A Change Is Gonna Come (But Should It Really Need A Fresh Planning Permission?)

All change on Monday, with sight of the draft revised NPPF, but this blog post focuses on a more fundamental issue: how unnecessarily hard it can be to make changes to a scheme that has planning permission without having to go back to the very beginning again.
Why do schemes change post-permission in the first place? It’s unsurprising when you consider:
– the time that it takes to obtain planning permission for a large project, during which market demand or other circumstances may have changed;
– the extent to which relatively detailed parameters need to be fixed at such an early stage even for an outline application;

– the opportunities that often arise to increase densities or make other improvements once a house-builder or end-user takes over the reins from the initial applicant (for the avoidance of doubt strategic land promoters are a good and necessary thing – often no-one else is going to fulfil that upfront, high risk/high cost, role at the outset of long-term projects beyond a certain scale). 

These scheme changes are often to be welcomed and yet sometimes it seems as if the planning system conspires to prevent them. See Philip Barnes’ blog post ‘A simple way of increasing housing delivery‘ (11 January 2017) for an excellent articulation of the practical frustrations from a house-builder’s perspective. 
Of course there are two mechanisms available:
– section 73 of the Town and Country Planning Act 1990 enables “applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.”
– section 96A of the 1990 Act enables a local planning authority to approve a “change to any planning permission relating to land in their area if they are satisfied that the change is not material.”

But there are limitations to both procedures, some in the legislation itself (for instance section 73 applications cannot be used to extend the life of a planning permission and section 96A applications can only be made “by or on behalf of a person with an interest in the land to which the planning permission relates“), some by way of case law and some (the most problematic, because so uncertain) by reason of the breadth of discretion that local planning authorities have in determining whether the particular changes sought fall within the ambit of either procedure – not assisted at all by vague and unnecessarily restrictive advice in the current Planning Practice Guidance. 
The detailed position is set out in Town partner Clare Fielding’s 2015 paper to the Oxford Joint Planning Law Conference From concept to construction: the law and practice of amending planning permissions. It is disappointing that we are still in as uncertain a place as we were then. 

