MHCLG Consults On A Changed Basis For Assessing Local Housing Need & Other Urgent Repairs

I’m not sure anyone was expecting MHCLG to act quite so quickly to try to mend a number of problems that have been arising from the July 2018 NPPF (although perhaps problems of its own making).

Its technical consultation on updates to national planning policy and guidance (26 October 2018) invites comments by 7 December 2018 on the following:

Local housing need assessment

I referred in my 29 September 2018 blog post OAN Goal to the confusion caused by the publication by the ONS on 20 September 2018 of updated 2016-based household projections that resulted in the national minimum housing need calculated by the NPPF’s standard method falling significantly from data published in September 2017 which had been based on 2014 household projections.

There was widespread concern that the updated figures were not reliable. The Government had indicated that the figures would not lead to a reduction in the national 300,000 new homes target. A revision to the standard method was to be made so that the new household projections did not cause that target to be missed but in the meantime how were authorities to plan?

The consultation paper is unambiguous: the Government has decided that it is not right to change its aspirations and the ONS figures are indeed misleading due to the way that they only draw from two censuses (rather than previous projections based on five censuses) “which focuses it more acutely on a period of low household formation where the English housing system was not supplying enough additional homes“. In addition:

⁃ “Household projections are constrained by housing supply

⁃ “The historic under-delivery of housing means there is a case for public policy supporting delivery in excess of household projections, even if those projections fall“.

⁃ “Other things being equal a more responsive supply of homes through local authorities planning for more homes where we need them will help to address the effects of increasing demand, such as declining affordability, relative to a housing supply that is less responsive“.

⁃ “The above factors have led to declining affordability…This indicates that the Government should not be less ambitious for housing supply“.

The Government has decided that the best way of responding to the ONS household figures is to ignore them completely, ie in its language:

1. For the short-term, to specify that the 2014-based data will provide the demographic baseline for assessment of local housing need.

2. To make clear in national planning practice guidance that lower numbers through the 2016-based projections do not qualify as an exceptional circumstance that justifies a departure from the standard methodology; and

3. In the longer term, to review the formula with a view to establishing a new method […] by the time the next projections are issued.”

So for local plans submitted from 24 January 2019, the 2014-based household projections as per the September 2017 data are to be used but with current figures used for the calculation of the ratio of local median house prices to local median earnings (where the ratio exceeds four the standard method formula will continue to increase local need above household projections). This all provides authorities with welcome clarity – ignore the September 2018 ONS projections and no need to wait for tweaks to the methodology.

Housing land supply

The 2018 NPPF provides that in calculating how many years’ supply of housing land supply each authority has, the standard method for assessing local housing need is to be used as the baseline for housing land supply calculations where plans are considered to be out of date. The NPPF is to be amended (and updated planning guidance is to be published) so as to clarify that whilst in exceptional circumstances authorities can use a justified alternative approach to the standard method for calculating housing need, this only applies to plan making rather than in the calculation of need in the determination of applications and appeals where the scale of housing land supply is relevant.

The definition of deliverable

In order to determine whether an authority has a five year supply of deliverable sites, the definition of “deliverable” is critical. The Government has held its hands up: the definition of “deliverable” in the 2018 NPPF could be clearer. It proposes the following revised definition:

To be considered deliverable, sites for housing should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years. In particular:

a) sites which do not involve major development and have planning permission, and all sites with detailed planning permission, should be considered deliverable until permission expires, unless there is clear evidence that homes will not be delivered within five years (for example because they are no longer viable, there is no longer a demand for the type of units or sites have long term phasing plans).

b) where a site has outline planning permission for major development, has been allocated in a development plan, has a grant of permission in principle, or is identified on a brownfield register, it should only be considered deliverable where there is clear evidence that housing completions will begin on site within five years.”

There will be further guidance in due course “to provide further information on the way that sites with different degrees of planning certainty may be counted when calculating housing land availability“.

Development requiring Habitats Regulations Assessment

The Government belatedly intends to address a problem that has arisen from the European Court of Justice’s ruling in People Over Wind (see my 20 April 2018 blog post EU Court Ruling: Ignore Mitigation Measures In Habitats Screening). The 2018 NPPF followed the 2012 NPPF in disapplying the presumption in favour of sustainable development where appropriate assessment is required, even though the effect of People Over Wind is that appropriate assessment is now routinely required in relation to proposed developments where mitigation will avoid any potential from harm, thereby removing the presumption in relation to many more development proposals than had previously been the case.

Paragraph 177 is now proposed to be amended to read:

The presumption in favour of sustainable development does not apply where the plan or project is likely to have a significant effect on a habitats site (either alone or in combination with other plans or projects), unless an appropriate assessment has concluded that there will be no adverse effect from the plan or project on the integrity of the habitats site.”

So now the need for appropriate assessment will not be a bar to the presumption applying. The wording in fact now allows the presumption to apply to more schemes than was the case pre People Over Wind.

The Government could have dealt with this issue before the 2018 NPPF was published. It makes the rather weak excuse: “Although some consultation responses asked for an amendment to the Framework in the light of the ruling, there was not an opportunity for all interested parties to comment at the time.” Well, why was there not even a written ministerial statement to clarify the position? I’m sure I am not the only one to have lost a planning appeal partly due to the absurd position that arose.

The government also indicates that it is “considering what other changes to regulations and guidance may be necessary following the European Court’s ruling“.

In my view MHCLG should take some credit for trying to sort out all of these issues. It is also interesting that the previous approach of avoiding making running repairs to the NPPF has been abandoned – we can soon expect NPPF version 2.1.

Simon Ricketts, 26 October 2018

Personal views, et cetera

Planning Inquiries: Expert Witnesses & Success Fees

If you give evidence as an expert at planning inquiries, I recommend that you read the judgment of Holgate J in Gardiner and Theobald LLP v Jackson (VO) (Upper Tribunal (Lands Chamber), 3 August 2018).

In the superficially different context of a rating dispute, he sets down unambiguously the perils that await any expert witness whose remuneration is in any way contingent on the outcome of the dispute. This reflects the position in the RICS code of conduct.

The question I then asked myself is whether the position can be any less strict in relation to any planning dispute, where someone is giving evidence as an expert (most commonly a planning inquiry but in my view equivalent considerations apply where a report is provided, on the basis that it is to be relied upon as independent expert evidence, in other proceedings that may appear less formal, such as hearings, examinations and written representations procedures).

