live again.

Simon Ricketts, 21 March 2020

Personal views, et cetera

With thanks to my partners and colleagues at Town. If any of these ideas chime with other organisations’ thoughts, please speak to any of us.

London, Friday The 13th

I’ll pass for now on Thursday’s Planning For The Future and indeed Wednesday’s budget. It’s one week at a time at the moment isn’t it? Planning for the future, and the wider politics of planning, has seemed less relevant than planning for a future – the even wider, and deeper, politics of public health and the intersections between virus control, health service capacity, economics and public messaging. You will already have read some other really good summaries and critiques of that document.

But then yesterday in London some fairly momentous things happened along the currently active fault lines as between MHCLG, the Mayor and the boroughs that I have previously written about in various posts.

Directed modifications to London Plan

First, the Secretary of State issued his letter to the Mayor directing that a series of modifications be made to the draft London Plan pursuant to section 337 of the Greater London Authority Act 1999. The modifications are set out an annex to the letter, in the form of a table setting out each directed “Modification to Remedy National Policy Inconsistency” with a “Statement of Reasons” alongside each modification. The letter and directed modifications are plainly a material consideration to be taken into account where relevant in the determination of planning applications and appeals.

Momentous but perhaps not surprising in the light of the “shot across the bowsletter that Khan had been sent by Robert Jenrick’s predecessor James Brokenshire on 27 July 2018. When you look back at that letter, the position was set out pretty clearly, in allowing the draft plan to proceed under the 2012 NPPF on condition that post adoption the Mayor would then embark on a review of the plan to reflect the revised NPPF (How far away is that review now? Might it have been better if MHCLG had bitten the bullet and required the Mayor to start again on his plan at that stage, so as to be consistent with the new NPPF?).

Back in 2018:

I am not convinced your assessment of need reflects the full extent of housing need in London to tackle affordability problems.

The Government is […] clear that Plans should be effective, deliverable and consistent with national policy. You will recall that the Government highlighted a number of further issues with your draft Plan in response to your consultation, including that:

⁃ A number of policy areas in the draft that are inconsistent with national policy, such as your policies allowing development on residential gardens and your policy on car parking.

⁃ The detail and complexity of the policies within the draft London Plan have the potential to limit accessibility to the planning system and development.

⁃ The draft Plan strays considerably beyond providing a strategic framework.

⁃ The draft Plan does not provide enough information to explain the approach you will take to ensure your targets are delivered, including collaboration with boroughs and neighbouring areas.

⁃ There are a number of policies in the draft Plan which seek to deal with matters relating to building standards and safety. It is important that there is a consistent approach to setting building standards through the framework of Building Regulations.”

20 months later, following a lengthy examination and inspectors’ report (see my 26 October 2019 blog post More Plans Grounded: West Of England; Sevenoaks; London) the 13 March 2020 direction letter surely in part has the hand of a certain former London Mayor behind it in that as soon as it is past the “Dear Sadiq”, the letter is unforgiving in its content and tone and is a broader attack on the Mayor’s approach to housing:

Every part of the country must take responsibility to build the homes their communities need. We must build more, better and greener homes through encouraging well-planned development in urban areas; preventing unnecessary urban sprawl so that we can protect the countryside for future generations. This means densifying, taking advantage of opportunities around existing infrastructure and making best use of brownfield and underutilised land.

Housing delivery in London under your mayoralty has been deeply disappointing, over the last three years housing delivery has averaged just 37,000 a year; falling short of the existing Plan target and well below your assessment of housing need. Over the same period, other Mayors such as in the West Midlands have gripped their local need for housing and recognised the opportunities this brings, leading significant increases in the delivery of homes.

(an echo there of the Chancellor’s budget speech on 11 March 2020, which referred to “a new £400m Fund for ambitious Mayors like Andy Street in the West Midlands, to build on Brownfield sites…”)

Since you became Mayor, the price of an average new build home in London has increased by around £45,000, reaching £515,000 in 2018, 14 times average earnings. Clearly, the housing delivery shortfall you have overseen has led to worsening affordability for Londoners; and things are not improving, with housing starts falling a further 28 per cent last year compared to the previous.”

