Back To Reality

You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…

I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:

Government amendment relating to removal of “hope” value in relation to particular categories of CPO

The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.

Government consultation on environmental outcomes reports – a new approach to environmental assessment

The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.

Government consultation on the proposed infrastructure levy

The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.

Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.

Simon Ricketts, 17 March 2023

Personal views, et cetera

Everybody Needs Good Neighbours

I’m not sure that the architects of the 1947 town and country planning system could have foreseen the extent to which it so frequently ends up being tested to its limits by the need to protect the specific, often legitimate, interests of neighbours and the extent to which the process has become weaponised in neighbour disputes.

I have dealt before with the inevitable mission creep over time, eg in my 4 April 2023 blog post Tate Modern Viewing Platform Supreme Court Ruling: What Is There For Planners To See?

To what extent can and should local planning authorities supplement adjoining owners’ private rights with policies and decision-making that protect those adjoining owners’ interests over matters such as the impact of noise and vibration on a particularly sensitive neighbour – and, if so, how do they make sure that they have the right engineering basis for their interventions? Particularly in London of course these issues arises again and again – see eg my 5 December 2016 blog post First World Problems: Basements and planning officers can get drawn into a neighbour versus neighbour quasi-mediation.

I was reminded by all this again by a case this week, Strongroom Limited v London Borough of Hackney (Deputy High Court Judge Tim Corner KC, 8 March 2023). I only recite the facts by way of illustration of the way these things escalate – the legal issues were settled on the day of the hearing.

The claimant operates a recording studio. The council granted planning permission for redevelopment of an adjoining property, with which the claimant shares a party wall. The claimant had objected to the planning application, submitting a report by consultant Jim Griffiths of the music acoustic consultancy, Vanguardia [pause here for quiet shout out to the excellent Jim] setting out his advice that “unless noise and vibration levels were strictly controlled during construction, the use of the Studios would be subject to harm, impossible to use and might be compelled to close as a result”. He set out the maximum noise and vibration levels that could be tolerated during the construction phase. The developer responded with their own commissioned report. The council in turn commissioned their own report and in consequence planning permission was granted with a detailed condition requiring submission of a “demolition and construction method statement covering all phases of the development to include details of noise control measures” with specific limits on noise and vibration levels set out in the condition.

Once the developer applied to discharge the condition the claimant argued strongly that the developer’s technical work was flawed and commenced proceedings for an injunction to stop construction works from being carried out. That resulted in a settlement agreement allowing, amongst other things, for on-site noise testing and disclosure of testing results. The claimant continued to take issue with the technical work and with some undisclosed testing which had been made available to the council. The council discharged the condition on the basis of the information submitted by the developer and the claimant challenged this by way of judicial review.

In the meantime, the, presumably despairing, developer sought and obtained a separate planning permission simply for change of use of its building, without any condition prescribing numerical noise and vibration limits during construction but requiring a construction management plan to be submitted including details of noise control measures. Again, the council discharged the condition on the basis of information submitted by the developer and again the claimant challenged this by way of judicial review.

So the Deputy High Court Judge had two complicated judicial reviews to determine, both revolving around whether the the council had acted properly in discharging the respective conditions. Unusually, on the very day of the hearing the parties reached a further settlement agreement resolving all of the issues. Even more unusually the one matter the parties had not managed to agree upon was the question of who should bear the costs of the proceedings and so the judge had to proceed with a relatively full analysis of the relative strength of the parties’ arguments before finally determining that (you may have seen this coming) each party should bear its own costs.

What an expenditure of time and money all round, at every stage of the process. Surely there must be a better way?

One of the problems is that outside the planning system, potential private law remedies in relation to matters such as noise, vibration and potential effects on the structural stability of adjoining buildings do not provide protection in a particularly straightforward and light-touch way. Yes, actions in private nuisance are available but the Tate Modern case is a high profile example of the inherent uncertainties of that expensive process. Yes, there is also the Party Wall Acts process in relation to certain matters but that only covers a narrow range of the issues arising from development and is in itself a rather antiquated system which could do with a thorough statutory review (for a topical description of the system, see another case last week: Power & Kyson v Shah (Court of Appeal, 7 March 2023)).

What’s the solution? I quite like the Australian approach:

Neighbours need to get to know each other. Next door is only a footstep away.

Finally, can I recommend the latest episode of the Planning Law (With Chickens) podcast by my colleagues Victoria McKeegan and Nikita Sellers. They chat through some of the most interesting things in planning law which have happened in the last few months and also have a good interview with James Wickham of Gerald Eve.

Simon Ricketts, 11 March 2023

Personal views, et cetera

Resources Resources Resources

As is the English way, it’s rather more nuanced than Money Money Money. And it’s hardly an Abba singalong, but speak to someone with practical experience of the operation of the planning system about what is needed to improve its operation: these three words constantly ring out – way above any chatter about the changes proposed in the Levelling-up and Regeneration Bill  or by way of the Government’s wider policy reforms.

So it was good to see this week’s DLUHC consultation document Stronger performance of local planning authorities supported through an increase in planning fees (28 February 2023).

This consultation seeks views on improving the performance of English local planning authorities by increasing planning fees, “building capacity and capability” and “introducing a more robust performance regime

Now you have responded to the last consultation process, you can start on this one! The deadline is 25 April 2023.

The document sets out the Government’s threefold strategy:

  • Financial support

this consultation proposes an increase in planning application fees for major applications by 35% and for all other applications by 25%, together with an indexation proposal for fees to be adjusted annually in-line with inflation.”

  • Additional resource

This consultation outlines how we are working with representatives across the planning and development sector to design and deliver a programme of support for building planning capacity and capability within local planning authorities and to seek views on how we can increase capacity and capability in the planning system as quickly as possible.”

  • Improved performance

This consultation therefore also proposes a new approach to how the performance of local planning authorities is measured across a broader set of quantitative and qualitative measures

Some examples of proposed fee increases:

Subject to the outcome of the consultation process, the increases will be introduced this summer and will be reviewed within three years.

The consultation raises various specific questions, such as:

  • Whether there are examples of bespoke or ‘fast track’ services which have worked well or could be introduced for an additional fee – and of any schemes that have been particularly effective
  • whether there should be a commitment on the part of authorities to ringfence the fees for spending within their planning departments (surely a no-brainer – and one to be firmly policed).
  • whether the ability for a “free go” repeat application be limited or removed
  • whether the fee for retrospective applications should be doubled.

In terms of increasing resources in the planning system, the consultation document says this:

43. We want to support and work with local planning authorities to make sure that planners and the planning system are valued, and that there is a culture of proactive delivery, pride in performance and a clear understanding of high-quality customer service; as well as being ready to adapt to the new measures and ways of working methods proposed in the Levelling Up and Regeneration Bill.

44. We must also promote a broader understanding of the value of planning in supporting the country in its Levelling Up ambitions as a positive driver of sustainable economic growth and the development and building of homes and places that communities can be proud of.

45. We have created a cross-sector working group with representatives from local government, the private sector and professional bodies to design and deliver a programme of support to build capacity and capability strategy across local planning authorities. This programme will seek to provide the direct support that is needed now, deliver upskilling opportunities and further develop the future pipeline into the profession in order to continually improve the quality of service delivered and resilience of local planning authorities.

46. To support the development of our planning capacity and capability strategy and programme we would like to hear your views and experience of the specific challenges in recruiting and retaining planning professionals with the right skills and experience and the best ways in which government, working with professional bodies, can boost the capacity and capability of local planning authorities. It is our intention to carry out numerical research in the coming months to support this important strand of work, but in the meantime we would welcome any data and insight that you would like to provide.”

In terms of increasing the performance of local planning authorities:

48. As we propose to introduce measures to increase fee income relating to planning services specifically, we want to amend the existing metrics that measure performance of local planning authorities for speed of decision-making so that local planning authorities are primarily held to account for the number of applications that are determined within the statutory determination periods rather than through an extension of time agreement. We also propose to tighten the Planning Guarantee period for non-major applications.

we propose that where the statutory determination period is 8 weeks the Planning Guarantee should be set at 16 weeks and where the statutory determination period is 13 weeks (or 16 weeks for Environmental Impact Assessment developments) the Planning Guarantee should be retained at 26 weeks.”

[What are your experiences of the Planning Guarantee? The only time I’ve seen someone apply for their money back (with every justification), the local planning authority refused to progress the section 106 agreement until the applicant had agreed in writing to waive his rights to rely on it!]

We propose that the performance of a local planning authority for speed of decision making should be primarily assessed on the percentage of applications that are determined within the statutory determination period, not an agreed extended period of time. We also believe that the performance of local planning authorities for speed of decision-making should be assessed separately for the following application types:

  • Major applications (10 or more new dwellings, or site area of 0.5 hectares or more and the number of dwellings is unknown; provision of a non-residential building or buildings where the floor space created by the development is 1000sqm or more; development on a site with an area of 1 hectare or more)
  • Non-Major applications (excluding householder applications) (anything smaller than the criteria for major development, including residential development of between 1 and 9 new dwellings on a site with an area less than 1 hectare, or site area is less than 0.5 hectares and the number of dwellings is unknown; non-residential development where the floor space created is less than 1000sqm or where the site area is less than 1 hectare; or other types of non-major development such as change of use)
  • Householder applications (development within the curtilage of a dwelling house which requires an application for planning permission and is not a change of use)
  • Discharge of conditions
  • County matters (minerals and waste) applications

The document seeks views on the suitability of these individual metrics:

It suggests that there could be a standardised “customer satisfaction survey” (sigh, is “customers” really the right word?).

What do you think? I was quite encouraged by the various proposals although do they really go far enough? I suspect that the fee increases are pitched about right but how much extra money will the Government be committing to this essential service?