The RTPI position is less explicit than that of the RICS (whose code equally applies to expert evidence in planning maters). I haven’t researched other professional codes of conduct (after finding that the Chartered Institution of Highways and Transportation does not appear to have a code of conduct on-line I gave up on that line of research for a Saturday morning).

In reading the judgment, bear in mind of course that Holgate J is both President of the Upper Tribunal Lands Chamber and the Planning Court’s Planning Liaison Judge (ie head of the Planning Court).

The position in relation to expert evidence given in court proceedings is clear. Holgate J refers to the R (Factortame) v Secretary of State (Court of Appeal, 3 July 2002) case, which related to an attempt by accountants to recover, as part of a costs claim, success-related fees that they had secured from Anglo-Spanish fishing companies though their work in relation to judicial review proceedings stemming from a dispute as to entitlements to fish in British waters. One of the matters for the court to consider was the extent to which the fees related to work which the firm had carried out that could be categorised as giving expert evidence.

The Court of Appeal held on the facts that it was not, but said this:

 “Expert evidence comes in many forms and in relation to many different types of issue. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the Judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”

“To give evidence on a contingency fee basis gives an expert, who would otherwise be independent, a significant financial interest in the outcome of the case. As a general proposition, such an interest is highly undesirable. In many cases the expert will be giving an authoritative opinion on issues that are critical to the outcome of the case. In such a situation the threat to his objectivity posed by a contingency fee agreement may carry greater dangers to the administration of justice than would the interest of an advocate or solicitor acting under a similar agreement. Accordingly, we consider that it will be in a very rare case indeed that the Court will be prepared to consent to an expert being instructed under a contingency fee agreement.”

Holgate J identifies that whether the Factortame approach is to be applied by the Upper Tribunal is a question for the Upper Tribunal (or, on appeal, the Court of Appeal). There is the question, not previously conclusively determined, as to whether the existence of a contingency fee arrangement goes to the weight to be given to the evidence or whether it is to be admissible in the first place.

He sets out some of the potential advantages and disadvantages of each approach before concluding:

These issues would need to be the subject of well-considered submissions following detailed research. We also raise them for consideration by, and discussion amongst, the Tribunal’s users and the various professional bodies involved. No doubt there will be other matters to consider which we have not identified.

However, one thing is certainly clear. Whatever approach this Tribunal decides to adopt on the issues raised by Factortame, it remains wholly unacceptable for an expert witness, or the practice for which he or she works, to enter into a conditional fee arrangement, without that fact being declared (and in sufficient detail) to the Tribunal and any other party to the proceedings from the very outset of their involvement in the case. The Tribunal will treat such a failure as a serious matter.”

In the Gardiner and Theobald case, the expert engaged by G&T had not disclosed to the Valuation Tribunal that whist he was not charging on a contingent basis for his expert witness role before the VTE, his firm would still benefit from success-related fees flowing from his previous work.

The judgment is pretty scathing in its terms. Nor was the expert able to hide behind any argument that it was all the fault of his firm’s standard terms of engagement:

This aspect was not investigated during the hearing and so we make no finding about it. No doubt many surveyors and other experts, particularly those in larger practices, will operate on an assumption that standard form conditions will have been drafted by the practice so as to comply with the requirements of the tribunals before whom they appear and of the professional bodies to which they belong.  In practice, an individual expert may not consider questioning the content of the standard conditions which are regularly used by the firm for which he or she works.  But that cannot override or detract from the obligations which each individual expert personally owes, not only to the relevant tribunal or court, but also under any professional code of conduct. All these considerations only serve to emphasise the importance of a practice ensuring that its standard terms of engagement are drafted with care and clarity so that they do indeed comply with those obligations. Furthermore, individual experts must ensure that any specific terms agreed for individual cases, whether varying or supplementing the standard conditions of a practice, also meet the same requirements.”

Holgate J restates the principles that apply to expert witnesses, as set down in the Ikarian Reefer case:

The expert’s duty to help the Tribunal, which overrides any obligation to the client (rule 17(1) of the 2010 Rules), connotes an obligation to act independently and without bias.  The obligation is so similar to that in CPR 35.3 that it is helpful to refer to the related commentary in “Civil Procedure” (2018).  Because this obligation is fundamental to the duty of an expert giving evidence in the Tribunal, it is appropriate to set out certain of the key principles summarised in the “Ikarian Reefer” [1993] 2 Lloyd’s Rep 455: –

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation (Whitehouse v. Jordan [1981] 1 WLR 246at p. 256, per Lord Wilberforce).

 

2. An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his expertise (seePolivitte Ltd. v. Commercial Union Assurance Co. plc [1987] 1 Lloyd’s Rep. 379 at p. 386 per Garland J and Re J [1990] FCR 193 per Cazalet J). An expert witness in the High Court should never assume the role of an advocate.

 

3. An expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion (Re J supra).

 

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

 

5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one (Re J supra). In cases where an expert witness, who has prepared a report, could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report (Derby & Co. Ltd. v Weldon The Times 9 November 1990 per Staughton LJ).

 

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.”

Holgate J stresses the importance of the statement of truth (which I will come back to):

Any notion that, by way of example, the inclusion and signing of an expert’s declarations in his or her report is a mere formality, or something which may be dealt with perfunctorily, needs to be completely dispelled.”

So how does all of this apply to planning inquiries?

It seems to me that the position for chartered surveyors as expert witnesses is clear, in the light of RICS Practice Statement and Guidance Note: Surveyors acting as expert witnesses. The practice statement sets out the tribunals to which it applies, which includes evidence given to “inspectors, commissioners and reporters (for example, in planning proceedings, including inquiries, hearings, examinations in public – independent panels; independent examination and proceedings of the Infrastructure Planning Commission, and Planning and Water Appeals Commissions).

As quoted by Holgate J, the practice statement deals with conditional fees in the following terms:

“10.1 You should not undertake expert witness appointment on any form of conditional or other success-based arrangement including where those instructing you are engaged on such a basis.

10.2 It is inappropriate to be remunerated by way of a conditional fee arrangement when acting as an expert witness but it may be an appropriate fee basis when acting as an advocate.  When acting in a dual role as an expert witness and advocate, where permitted in lower tribunals, a conditional fee arrangement may be acceptable because it will be seen as attached to the role of advocate.  Such a dual role improves access to justice by reducing costs and therefore a conditional fee payment can be supported in these limited and strict circumstances.