Critical strategic sites have stalled, epitomised by your Development Corporation in Old Oak and Park Royal being forced to turn away £250 million of Government funding because of your inability to work successfully with the main landowner. You also turned away £1 billion of investment we offered to deliver Affordable Homes, because of the support and oversight that would accompany this. You have put a series of onerous conditions on estate regeneration schemes for them to be eligible for grant- funding, such as the requirement for residents’ ballots. In attaching such conditions, you are jeopardising housing delivery and this approach will make it significantly more difficult to deliver the Plan’s targets and homes needed.”

(I covered the Old Oak and Park Royal Local Plan saga in my 4 January 2020 blog post Elephant, Dove, Old Oak, RICS. The Mayor published guidelines in August 2018 on applying his requirement (as a pre-condition to grant funding) for residents’ ballots in connection with estate regeneration schemes).

Following the Planning Inspectorate’s investigation of your Plan, they only deem your Plan credible to deliver 52,000 homes a year. This is significantly below your own identified need of around 66,000 homes and well below what most commentators think is the real need of London. As I have set out, the shortfall between housing need in London and the homes your Plan delivers has significant consequences for Londoners.”

Everyone should have the chance to save for and buy their own home so they can have a stake in society. In the short run this requires a proactive stance in building homes for ownership, including Shared Ownership and First Homes, and in parallel delivering a consistently high level of housing supply of all tenures. You should also be looking to deliver homes which people of different ages, backgrounds and situations in life can live in. Your Plan tilts away from this, towards one-bed flats at the expense of all else, driving people out of our capital when they want to have a family.”

(Of course, this is one of the largest and deepest fault lines – as to the relative weight to be given to intermediate affordable housing tenures, including in particular shared ownership and now – covered in my 29 February 2020 blog post – first homes).

Your Plan added layers of complexity that will make development more difficult unnecessarily; with policies on things as small as bed linen. Prescription to this degree makes the planning process more cumbersome and difficult to navigate; in turn meaning less developments come forward and those that do progress slowly. One may have sympathy with some of individual policies in your Plan, but in aggregate this approach is inconsistent with the pro-development stance we should be taking and ultimately only serves to make Londoners worse off.

(Bed linen? Well, Policy H16, Large-scale purpose-built shared living, lists the necessary criteria in order for a development to fall within the policy, and, it is true, one of the criteria is that “communal facilities and services are provided that are sufficient to meet the requirements of the intended number of residents and offer at least:

a) convenient access to a communal kitchen

b) outside communal amenity space (roof terrace and/or garden)

c) internal communal amenity space (dining rooms, lounges)

d) laundry and drying facilities

e) a concierge

f) bedding and linen changing and/or room cleaning services.”

Interestingly the Secretary of State is not directing any changes to H16).

This challenging environment is exacerbated by your empty threats of rent controls, which by law you cannot introduce without Government consent. As we all know, evidence from around the world shows that rent controls lead to landlords leaving the market, poorer quality housing and soaring rents for anyone not covered by the controls.

(Mayor demands powers to bring rents down, 19 July 2019)

I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.”

So what modifications are proposed? As set out in the annex to the letter:

⁃ insertion of “the need for additional family housing” into policy H10.

⁃ references to optimising site capacity into policy D3, including the potential for boroughs to consider positively expansion of existing clusters of high density buildings and expanding Opportunity Area boundaries where appropriate.

⁃ deleting from policy H2 references to in lieu affordable housing contributions from schemes of nine or fewer homes.

⁃ removing the “no net loss of industrial floorspace” requirement from policy E4 and allowing boroughs to “identify opportunities to strategically coordinate development plans to identify opportunities to substitute Strategic Industrial Land where evidence that alternative, more suitable, locations exist”.

⁃ amending green belt and metropolitan open land policies G2 and G3 respectively to make them consistent with national policy.

⁃ introductory passage to be amended encouraging boroughs to review their housing targets where “they have additional evidence that suggests they can achieve delivery of housing above these figures whilst remaining in line with the strategic policies established in this plan

⁃ reintroducing the previous 2016 maximum residential car parking standards.

⁃ watering down the restrictions in policy T6 on retail parking: “G. Boroughs should consider alternative standards where there is clear that evidence that the standards in Table 10.5 would result in (a) A diversion of demand from town centres to out of town centres, undermining the town centres first approach (b) a significant reduction in the viability of mixed-use redevelopment proposals in town centre

⁃ deletion of paragraph 4.1.11 which was critical of the Government’s housing delivery test.