The document asks whether there any other application types or planning services which are not currently charged for but should require a fee or for which the current fee level or structure is inadequate. There are no fees at present for listed building consent applications – not mentioned in the consultation document. Is that right? The fee for section 73 applications is very light – currently £234 – when in reality the work involved can be extensive. The consultation does ask as to the appropriate fee for the LURB’s proposed section 73B procedure but not about our familiar friend section 73. Should the fee be higher for EIA development – I would have thought so? (and, by the way, whilst outside the remit of this consultation, there is still no visible progress on introducing fees in relation to planning appeals).

Separately, should there be greater control over non-statutory fees for planning performance agreements and for pre-application advice? I increasingly hear tales of woe from applicants as to large fees paid only for advice to be provided very late – and then sometimes reversed once the application has been submitted.

I know that the information gathering in relation to the metrics will entail further work on the part of already busy staff but it will give a much clearer picture than anyone has at the moment – huge delays are masked by routinely agreed time extensions. And the requirement, for instance, for data to be supplied on the “percentage of committee decisions to refuse against officer recommendation that are subsequently allowed at appeal” should certainly focus minds….

Sam Stafford has done wonders via his 50 Shades of Planning podcast series to shine a life on what “life on the frontline” for planning department staff can be like – I recommend his 25 February 2023 Life on the frontline II episode. In the light of these proposals,  Life on the frontline III next year will make for even more interesting listening.

Simon Ricketts, 3 March 2023

Personal views, et cetera

Dead Cert?

This week I wasn’t sure whether to write about the Government’s 21 February 2023 response to its consultation on the proposed biodiversity gain regulations or about the Government’s 23 February 2023 action plan for reforms to the nationally significant infrastructure projects process.

But both of these documents, important as they are, are largely self-explanatory – and have been covered in various summaries which are out there. So I ditched those ideas.

Instead I will focus on another interesting recent case, involving one of my favourite buildings (a “megastructure” according to the judge): the Brunswick Centre, Camden.

Lazari Properties 2 Limited v Secretary of State (Lane J, 21 February 2023) is nothing to do with the architecture of the building, but rather the architecture of the planning system itself. Whilst only a preliminary ruling by Lane J as to whether there were arguable grounds of challenge, some interesting practical issues arise as to:

⁃ the need for precision in framing lawful development certificate applications

⁃ the proper interpretation of conditions restricting uses by reference to superseded Use Classes Order descriptions.

The centre “contains 2 linked blocks of 560 flats above a shopping centre with rows of shops at raised ground level. The shops (which include a supermarket) are situated over a basement, which contains car parking, a service area and a cinema. Ramps and steps provide access to the central boulevard from several surrounding streets.

Uses in the building are controlled in part by condition 3 of a planning permission in 2003 for the centre’s refurbishment:

“”Up to a maximum of 40 percent of the retail floorspace, equating to 3386m2 (excluding the supermarket and eye-catcher), is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.”

Old use classes A2 and A3 are now of course subsumed within the new use class E. So, given that retail uses also fall within class E, does that mean that this condition no longer has any effect such that the whole of the retail floorspace can now be used for any purposes falling within class E?

The owner submitted an application to the local planning application for a certificate of lawfulness of existing use or development (“CLEUD”), with a red line around the whole of the centre and with the proposal described as follows:

“Application to certify that the existing use of the Brunswick Shopping Centre within Class E and without compliance with Condition 3 of Planning Permission: PSX0104561 is lawful”.

Uh oh. I wrote about the perils and constraints of CLEUDs and CLOPUDs (certificates of lawfulness of proposed use or development) in my 12 June 2021 blog post I’m Sorry I Haven’t A CLEUD.

Quite aside from the legal question arising as to whether the references to classes A2 and A3 in the condition should now be read as references to class E, was the description of the existing use sufficiently precise?

The London Borough of Camden didn’t determine the application within the statutory period and the owner appealed. The inspector dismissed the appeal in a decision letter dated 27 July 2022:

⁃ the reference to use class E was not a sufficiently precise description of the existing uses of the units within the centre. Whilst the owner’s objective was clearly to establish that class E use of any of the units would not be in breach of the condition, that was not the role of lawful development certificates: “It is a long established principle that LDCs enable owners and others to ascertain whether specific uses, operations or other activities are or would be lawful. They do not enable anyone to ask the general question, “what is or would be lawful?

⁃ the reference simply to the whole of the centre, which encompassed various uses plainly not falling within class E, was not sufficiently precise, and was not remedied by a plan excluding defined areas.

⁃ In accordance with case law, condition 3 was to be interpreted having regard to the natural and ordinary meaning of the words used, viewed in their particular context (statutory or otherwise) and in the light of common sense. The inspector considered that the purpose of Condition 3 is “clear from its stated reason. It is to safeguard the retail function and character of the Brunswick Centre. It does this by stating a maximum amount of floorspace that is permitted to be used for A2 and A3 purposes.

Condition 3 only makes sense if there is an implied exclusion of the Use Classes Order or else it has no purpose. The purpose of Condition 3 is clear and it remains enforceable since the uses that are restricted are known, those being the uses set out as falling within Class A2 and A3 when planning permission was granted.”

Both parties made costs applications against the other. The inspector rejected the owner’s costs application and made a partial award of costs in favour of the council.

So what did Lane J make of all this? Without giving any reasoning, he considered that it was arguable that condition 3 was not to be interpreted in the way arrived at by the inspector. However, he found that the inspector’s conclusions as to the inadequacy of simply describing the existing use by reference to class E, as to the inadequacy of the submitted plans and as to costs were all unarguably correct.

An interesting procedural question as to why it was still appropriate for the interpretation question (referred to as grounds 1 and 2) to go to a full hearing, given the fundamental flaws in the formulation of the CLEUD application and appeal:

I must accordingly explain why I have concluded that, on the facts of the present case, permission should be granted for grounds 1 and 2 to be determined at a substantive hearing. I accept Mr Taylor’s submission that grounds 1 and 2 are, in effect, severable and that there is a real purpose in permitting the claimant to argue them substantively, so that the High Court can reach a decision on the correct interpretation of condition 3. Given that a fresh application by the claimant under section 191 is highly likely, if not inevitable, and that condition 3 is likely to be relevant to the determination of any such application, it plainly makes sense that the issue of interpretation is settled before such a fresh application is made.

I accept that, as matters stand, the claimant has not sought a declaration, which will be needed on the above basis, given that the inspector’s decision should not be quashed. The claimant will need to do so. I do not, however, consider that the claimant’s failure, so far, to seek a declaration should be destructive of its case in respect of grounds 1 and 2.”

Like the judge, I’m not sure that the inspector’s conclusions in respect of condition 3 were necessarily correct and it will be useful to have a final ruling in due course on the issue, which may potentially assist with other interpretation questions arising from the introduction of class E in situations where conditions contain restrictions based on previous use classes. But I’m surprised that the case has gone so far on the basis of such a loose approach to the CLEUD process. Might a simpler approach have been to show all the retail units on a plan and to make a CLOPUD application proposing retail use in respect of each of them? That would have indirectly led to a ruling as to whether condition 3 was legally effective. But as it turns out, maybe the eventual outcome of these proceedings will end up getting to the same position for the owner, albeit at additional expense for all concerned.

Incidentally, if you would like much better summaries than this of planning law cases on a weekly basis, do subscribe to our free Town Library service if you haven’t done so already. Each week my Town Legal colleagues prepare summarise of any rulings handed down the previous week by the Planning Court, together with subsequent appeal rulings. Subscribe here.

Simon Ricketts, 25 February 2023

Personal views, et cetera

Photo of Brunswick Centre courtesy of Wikipedia

Can You Use Section 106 To Buy Drugs (And To Fund Other Public Services)?

It is frustrating to see public bodies, stymied by the lack of other funding sources, challenge the grant of planning permissions by way of judicial review in a bid for financial contributions from the developer. Frustrating because at root these are services which should properly be funded by the taxpayer; frustrating because the public body invariably loses, having spent public money in the litigation and exposed itself to the award of costs; frustrating because the challenge invariably slows down delivery of the development for which planning permission has been granted.

We’ve seen it with the police (e.g. R (The Police and Crime Commissioner for Leicestershire) v Blaby District Council (Foskett J, 27 April 2014) (a case which largely concerned the timing of contributions towards for instance additional police cars and radio transmitters)); with adjoining local authorities concerned to have their share of affordable housing (e.g. R (Luton Borough Council v Central Bedfordshire Council (Court of Appeal, 20 May 2015), and, above all, we have course seen it with NHS Trusts.

The issue as to the extent to which it is appropriate for financial contributions to be secured by way of section 106 agreement towards the delivery of health services has been rumbling on for years – see for instance the 20 August 2020 piece What the health? The planning system and healthcare service funding by Lichfields’ Myles Wild-Smith. Myles refers to recovered appeal decisions where the agreed section 106 provisions included a financial contribution towards the provision by the local Foundation Trust of acute and community health facilities and the encouragement that this has given NHS bodies over time to take this approach. The root of the issue for NHS Trusts is what can only be described as a flaw in the Government’s current funding mechanism which does not necessarily take into account the costs of provision of additional services to cater for an increase in population in the first year that population numbers are increased, leading to a “funding gap”.

The issue has now come before the Planning Court in the landmark case of R (University Hospitals of Leicester NHS Trust) v Harborough District Council (Holgate J, 13 February 2023) – “landmark” partly because four of the six barristers involved are from Landmark Chambers but more perhaps because Holgate J does not just dismiss the claim by the claimant NHS Trust on the facts but goes on to consider the wider principles engaged.