10.3 When acting in a dual role and where a conditional fee arrangement has been agreed, this must be declared to the tribunal.

10.4 It is unlikely that a dual role will be permitted in higher tribunal formats and consequently previously agreed conditional fees when the surveyor has appeared in a lower tribunal will, at the point of transferring to the superior or higher tribunal, need to be commuted and replaced by an hourly rate or fixed fee arrangement.”

The statement of truth that is required by the RICS to be included in expert reports includes: “I confirm that I am not instructed under any conditional or other success-based fee arrangement.”

It is interesting to note that the Planning Inspectorate’s Planning Appeals Procedural Guide does not include any advice on the question of success-related fees and the recommended wording, within Annex O, for the statement of truth, is simply:

The evidence which I have prepared and provide for this appeal reference APP/xxx (in this proof of evidence, written statement or report) is true [and has been prepared and is given in accordance with the guidance of my professional institution] and I confirm that the opinions expressed are my true and professional opinions.”

As it happens, the RTPI recently updated guidance for its members, Practice Guidance September 2018, Planners as expert witnesses, but again there is nothing explicit on the question of success-related fees (although there is useful advice on, for example, the issues arising where evidence is given on behalf of the witness’s employer or, in the case of local authority planners, in support of a decision by councillors in the face of officers’ recommendations). Perhaps it will be said that it is implicit in one of the RTPI’s core principles: “Members must not make or subscribe to any statements or reports which are contrary to their own bona fide professional opinions, nor knowingly enter into any contract or agreement which requires them to do so.” But surely, particularly following that invitation from Holgate J to professional bodies, consideration should now be given to a much clearer statement? After all, situations inevitably arise where, even though the expert has no direct success-related fee arrangement, further work and fees will inevitably arise from a particular outcome, and where is the dividing line to be drawn?

So, I conclude, tentatively (do put me right, please) as follows:

There is no specific legal authority to support any proposition that expert evidence to a planning inquiry is inadmissible if the expert (or his or her firm) stands to gain in some way from a specific outcome from the proceedings. However, RICS members are subject to an express prohibition; members of other professional organisations may be under implied restrictions, and at the very least the decision maker is in any event liable to place significantly less weight on evidence which is given on a success-related fee basis – and such a basis should certainly be disclosed.

Simon Ricketts, 20 October 2018

Personal views, et cetera

The Up Right

In his speech to the Conservative party conference on 1 October 2018, James Brokenshire announced that the Government will consult “in due course” on “introducing a new permitted development right to allow property owners to extend certain buildings upwards, while maintaining the character of residential and conservation areas and safeguarding people’s privacy“.

Not that one again?!

My second ever blog post, on 15 June 2016, Permitted Development: What Next? summarised the February 2016 consultation paper jointly published by DCLG and the previous Mayor of London, which sought views on proposals “to increase housing supply in the capital by allowing a limited number of additional storeys to be built up to the roofline of an adjoining building through permitted development rights, local development orders or development plan policies”. The paper set out in some detail the criteria and prior approval requirements which would apply.

Nothing then happened, perhaps due to the change in Mayor and the ministerial changes that followed the June 2016 referendum, or perhaps it was always going to be a difficult piece of legislation to draft in a way that arrived at a mechanism that would be simpler for developers than a traditional planning application but which secured necessary amenity protections.

My 17 March 2018 blog post Permitted Development: À La Recherche Du Temps Perdu reported on the conflict between on the one hand a ministerial policy statement on 5 February 2018 which appeared to make it clear that the initiative (now across England, not just London) would be dealt with by policy, within the NPPF and then on the other hand Sajid Javid’s speech launching the draft revised NPPF on 5 March 2018 which had this passage:

And there are also other areas in which we’re ready to go further to take the delivery of housing up a gear.

Including a new permitted development right for building upwards to provide new homes”.

Paragraph 118 (e) of the new NPPF does specifically address upwards extensions: Planning policies and decisions should “support opportunities to use the airspace above existing residential and commercial premises for new homes. In particular, they should allow upward extensions where the development would be consistent with the prevailing height and form of neighbouring properties and the overall street scene, is well- designed (including complying with any local design policies and standards), and can maintain safe access and egress for occupiers.”

In the light of the Javid speech, the Brokenshire announcement was not a big surprise but I do wonder how the permitted development will be drafted so as to avoid the obvious issues that arise and why that NPPF statement isn’t considered to be sufficient.

The RTPI’s response to the announcement on 2 October 2018 was surely right, in which its chief executive, Victoria Hills, said:

Densification of built-up areas can bring about much needed housing supply, but quality is as important as numbers. Blanket height extensions come with issues that have potentially serious impact on streetscape and people’s access to light. National policy can provide a favourable steer, but local communities should be able to set standards which enable higher buildings to make a positive contribution to housing supply.”

There is no indication as to when the consultation will take place. For instance, is the Chancellor’s 29 October Autumn budget statement too soon?

It is interesting that Brokenshire did not take the opportunity at the party conference also to reheat the Autumn 2017 budget policy paper announcement that “the government will consult on introducing… a permitted development right to allow commercial buildings to be demolished and replaced with homes“.

In the meantime, the existing office to residential permitted development right continues to be controversial.

Earlier this year, the RICS published a research paper, Extending permitted development rights in England: the implications for public authorities and communities (1 May 2018)

The study estimated that “between 86,665 and 95,045 dwellings (depending on how student accommodation is classified) might potentially have been created under the extended PD rights between 2010 and 2017. The bulk of these additional dwellings arises from small-scale (less than 10 units created) conversions from commercial uses (including offices) to residential use and from agricultural buildings use to residential use.

These small schemes have been broadly distributed (largely in locations with relatively low property values) through cities and towns without any marked regional patterning. The large-scale conversions of office and other commercial uses to residential use that are a key matter of concern to policy makers are less important with regard to the overall number of dwellings delivered and are overwhelmingly concentrated near the cores of major urban areas. These large scale office conversions (excluding student accommodation) are concentrated in the South East. The scale of PD occurring entirely within the industrial and commercial use classes is relatively modest.

Cost-Benefit Analysis (CBA) compared the direct costs and benefits to local authorities of extended PD rights with the outcomes of an identical development that had obtained formal planning permission. The key findings were that:

The largest estimated financial impact is the loss in affordable housing contributions. This amounted to about £42.5m.