In addition to the modifications, the letter indicates that the Secretary of State is “taking this opportunity to highlight some of the specific areas where I think your Plan has fallen short of best serving Londoners.

⁃ He is “Directing” the Mayor to “work constructively with ambitious London Boroughs and my Department to encourage and support the delivery of boroughs which strive to deliver more housing.”

⁃ “I hope that where your small sites policies are appropriate, you are doing all you can to ensure sites are brought forward.”

⁃ “The Inspectors considered your industrial land policies to be unrealistic; taking an over-restrictive stance to hinder Boroughs’ abilities to choose more optimal uses for industrial sites where housing is in high demand. I am directing you to take a more proportionate stance – removing the ‘no net loss’ requirement on existing industrial land sites whilst ensuring Boroughs bring new industrial land into the supply.”

⁃ “I am concerned that your Plan will be to the detriment of family sized dwellings which are and will continue to be needed across London. This is not just in relation to their provision but also their loss, particularly where family sized dwellings are subdivided into flats or redeveloped entirely. I am therefore Directing you to ensure this is a consideration of London Boroughs when preparing policies and taking decisions in relation to dwelling mix.”

⁃ “It is important that development is brought forward to maximise site capacity, in the spirit of and to compliment the surrounding area, not to its detriment. Sites cannot be looked at in isolation and Londoners need to be given the confidence that high density developments will be directed to the most appropriate sites; maximising density within this framework. Examples of this are gentle density around high streets and town centres, and higher density in clusters which have already taken this approach. I am therefore Directing you to ensure that such developments are consented in areas that are able to accommodate them.”

⁃ In relation to aviation, “the Court of Appeal recently handed down judgment in the judicial review claims relating to the Airports National Policy Statement. The government is carefully considering the complex judgment and so does not consider it appropriate to make any direction in relation to Policy T8 Aviation at the present time. This is without prejudice to my power to make a direction under section 337 at any time before publication of the spatial development strategy, including in relation to Policy T8 Aviation.”

Finally, the Secretary of State wishes to see a “new standard for transparency and accountability for delivery at a local level” and a commitment to work together (regular meetings!) to provide “the fullest account of how the housing market and planning system is performing in London, where there are blockages and what is needed to unblock these, and what tools or actions can be undertaken to further increase housing delivery”.

“Housing in our capital is simply too important for the underachievement and drift displayed under you [sic] Mayoralty, and now in your Plan, to continue.”

To receive such a letter would be a bad start to the day for any Mayor.

Kensington Forum Hotel JR

Shortly after the letter was published, I separately saw a consent order, sealed by the High Court yesterday, 13 March 2020, the effect of which was to record the fact that the Mayor has consented to judgment in the judicial review brought by the Royal Borough of Kensington and Chelsea of his decision, having recovered the application, to grant planning permission for the Kensington Forum Hotel development. I have previously referred to the saga in my 26 January 2019 blog post The Secretary Of State & London and my 15 November 2019 blog post Planning Or Politics? Significant London Planning Decisions 2019. You will recall that planning permission was issued by the Mayor the same day as he had held his representation hearing. RBKC had judicially reviewed that permission and on 27 November 2019 secured an order for disclosure. The consent order records that following “a review of the documents disclosed pursuant to that order”, and in the light of RBKC’s case put in its grounds of claim and evidence, the Mayor “concedes that the Decision should be quashed on the basis of Ground 4, in particular that the decision to grant planning permission was made for an improper purpose and having regard to irrelevant considerations; namely that the Secretary of State should not be given the opportunity to call in the application for his own determination”. The Mayor has agreed as part of the order to pay RBKC’s costs in the sum of £90,000.

So the Mayor will now need to reconsider whether to grant planning permission (a further representation hearing) and the Secretary of State will no doubt consider whether to call in the application.

Postponed election

The coup de grace yesterday for the Mayor must surely have been the Government’s announcement that legislation will be introduced to postpone until May 2021 the local, Mayoral and Police & Crime Commissioner elections that were due to take place on 7 May 2020. After all, he would have been a re-election shoe-in this May if the polls are to be believed (eg see Sadiq Khan Has A Massive Lead In The London Mayoral Election According To A New Poll Londonist, 10 March 2020). Next year? Well that’s a long time away.