The main problem is the lack of any firm rules as to the extent of changes to a planning permission which can be secured under section 73. The leading case remains Coventry City Council ex p Arrowcroft Group plc (Sullivan J, 21 July 2000), where there is the often quoted passage from Sullivan J:
“It is true that the outcome of a successful application under section 73 is a fresh planning permission, but in deciding whether or not to grant that fresh planning permission the local authority ‘… shall consider only the question of the conditions subject to which planning permission should be granted’…Thus the Council is able to impose different conditions upon a new planning permission, but only if they are conditions which the Council could lawfully have imposed upon the original planning permission in the sense that they do not amount to a fundamental alteration of the proposal put forward in the original application.” 
So the guiding principle is what is a “fundamental” alteration? “Fundamental” is a big thing as far as lawyers are concerned – think from the law of contract the principles of “fundamental mistake”, “fundamental breach” and “fundamental lack of consideration – it’s not just millennial adjective-inflation along the lines of fabulous, awesome and great!
And yet successive Governments have since 2009 described the procedure as the making of “minor material amendments” (hence for those of us in the trade the inevitable acronym of “MMA” for section 73 applications – lose that please folks!). The current Planning Practice Guidance says this:
There is no statutory definition of a ‘minor material amendment’ but it is likely to include any amendment where its scale and/or nature results in a development which is not substantially different from the one which has been approved.”
The roots of this are in the (now cancelled) document published first in 2009 and then updated in 2010, Greater Flexibility For Planning Permissions – a proportionate and timely response at the time to the financial crisis and its implications for house building and economic development more generally. Aside from re-introducing for a temporary period the ability to extend the duration of planning permissions, the document gave guidance on the use of the then new section 96A procedure for non-material amendments (introduced by the Planning Act 2008) and sought to “streamline and clarify” the section 73 procedure in the light of the Killian-Pretty review which had recommended that “the Government should take steps to allow a more proportionate approach to minor material changes in development proposals after permission has been granted” and some further work carried out by WYG, in which WYG had come up with that problematic wording:
A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved
The purpose of the guidance and the thrust of the Killian-Pretty and WYG work was not in any way to cut back on the use of section 73 but, by incorporating in guidance those references to “minor material amendment” and “not substantially different” the Government introduced confusion. “Minor material amendment” may be a handy phrase but a more accurate one, reflecting the law, would be:
less than fundamental amendment, whether material or not“. 
As a result of the confusion we have a patchwork situation where many authorities have been comfortable approving significant changes by way of section 73 (for instance Barnet Council at Brent Cross Cricklewood) but others have been running scared or seeking legal advice which is ultimately of little assistance – the authority must consider whether the changes are a “fundamental alteration of the proposal put forward in the original application”. That is a matter of planning judgment, albeit in my view “fundamental” means “fundamental”!
There has been surprisingly little case law, although two cases from last year are helpful:
R (Vue Entertainment Limited) v City of York Council (Collins J, 18 January 2017) where the court upheld a section 73 permission relation to a mixed use development, where the changes to the permitted scheme included increasing the size of a proposed cinema from 12 screens with a capacity of 2,000 people to 13 screens with a capacity of 2,400. 
– R (Wet Finishing Works Limited) v Taunton Deane Borough Council (Singh J, 20 July 2017) is also interesting – not just because a challenge to a approved change from 84 to 90 dwellings failed (how could that have been fundamental in anyone’s mind?) but because the 84 dwellings figure was included in the approved description of development and that was still not a bar on the change being approved via section 73. An area of repeated debate is whether a section 73 permission can achieve amendments to conditions which are inconsistent with the approved description of development and often a section 96A application is made to amend the description of development, replacing any reference in the description to numbers of, for instance, dwellings, with a condition to the same effect, so that that condition can then be amended by section 73. You begin to see the unnecessary bureaucracy, legalism (caused by fear of judicial review) and scope for uncertainty. 
So why not simply make a fresh application for planning permission rather than seeking to proceed under section 73? 
First and most importantly, inevitably there is less risk of being drawn back into a prolonged consideration of the merits of the proposal itself. This is of course another area that is not black and white. Whilst section 73(2) states that “[o]n such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted“, inevitably if policies have changed since the existing permission was approved the decision maker may seek to use the section 73 application as a means of applying them, asserting that the section 73 permission should only be granted with those additional or tightened conditions or obligations.
Secondly, rather than starting afresh with another full set of application documentation, it is likely to be acceptable simply to supplement the existing material where necessary, reducing significantly the scale of the application package for all concerned. Where the existing permission was supported by a viability appraisal that process will need to be updated (in London there is guidance on this in the affordable housing and viability SPG and policy H6 paragraphs G to J of the draft London Plan). A deed of variation to the existing section 106 agreement is more likely to be accepted, rather than requiring a fresh section 106 agreement. 
Thirdly, a section 73 application may be the only way of avoiding being hit for CIL on top of existing section 106 obligations which were intended to contribute to the same infrastructure requirements, where the local planning authority has adopted a CIL charging schedule since the original planning permission was issued. 
Fourthly, a flat £234 application fee rather than a fee of up to £150,000 for an application for outline planning permission. Maybe that £234 figure is too light, particularly where more than one condition will be changing from the original permission, but there is no basis on an amended scheme for paying the same fee as first time round. 
Of course, care is needed by the authority in drafting the section 73 permission (see my 14 October 2017 blog post Flawed Drafting: Interpreting Planning Permissions).