The benefits arising from savings in staffing costs within planning departments (£14m) are not enough to offset the loss of fees (£22m).

Overall, this part of the analysis estimates that the direct financial impact of the extension of PD rights is a net loss to all the Local Authorities across England of around £50m.”

The research indicates that office to residential conversions under PD have also produced a higher amount of poor quality housing than schemes governed through full planning permission.”

But the mechanism still has its cheer leaders. Conservative MP Nick Herbert wrote a piece in the Standard, Permitted development is key to race to build homes on 8 October criticising the London Mayor for encouraging, in the draft London Plan, boroughs to use article 4 directions to remove the permitted development right.

Then a penny dropped. Nick Herbert is chairman of a think tank, called The Project for Modern Democracy. Who should be the research director for the “Planning Change” strand of the think tank’s work but Alex Morton? As set out on the Project for Modern Democracy’s website:

“Alex was Special Adviser to then Prime Minister (David Cameron) for two and a half years, focused on housing, planning, and local government. He also drafted the Conservative 2015 Manifesto on those areas. Prior to working in No.10, he led on housing and planning at the Policy Exchange think tank.”

He was lobbying for a permitted development right to convert offices to residential as long ago as 2011 in a Policy Exchange paper, More Homes: Fewer Empty Buildings.

Morton has now published a short paper, A backwards step on Permitted Development (26 September 2018) on which the Nick Herbert article was based. The piece seeks to rebut criticisms of the office to residential permitted development right, particularly that it has led to shortages of business space, lower affordable housing and “unsuitable homes“. Read it for yourself but I found it a pretty weak analysis. I also found it strangely inconsistent with a comment piece he had written in the Independent in 2013, which contained passages like this:

Finally, there are unnecessary and unhelpful side-shows like the extensions debacle last week, which stripped immediate neighbours of their powers to object to major changes next door, and which even most supporters of planning liberalisation felt went too far.

I wonder what the Project for Modern Democracy thinks about the proposed Up Right?

Simon Ricketts, 13 October 2018

Personal views, et cetera

A Promise Is A Promise

I set out the principles of legitimate expectation in my 24 March 2018 blog post Once More Unto The Breach Of Legitimate Expectation, Dear Friends and referred to 29 November 2017 Lang J’s judgment at first instance in Save. The Court of Appeal has now partly overturned that judgment, in R (Save Britain’s Heritage) v Secretary of State (Court of Appeal, 4 October 2018). The case resulted from the Secretary of State’s decision not to call in the application for planning permission for the proposed Paddington Cube development, although given that planning permission and listed building consent was subsequently granted by Westminster City Council for that development, which was beyond challenge, these proceedings continued to the Court of Appeal on a basis which was only academic as far as that development was concerned.

Lang J had reached a curious conclusion. She accepted that a legitimate expectation had arisen, as a result of statements in 2001 (first in a green paper and then in ministerial statements), repeated in a 2010 ministerial statement, that the Secretary of State would give reasons when deciding not to exercise his power to call in planning decisions. But she found that “in 29 February 2014, in the course of preparation for the High Court case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin), a departmental decision was made to cease the practice of giving reasons” and therefore the earlier statements and practice relied upon by the claimant “could no longer found an expectation that reasons would be given. If any such expectation was held, it had ceased to be a legitimate one, because of the change in practice.”

Lang J accordingly dismissed the claim, in effect concluding that a promise could be publicly given by Government and privately retracted.

The Court of Appeal took a different view. The judgment of Coulson LJ is pretty scornful as to the Government’s position and the circumstances of the alleged 2014 change in policy:

It is the SoS’ case that, at some unknown date early in 2014, a decision was taken not to give reasons for a decision declining to call in an application and that, since then, such decision letters have been issued without giving reasons. The confused circumstances in which this change came about, and the extent to which it could fairly be said to be a change of policy at all, are dealt with in greater detail in Section 5 below.”

“…it is a recipe for administrative chaos if a legitimate expectation can be generated by an unequivocal ministerial promise, only for it then to be lost as a result of an unadvertised change of practice.”

“…it is worth noting how and why the SoS says that this change of practice occurred. It appears that, in the Westminster case, the Minister had given reasons for not calling in the decision which were plainly wrong on their face. As a result of this error, somebody (and it is quite unclear who) within the Department for Communities and Local Government decided that it would be more prudent for reasons not to be given under s.77. In consequence, changes were made to the template letter sent out (to the relevant LPAs, or to the objectors who had requested call in) when a decision was made not to call in an application under s.77. Mr Harwood QC was therefore right to say that this was not an open or transparent way to withdraw a public ministerial promise made in Parliament.”

“…a close textural analysis of the samples included in the court bundle only serves to confirm that the alleged change of practice relied on by the SoS was negligible.

From the SoS’ point of view, therefore, so far, so bad: but it gets worse. Ms Lieven QC was counsel for the SoS in the Westminster case. When Lang J asked her how it was that the change in practice had occurred, it was apparent from her answers (given on instructions) that, at the time of the Westminster case in 2014, nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010). Thus, Mr Harwood QC was right to submit that the change in practice relied on by the SoS was brought about in ignorance of the 2001 policy promise. So, even on the SoS’ case, the promise to give reasons was never consciously withdrawn, whether for good reason or not; it had instead been forgotten altogether. In consequence, neither of the typical answers to a legitimate expectation claim identified in paragraph 39 above (a conflict with other statutory duties or a reasonable decision not, after all, to honour the promise) can arise on the facts of this case. It is difficult to see how a person can be said to have changed a policy of which they were unaware at the relevant time.”

Accordingly, it seems to me that the legitimate expectation rightly identified by Lang J did not come to an end as a result of the confusion and muddle generated by the Westminster case and/or the apparent decision to make, at best, minor changes to the template letter. An unequivocal promise was made, and that unequivocal promise should have been publicly withdrawn when (or if) a conscious decision was taken no longer to give reasons for not calling in applications under s.77. For these reasons, I consider that SAVE’s legitimate expectation case has been made out.”

A separate ground of appeal, that Lang J was wrong not to find that there was a general duty to give reasons, quite aside from any legitimate expectation, failed.

The 2014 Westminster case referred to in Save did indeed cause “confusion and muddle“. That case related to a challenge by English Heritage to the decision of the then Secretary of State not to call in an application for planning permission made to Lambeth Borough Council for the redevelopment of Elizabeth House, next to Waterloo Station. In that case Westminster City Council was an objector, having objected to the application and having sought call-in without success.