One last word on Planning For The Future. The Secretary of State promises “an ambitious Planning White Paper in the Spring”. Obviously government has a stretched and blurred definition of the seasons but technically “Spring” starts on 20 March. It’s one week at a time at the moment isn’t it?

Simon Ricketts, 14 March 2020

Personal views, et cetera

A retweet by the Secretary of State. Probably wisely, the Mayor has not yet risen to the bait.

What Are The Non-Airport Implications Of The Heathrow Ruling?

The Court of Appeal’s approach to the issues in the Heathrow cases last month was certainly a surprise to many.

The court found in the main “Plan B” ruling (27 February 2020) that the Secretary of State had acted unlawfully when, following the procedure in section 5 of the Planning Act 2008, on 26 June 2018 he designated the Airports National Policy Statement. The court’s basis for its finding was that the Secretary of State had not complied with section 5(8):

(7) A national policy statement must give reasons for the policy set out in the statement.

(8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”

The question was what was “Government policy” in relation to climate change as at 26 June 2018. The court found that the Secretary of State had acted unlawfully in not taking into account “its own firm policy commitments on climate change under the Paris Agreement”.

This is somewhat surprising given that at first instance the Divisional Court (Hickinbottom LJ and Holgate J, no slouches) had found that this submission was unarguable:

In our view, given the statutory scheme in the [Climate Change Act 2008] and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.” (paragraph 648 of the main judgment at first instance, known as “Spurrier” after the then first claimant, who had represented himself at first instance but had dropped out by the time of the appeal, which is why you will hear the appeal ruling called “Plan B” after the lead appellant, campaign group Plan B Earth).

(For a wider summary of the proceedings at first instance see my 4 May 2019 blog post Lessons From The Heathrow Cases).

The Court of Appeal has ordered that the Airports National Policy Statement “is of no legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the relevant provisions of the Planning Act 2008.”

Heathrow Airport Limited has applied to the Supreme Court to appeal from the ruling although the Secretary of State has not (meaning that any appeal could be fairly irrelevant if the Secretary of State decides to review the NPS in any event). Whether permission to appeal is granted depends on whether the Supreme Court considers that there is an arguable point of law of general public importance.

So this is all significant as regards the proposal for a third runway at Heathrow. According to the Planning Inspectorate website the application for a development consent order under the Planning Act 2008 NSIP procedure is/was expected to be submitted in Q4 2020.

The main function of the NPS was to give formal national policy support to the proposal at Heathrow. The way that the Planning Act 2008 works is that, under section 104, the Secretary of State must decide a DCO application in accordance with any relevant national policy statement “except to the extent that one or more of subsections (4) to (8) applies.

(4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations.

(5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment.

(6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant national policy statement would be unlawful by virtue of any enactment.

(7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits.

(8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a national policy statement is met.

(9) For the avoidance of doubt, the fact that any relevant national policy statement identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying.

So the first thing to note is that the NPS would not have given Heathrow Airport Limited a free pass to a consent – in determining the application the Secretary of State would need to determine whether, notwithstanding the June 2018 NPS, the proposal is not in accordance with, for instance, up to date treaty obligations or domestic legislation – exactly the point made by the Divisional Court in the passage I quoted earlier.

This is relevant because the issue in the Heathrow cases very much turned on an historical question – what was the Government’s climate change policy as at 26 June 2018. Legislation and policy has plainly moved on since then, and will continue to move on. I referred in my 10 August 2019 blog post The Big CC to Theresa May’s tightening in June 2019 of the Government’s commitment to reduce greenhouse gas emissions, by making the Climate Change Act 2008 (2050 Target Amendment) Order 2019 which changed the duty of the Secretary of State under the Climate Change Act 2008 from being to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline, to being at least 100% lower, ie net zero. The target does not include international aviation or shipping: paragraph 10.5 of the explanatory notes published with the order states that there is a “need for further analysis and international engagement through the international networks. For now, therefore we will continue to leave headroom for emissions from international aviation and shipping in carbon budgets…” By the time that any Heathrow DCO application is to be/would have been determined, the Secretary of State would have to take into account climate change legislation and international commitments at the time.