From here on in, I am largely going to be shadowing Nicola Gooch’s blog post Mind the Funding Gap: The curious case of s.106 contributions funding NHS services. If you’ve already read that, feel free to skip ahead. If you haven’t…

In basic summary, Harborough District Council granted planning permission for an urban extension to Lutterworth, comprising up to 2,750 dwellings and associated development. The University Hospitals of Leicester NHS Trust did not object to the development in principle but  had been seeking that the council secure a contribution, via the section 106 agreement which was being negotiated, “of about £914,000 towards the delivery of health care by the Trust to mitigate what are said to be the harmful effects of additional demands upon its services from that proportion of the people moving to the site who would be new to the Trust’s area (referred to as “new residents”). The Trust estimates that the 2,750 houses on the site would accommodate 7,520 people, of whom 38.5%, or 2,896 people, would be new residents in the Trust’s area.”. The council considered the request and did not accept that it was justified (I don’t know but, aside from concerns as to whether such a contribution was legally appropriate and justified in planning terms, there may have been an underlying issue, frequently present: against the constraints of project viability,  requiring such a contribution may have entailed less potential funding for affordable housing or other priority requirements of the council or county council).

Paragraphs 8 to 12 of the judgment describe the so-called “funding gap” (and this is the aspect of the judgment I am focusing on – the judgment also addresses, and rejects, some related grounds of challenge). The purpose of the contribution sought was to provide “funding for additional staff, drugs, materials and equipment” during the relevant part of the first financial year in which a “new resident” begins to occupy a dwelling.

Paragraphs 22 to 29 of the judgment set out the legal principles in relation to material considerations and section 106 agreement.

The council didn’t accept that the case for the “funding gap” had been made out. Holgate J agreed with the council that this was indeed a relevant consideration and that the council had reached a rational conclusion that the Trust had failed to provide any sufficient information to show that there was any “funding gap” and accordingly the contribution sought would have failed the “necessity” test in regulation 122 of the CIL Regulations.

After Holgate J gives what he describes as the “short answer”, he then goes on to consider “wider issues”.

141 The question therefore arises how could an applicant for planning permission for a new development be required lawfully by a system of land use planning control to contribute to the funding of treatment within the NHS? It is well established that planning permission cannot be bought and sold, for example, by making a payment for community purposes unrelated to the development authorised. Furthermore, planning legislation does not confer any general power to raise revenue for public purposes (see e.g. Attorney General v Wilts United Dairies Limited (1921) 37 TLR 884; (1922) 38 TLR 781; McCarthy & Stone (Developments) Limited v Richmond London Borough Council [1992] 2 AC 48).

142. Ordinarily a resident of the development at East Lutterworth who had moved to the Trust’s area would previously have been the responsibility of a CCG elsewhere in the country. So it has not been suggested that the development would increase the burden on the NHS in England as a whole. The attempt by the Trust to obtain a financial contribution under s.106 therefore depends upon their demonstrating a localised harm. The only harm they seek to rely upon concerns the provision by the Trust of services commissioned by the CCGs. On the Trust’s own case, that has to depend upon them showing a funding gap in relation to treatments for residents new to the area during their first year. The Trust accepts that there is no justification for any payment relating to other “first year” residents who are simply moving home within the Trust’s area, or to any resident after their first year at East Lutterworth. The extent to which funding is available to the Trust for the services it provides to the CCGs is the only possible justification for drawing these distinctions. Whether a funding gap genuinely exists was critical to the Trust’s request for a financial contribution under s.106.

143. Accordingly, HDC was fully entitled to ask questions and to seek information in order to see whether there is a real funding gap for treatment by the Trust of “new” residents in their first year of occupation. Indeed, if the local planning authority had agreed to require the developer to pay the contribution sought by the Trust before granting planning permission without being adequately satisfied that there was a relevant funding gap, it would have been open to criticism. In the event of the issue having to be determined in a planning appeal, HDC would have been at risk of being ordered to pay costs for unreasonable conduct.”

“147. But what if in a future case a NHS trust could demonstrate that it would suffer a funding gap in relation to its treatment of new residents of a development during the first year of occupation? On one level it would be a matter for the judgment of the local planning authority as to whether the three tests in reg.122(2) of the CIL Regulations 2010 are satisfied and whether it would be appropriate to require a financial contribution to be made, after taking into account other requirements and any impact on the viability of the scheme. But all that assumes that there is no legal (or other) objection to a contribution of the kind sought in the present case. The argument in this case does not enable the court to decide that issue as a legal question. This judgment should not be read as deciding that there would be no legal objection.

148. Where a housing development is carried out, some of the new residents may be entitled to social welfare benefits, which, like the need for secondary healthcare, arises irrespective of where that person lives. Of course, no one would suggest that the developer should make a contribution to funding those benefits.

149. The funding of treatment in NHS hospitals would appear to be different in two respects. First, in an area of net in-migration any increase in the need for treatment and staff will be experienced in the relevant local area, not nationally. Second, because the patients would receive treatment even if they had not moved home, a local funding gap would only arise if funding for the relevant NHS trust did not adequately reflect a projected increase in population and/or the national funding system did not adequately provide for a timely redistribution of resources. Population projections will involve some areas of out-migration as well as areas of net in-migration. It is therefore significant that CCG funding across the country takes into account ONS population projections. Accordingly, in the distribution of national funds there may be increases or decreases in funding for individual CCGs by reference to size of population.

150. It seems to me that two points follow. First, even if it could be shown in a particular area that there is a funding gap to deal with “new” residents, HDC was entitled to raise the possibility that this is a systemic problem in the way national funding is distributed. Although the Trust criticised HDC for taking it upon themselves to raise this point, it strikes me as being a perceptive contribution to a proper understanding of the issue. If there really is a systemic problem, this may raise the question in other cases whether it is appropriate to require individual development sites across the country to make s.106 contributions to address that problem.  However, for the purposes of dealing with the present challenge, HDC’s decision rested on the Trust’s failure to show that there was a funding gap in this case, not any systemic issue.

151. Second, whether there is a lack of funding for a Trust to cope with the effects of a substantial new development is likely to depend not on those effects in isolation, but on wider issues raised by the population projections used as one of the inputs to determine funding for CCGs. The interesting arguments from counsel in this case suggest that these issues merit further consideration as a matter of policy outside the courts and even outside the planning appeal system.”

Some significant points to reflect on arising from the passages above:

  • Even if a “funding gap” by a provider of public services is demonstrated, not only does the decision maker still need to determine whether a contribution is justified “whether the three tests in reg.122(2) of the CIL Regulations 2010 are satisfied and whether it would be appropriate to require a financial contribution to be made, after taking into account other requirements and any impact on the viability of the scheme” but it should not be taken for granted that there will not be a legal objection to the making of the contribution.
  • If the underlying issue which led to the case is a “systemic problem in the way national funding is distributed… this may raise the question in other cases whether it is appropriate to require individual development sites across the country to make s.106 contributions to address that problem”.
  • There may well be problems with population projections used as one of the inputs to determine funding for clinical commissioning groups.

I would suggest that all three points require serious reflection both by the Department of Health and Social Care and by DLUHC

In the meantime, for the rest of us, the judgment is a reminder of the careful scrutiny that needs to be given to proposed planning obligations, so as to ensure that they meet the necessary legal tests. In a climate where there is often insufficient Government funding to pay for public services (and/or inadequate methodologies for determining the funding that is needed – as seems to be the case with health funding) , these issues are continually going to arise. Local residents have a right to expect that new development does not lead to unacceptable burdens on local services, but there are legitimate limits on the costs which can be borne by development. After all, the needs of new residents in a development were previously being met, and funded, elsewhere. Our planning system is increasingly an indirect tax collection system – and I fear that the impending Infrastructure Levy regime will only make matters even worse.


Simon Ricketts, 18 February 2023

Personal views, et cetera

Photo courtesy of Christina Victoria Craft via Unsplash

The Bridge To Nowhere Case

Sliced salami anyone?

Defining what is the “project” for the purposes of ascertaining whether environmental impact assessment is required and, if it is, carrying it out appropriately, can be more difficult than one might think.

The Government’s planning practice guidance summarises the position as follows:

How should multiple applications be treated?

An application should not be considered in isolation if, in reality, it is an integral part of a more substantial development (Judgment in the case of R v Swale BC ex parte RSPB [1991] 1PLR 6). In such cases, the need for Environmental Impact Assessment must be considered in the context of the whole development. In other cases, it is appropriate to establish whether each of the proposed developments could proceed independently (R (Candlish) v Hastings Borough Council [2005] All ER (D) 178 (Jul); Baker v Bath & North East Somerset Council [2009] All ER (D) 169 (Jul)).

Paragraph: 025 Reference ID: 4-025-20170728

I’m going to consider in this blog post the Court of Appeal’s ruling last week in R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023), but the caselaw references in the guidance have been out of date for some time, in not referring to a number of recent cases, for instance the Court of Appeal’s ruling in R (Larkfleet Limited) v South Kesteven District Council (Court of Appeal, 6 August 2015), which concerned a proposal for a bypass on which significant residential development was dependent.

The court in Larkfleet referred to the relevant EU legislation and case law, in accordance with which the EIA Regulations were to be interpreted:

“What is in substance and reality a single project cannot be “salami-sliced” into a series of smaller projects, each of which falls below the relevant threshold criteria according to which EIA scrutiny is required”.

In that case, the court found that the construction of the bypass and the carrying out of the residential development were indeed to be treated as separate “projects”:

“Mr Kingston QC, for the Appellant, sought to rely on these passages in support of his submission that SKDC was obliged to assess the proposal for the link road and the proposal for the residential site as a single project. However, in my view the argument is unsustainable. It is clear from the terms of the EIA Directive that just because two sets of proposed works may have a cumulative effect on the environment, this does not make them a single “project” for the purposes of the Directive: the Directive contemplates that they might constitute two potential “projects” but with cumulative effects which need to be assessed. The passages from Ecologistas to which I have referred also contemplate that two sets of proposed works may constitute different projects for the purposes of the Directive. What these passages are directed towards is avoiding a situation in which no EIA scrutiny is undertaken at all. However, if the two proposed sets of words are properly to be assessed as two distinct “projects” which meet the threshold criteria in the Directive, there will be EIA scrutiny of the cumulative effects of the two projects.