Whilst it was accepted that there was no general duty to give reasons, the argument made was that the Secretary of State had volunteered reasons and therefore they had to be adequate.

The Secretary of State’s letters to Westminster City Council and Lambeth Borough Councils, informing them that the application would not be called in, were said by Collins J to be “badly drafted” and on their face showing errors in the application of the Secretary of State’s call in policy.

The judgment contains this classic sentence in relation to the letter sent to Lambeth:

It is so obviously wrong particularly, as will become apparent, when read with the advice given that it cannot and does not reflect the defendant’s thinking.”

Collins J accepted the submissions of Nathalie Lieven QC, on behalf of the Secretary of State, that the letter was so bad that it could not have been intended to contain any reasoning!

Ms Lieven supported by Mr Harris and Mr Simons submitted that the letter was doing no more than informing the recipient LBL that the defendant had decided not to call in the application. She accepted as was inevitable that it was poorly drafted and that in effect that part of it should be ignored. It was not purporting to give reasons. She relies on the advice given to the defendant and in effect submits that since neither the defendant nor Mr Boles could conceivably have believed that it did not engage some of the matters which required consideration to be given to calling in the application it could not have set out the defendant’s thinking nor could it properly have done so.

Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.”

A brave but successful defence. No wonder that in the context of those letters being under the microscope, civil servants presumably decided that it would be safer to stay well away from giving reasons – although the Secretary of State was fortunate that the claimant did not argue breach of legitimate expectation, because surely, on the basis now of Save, that case was wrongly decided

So what is the practical effect of the Court of Appeal’s ruling in Save? It is a useful statement of the law in relation to legitimate expectation where that expectation arises by way of a promise and of immediate effect in relation to future decisions which the Secretary of State may make as to whether or not to call in planning applications for his own determination but of course the Secretary of State can change his policy on giving reasons at any time, as long as he does it formally and openly. Will he?

Simon Ricketts, 5 October 2018

Personal views, et cetera

Pic courtesy of Mixology

OAN Goal

The Government’s goal remains as per Philip Hammond’s 22 November 2017 Autumn budget statement:

So today we set out an ambitious plan to tackle the housing challenge.

Over the next five years we will commit a total of at least £44 billion of capital funding, loans and guarantees to support our housing market.

To boost the supply of skills, resources, and building land.

And to create the financial incentives necessary to deliver 300,000 net additional homes a year on average by the mid-2020s.”

Will that number be reached? What pressure will the Government be under from its supporters, at next week’s party conference and subsequently, to resile from that 300,000 target in the light of the Office of National Statistics’ statistical bulletin, household projections in England published this month?

After topdown targets for individual authorities, derived from regional plans directly overseen by government, were abolished by the incoming 2010 coalition government, the 2012 NPPF has required each local authority to work out for itself, without any centrally prescribed methodology, what the objectively assessed need for housing is in its area. That quickly proved to be a recipe for complexity, uncertainty, local politicking and delay.

So the Government has been trying since 2015 to arrive out how to arrive at a simpler system that isn’t seen as centrally prescribed. As set out in my 20 September 2017 blog post Housing Needs: Assessed Or Assumed?, the Government decided to consult on a new “standard method” which would provide authorities with a minimum figure, desired from a formula based on household projections, local affordability and a cap on the extent of any increase deriving from the new formula.

Alongside its 14 September 2017 consultation document it published a spreadsheet showing “indicative” figures that would result for each authority from the new method, draft figures which it warned should be “treated with caution“. The total number totted up to 266,000 – a number that made the 300,000 look like a decent stretch target.

All admirably transparent and fascinating at the time, but surely in retrospect it was not helpful to publish those figures, particularly given that it was also stated that the new standard method would apply to local plans that weren’t submitted for examination by the later of 31 March 2018 and publication of the new NPPF?

Numbers drive actions. For some authorities there was clearly an immediate incentive to rush to submit their plan before the standard method was imposed, for others quite the reverse. We have seen corners cut by some authorities in their haste and the position became even more confused once (1) the possible 31 March 2018 deadline became, once the new NPPF was published containing a six months’ grace period, 24 January 2019 and (2) it became clearer that the figures and methodology were liable to change in any event.

The numbers were always likely to change given that the September 2017 household formation projections were arrived at by MHCLG using date going back to 1971 and the task for arriving at the final numbers was to be given to the Office of National Statistics, who would use the 2016-based population projections published in May 2018. When the ONS published its proposed methodology in June 2018 it became clear that ONS would only use trends in household formation back to 2001. Lichfields were expressing concerns about the likely consequences in a 27 June 2018 blog post:

We know that in the decade 2001-11 housebuilding fell to its lowest level and household formation amongst young adults changed significantly. If the new household projections only draw upon this (relatively) short term trend for projecting future household growth, is there a significant risk of ‘baking-in’ trends which are not reflective of future ‘need’ but simply an illustration of what the number would be if we continued more of what has been before?

ONS had consulted on its approach in 2017, and many respondents (including Lichfields) pointed out the need for the methodology to reflect not just a ‘purist’ demographic approach, but reflect on the real-world implications for housing need. Suggestions were made that ONS might wish to consider producing local ‘variant’ projections (as DCLG used to do at a national level) with modified formation rates as the basis for the standard methodology. It does not appear ONS intends to follow this advice.”

To be fair, the Government was not blind to what was likely to happen. As I set out in my 5 August 2018 blog post Housing Needs, Housing Shortfalls, when it published the final version of the NPPF on 24 July 2018, it published on the same dayits response document to the consultation on the draft, with this passage:

A number of responses to this question provided comment on the proposed local housing need method. The government is aware that lower than previously forecast population projections have an impact on the outputs associated with the method. Specifically it is noted that the revised projections are likely to result in the minimum need numbers generated by the method being subject to a significant reduction, once the relevant household projection figures are released in September 2018.

In the housing white paper the government was clear that reforms set out (which included the introduction of a standard method for assessing housing need) should lead to more homes being built. In order to ensure that the outputs associated with the method are consistent with this, we will consider adjusting the method after the household projections are released in September 2018. We will consult on the specific details of any change at that time.

It should be noted that the intention is to consider adjusting the method to ensure that the starting point in the plan-making process is consistent in aggregate with the proposals in Planning for the right homes in the right places consultation and continues to be consistent with ensuring that 300,000 homes are built per year by the mid 2020s.”