It can all of course get messy/political, as demonstrated by former Energy Secretary Andrea Leadsom’s approval last year, against her inspectors’ recommendations, of the Drax gas-fired power stations DCO, a decision which is now being challenged in the High Court by ClientEarth (see Drax legal case: We’re taking the UK government to court over Europe’s largest gas plant, ClientEarth, 30 January 2020).

Although it would be a risky strategy to adopt, given it would entail acknowledging loss of any formal statutory policy support for Heathrow as the favoured option, Heathrow Airport could in theory decide to proceed with a DCO application without the support of an NPS (this appears to be Gatwick’s strategy with its proposed northern runway). In the absence of an NPS, section 105 applies:

(2) In deciding the application the Secretary of State must have regard to—

(a) any local impact report (within the meaning given by section 60(3)) submitted to the Secretary of State before the deadline specified in a notice under section 60(2),

(b) any matters prescribed in relation to development of the description to which the application relates, and

(c) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of State’s decision.”

How even to begin to scope the appropriate approach to decision-making in that situation…

Any wider relevance?

So does this ruling have repercussions away from Heathrow and airports?

People threaten to bring judicial review proceedings, and often end up bringing them for all sorts of reasons. Lord Reed, President of the Supreme Court, made some topical comments to the House of Lords Constitution Committee last week:

Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite.” (Law Society Gazette, 4 March 2020).

Since the ruling we have seen these stories:

Environmentalists follow Heathrow ruling by calling on government to end fossil fuel developments (Ecotricity, 4 March 2020) (The Secretary of State has a discretion in section 6 of the 2008 Act as to whether and when to review NPSs, and indeed since June 2019 Government climate change targets have been clear regardless of what the position was at June 2018 – which is surely the only relevance of the Heathrow rulings – if the point made by the prospective claimants is a good one, it has been a good one for some time now).

HS2 legal challenge launched by Chris Packham (Guardian, 3 March 2020) (There is surely no duty on a minister to take into account Government climate change targets in making a decision to continue with the construction of an existing project which has already, phase 1 at least, been authorised by Parliament).

What did it for the Secretary of State in relation to the Heathrow NPS was the specific statutory duty to take into account “government policy” on climate change mitigation and adaptation.

Regardless of whether the Court of Appeal was right to determine that Government support for the Paris Agreement (international) targets could be construed as government policy for any particular domestic targets, there is not the same statutory duty when it comes to the Town and Country Planning Act system.

When it comes to plan-making, section 19(1A) of the Planning and Compulsory Purchase Act 2004 imposes a statutory duty on local planning authorities that development plan documents must include policies that contribute to mitigation and adaptation to climate change, and this duty is reflected in paragraph 149 of the National Planning Policy Framework, stating in footnote 48 that policies should be “in line with the objectives and provisions of the Climate Change Act 2008”.

There are no specific equivalent requirements in relation to decision making, just the general statement in paragraph 148, stating that the “planning system should support the transition to a low carbon future in a changing climate” and “should help to: shape places in ways that contribute to radical reductions in greenhouse emissions”.

Beware those who wave about the Heathrow ruling as some kind of game changer in relation to the battle against climate change. It is certainly a game changer in relation to Heathrow Airport’s aspirations, as to project timescale at the very least, but, wider than that? The Court of Appeal determined that a specific statutory duty, peculiar to the making of NPSs, was breached. The question of whether there was a breach depended on determining what government policy on climate change was in June 2018, when it was not as advanced as it is now. Finally, it is not obvious to me that the Court of Appeal’s conclusions would be safe against an appeal to the Supreme Court – but of course all that could well be largely hypothetical, depending upon what steps the Government now takes.

The awaited national infrastructure plan, which was to be published alongside the budget on 11 March, is to be delayed but reportedly could still be “before May” (Government delays Budget infrastructure plan, BBC, 5 March 2020). It will be interesting to see whether any hints are dropped in our new Chancellor’s budget statement as to the Government’s direction of travel.

Simon Ricketts, 7 March 2020

Personal views, et cetera

Starter Homes Were A Non Starter – What Future For First Homes?

Government is consulting on the “design and delivery” of First Homes. The deadline for responses is 3 April 2020. First Homes was of course a manifesto pledge and so there are no questions as to whether the concept itself is supportable or indeed practical.