It is true that the scrutiny of cumulative effects between two projects may involve less information than if the two sets of works are treated together as one project, and a planning authority should be astute to ensure that a developer has not sliced up what is in reality one project in order to try to make it easier to obtain planning permission for the first part of the project and thereby gain a foot in the door in relation to the remainder. But the EIA Directive and the jurisprudence of the Court of Justice recognise that it is legitimate for different development proposals to be brought forward at different times, even though they may have a degree of interaction, if they are different “projects”, and in my view that is what has happened here as regards the application for permission to build the link road and the later application to develop the residential site.

The EIA Directive is intended to operate in a way which ensures that there is appropriate EIA scrutiny to protect the environment whilst avoiding undue delay in the operation of the planning control system which would be likely to follow if one were to say that all the environmental effects of every related set of works should be definitively examined before any of those sets of works could be allowed to proceed (and the disproportionate interference with the rights of landowners and developers and the public interest in allowing development to take place in appropriate cases which that would involve). Where two or more proposed linked sets of works are in contemplation, which are properly to be regarded as distinct “projects”, the objective of environmental protection is sufficiently secured under the scheme of the Directive by consideration of their cumulative effects, so far as that is reasonably possible, in the EIA scrutiny applicable when permission for the first project (here, the link road) is sought, combined with the requirement for subsequent EIA scrutiny under the Directive for the second and each subsequent project. The adequacy and appropriateness of environmental protection by these means under the EIA Directive are further underwritten by the fact that alternatives will have been assessed at the strategic level through scrutiny of relevant development plans (here, the Core Strategy and Masterplan) from an environmental perspective under the SEA Directive.”

“The most important feature of this case is that there is a strong planning imperative for the construction of the link road as part of the Grantham by-pass which has nothing to do with the development of the residential site. It is clear from the evidence that the residential site could not be granted planning permission unless the link road is constructed, but the converse is not true: there is a strong independent planning need for the construction of the link road (to complete the Grantham by-pass) whether or not the residential site is developed. In the context of this planning rationale, it makes obvious sense to regard the main function of the link road as being to form part of the Grantham by-pass and hence to regard the relevant project as the “construction of a road” (in the terminology in section 10 of Annex II to the EIA Directive). Since the main functional purpose of the link road, as part of the Grantham by-pass, is to provide a new passage for traffic to avoid Grantham this approach to identification of the project is supported by the references to roads and other transportation projects such as railways, tramways and so on in Annex I and Annex II to the EIA Directive as set out above.”

“As to the design connections, given that it is part of SKDC’s local plan that the residential site should be developed for housing (with some community and employment uses as well), it is simple planning good sense that an application should have been made for the link road (as part of the Grantham by-pass) to skirt the site, to avoid jeopardising those discrete planning objectives, and for the link road to include the roundabout and the stub, to avoid extra costs which are foreseeable if the residential site is developed in accordance with the local plan documents.”

“The fact that funding for the construction of the link road will depend to a significant degree on contributions in due course from the developer of the residential site does not lead to the conclusion that they must be regarded as part of a single “project”. The funding arrangements are contingent matters which do not bear on the planning merits of the proposal to construct the link road to complete the Grantham by-pass.”

“As regards the references in the local plan documents and other documentation to the connections between the link road and the residential site proposals, in my view they are just reflections of the points of linkage between the link road and the residential site referred to above. For example, it is unsurprising that in seeking planning permission for the link road LCC should have emphasised not just the desirability of constructing the Grantham by-pass but also how well that project fitted with other aspects of SKDC’s local plan and the other benefits for SKDC’s area which it would bring; and it is unsurprising that in seeking central government funding for the Grantham by-pass LCC should have emphasised both the need for the by-pass to ease traffic congestion in Grantham and also the other wider benefits which would be likely to be associated with its construction.”

“As further support for the identification of the link road as a distinct “project”, I think it is relevant that the applicant for planning permission is LCC, which is the highway authority with responsibility to promote the public interest in relation to the road network. LCC is not a private developer and has no commercial interest in the residential site. This tends to indicate that the two projects are distinct. I also think it is relevant that at the time of the link road application the detail of the proposals for the development of the residential site had not been worked up to the point at which an application for planning permission could be made by Buckminster, and it cannot be said that this was any part of some deliberate plan to “salami-slice” the applications so as to subvert the proper operation of planning controls.”

I set out all of the above from Larkfleet in some detail as context for, and in part a counter to, those who try to read to much into the implications of, the Court of Appeal’s ruling this week in R (Ashchurch Rural Parish Council) v Tewkesbury Borough Council (Court of Appeal, 7 February 2023).

The case is possibly an unwelcome and no doubt not unusual example of the perverse incentives on local authorities arising from time-limited government funding.

The case concerned a challenge to the grant of planning permission by the council for a road bridge over the Bristol to Birmingham mainline railway north of Ashchurch, Tewkesbury.In March 2019, Tewkesbury has been “awarded Garden Town status for a potential development of up to 10,195 new homes, around 100 ha of employment land, and related infrastructure. This was based on the Tewkesbury Area Draft Concept Masterplan Report (“the Masterplan”), which sets out potential largescale development over an area described as the “North Ashchurch Development Area””.

“The Masterplan expressly recognises that delivery of the northern development plots for Phase 1 development relies on “the provision of a northern link over the main rail line, overcoming severance and completing the link between existing local roads”. It identifies the bridge as one of the “short-term enabling interventions”. The bridge is therefore an essential prerequisite to the delivery of any housing development in the Phase 1 area. It is common ground that the sole purpose of its construction is to facilitate such development.”

In the normal course of events, one might have expected any application for planning permission to be made only after [progress with the joint core strategy] and the adoption of a local plan, and for TBC to seek permission for the Phase 1 development of which the bridge would form an integral part, including the link road and any other vital transport infrastructure. Instead, the application was made, and granted, for the bridge alone.

[Paul Brown KC, acting for the claimant] told the Court that the bridge is known locally as “the bridge to nowhere,” because after it has been constructed, the temporary haul roads will be removed and there will be no connecting roads on either side, just a bridge in the middle of a field, which will be fenced off. Without a functioning highway unlocking the land within the Phase 1 area on the eastern side of the railway, the bridge will serve no useful purpose.

This unusual state of affairs has arisen because TBC wished to avail itself of funding from the Government which was only available for a limited period. In July 2017, the Government launched a £2.3 billion Housing Infrastructure Fund (“HIF”) in order to support housing delivery through the funding of vital physical infrastructure, such as roads and bridges, with the opportunity to facilitate the development of some 100,000 homes in England. The fund was split into two key areas, namely, forward funding (for larger schemes up to £250 million) and marginal funding (for schemes up to £10 million). The deadline for applications was September 2017.

“It follows, therefore, that at the time when the application for planning permission for the bridge was considered, there was a clear expectation that the bridge would serve at least 826 houses, to be built within the Phase 1 area on the eastern side of the railway track, and the road infrastructure, including the link road over the bridge, would need to cater for at least that number.

Prior to making the application for planning permission, TBC commissioned an Environmental Impact Assessment Screening Report, for the purpose of determining whether an Environmental Impact Assessment (“EIA”) was required. The Screening Report was produced in May 2020. The Judge quotes relevant extracts at paras 17 to 26 and para 33 of his judgment. The Screening Report noted that the bridge would not be used until future development came forward to make it operational. It recorded that the current proposals identified that the development area was anticipated to provide 826 new houses. Nevertheless it treated the bridge as a stand-alone “project”, to be considered independently from any environmental assessment of the highway and residential elements of the development that it was envisaged the bridge would facilitate. It noted that an assessment of those elements would be carried out in future, as and when it was envisaged that any development under Phase 1 of the Masterplan would be implemented.

The Screening Report recognised that the bridge was Schedule 2 development under the EIA Regulations, but concluded that, looked at in isolation, it was not likely to have significant effects on the environment. It was therefore unnecessary to carry out an EIA.”

There were basically two grounds of challenge to the grant of planning permission, both successful.

I’m not going to consider in detail the first ground (grounds 1 and 2 in the judgment), which was that the officer’s report had advised members to take into account the benefits of the bridge in terms of facilitating the housing development, but not any adverse effects arising from the housing development. Andrews LJ:

In this particular case, I am satisfied on an appropriately benevolent reading of the [officer’s report] as a whole that the Planning Officer in substance directed the members of the Planning Committee that they could not or must not take account of the harms of the proposed development that the bridge would facilitate. That went beyond mere advice or the expression of a personal view about relevance. Those harms were at least potentially relevant: materiality was a matter for the Committee to determine, and they were being told that they must not consider something to be material which they might otherwise have regarded as material.

The second ground (ground 3 in the judgment) was that the local planning authority had incorrectly characterised the “project” for EIA purposes as being simply the bridge. You will see the approach that the court took in relation to that matter from the following passages, which I suspect will be widely cited:

The identity of the “project” for these purposes is not necessarily circumscribed by the ambit of the specific application for planning permission which is under consideration. The objectives of the Directive and the Regulations cannot be circumvented (deliberately or otherwise) by dividing what is in reality a single project into separate parts and treating each of them as a “project” – a process referred to in shorthand as “salami-slicing””.

In Larkfleet, it was held that a proposed urban extension development and a link road were not a single project because despite the connections between them, there was a “strong planning imperative” for the construction of the link road as part of a town by-pass, which had nothing to do with the proposed development of the residential site. By contrast, in Burridge v Breckland District Council  [2013] EWCA Civ 228, (“Burridge”) the Court of Appeal held that a planning application for a biomass renewable energy plant and a planning application for a combined heat and power plant linked to it by an underground gas pipe were a “single project,” on the basis that they were “functionally interdependent and [could] only be regarded as an “integral part” of the same development.

It follows that the identification of the “project” is based on a fact-specific inquiry. That means other cases, decided on different facts, are only relevant to the limited extent that they indicate the type of factors which might assist in determining whether or not the proposed development is an integral part of a wider project.