So, as at July the position was that updated household projection figures would be released in September and the Government would then “consider adjusting the method after the household projections” and would “consult on the specific details of any change at that time.

The updated figures were indeed then published, on 20 September, and show significant downward movements in the projections for individual authorities and an overall decrease in the total required, from 266,000 to 213,000. There has been a quick succession of excellent blog posts from planning consultancies, going into the statistical detail and likely implications, including (with apologies to those I don’t mention) Bidwells, Barton Willmore, Turley and Lichfields. There have inevitably also been many calls from objectors to housing numbers within emerging local plans for those numbers to be reviewed in the light of the new figures.

But the goalposts haven’t moved (yet). I assume that the Government will now indeed consult on changes to the standard method to increase numbers back within spitting distance of the 300k. There is surely no point in any authority taking any steps in reliance on the September 2018 ONS figures, but then again the September 2017 MHCLG figures have a large question mark against them. If you are an authority looking to make progress with your plan with a view to submission after 24 January 2019 you really have very little to go on as to the approach to be adopted.

So it is urgent that the Government consults as to proposed changes to its methodology and what that is likely to mean for individual authorities – although that consultation paper is going to end up running very close up to the 24 January 2019 date, leaving very little time for, er, planning.

Furthermore, I’m not sure that the ONS numbers are going to be standing still. As Planning magazine have identified in their useful coverage of the new numbers, ONS’ analysis that accompanies their figures makes it clear that it is aware of some of the deficiencies in the data. It refers to responses to consultation on its proposed methodology:

There was a view that only using the 2001 and 2011 Censuses would result in a downward trend in household formation for the younger age groups, which in turn would downplay the need for housing for younger people. With these views in mind, Section 8 shows the results of sensitivity analysis in which 2014-based HRRs (projected using 1971 to 2011 Census data) are applied to the 2016-based subnational population projections (SNPPs), should users wish to investigate the impact of the change of HRR methodology on the household projections.”

ONS is also “planning to publish a set of variant 2016-based household projections in which household formation rates for younger adults (those aged 25 to 44 years) are higher – provisionally scheduled for 3 December 2018. The purpose of this variant would be to illustrate the uncertainty in the projections around the future household formation patterns of this age group.”

You numbers people will know better than me whether this is also likely to have an appreciable effect on the numbers, at least in some areas.

But it does seem odd that in order to gauge the level of housing need, in order finally to look to put right the increasing shortage and unaffordability of housing, the starting point has been to look at the rate at which people have been able to form households in particular areas, during that very period where lack of supply and high prices have led to them sharing with others or not moving from the parental home – or, in areas of particularly high demand and/or restraint, not having a hope of living near their family or job (or the job that they would seek were suitable affordable accommodation available).

There is now the dilemma at a national level that echoes the dilemma that local plan inspectors have had to grapple with at an individual authority level: whether to accept a coarse, hypothetical approach that can be implemented with relative ease or whether to insist on getting to a “pure” statistical answer. The latter may in my view be unrealistic: we need targets, with consequences if they are not met and we need to avoid giving convenient excuses for delay. Those targets need to be based on the best evidence but are ultimately political choices where national leadership is essential – this is not a local issue where individual authorities can operate without regard for wider consequences.

I would be disappointed if the Government, faced in any event with the prospect of not meeting its current target (which conveniently is expressed in any event by reference to a time frame, the “mid-2020s“, that takes it past the next election), were to see this current position, which should be a surprise to no-one, as an excuse to retreat from the 300k commitment. But they won’t get an easy ride from some I’m sure.

Simon Ricketts, 29 September 2018

Personal views, et cetera

In A Cycle Superhighway In The Sky

The high ambition on the part of successive London Mayors since 2008 to create a network of (mostly) segregated cycleways across London has often been controversial and often impeded due to differences arising with individual boroughs.

Cyclists, please put me right if I have got any of this this wrong but I think there are now eight operational routes:

CS1 – Tottenham to the City

CS2 – Aldgate to Stratford

CS3 – Barking to Tower Gateway

CS3 (East-West) – Lancaster to Tower Hill

CS5 – Oval to Pimlico

CS6 – North-South – Farringdon to Kings Cross (Consultation started on 20 September 2018 on an extension to CS6 between Farringdon and King’s Cross, so that it will run from Elephant & Castle all the way up to King’s Cross.)

CS7 – Merton to the City

CS8 – Wandsworth to Westminster

Further routes have been long planned but are not yet open:

CS4 – London Bridge to Woolwich

CS9 – Hyde Park to Hounslow

CS10 – Cricklewood to Marble Arch

CS11 – West Hampstead to Hyde Park Corner

For more detail see London Cycling Campaign’s website.

The Mayor announced on 30 January 2018 that design work would begin on six new routes, namely:

• Lea Bridge to Dalston – 3km route between Lea Bridge Road and Cycle Superhighway 1 at Dalston.

• Ilford to Barking Riverside – 8km route between the town centres of Ilford and Barking.

• Hackney to the Isle of Dogs – 8km route from Hackney to the Isle of Dogs via Canary Wharf, Mile End and Victoria Park.

• Rotherhithe to Peckham – 4km route to connect with connect other cycling routes such as Quietway 1 and the proposed Cycle Superhighway 4.

• Tottenham Hale to Camden – 8km route covering seven junctions identified as being among the 73 with the worst safety records.

• Wembley to Willesden Junction – 5km route, north-west London’s
first major cycle route, connecting Wembley, Stonebridge Park and Willesden Junction.

Works to convert road carriageways to a cycleway do not amount to development requiring planning permission if they fall within section 55(2)(b) of the Town and Country Planning Act 1990: “the carrying out on land within the boundaries of a road by a highway authority of any works required for the maintenance or improvement of the road but, in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment“.

In R (The Licensed Taxi Drivers Association) v Transport for London (Patterson J, 10 February 2016) the LTDA sought a declaration that the construction of the East-West Cycle Superhighway without planning permission constituted a breach of planning control.

This was rejected by Patterson J:

“...whether the proposals cause significant adverse environmental effect is not for the court to decide. As Sullivan J (as he then was) said in R v Rochdale Metropolitan Borough Council ex parte Milne [2001] 81 P&CR 27 at [106] to [108] the issue of environmental effect is an issue which requires an exercise of planning judgment which is not for the court. The issue for the court is whether the defendant erred in its contention or was irrational in reaching the conclusion that the works for the EWCS did not cause significant adverse environmental effect and did not require planning permission. For reasons that I have set out I am satisfied that the defendant on the evidence before it at the relevant time, did not err in law and was not irrational in reaching its conclusion that there was no significant adverse environmental effect from the proposals as a whole.”