That is a shame, given the failure of the Starter Homes initiative after so much work and public expenditure. As explained in my 4 March 2017 blog post Definitely Maybe: Defining Affordable Housing, an elaborate structure was arrived at by way of chapter 1 of the Housing and Planning Act 2016 and a technical consultation by the Government in March 2016:

– a legal requirement that 20% of new homes in developments should be starter homes, ie

⁃ to be sold at a discount of at least 20% to open market value to first time buyers aged under 40. 

⁃ Price cap of £250,000 (£450,000 in London)

– The restriction should last for a defined number of years, the first suggestion being five years, replaced with the concept of a tapered restriction to potentially eight years

– Commuted sums in lieu of on site provision for specified categories of development, eg build to rent.

The Government’s response to the technical consultation then significantly watered down the starter home concept, to the extent that the legislation was surplus to requirements (it is still on the statute book, just left hanging):

– There would be no statutory requirement on local planning authorities to secure starter homes, just a policy requirement in the NPPF, which was to be amended accordingly. 

– Rather than requiring that 20% of new homes be starter homes, the requirement would be that 10% of new homes will be “affordable housing home ownership products” so could include shared equity or indeed low cost home ownership. 

– maximum eligible household income of £80,000 a year or less (or £90,000 a year or less in Greater London 

– 15 year restriction

– No cash buyers, evidence of mortgage of at least 25% loan to value

– Only be applicable to schemes of ten units or more (or on sites of more than 0.5h). 

The only reference to starter homes in the February 2019 version of the NPPF is in the glossary’s definition of affordable homes:

b) Starter homes: is as specified in Sections 2 and 3 of the Housing and Planning Act 2016 and any secondary legislation made under these sections. The definition of a starter home should reflect the meaning set out in statute and any such secondary legislation at the time of plan-preparation or decision-making. Where secondary legislation has the effect of limiting a household’s eligibility to purchase a starter home to those with a particular maximum level of household income, those restrictions should be used.”

Paragraph 64 of the NPPF of course requires:

Where major development involving the provision of housing is proposed, planning policies and decisions should expect at least 10% of the homes to be available for affordable home ownership, unless this would exceed the level of affordable housing required in the area, or significantly prejudice the ability to meet the identified affordable housing needs of specific groups. Exemptions to this 10% requirement should also be made where the site or proposed development:

a) provides solely for Build to Rent homes;

b) provides specialist accommodation for a group of people with specific needs (such as purpose-built accommodation for the elderly or students);

c) is proposed to be developed by people who wish to build or commission their own homes; or

d) is exclusively for affordable housing, an entry-level exception site or a rural exception site.”

Going back to the NPPF affordable housing definition, aside from starter homes the other two listed categories of affordable home ownership are:

c) Discounted market sales housing: is that sold at a discount of at least 20% below local market value. Eligibility is determined with regard to local incomes and local house prices. Provisions should be in place to ensure housing remains at a discount for future eligible households.

d) Other affordable routes to home ownership: is housing provided for sale that provides a route to ownership for those who could not achieve home ownership through the market. It includes shared ownership, relevant equity loans, other low cost homes for sale (at a price equivalent to at least 20% below local market value) and rent to buy (which includes a period of intermediate rent). Where public grant funding is provided, there should be provisions for the homes to remain at an affordable price for future eligible households, or for any receipts to be recycled for alternative affordable housing provision, or refunded to Government or the relevant authority specified in the funding agreement.”

Of these different affordable home ownership options (using the Government jargon, I appreciate that what is “affordable” is an open question), starter homes were abandoned by the Government as a concept after a huge amount of money and time had been spent. The National Audit Office’s Investigation into Starter Homes (4 November 2019) found as follows:

In April 2015, the Conservative Party manifesto committed to “200,000 Starter Homes, which will be sold at a 20% discount and will be built exclusively for first-time buyers under the age of 40”. The November 2015 Spending Review subsequently provided £2.3 billion to support the delivery of 60,000 Starter Homes (of the 200,000 previously announced). The Housing and Planning Act (2016) set out the legislative framework for Starter Homes and the Department ran a consultation on Starter Homes Regulations (the regulations) between March and June 2016.

Between 2015 and 2018, government’s policy towards Starter Homes shifted.

In May 2018, the Minister of State for Housing and Planning stated that the government had spent an estimated £250 million of the Starter Homes Land Fund. In July 2018, the Department clarified that it had spent £250 million buying land to build affordable properties from two funds, the Starter Homes Land Fund and the Land Assembly Fund, with work under way to get the land ready for development, but that building had not yet started.”