Lang J, in her judgment in R(Wingfield) v Canterbury City Council and another [2019] EWHC 1975 (Admin), [2020] JPL 154, (“Wingfield”) stated at [63] that the question as to what constitutes the “project” is a matter of judgment for the competent planning authority, subject to challenge on grounds of Wednesbury rationality or other public law error. At [64] she set out a non-exhaustive list of potentially relevant criteria, which serves as a useful aide-memoire. These include whether the sites are owned or promoted by the same person, functional interdependence, and stand-alone projects. In relation to the last of these factors she said:

“where a development is justified on its own merits and would be pursued independently of another development, this may indicate that it constitutes a single individual project that is not an integral part of a more substantial scheme”.

The reverse may also be true, and that reflects the position in this case.”

“There is no reference in the Screening Report to Larkfleet or Burridge, nor to the factors identified in Wingfield. The author did not address the question whether the bridge and the highway that was envisaged to run across it were “functionally interdependent”; nor the question whether building a non-functioning bridge in the middle of a field was justified on its own merits, as a stand-alone project, without regard to the development it facilitated; nor the question whether the application for permission would have been pursued in the absence of the proposed development of Phase 1 of the Masterplan.

“I reject the proposition that in a case in which the specific development for which permission has been sought clearly forms an integral part of an envisaged wider future development, without which the original development would never take place, there can only be a single “project” for the purposes of the Directive and the Regulations if the contemplated wider development has reached the stage where an application has been made or could be made for planning permission. That proposition appears to me to be antithetic to the approach taken in Rochdale and inherently illogical. The question “is this application part of a larger project?” can still be answered even if planning permission has not yet been sought for the larger project or the details of the larger project have not been finalised.”

“Insofar as the author of the Screening Opinion, and the Development Manager, decided that the “project” must be confined to the bridge because “any future contemplated development could not be [robustly] assessed at the time of the screening decision”, they fell into error by conflating two separate inquiries, namely, “what is the project?” and “what are the environmental impacts of that project?” The difficulty of carrying out any assessment of the impacts of a larger project which is lacking in detail, is a matter which is separate from and irrelevant to the question whether the application under consideration forms an integral part of that larger project.”

“The Phase 1 project may not be easy to define in detail because it is at a relatively early stage, which explains why the Screening Report refers to a “lack of definition”. That may affect the way in which the overall assessment of whether there is a significant impact on the environment is carried out – it would necessarily be based on less concrete information than an assessment at a later stage of the planning process would be. However, in my judgment it cannot affect the answer to the initial question at the screening stage, “is this application part of a larger project”? If and to the extent that TBC treated it as if it did, they fell into error.

The fact that the Planning Practice Guidance addresses the potential relevance of “other existing or approved developments” and tells local planning authorities that they should always have regard to the possible cumulative effects arising from any existing or approved development, should not be taken as restricting consideration of the impact of larger projects to “existing or approved” developments.

I accept that there was no evidence of any deliberate attempt by TBC to “salami-slice” in the present case. There were cogent justifications provided for hiving off and accelerating the application for the bridge, which had nothing to do with a wish to avoid the impacts of a full EIA assessment. But it does not follow from the fact that the application for the bridge was hived off in that way that its relationship to Phase 1 of the Masterplan, which provided the sole underlying justification for its existence, could be lawfully ignored when deciding on the identity of the “project””

“In conclusion on Ground 3, I am satisfied that TBC did not take a legally correct approach to the decision whether an EIA assessment was required. They never asked themselves the right questions. If and insofar as they justified treating the bridge as a stand-alone “project” by reference to (a) the difficulty of assessing the environmental impacts of the wider project (b) the fact that the Masterplan has no formal planning status or (c) the fact that EIA assessments will be carried out in future as and when Phase 1, or other aspects of it, become the subject of planning applications, they fell into error.”

What are the main implications of the Ashchurch case?

  • Care is needed in relation to the EIA scoping and screening process for a start, analysing the particular factual situation against this case law.
  • Clarity is needed as to whether there is any functional interdependence on other proposals – whether the proposals the subject of the planning application would be likely to proceed absent wider proposals – whether it forms an integral part of a larger project (to my mind that remains, as per Larkfleet, a high test, but it needs to be properly considered by the decision maker)
  • Caution should be exercised – in particular that those matters set out in the final passage I quote above are not relied upon as justification for arriving at a narrow project definition.

As always, this is not an “opening of the floodgates” moment. This was about a piece of infrastructure which only had one potential purpose. It was not, for instance, one parcel of development within a wider development allocation as in Wingfield.  What matters is that decision makers should arrive at a reasoned, rational, conclusion as to the extent of the project for the purposes of the EIA Regulations, rather than simply take what is given to them on a plate by way of the planning application.

I do not like sliced-salami, Sam-I-Am.

Simon Ricketts, 11 February 2023

Personal views, et cetera

Courtesy Dr Seuss

Tate Modern Viewing Platform Supreme Court Ruling: What Is There For Planners To See?

By contrast with the timeline of this case to date, the planning system zips along.

This week the Supreme Court delivered its judgment in Fearn & Others v Board of Trustees of the Tate Gallery  (Supreme Court, 1 February 2023), the most important private nuisance case in many years. I’m not hoping to analyse the reasoning of the court in relation to the law of private nuisance, but if you are interested I suggest that you start with the Supreme Court’s own press summary and then enter the blizzard of property litigation lawyers’ updates and thought pieces on LinkedIn etc. I’m only interested in what it means for the town and country planning process – if anything.

I wrote about the first instance ruling of the High Court in my 2 March 2019 blog post, Trial By Instagram: Privacy & Planning. I used to be quite lyrical:

Photo-sharing social media apps, weaponised by the smartphone camera, are changing our experience and expectations of place. Is the planning system, and the law of private nuisance, keeping up?

The London Evening Standard had a story for our times last night: Please stop ‘influencing’ on our doorsteps, Notting Hill residents tell ‘unapologetic’ Instagrammers.

At a personal level we have all become artists, influencers, curators, with our instant pics, filtered, composed, annotated. Fomo for you = dopamine for me. But zoom out and through endlessly snapping, sharing, liking and commenting, we are of course the product, the hive mind, the crowd source, working for the data mine, adding to the geo-cache, mapping ceaselessly where the sugar is in the city.

In this context, what sells a place? From outside in: a glimpse of the life style, the life, that could be yours. From inside out: unique views out onto a city. The two ugly i words: iconic, instagrammable.

Which all makes the parable of Fearn & others v The Board of Trustees of the Tate Gallery (Mann J, 11 February 2019) so perfect.

On one side, the residents of Neo Bankside, housed from floor to ceiling in glass so as to achieve spectacular views out and having paid no doubt precisely to be able to enjoy that experience.

On the other side, at its closest point 34 metres to the north of Block C of Neo Bankside, the viewing gallery on the tenth floor of the Blavatnik Building extension to Tate Modern, from which visitors also have spectacular views, including, to the south, of those residents in their transparent homes.”

And so I went on, analysing Mann J’s judgment in detail, but that analysis is now completely redundant. The Supreme Court has overturned the ruling both of Mann J and subsequent ruling of the Court of Appeal and held, by a majority of three to two that the Tate was liable in nuisance for inviting the public to look out from a viewing platform from which they can, and many do, peer into the claimants’ flats – and (the saga is far from over yet) another court will now need to grapple with the issue of what remedies (injunction/damages) may be appropriate.

However, for planners, it is still worth reading paragraphs 29 to 53 of Mann J’s first instance judgment, where he sets out in detail the planning history of the properties.

Because, for all of us engaged in the town and country planning process, the big question is whether it should be the role of the planning system to seek to prevent juxtapositions of uses like this – or is that a matter for private law (and this case is now a demonstration of the remedies available for individuals who have their private law rights infringed)?

 I agree with a post by Dentons’ Michele Vas this week, It’s official – it’s not the role of the planning system to police private rights – or is it? (2 February 2023):

Whilst this case did concern a very particular set of circumstances as to the level of invasion of privacy the Claimants were subjected to (i.e. I suspect “overlooking” alone is unlikely to be sufficient to base a private nuisance claim on) it does stress how fundamental good design in new development is to avoid future private nuisance claims.

Placemaking, understanding and respecting the integrity of neighbourhoods should be a building block to good design.  A further thought is that there is no useful “planning tool” to avoid or minimise future private nuisance claims; unlike property rights, it is not a right which can be lawfully interfered with or compulsorily acquired by relying on a local planning authority’s statutory powers.

Whilst the judgment is an incredibly welcome confirmation that the planning system is not there to police private rights, it is a reminder that design of development is at the heart to preventing these issues arising in the first place.

 I had noted down pretty much the same passages in the judgment as she identifies, namely paragraphs 109 and 110 from Lord Leggatt’s majority judgment:

Reliance on planning law

109. The second matter of policy raised by the Court of Appeal was a suggestion that planning laws and regulations would be a better medium for controlling “inappropriate overlooking” than the common law of nuisance (para 83). This seems to me to overlook (if I may use the term) the fact that, while both may sometimes be relevant, planning laws and the common law of nuisance have different functions. Unlike the common law of nuisance, the planning system does not have as its object preventing or compensating violations of private rights in the use of land. Its purpose is to control the development of land in the public interest. The objectives which a planning authority may take into account in formulating policy and in deciding whether to grant permission for building on land or for a material change of use are open-ended and include a broad range of environmental, social and economic considerations. While a planning authority is likely to consider the potential effect of a new building or use of land on the amenity value of neighbouring properties, there is no obligation to give this factor any particular weight in the assessment. Quite apart from this, as Lord Neuberger observed in Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822, para 95:

“when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.”

110. For such reasons, the Supreme Court made it clear in Lawrence that planning laws are not a substitute or alternative for the protection provided by the common law of nuisance. As Carnwath LJ said in Biffa Waste, para 46(ii), in a passage quoted with approval by Lord Neuberger in Lawrence, at para 92:

“Short of express or implied statutory authority to commit a nuisance … there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

The practical as well as legal irrelevance of planning permission in this case is apparent from the judge’s finding that no consideration was given to overlooking in the planning process for the Tate extension: [2019] Ch 369, paras 58-63.”