Why are there also arguments, in the context of section 96A, as to whether amendments are “material” or not? Well, section 96A is an extremely useful procedure, in that there a 28 day determination timescale (rather than the normal application timescale that applies for section 73 applications), there are no consultation requirements and it does not result in a fresh planning permission, meaning that there is no need to vary the existing section 106 agreement. Of course, again what is material (ie material in planning terms) is for the local planning authority to determine and as long as its determination on the issue is reasoned, any potential challenger to an approval faces an uphill struggle. Conversely, the applicant has no right of appeal to the Secretary of State. The authority is in a position, of (to be cynical) much power or (to be more realistic) being unclear as to what approach it should take – which again is a reason to consider whether clearer, more positive, guidance in the PPG is required rather than this:
There is no statutory definition of ‘non-material’. This is because it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another.”
In unveiling the draft revised NPPF (and potentially draft revised PPG alongside it) on Monday, will the prime minister take the opportunity to clarify for us that “non-material” means “non-material” and that “fundamental” does indeed mean “fundamental”? Probably not, she will focus on grander matters I’m sure, but the section 96A and section 73 procedures are two of the dull, forgotten but necessary, nuts and bolts of the process that have the most tendency to jam. Jam today, no homes tomorrow. 
Simon Ricketts, 3 March 2018
Personal views, et cetera

Through A Glass Darkly: To BRE Or Not To BRE

How to determine whether the impact from a proposed development on the daylight and sunlight enjoyed by neighbours, or to be enjoyed by future occupiers of the scheme, is appropriate? That is the question. 
The problems are multi-layered:
– There is no practical guidance in the NPPF or NPPG as the approach to be taken.
– Many local planning authorities default in their policies to requiring compliance with a guide to good practice published by the Building Research Establishment in 2011: “site layout planning for daylight and sunlight: a guide to good practice” (BR 209) by Paul Littlefair (a document incidentally not freely available but available for purchase from the BRE for £55). 

– The document has various numerical criteria and calculations to determine acceptability. Whilst the need for flexibility in application is acknowledged in the document itself (“Although it gives numerical guidelines, these should be interpreted flexibly because natural lighting is only one of many factors in site layout design“) in practice this is often overlooked. 

– The document has not been updated to reflect changes in our understanding of what makes great places or indeed nuanced to reflect the very different expectations of those living in urban environments, and London in particular. 
The Government signalled in its February 2017 housing white paper that a new approach may be needed: “the Government intends to amend national planning guidance to highlight planning approaches that can be used to help support higher densities, and to set out ways in which daylight considerations can be addressed in a pragmatic way that does not inhibit dense, high- quality development.”
I will be disappointed if we do not see this in the draft revised NPPF (likely to be published on 5 March). 
Disappointingly, the Mayor of London has omitted specific guidance from the draft London Plan (2 March representations deadline looming). The opportunity has been missed to stress the need for flexibility and appreciation of context. Given the loss of the previous density matrices, daylighting and sunlighting issues will continue to be relied upon by objectors seeking to resist higher density schemes, which are inevitable if the housing targets in the plan are to be achieved. 
Against this context it is fascinating to read the inspector’s decision letter dated 21 February 2018 allowing an appeal by Londonewcastle for their Whitechapel Estate development, which comprises “demolition of all existing buildings and redevelopment to provide 12 buildings ranging from ground plus 2-23 storeys (a maximum 94m AOD height), comprising 343 residential dwellings (Class C3), 168 specialist accommodation units (Class C2), office floorspace (Class B1), flexible office and non-residential institution floorspace (Class B1/D1), retail floorspace (Class A1-A3), car parking, cycle parking, hard and soft landscaping and other associated works.” The site falls within the City Fringe Opportunity Area Planning Framework.
The inspector summarised the main issues as:
* “The quality of design of the appeal proposal and its effect on the character and appearance of the area and on the wider townscape;

* The effect on heritage assets and their settings; 


* The effect on living conditions of neighbouring residents, having regard in 
particular to daylight and sunlight, outlook and privacy; 


* The quality of living conditions for future residents of the development, having regard in particular to daylight and sunlight, overshadowing, outlook and privacy. ”

The inspector’s approach to daylight and sunlight is particularly interesting, given that it follows detailed evidence from, for the London Borough of Tower Hamlets, none other than Paul Littlefair, author of the BRE guide, and, for the appellant, leading consultant Gordon Ingram of GIA, proponent of a more nuanced, contextual, assessment approach. 