Whether or not planning permission is required, on the facts, for any proposed cycleway, traffic regulation orders are required. Where the road is part of the local highway network rather than a TfL road, TfL needs the agreement of the relevant borough in order to secure all necessary orders. This was what of course recently scuppered TfL’s proposed pedestrianisation of Oxford Street.

The TfL road network:

Westminster City Council has also now successfully challenged TfL’s proposed construction of CS11, designed to run between Swiss Cottage and Portland Place, in R (City of Westminster) v Transport for London (Sir Ross Cranston, 13 September 2018), having taken over proceedings commenced by a group of local residents. Two parts of the route are on roads for which Westminster City Council is the statutory highway authority. Planning permission from the council is also potentially required for works proposed within Regent’s Park. The Council succeeded in its claim that TfL’s decision to proceed with constructing part of the route should have taken into account the legally relevant consideration that TfL might fail to obtain the necessary consents from Westminster City Council in relation to part of the route. TfL’s justification had assumed that the route would be constructed in its entirety and did not consider whether a phased approach would be viable.

It’s difficult entirely to blame the Mayor for these delays in rolling out CS routes. The control held by individual boroughs can be difficult to work around – RBKC having been another particularly intransigent authority – which makes delivery of these, by definition, cross-borough schemes slow and difficult.

Despite the wider strategic benefits of cycling in terms of health and air quality, the TRO statutory process can often be seen by local people as inadequate to protect their particular interests in relation to, for instance, the effects caused by displaced traffic or the implications for them of roads being closed to motor vehicles – leading to adversarial positions being taken.

But whatever the rights or wrongs in relation to CS11 or indeed in relation to the proposed pedestrianisation of Oxford Street, I find it disappointing to see such public disagreements between the Mayor and Westminster City Council. After all, no one wants a London version of the Gallagher brothers.

Simon Ricketts, 23 September 2018

Personal views, et cetera

Planning, Brexit

In all the Brexit noise, like me you may have missed that a draft Bill of Parliament is shortly to be published by DEFRA that will have direct relevance for English planners and planning lawyers.

The European Union (Withdrawal) Act 2018 was enacted on 26 June 2018. As a result of amendments to the Bill introduced in the House of Lords and substantially accepted when the Bill returned to the Commons, section 16 of the Act seeks to secure that “environmental principles” are maintained once we leave the EU and we no longer have the monitoring and enforcement functions currently being carried out by the European Commission and European Court of Justice. It provides as follows:

Maintenance of environmental principles etc.

(1) The Secretary of State must, within the period of six months beginning with the day on which this Act is passed, publish a draft Bill consisting of—

(a)  a set of environmental principles,

(b)  a duty on the Secretary of State to publish a statement of policy in relation to the application and interpretation of those principles in connection with the making and development of policies by Ministers of the Crown,

(c)  a duty which ensures that Ministers of the Crown must have regard, in circumstances provided for by or under the Bill, to the statement mentioned in paragraph (b),

(d)  provisions for the establishment of a public authority with functions for taking, in circumstances provided for by or under the Bill, proportionate enforcement action (including legal proceedings if necessary) where the authority considers that a Minister of the Crown is not complying with environmental law (as it is defined in the Bill), and

(e)  such other provisions as the Secretary of State considers appropriate

(2) The set of environmental principles mentioned in subsection (1)(a) must (however worded) consist of—

(a)  the precautionary principle so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  public access to environmental information,

(h)  public participation in environmental decision-making, and

(i)  access to justice in relation to environmental matters.”

This was not a big concession for the Government to make. In January 2017 the Commons Environmental Audit Committee recommended that the Government introduce an Environmental Protection Act to ensure that environmental enforcement and governance mechanisms were not lost after leaving the European Union.

The Government committed to consulting “early in 2018” on “establishing a new, world-leading, independent, statutory body to give the environment a voice, championing and upholding environmental standards as we leave the European Union” in DEFRA’s 25 Year Environment Plan (11 January 2018)

In England DEFRA on 10 May 2018 started a consultation process, Environmental Principles and Governance after EU Exit, which closed on 2 August 2018. The consultation paper indicates that the proposed Environmental Principles and Governance Bill will be published in draft in “Autumn 2018“, although as a result of section 16 the absolute statutory deadline for publication of the draft is 26 December.

The Environmental Principles and Governance Bill will need to provide for:

⁃ the formulation of a set of environmental principles to be adhered to; and

⁃ the establishment of an independent body to enforce environmental law.

The DEFRA consultation paper does not go into much detail. It sets out the following basic position:

Where environmental principles are contained in specific pieces of EU legislation, these will be maintained as part of our domestic legal framework through the retention of EU law under the EU (Withdrawal) Bill. Any question as to the interpretation of retained EU law will be determined by UK courts in accordance with relevant pre-exit CJEU case law and general principles, subject to the other exceptions and restrictions within the Bill. For example, CJEU case law on chemicals, waste and habitats includes judgments on the application of the precautionary principle to those areas. This will therefore be preserved by the Bill.” (paragraph 26)

The consultation paper invites views from consultees as to whether the environmental principles (without giving any detail as to what these principles will look like) should be articulated in the Bill itself or should be left to be addressed in a subsequent statutory policy statement.

The list of environmental principles in section 16 (2) is plainly potentially relevant to every aspect of the planning system, but we need to see the detail!

The consultation paper proposes the following in relation to the proposed independent body:

Objectives for the establishment of the body are that it should:

⁃ Act as a strong, objective, impartial and well-evidenced voice for environmental protection and enhancement.

⁃ Be independent of government and capable of holding it to account.

⁃ Be established on a durable, statutory basis.

⁃ Have a clear remit, avoiding overlap with other bodies.

⁃ Have the powers, functions and resources required to deliver that remit.

⁃ Operate in a clear, proportionate and transparent way in the public interest, recognising that it is necessary to balance environmental protection against other priorities. ”

There is a specific section in the consultation paper in relation to the potential relevance of the body to the operation of the planning system:

Interaction with the planning system

133. Planning aims to ensure that the right development happens in the right place at the right time, benefiting communities and the economy. It plays a critical role in identifying what development is needed and where, what areas need to be protected or enhanced and in assessing whether proposed development is suitable.