“No Starter Homes have been built to date.”

“The Starter Homes legislative provisions are not yet in force.”

“The Department no longer has a budget dedicated to the delivery of Starter Homes.”

“Between 2015-16 and 2017-18, the Department spent almost £174 million preparing sites originally intended for building Starter Homes.”

“In 2015-16, Homes England spent £15.4 million of the Starter Homes 2015 funding preparing brownfield land.”

“Since August 2015 the Department has spent £6.45 million supporting local authorities through the Programme.”

“In 2016-17 and 2017-18, the Department spent £151 million under the

[Starter Homes Land Fund], but the spending has not supported the building of Starter Homes.”

“In 2017-18, the Department spent £97 million from the SHLF, but under [Land Assembly Fund] criteria, on acquiring land needing work and preparing it for the market”

No doubt some of the monies earmarked for starter homes may have ended up going towards other housing and affordable housing initiatives (I am not clear on that) but surely what an embarrassment this is for whoever first came up with the bright idea that was starter homes.

However, moving on from that failure, of course the thing to do is to learn from past mistakes? Why didn’t it work? What could have been done better? This is the essence of “black box thinking”. I was certainly not the only one pointing out the potential complexities that might prove its downfall (See my 21 June 2016 blog post Valuing Starter Homes).

But of course there is a insatiable political hunger for new ideas for manifestos, and in the December 2019 Conservative manifesto a concept of First Homes was trumpeted as the new solution to “making the dream of home ownership a reality for everyone” (to quote from the latest consultation document).

The initiative was formally launched on 7 February 2020 with a one page guide and more detailed consultation document.

The headlines are set out in the guide:

• First Homes are flats and houses built on developments up and down the country. They will be no different from other properties except they will be sold with a discount of at least 30 percent.

• They will be sold to local people who want to stay in the community where they live or work but are struggling to purchase a home at market prices.

• They will be prioritised for first-time buyers, serving members and veterans of the Armed Forces, and key workers, such as nurses, police and teachers.

• The discount will be passed on to future buyers when First Homes are resold so more people can be helped onto the ladder.

Jennie Baker at Lichfields has written an excellent summary First Homes: discounted market housing that actually delivers? (10 February 2020).

There has been widespread concern as to whether this new product (however it may be delivered – and there is going to be a statutory or policy requirement for it to be provided as part of the housing tenure mix on major schemes) will be at the expense of other more needed or more efficient affordable housing products (see for instance the piece by Ruth Davison, chief executive of Islington and Shoreditch Housing Association, First Homes won’t extend homeownership and will decimate supply of homes for those most in need) and of course not “affordable” for many (see for instance Shelter’s comments in the 16 February 2020 Guardian piece Discounted housing scheme out of reach of most first-time buyers) and I personally see as many potential valuation pitfalls as identified with starter homes – and surely there is a greater difficulty “selling” a discount product to purchasers where, unlike with starter homes, that discount will remain in perpetuity.

If you are not now going to MIPIM, why not consider the questions in the consultation paper instead? They neatly encapsulate many of the current uncertainties as to how this is all going to work:

Q1.

a) Do you agree with a minimum discount of 30% (but with local flexibility to set a higher one)?

b) If not, what should the minimum discount be? i. 20%

ii. 40%

iii. Other (please specify)

Q2.

a) Should we set a single, nationally defined price cap rather than centrally dictate local/regional price caps?

b) If yes, what is the appropriate level to set this price cap? i. £600,000

ii. £550,000 iii. £500,000 iv. £450,000

v. Other (please specify)

Q3.

a) If you disagree with a national price cap, should central Government set price caps which vary by region instead?

b) If price caps should be set by the Government, what is the best approach to these regional caps?

i. London and nationwide

ii. London, London surrounding local authorities, and nationwide

iii. Separate caps for each of the regions in England iv. Separate caps for each county or metropolitan area

v. Other (please specify)

Q4.

Do you agree that, within any central price caps, Local Authorities should be able to impose their own caps to reflect their local housing market?

Q5.

Do you agree that Local Authorities are best placed to decide upon the detail of local connection restrictions on First Homes?

Q6.