It is plain from the decision letter that the inspector preferred the GIA methodology:
107. It is agreed that the starting point in the assessment of the effect on residents’ living conditions arising from daylight and sunlight should be the Building Research Establishment 2011 publication Site layout planning for daylight and sunlight: A guide to good practice, (‘the BRE guide’) whose author gave evidence at the Inquiry on behalf of the Council. Use of this methodology is demanded by the supporting text to MDD Policy DM2539 and by the Mayor of London’s Housing SPG of March 2016. 

108. The BRE document offers guidance on generally acceptable standards of daylight and sunlight, but advises that numerical values are not to be rigidly applied and recognises the importance of the specific circumstances of each case. Inner city development is one of the examples where a different approach might be justified. This is specifically endorsed by the Housing SPG, which calls for guidelines to be applied sensitively to higher density developments, especially in (among others) opportunity areas and accessible locations, taking into account local circumstances, the need to optimise housing capacity, and the scope for the character and form of an area to change over time. This approach is clearly relevant to the appeal site. The area’s identification for transformation through high density housing development indicates high scope for its form and character to change over the short and longer term. I agree with the appellants that blanket application of the BRE guide optimum standards, which are best achieved in relatively low-rise well spaced layouts, is not appropriate in this instance.
112. The figures show that a proportion of residual Vertical Sky Component (‘VSC’) values in the mid-teens have been found acceptable in major developments across London. This echoes the Mayor’s endorsement in the pre- SPG decision at Monmouth House, Islington that VSC values in the mid-teens are acceptable in an inner urban environment. They also show a smaller proportion in the bands below 15%. Even if there were some discrepancy in the appellants’ figures for this lower band at Whitechapel Central, which is disputed, the VSC outcomes for the appeal proposal would in general be very similar to those of the other major schemes. The appeal proposal would therefore appear to be in compliance with the LP as amplified by the SPG and as it is being interpreted by the Mayor. The GLA responses to the planning application did not raise any concern about neighbours’ amenity. 

113. I acknowledge that a focus on overall residual levels could risk losing sight of individual problem areas. It is accepted that light is only one factor in assessing overall levels of amenity, but I consider that the trade-off with other factors, such as access to public transport or green space, is likely to be of more relevance to an occupier of new development than to an existing neighbour whose long-enjoyed living conditions would be adversely affected by new buildings. However, I also consider that Inner London is an area where there should generally be a high expectation of development taking place. This is particularly so in the case of the appeal site, where the WVM and the OAPF have flagged the desirability of high density development. Existing residents would in my view be prepared for change and would not necessarily expect existing standards of daylight and sunlight to persist after development.”
121. As in the matter of daylight, the guidance on loss of annual and winter sunlight is not to be rigidly applied. Emphasis on the level of retained sunlight rather than degree of change would be justified. On balance, I accept the appellants’ conclusion the proposal’s overall effect on sunlight would not be significantly adverse.”
As to the effect of the scheme on living conditions for neighbouring residents:
125. I conclude that the proposal would result in some significant individual reductions in daylight and sunlight levels, but that this is almost unavoidable in achieving the policy requirement for high density development in a confined urban setting. The new buildings would for the most part be comparable in height with the existing and would re-define traditional street frontages. Retained levels of daylight and sunlight would be adequate and comparable with existing and emerging urban conditions. The effects would appear very comparable with those recently allowed by the Council at Whitechapel Central. There would be minimal adverse losses of outlook and increases in overlooking. Taken as a whole, the proposal would not result in unacceptably harmful effects on living conditions and would comply with the development plan in this respect. ”
Whilst of course individual decisions of inspectors are not formal precedents, and every scheme is dependent on its individual circumstances and the relevant local policy background, this decision is undoubtedly important and surely fully in line with what the Government was flagging in the housing white paper. 
The BRE guidance in part draws upon British Standard BS 8206-2 (2008) Lighting for Buildings – Part 2: Code of Practice for Daylighting. I am wondering whether one reason that the 2011 guidance has not been updated is that the British Standards Institute has been working with other EU member states’ standards institutes on a new voluntary set of standards for natural daylight, via the European Committee for Standardisation. During this process, revisions of the relevant standard at a domestic level must be placed on hold. Following consultation, a new ECS standard was ratified on 8 February 2018 and will be formally available from 25 April 2018. More information as to the tighter criteria that the new standard will introduce is set out in a useful (subscription-only I am afraid) Planning Resource piece by Gregory Francis of GVA Schatunowski Brooks. 
So, on the one hand, are we at last seeing a move towards more flexible application of daylighting and sunlighting standards? On the other hand, are we are likely in due course to see a tightening of the standards themselves? I find it disappointing that the extent to which there is domestic oversight of the BRE (since 1997 not a governmental body but an independent charitable organisation) is opaque to say the least, before we even get to the complexities of the workings of the European Committee for Standardisation. The Government, and London Mayor, really do need shine a light on all of this.
Simon Ricketts, 24 February 2018
Personal views, et cetera