It is also worth noting that Lord Sales’ minority judgment does not dissent in terms of the role of the planning system:

“148. The designs for the Blavatnik Building always included a viewing gallery in some form, although its precise extent varied through successive iterations of the design. Planning policy for the South Bank encourages the construction of viewing galleries in buildings of significant height. However, there is no planning document which indicates that overlooking by the viewing gallery in the direction of Block C was considered by the local planning authority at any stage. It is not likely that the planning authority considered the extent of overlooking. Further, while the Neo Bankside developer was aware of the plans for a viewing gallery, it did not foresee the level of intrusion which resulted. In broad terms, the design and construction of the Blavatnik Building with the viewing gallery in its final form took place in parallel with the design and construction of Neo Bankside, without the effects of the one on the other so far as visual intrusion was concerned being fully appreciated or addressed.”

201. At para 81 the Court of Appeal also pointed out that overlooking is frequently a ground of objection to planning applications and noted that “any recognition that the cause of action in nuisance includes overlooking raises the prospect of claims in nuisance when such a planning objection has been rejected”. However, other forms of activity which can give rise to claims in nuisance, such as the generation of noise, smoke or smells, are also matters which may be addressed in objections to planning applications, so this does not give rise to any point of distinction. More fundamentally, as this court pointed out in Lawrence, at paras 77-95 per Lord Neuberger, the planning regime is concerned with issues of the public interest, not with resolving questions of individual rights. So it is not surprising, and is not a matter of particular concern, that a cause of action in nuisance may be found to exist in a case where an objection to the grant of planning permission founded on similar matters has been rejected. A grant of planning permission pursuant to the administrative processes under the planning regime cannot remove private rights which neighbouring landowners may have. See also Hunter, p 710D, per Lord Hoffmann and Lawrence, paras 156 (Lord Sumption), 165 (Lord Mance) and 193 (Lord Carnwath).”

This must all surely be right. The right approach to the determination of any application for planning permission is whether the proposal is in accordance with the provisions of the local plan unless material considerations indicate otherwise. There may often be policies which seek to protect existing residential amenity (although when I look for instance at the current Southwark local plan, postdating these proposals, I see no specific references to protection of existing residents’ privacy or to avoiding overlooking). Even without local policy support, aspect of a development proposal which may adversely affect neighbours are certainly capable of being a material consideration in the determination of an application for planning permission, but as always it is for the decision-maker to decide how much weight to apply to those considerations.

I don’t believe that the judgment increases the onus on local planning authorities to consider privacy/overlooking considerations: planning decisions can only go so far and private law remedies are the ultimate safety net. And of course the circumstances of the Tate Modern case, by virtue of the unusual nature of the viewing platform and the extent of its use, should not be applied too widely. However, one would hope that the Government’s increased emphasis on design in the planning process may reduce the risks of these sorts of unanticipated juxtapositions in the future. It will be interesting to see the Government’s proposed National Development Management Policies in due course…

Simon Ricketts, 4 February 2023

Personal views, et cetera

Photograph by Jay Mullins courtesy of Unsplash

Thank You Mikael Armstrong: New Case On Scope Of Section 73

Thank you also to my Town Legal partner Patrick Robinson who spotted this hand-down yesterday from the Planning Court: Armstrong v Secretary of State (Deputy High Court Judge James Strachan KC, 27 January 2023). 

Who is Mr Armstrong? Well Mr Armstrong had the benefit of a planning permission for the erection of a new dwelling in Cornwall with the wonderful address of The Beach House, Finnygook Lane, Portwrinkle. The planning permission dated back to 2007 but had been kept alive by way of minor implementation works. 

A house had previously stood on the site. This photograph from the application documentation on Cornwall Council’s planning portal gives a sense of its dramatic location:

Mr Armstrong made an application under section 73 of the Town and Country Planning Act 1990 to vary the approved scheme, by way of amendment of a condition which listed the approved drawings (a condition which had been added by way of section 96A, to enable use of section 73 – the now familiar approach following Finney (if any non planners or planning lawyers are still reading, you must think we are all mad)). 

The application was refused by Cornwall Council, with one reason for refusal:

The proposed development seeks to change the design of the dwelling approved via, E2/06/01798/FUL, from an irregularly-shaped boldly modernist dwelling to a dual-pitched alpine lodge style dwelling. The application site occupies a highly prominent and sensitive coastal plot. The proposed revised design completely alters the nature of the development and would result in a development that would differ materially from the approved permission. As a result this proposal goes beyond the scope of Section 73 of the Town and Country Planning Act 1990 and is contrary to guidance within the National Planning Practice Guidance, specifically paragraph 001 Reference ID: 17a- 001-20140306.”

There are these images of the approved and proposed schemes, courtesy of Cornwall Council’s planning portal:

(Whilst not relevant to the legal issues, I note that the proposed revisions to the scheme would cause it more closely to resemble the dwelling that had previously been on the site). 

Mr Armstrong appealed. His appeal statement made these (entirely correct) points:

a. although an application under section 73 of the 1990 Act is sometimes referred to as an application to make a “minor material amendment”, the terms of section 73 of the 1990 Act are not limited in that way and place no restriction on the magnitude of the changes that can be sought;

b. reference had been made by the Courts in the consideration of section 73 of the 1990 Act to not permitting amendments which amount to a fundamental alteration to the terms of a planning consent, but there was nothing of a fundamental nature such as scale, size, massing or footprint and positioning on the Site which would result in any significant change;

c. section 73 applications still receive the same amount of scrutiny as a full planning application and the process does not prejudice the ability for relevant parties to make representations”.

The appeal was determined by way of written representations. The inspector determined the main issue to be: “whether the proposal could be considered as a minor material amendment under section 73 of the TCPA 1990“.

(Alarm bells already…)

The inspector’s analysis includes the following passages:

The original planning permission was for a bespoke dwelling in a contemporary architectural style, with the external materials being natural stone and cedar cladding. The approved plans show a multi-faceted building, with an organic form, including curved walls and sedum-covered roofs. By contrast, the proposed plans submitted with the section 73 application show a dwelling with a simple rectilinear form, rendered walls and a pitched slate roof. Consequently, although it is similarly sited, and has a comparable floorspace and volume, it is fundamentally different in its design, bearing virtually no resemblance to the approved building. The modifications are, therefore, substantial.

The appellant contends that the term “minor material amendment” infers that material changes are allowable under a section 73 application. However, the word “minor” qualifies the extent to which material changes should be considered via this route. In this case, the wholesale redesign of the house results in a development that would be of a substantially different nature than the one originally approved. In these circumstances, the PPG advises that a new planning application is necessary

He dismissed the appeal. 

Thankfully, Mr Armstrong didn’t give up on the entire pettyfogging planning system at that point but, as a litigant in person, challenged the decision in the High Court. 

And, as was only right in the face of this sort of reasoning from the inspector, he won! And in so doing, has provided further judicial authority for what planning lawyers end up saying again and again – the limits of section 73 are not confined by the question of whether there would be a minor material amendment to the approved scheme, but whether there would be a fundamental variation to the approved scheme (as that is the test previously set down in Arrowcroft and subsequent cases).

Deputy High Court Judge James Strachan KC’s gave no fewer than eight reasons why the inspector’s decision was unlawful:

First, I consider the correct starting point must be the words of section 73 of the TCPA 1990 itself. As the Defendant accepts, there is nothing in section 73, or in the TCPA 1990, that limits its application to “minor material amendments”, or to amendments which do not involve a “substantial” or “fundamental” variation. On the face of the words used, s.73 applies to any application for planning permission for development of land “without complying with conditions subject to which a previous planning permission was granted” (see s.73(1)). It limits the local planning authority’s consideration to the “question of conditions subject to which planning permission should be granted (see s.73(2)). There are other limitations as to its scope such as those in ss73(4) and (5), but they are not engaged here. There is nothing in the language used that restricts an application to vary or remove a condition to “minor material amendments”, or to what a decision-maker considers to be a “non-fundamental variation”. I accept that the absence of such a limitation on the face of the statute does not automatically mean that such limitations cannot arise as a matter of statutory interpretation, in accordance with well-established principles requiring one to consider the meaning of a statute and its statutory purpose. However it is an important starting point that, on the face of the statute, provided the application is limited to non-compliance with a condition (rather than any other part of the permission) it falls within the stated scope of s.73 of the TCPA 1990.

Second, as now properly understood in light of Finney, the requirement that a s.73 application be confined to applications for non-compliance with a condition is significantly restrictive in and of itself. There is no obvious need, justification or statutory purpose for reading in additional restrictions which are not expressed on the face of the statute. Finney confirms that section 73 cannot be used to vary the operative part of a planning permission. It is a section concerned with non-compliance with condition, rather than the operative part of a permission. One therefore cannot use s.73 to vary or impose a condition where the resulting condition would be inherently inconsistent with the operative part of the planning permission; that would also involve effective variation of the operative part of the planning permission as well. That point was exposed clearly in Finney where the resulting varied condition caused the Inspector to omit the conflicting words in the description of development in her decision. The power under s.73 is therefore a limited one (as briefly observed in Hillside). But in such circumstances, it is difficult to see why it is necessary to introduce or read in further limits on its scope which are not otherwise expressed in the section itself. If, as accepted to be the case here, an application for non-compliance with a condition does not lead to any conflict or inconsistency with the operative part of the permission, it is difficult to see why it is objectionable in light of the statutory purpose of section 73 and the TCPA 1990 itself.

Third, section 73 is clearly intended to be a provision which enables a developer to make a section 73 application to remove or vary a condition, provided of course that the application does not conflict with the operative part of the planning permission. Any such variation application will be subject to the necessary procedural requirements for its consideration which, for example, enable representations to be received. If Parliament had intended the power to restrict its application further (for example to limit it to “minor material” amendments to a condition, or non-fundamental variations to a condition) one would have expected that to be expressed in the language used and it could readily have done so.