When should local connection restrictions fall away if a buyer for a First Home cannot be found?

i. Less than 3 months

ii. 3 – 6 months

iii. Longer than 6 months

iv. Left to Local Authority discretion

Q7.

In which circumstances should the first-time buyer prioritisation be waived?

Q8.

a) Should there be a national income cap for purchasers of First Homes?

b) If yes, at what level should the cap be set?

c) Do you agree that Local Authorities should have the ability to consider people’s income and assets when needed to target First Homes?

Q9:

Are there any other eligibility restrictions which should apply to the First Homes scheme?

Q10.

a) Are Local Authorities best placed to oversee that discounts on First Homes are offered in perpetuity?

b) If no, why?

Q11.

How can First Homes and oversight of restrictive covenants be managed as part of Local Authorities’ existing affordable homes administration service?

Q12.

How could costs to Local Authorities be minimised?

Q13.

Do you agree that we should develop a standardised First Home model with local discretion in appropriate areas to support mortgage lending?

Q14.

Do you agree that it is appropriate to include a mortgage protection clause to provide additional assurance to lenders?

Q15.

For how long should people be able to move out of their First Home and let it out (so it is not their main or only residence) without seeking permission from the Local Authority?

i. Never

ii. Up to 6 months

iii. 6- 12 months

iv. Up to 2 years

v. Longer than 2 years vi. Other (please specify)

Q16.

Under what circumstances should households be able to move out of their First Home and let it for a longer time period? (Tick all that apply)

i. Short job posting elsewhere

ii. Deployment elsewhere (Armed Forces)

iii. Relationship breakdown

iv. Redundancy

v. Caring for relative/friend

vi. Long-term travelling

vii. Other (please specify)

Q17.

Do you agree that serving members and recent veterans of the Armed Forces should be able to purchase a First Home in the location of their choice without having to meet local connections criteria?

Q18.

What is the appropriate length of time after leaving the Armed Forces for which veterans should be eligible for this exemption?

i. 1 year

ii. 2 years

iii. 3-5 years

iv. Longer than 5 years

Q19.

Are there any other ways we can support members of the Armed Forces and recent veterans in their ability to benefit from the First Homes scheme?

Q20.

Which mechanism is most appropriate to deliver First Homes?

i. Planning policy through changes to the National Planning Policy Framework and guidance

ii. Primary legislation supported by planning policy changes

Q21.

Which do you think is the most appropriate way to deliver First Homes?

i. As a percentage of section 106 affordable housing through developer contributions

ii. As a percentage of all units delivered on suitable sites

Q22.

What is the appropriate level of ambition for First Home delivery?

i. 40% of section 106

ii. 60% of section 106

iii. 80% of section 106

iv. Other (please specify

Q23.

Do you agree with these proposals to amend the entry-level exception site policy to a more focused and ambitious First Homes exception site policy?

Q24.

a) Do you think there are rare circumstances where Local Authorities should have the flexibility to pursue other forms of affordable housing on entry-level exception sites, because otherwise the site would be unviable?

b) If yes, what would be an appropriate approach for Local Authorities to demonstrate the need for flexibility to allow other forms of affordable housing on a specific entry- level exception site?

Q25.

What more could the Government do to encourage the use of the existing rural exception site policy?

Q26.

What further steps could the Government take to boost First Home delivery?

Q27.

Do you agree that the proposal to exempt First Homes from the Community Infrastructure Levy would increase the delivery of these homes?

Q28.

Do you think the Government should take steps to prevent Community Infrastructure Levy rates being set at a level which would reduce the level of affordable housing delivered through section 106 obligations?

Q29.

a) What equality impacts do you think the First Homes scheme will have on protected groups?

b) What steps can the Government take through other programmes to minimise the impact on protected groups?

Q30.

Do you have any other comments on the First Homes scheme?

Obviously there is a place for discount to market “for sale” products, as part of the affordable housing mix on a major project, and obviously local connection/key worker restrictions need to play an important role, but let’s

⁃ be really careful that the First Homes concept does not squeeze out other affordable housing options for which there may be greater need, or through inefficiency place a greater strain on project viability and consequently the overall monies available for affordable housing

⁃ ensure that the regime is loophole-proof, straight-forward and fair, however mutually inconsistent those aspirations may be (cf CIL)

⁃ (above all else) learn from that Starter Homes failure.

Simon Ricketts, 29 February 2020

Personal views, et cetera