134. The new body’s functions in relation to environmental aspects of the planning framework would need to work alongside, while ensuring clear boundaries between, the established systems in place for scrutiny of and appeal against planning decisions and development plans. The intention would be that individual decisions made under relevant planning legislation would continue to be handled under the existing processes.

135. As with other areas of environmental law, we need to consider how the body would interact with the existing planning system in relation to environmental laws that apply to planning activities, notably those concerning implementation of habitats regulations assessments, environmental impact assessments and strategic environmental assessments. This should not be a case-by-case review of decisions regarding development plans and proposals, which would be duplicative and would amount to another tier in the planning process. The body would have no role in individual planning policy decisions. The focus of the new body would therefore be on ensuring the correct application of relevant environmental law within the planning system.

136. In relation to wider planning policy, the body could have two roles. Firstly, it could be a key consultee, when certain planning policy is being considered, for example when the National Planning Policy Framework is updated. Furthermore, if the body has a wider policy role, it could provide advice on the implementation of the environmental aspects of existing planning policy and suggest future potential changes. The government would not be bound to agree to such suggestions, but should consider them alongside wider policy aims

All sorts of questions of course arise from these proposals:

– how detailed will the environmental principles be? Will the principles contain targets in the manner of DEFRA’s 25 Year Environment Plan (11 January 2018) or will they be a generic summary of the principles currently underlying EU environmental legislation along the lines of, for instance article 191 of the Treaty of the Functioning of the European Union (and if so how useful will they be?).

⁃ to the extent that the principles, such as the “principle of sustainable development” overlap with existing guidance, for instance within the NPPF, will the principles (having a statutory basis) be relevant to decision making in relation to applications and appeals and to plan making? How can we avoid unanticipated effects in that regard? Even if the intention is to retain the status quo, at least for the time being, how easy will that be?

⁃ will Parliament kick the can down the road by relegating the principles to a statutory policy statement, for how long will this be, what will be the consultation process, what voting process will be required within Parliament and what will be the mechanism for making subsequent amendments?

⁃ Surely it is for the courts to ensure “the correct application of relevant environmental law within the planning system“? Non-legally binding views from this new authority on the way in which the law is to be interpreted, beyond views already formally expressed by ministers or government bodies such as the Environment Agency, Natural England or Historic England, may just add confusion.

⁃ how can a body be created which does not overlap with existing bodies such as the Environment Agency, has a “baked in” constitutional status and which is not susceptible to lobbying and repeated judicial reviews?

⁃ whilst the proposed body is not intended to be embroiled in individual planning decisions, what safeguards will there be as to its potential influence on planning outcomes in other ways, for instance through expressing views on types of development?

⁃ to what extent will there be coordination and consistency as between England and the devolved nations?

⁃ depending on the nature of any Brexit transitional arrangements, what about the interregnum between the cessation of the European Commission and European Court of Justice’s jurisdiction and the establishment of new regimes within England, Wales, Scotland and Northern Ireland? 26 December 2018 is only the deadline for the draft Bill. How long before the Bill itself is introduced, enacted and brought into force, with this new body up and running? If we have a “deal” and a transition period, time will be tight but there may not be a gap. If there is “no deal”, there will be a period before the promised structure is in place, indeed there will be no environmental principles in place, nor an independent body to ensure compliance.

The Commons Environmental Audit Committee has been conducting the Environmental Governance Consultation Paper Inquiry seeking answers to a number of questions along these lines. Michael Gove gave evidence to the inquiry on 11 July 2018. The session is pretty unedifying with much attempted point scoring but there are some interesting exchanges.

For example, the Committee chair asked how the policy statement for the principles will be developed and scrutinised:

Michael Gove: I think that it would be developed within the Government, like any other policy statement. An analogy has been drawn—no analogy is perfect—with the National Planning Policy Framework. I would propose or suggest that the Government draw up their policy statement. Obviously it would be up to any Government Minister as to how they would set about gathering evidence, consulting, and making clear what the means might be for shaping that policy statement. Then I hope that it would be presented to the House of Commons and then debated and voted on in the House of Commons.

Chair: That is where the row is going to happen again, is it not? Across Government the rows will come back in from Treasury, from DCLG, and from Transport about how this is not going to be accepted by Ministers. Then you are going to have all the green groups and the NGOs rightly asking for much higher standards. What is the process of engaging with the public? You are saying there is a legal policy process in the Government. How long will the public have to look at this statement?

Michael Gove: That is a very fair point. One of the things is we want to have it debated and voted on in Parliament, to take the concerns you have. Were there to be a future Government Minister in another Government Department that wanted in some way to include in the policy statement things that you or I might think were not necessarily a good idea for the better protection of our environment, were that hypothetical future Minister to prevail in the shaping of the policy statement in a way that you or I might not altogether approve of, when it came to the House of Commons I think it would be the case that the NGOs that you mention and members of the public or you or I might say, “Hmm” and would seek therefore to say, “I am sorry, as you bring this forward, I do not think you will necessarily get a majority in the House of Commons for this provision, because it will be seen as weakening protection. Therefore, we in the House of Commons will not stand for it”.

In the same way as the House of Commons and the House of Lords together amended the EU (Withdrawal) Bill in a particular way, so I could see a situation in the future where the prospect of defeat in the House of Commons for a particular proposition might lead the Government to then amend their policy statement so that the hypothetical Minister in a future case who might have wanted to weaken protections would find that his or her ambitions were thwarted by the democratic majority in the House.”

The Committee had originally hoped to conclude the inquiry by DEFRA’s consultation deadline of 2 August but we still await its report. I hope that its conclusions will be able to be taken into account by DEFRA before it proceeds to publish its draft Bill, although I suspect we have a long way to go before an actual set of principles starts to emerge, alongside a clearer idea as to the nature of the authority that is to hold the ring on all of this.

In the meantime of course, existing legislation will need to be scrubbed free, via statutory instruments, of any references to EU law, to be replaced by references to the relevant EU legislation frozen at time of exit or relevant domestic legislation, but that will not be where the substantive effects are likely to be felt. Instead, watch out for the draft Bill and surrounding announcements and let’s be alert for any unintended implications for our town and country planning system.

Simon Ricketts, 18 September 2018

Personal views, et cetera