Fourth, and linked to the preceding point, the wording of section 96A of the 1990 Act is informative as part of the statutory context. Unlike section 73 which limits its application to conditions, section 96A was introduced as a power to amend a planning permission generally (including the operative part of the permission). But in introducing that power that is applicable to any part of a permission, Parliament expressly constrained its scope to “non-material amendments”. By contrast, no such limitation has been imposed on the scope of s.73 where it is applicable, but with the fundamental difference that s.73 is confined in scope to applications for non-compliance with conditions (rather than non-compliance with the operative part of a permission). From the perspective of statutory interpretation taking account of the statutory context, this is yet a further indication that if Parliament had wished to limit the power under s.73 to “minor material amendments” or so prevent “fundamental variations” to conditions, it would have done so expressly.

Fifth, the effect of giving the words used in s.73 their plain and ordinary meaning so as to allow an application to be made for non-compliance with any planning condition which is not in conflict with the operative part of permission does not, of course, dictate the outcome of that application. It simply means that the application can be entertained. Any such application would then fall to be determined on its planning merits. In this case, for example, the Inspector considered there to be a fundamental difference in the proposed aesthetics of the design shown in the drawings identified in Condition 10 and the proposed plans. That may well be the inevitable result of an application made under s.73. But provided there is no inherent conflict or inconsistency with the “operative part” of the planning permission – in this case the construction of a single dwelling – the planning merits of that proposed change can be assessed on its merits. No such assessment has occurred. As part of that assessment, the decision-maker will be able to consider whether the proposed change (fundamental or otherwise) is acceptable or not in planning terms, taking account of any representations received.

In this respect, I recognise that in Finney, arguments as to the ability to consider the merits of s.73 application in this way (with attendant publicity) was not seen as a factor justifying giving s.73 the more expanded interpretation that the developer and Welsh Ministers had advocated in that case. There is an important difference. There, such arguments were advanced to try and justify giving s.73 a more extended interpretation than its words supported so as to permit effective changes to the operative part of a planning permission. Here, the situation is reversed. The ability to consider the merits of any change to a condition that falls within the ordinary and natural scope of the language used in s.73 points away from the need to read in additional restrictions to the scope of the statutory provision.

Sixth, I do not consider that any of the caselaw materially supports the Defendant’s attempt to restricting the scope of s.73 to “minor material amendments” or non-fundamental variations where there is no conflict with the operative part of the permission. To the contrary, it is more consistent with giving the words of s.73 their plain and ordinary meaning.


Seventh, if I am wrong and section 73 is implicitly qualified so as to preclude applications which do not involve any conflict with the operative part of a permission, but do involve what the decision maker considered to be a fundamental variation, I am not convinced that the Inspector has properly addressed the question of what would constitute a fundamental variation in this context.

Eighth, even if a test of fundamental variation is a lawful one to apply, I am not persuaded that the Inspector applied such a test in this case. In my judgment there is more than sufficient doubt about that to justify quashing the decision on the basis that he misdirected himself by reference to the PPG and its concept of “minor material amendments”.”

The inspector’s decision letter was quashed and the appeal will now be redetermined. Stick with it, Mr Armstrong. 

NB For further background on the procedures available for amending schemes, see my 14 January 2023 blog post Greater Flexibility For Planning Permissions (Now I’m Just Showing My Age).

Simon Ricketts, 28 January 2023

Personal views, et cetera

Mission Zero Needs Planning

I think I can point to something good that came out of Liz Truss’s premiership.

On 26 September 2022 she appointed former energy minister Chris Skidmore MP to carry out an “Independent review of net zero delivery by 2050 aims to ensure delivery of legally-binding climate goals are pro-growth and pro-business” and to “scrutinise green transition to make sure investment continues to boost economic growth and create jobs as well as increase energy security”.

Some of us may have feared the worst as to what lay behind this. Was the intention to back-end progress on the net zero by 2050 target?

The final report, Mission Zero: Independent Review of Net Zero, was published on 13 January 2023. I’m no expert but it seems to me – and to many better-informed commentators (although some of course express disappointment that the recommendations could be more radical) – to be a remarkably thorough and practical piece of work – running to 340 pages of waffle-free analysis and recommendations, with (such is the modern way of these things):

  • 7 conclusions
  • 10 priority missions
  • 6 pillars
  • A “25 by 2025” set of recommendations

It only needed a golden thread and … bingo!

There is this good House of Lords library summary published on 20 January 2023 ahead of a short debate on the document that is due to take place on 26 January 2023.

Actually, if one looks more closely, there is a golden thread to the report: the need for urgent reform of the planning system so as to make the path to decarbonisation smoother and faster.

From the paragraph 12 of the executive summary:

We have made great progress decarbonising already with success stories in offshore wind and electric vehicles and it is essential we continue these. However, too often, we heard of problems hampering business and local areas from going as far and as fast as they want to. Whether it is lack of policy clarity, capital waiting for investible propositions, infrastructure bottlenecks, or delays in the planning system, it is clear that we need action to catalyse the deployment of clean solutions, particularly if we want British companies to capture the economic benefits.”

See priority mission 7: ““unblocking the planning system and reforming the relationship between central and local government to give local authorities and communities the power they need to act on net zero”.

From pillar 4, “Net Zero and the Community”:

There is plenty of regional, local and community will to act on net zero, but too often government gets in the way. The UK government must provide central leadership on net zero, but it must also empower people and places to deliver. Place-based action on net zero will not only lead to more local support but can deliver better economic outcomes as well.

Key recommendations

1. Government should simplify the net zero funding landscape by the next Spending Review

2. Government should fully back at least one Trailblazer Net Zero City, Local Authority and Community, with the aim for these places to reach net zero by 2030

3. Government should reform local planning and the National Planning Policy Framework now

See recommended action 21 in the “25 by 2025” list:

Local and regional Reform the local planning system and the National Planning Policy Framework now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits.”

See also commentary like this:

Planning system presents major barrier to net zero action. View of system on net zero is unclear and does not give sufficient weight to net zero as a national priority. Often slow and difficult to navigate, especially for individuals and communities.

Central government should reform the local planning system and the NPPF now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits. Government should undertake a rapid review of the bottlenecks for net zero and energy efficiency projects in the planning system, and ensure that local planning authorities are properly resourced to deliver faster turnaround times

817. While the National Planning Policy Framework (NPPF) references climate change, it does not reference net zero specifically and the Review heard that the vision of the planning system on net zero is not clear. Too often there are conflicting or unclear messages, with important points relegated to footnotes.

818. The planning system should be an essential tool in delivering the changes needed for net zero. A system that appears ambivalent to net zero will not be capable of delivering the scale of change required.

819. The planning system should move towards implementing a test for all developments to be net zero compliant, ensuring enough lead-in time to prevent adverse economic consequences or stalling of current development plans. Across the economy the cost of building to net zero standards and using net zero technologies is coming down. Providing clarity and certainty on net zero requirements in the planning system could help drive further action and build supply chains, making net zero development the norm.

Planning can be a driving force for not only net zero but for growth as well, helping to unlock opportunities across the country […] The reputation of planning in the UK would only be furthered if it were given the ability and position to be a key driving force for net zero. Our own research suggests that planning brings in millions to the UK and has the potential to have a much larger impact if the passion and expertise of our consultancies both large and small were showcased as one of our key exports” – the Royal Town Planning Institute.

820. There is also confusion over whether, where and how local authorities can exceed national standards on planning. The litigious nature of the planning system means local authorities are often unwilling to take risks, and so the system effectively puts a ceiling on local ambition.

821. For example, the Review heard from several stakeholders about the difficulty faced by West Oxfordshire District Council in their plans for the Salt Cross Garden Village.568 The Council had proposed that development at Salt Cross would be required to demonstrate net zero carbon, with submission of a validated and monitored energy strategy. However, in May 2022 the Planning Inspectorate provisionally found that such a policy was not ‘consistent with national policy or justified’ and the plan was modified as a result. This is a clear example of the planning system being unclear in its support for net zero.

“Local authorities are wary of the threat of legal challenge, this means to make confident use of their powers, they have to undertake rigorous legal checks, which slows delivery, adds expense and makes some of them risk averse” – Climate Change Committee (CCC).

822. Similarly, some local authorities felt that planning requirements on viability presented a hindrance to net zero development. These local authorities felt that some developers use viability requirements to reject proposed net zero improvements. These local authorities suggested that such viability considerations should be reformed or scrapped, and that net zero should be a fundamental consideration when determining the viability of a project. Current guidance states that viability assessments “should not compromise sustainable development.” This language should be strengthened to ensure that viability assessments actively encourage sustainable and net zero developments, and that assessments take a longer-term approach to determining what is viable.

823. Reforms to the planning system should therefore make it clear when local authorities can exceed standards and provide guidance on how local areas could go further should they wish to.”

(and there is more, through to paragraph 836 in the document, but you get the picture).

So how joined-up is this with current proposals to reform the planning system?

Of course, changes are proposed to the climate change section of the NPPF (part of chapter 14), although they are relatively limited.

Changes are proposed to speed-up NSIPs.

There are the proposals identified in chapter 7 of the  Government’s consultation paper on proposed reforms to the planning system.

In summing up on behalf of the Government at the end of the House of Lords second reading debate on the Levelling-up and Regeneration Bill on 17 January 2023 Baroness Scott said this on climate change:

The Government recognise the challenge of climate change. It is critical that the planning system must address this effectively. Through the Climate Change Act 2008 the Government have committed to reduce emissions by at least 100% of 1990 levels by 2050 and to produce national adaptation programmes every five years that respond to economy-wide climate change risk assessments. The Bill sets out that local plans “must be designed to secure that the development and use of land in”— the local planning authority area — “contribute to the mitigation of, and adaptation to, climate change.”

Our new outcomes-based approach to environmental assessment will ensure that the ambitions of the Environment Act and the 25-year environment plan are reflected in the planning process, placing the Government’s environmental commitments at the centre of decision-making.

The National Planning Policy Framework is already clear that plans should take a proactive approach to mitigating and adapting to climate change, taking into account the long-term implications for flood risk, coastal change, water supply, biodiversity and landscapes, and the risk of overheating from rising temperatures, in line with the objectives and provisions of the Climate Change Act 2008. The National Planning Policy Framework must be taken into account in preparing the development plan and is a material consideration in planning decisions. This includes the framework’s current policies related to climate change mitigation and adaptation. Furthermore, as committed to in the net-zero strategy, we will carry out a full review of the National Planning Policy Framework to ensure it contributes to climate change mitigation and adaptation as fully as possible. This will be consulted on as part of wider changes to the National Planning Policy Framework to support the ambitions in the Levelling-up and Regeneration Bill.”

Does this go far enough? Chris Skidmore’s report is a useful reminder of the importance of a properly functioning, resourced and managed planning system and I hope he has a hand in shaping the current reforms.

Simon Ricketts, 21 January 2023

Personal views, et cetera

Greater Flexibility For Planning Permissions (Now I’m Just Showing My Age)

Such a lot of hyperbolic talk and not enough doing.

The Conservatives’ Open Source Planning 2009 manifesto document started with this passage:

The planning system is vital for a strong economy, for an attractive and sustainable environment, and for a successful economy. At present, the planning system in England achieves none of these goals. It is broken”.

And then Boris Johnson in the foreword to Planning for the Future (August 2020):

“…we approach the second decade of the 21st century [the incredible potential of this country] is being artificially constrained by a relic from the middle of the 20th – our outdated and ineffective planning system.”

Well fix it, dear Henry, dear Henry, as the old song went. But, of course, it wasn’t broken in 2009 and it – just about – wasn’t outdated or ineffective in 2020. In 2023? I’m not so sure.

Given that the Government is currently refusing to accept there is an NHS crisis, I wonder if it would still accept that there is a housing crisis? Is it concerned by the number of local authorities deciding to pause or abandon preparation of their local plans? I’m genuinely unsure.

But let’s ignore for the moment the political direction in which this old vehicle should be headed and look instead at how the engine is working – can it actually deliver us to wherever it is we want to go?

Instead, let’s just focus on development management for a moment. In what should be a straightforward matter of processing, in accordance with statutory timescales, planning applications so as hold firm against the unacceptable and to approve the rest without delay , in form that that can lead to development taking place, and the public benefits which flow from that, there are currently at least two really horrible feedback loops, or vicious circles, that are holding back even the best projects:

  • Under-resourced planning departments, precautionary in nature, burdened with being the custodians of so many different policy objectives (climate change, health, building safety, beauty, air quality – you name it), take increasingly longer to process applications and their members’ decision-making is increasingly unpredictable (heads turned by lobby groups and hints from Government as to changing approaches). This leads to more applicants deciding to appeal so as to achieve a certain timescale and objective consideration of the issues. This places more work on officers, slowing down consideration of other applications. Which then also end up at appeal. And the slower the application and appeal process, the more likely that new issues arise, sending the applicant back to an earlier stage in the process again.
  • The demands on an applicant to tie down elements of a project at too early a stage, together with short implementation timescales and uncertain processes for processing scheme changes, lead to much unnecessary activity both in (a) keeping planning permissions alive with relatively minor works so that a permission that has taken years and a huge amount of money to achieve is not prematurely lost before the development is in a position to proceed and in (b) using clunky work-arounds – various combinations of section 96A, section 73 and/or drop-in applications – in order to refine proposals so that the permission is for a development which can actually be built. The longer the process for securing planning permission in the first place, the more likely that the resultant planning permission will need to be varied. The more certainty that the authority seeks to achieve with tightly drawn development parameters and a long list of planning conditions, the more likely that changes will be required.

I suspect that the Government is unaware of the true extent of the issue. I was looking at the latest statistics from December 2022. 86% of major applications last year were apparently determined “within 13 weeks or agreed time limit”. “or agreed time limit” is the clue, with time extensions routinely agreed so as to safeguard against premature refusal. Can anyone find where in the tables one might find how long an application for planning permission takes on average, from submission (usually after a lengthy and expensive pre-app process) to completion of section 106 agreement?

Another awkward reality to introduce at this point: projects need to be viable in order to proceed. Private sector development will not take place unless, broadly speaking, (1) the land owner will be paid by the developer an amount sufficiently above existing use value to make it make it worth his or her while to sell, and above what the land may be worth for any other development which could be carried out on the land (2) the developer can achieve a profit which makes undertaking the development commercially worthwhile, having regard to the financial risks inherent in the project, and can be sufficiently confident that there will be a market for the end product and (3) the capital deployed can achieve a better return than if it were to be deployed elsewhere. At present, with construction cost inflation, increased political risks, uncertainties as to the economy, is it any wonder when development is stalled; when development projects which may previously have been viable no longer make any financial sense on the terms negotiated, or when scheme changes are needed to reflect changing commercial (or indeed Building Regulations) requirements? I focus on private sector development given how reliant as a country we are on the private sector to deliver housing in particular, but of course most of the same economic realities apply, or should apply, to development carried out by the public sector.

None of this appears to be recognised in current Government announcements. Far from it. Instead, the rhetoric is to double down on developers who do not build out quickly, in genuflection to the myth of land-banking – with the Levelling-up and Regeneration Bill’s provisions about development commencement notices, changes to the completion notices regime and even a power for local planning authorities to decline to determine applications in cases of earlier implementation. As if these measures were ever going to force a developer to build out a permission for a scheme where the funding wasn’t yet in place, where there was not yet a ready market or where the project was no longer viable! Instead, these measures will simply discourage many from entering the process in the first place, rather than risk abortive expenditure, even if the odds are that the scheme will go ahead. Why take the additional risk?

To people like me, the 2007 – 2008 global financial crisis seems like yesterday. Development almost came to a halt. Whilst it seemed too slow at the time, the then Government responded with measures that were summarised in its guidance document, Greater Flexibility For Planning Permissions, published first in 23 November 2009 and revised  1 October 2010). Look at the 2009 impact assessment:

In current economic circumstances, there is a reduced take-up of existing permissions. Where permissions lapse, there are costs and delays associated with providing and processing an application for a fresh planning permission.

There is also a broader need for added flexibility to allow developers and local planning authorities to make non-material amendments to existing planning permissions and to clarify and streamline the process for making minor material amendments. There is currently a lack of clarity about what can be done, which is resulting in unnecessary expense and time for both parties.

The guidance:

  • set out the temporary arrangements that had been brought in to extend the life of planning permissions. “This measure has been introduced in order 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.
  • explained about the then new section 96A process for non-material amendments to planning permissions, introduced on 1 October 2009 pursuant to the Planning Act 2008.

The guidance was withdrawn on 7 March 2014 and replaced with the Flexible options for planning permissions section of what was then the new Planning Practice Guidance. In the transition, somehow the policy thrust of the earlier guidance was lost – the notion that flexibility can be a good or even necessary thing.

If you recall, the coalition Government subsequently introduced by way of the Growth and Infrastructure Act 2013 new sections 106BA, BB and BC into the Town and Country Planning Act 1990, providing a new application and appeal procedure, to review affordable housing obligations on the grounds of viability. Whilst helpful in some situations, it was certainly abused in others, and it was then repealed in 2016.

More recently of course, during the pandemic there were temporary measures to allow for the extension of time limits on planning permissions.

The Levelling-up and Regeneration Bill has its second reading in the House of Lords on 17 January 2023 and, when it comes to greater flexibility for planning permissions, clause 102 (introducing new Section 73B into the Town and Country Planning Act) remains as a small step in the right direction. Section 73 will continue to exist but section 73B provides for an alternative procedure for amending schemes, given that as a result of the Court of Appeal’s ruling in Finney, section 73 cannot be used for amending the description of development on a planning permission. Section 73B will allow for an application to be made for planning permission to be granted for an amended form of a previous planning permission. Planning permission will only be able to be granted “if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission”. It will not be able to be applied for in relation to a section 73 permission. The local planning authority “must limit its consideration to those respects in which the permission would, if granted…differ in effect from…the existing permission”.

My worry with section 73B is that unless there is really encouraging guidance from DLUHC, local planning authorities will be cautious as to the “not substantially different” test. After all, where does it rest on the spectrum between “non-material amendment” and “fundamental alteration”?

It seems to be that we will now have the following procedural options:

  • Section 96A for non-material amendments
  • Section 73 for amendments which may be material but which are not a fundamental alteration to the approved scheme and which do not necessitate a change to the description of development on the face of the original planning permission.
  • Section 73B for amendments which do not approve development whose effect will be substantially different from that of the existing planning permission
  • A fresh application for planning permission (encompassing also the Supreme Court’s suggested solution given in paragraph 74 of  its Hillside judgment: “Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications”)
  • In a case where the existing planning permission is, in the words of the Supreme Court in Hillside, “severable”, our old friend the “drop-in permission”. Unmentioned in Hillside, not to be found in legislation or guidance but still in my view clearly possible in the right situation.

Wouldn’t it be useful for DLUHC to publish a document now with the can-do tone of Greater Flexibility for Planning Permissions, recognising the obstacles in the way of achieving timely development, and encouraging local planning authorities to use these procedural tools available to them where necessary, so as not to delay or frustrate development, with suggestions as to how the appropriate tests should be approached? At present the whole thing is a lottery, dependent on the particular views of individual planning departments and even individual officers.

And wouldn’t it be useful if, instead of the hyperbole, there could be an honest look at the real stresses and strains the current system is under and if there could be a tightening of processes in the same way as Rosewell achieved for the planning appeals system? And above all, if planning departments could have available to them sufficient staff: well-trained, well-managed and well-motivated?

And now the prospect of strikes at the Planning Inspectorate. An interesting year ahead, folks.

Simon Ricketts, 14 January 2023

Personal views, et cetera