The Extra Care Question: RU-C2 or C3-UCO?

A long time ago in a galaxy far, far away, Parliament made the Use Classes Order. 
I referred in my 16 September 2017 blog post Class Distinctions: Planning For Older People to the blurred distinction between C2 (basically use for the provision of residential accommodation and care to people in need of care) and C3 (basically use as a residential dwelling) when it comes to “extra care” facilities for the elderly. I set out some of the criteria applied by inspectors in appeal decisions.
There was a very useful appeal decision letter last month which surely throws additional doubt upon the soundness of the curious attempt in the draft London Plan in effect to amend the Use Classes Order by policy rather than legislation, in that it seeks to deem extra care facilities for the elderly in London as falling within use class C3 (and thereby becoming subject to affordable housing and other obligations and requirements) whereas the recognised planning law position is that they are more likely to fall within use class C2. 
Draft policy H15 C states:
Sheltered accommodation and extra care accommodation is considered as being in Use Class C3. Residential nursing care accommodation (including end of life/ hospice care and dementia care home accommodation) is considered as being in Use Class C2.”
Paragraph 4.15.3 of the supporting text simply states again that “sheltered accommodation and extra care accommodation should be considered as C3 housing“, defining extra care accommodation as follows:
extra care accommodation (also referred to as assisted living, close care, or continuing care housing) is self-contained residential accommodation and associated facilities, designed and managed to meet the needs and aspirations of older people, and which provides 24-hour access to emergency support. A range of facilities are normally available such as a residents’ lounge, laundry room, a restaurant or meal provision facilities, classes, and a base for health care workers. Domiciliary care will be available to varying levels, either as part of the accommodation package or as additional services which can be purchased if required.”
First, how can it be appropriate in principle for a policy document to deem a use to be treated in a particular way in the Use Classes Order? The nature of the use and the determination of which use class, if any, it falls into, is a legal question. For instance whether planning permission would be required for a change of use would ultimately be determination by an application for a certificate of lawfulness of proposed use or development under section 191 of the Town and Country Planning Act 1990. By all means, if justified, the Mayor can determine that particular policies should apply to extra care accommodation (matters which could then be tested through the plan examination process) but his view as to which use class it might fall into has no weight in the legal determination of that question and in my view has no place in a document which is only allowed to address “matters which are of strategic importance to Greater London.

Secondly, his view, not supported by any reasoning, as to the appropriate use class do not sit easily with the conclusions that planning inspectors have come to. The most recent decision letter (22 January 2018) was by inspector Michael Boniface, where he allowed an appeal in Sidmouth, East Devon, by Pegasus Life for an “assisted living community for older people comprising extra care units, staff accommodation and communal facilities, including a kitchen, restaurant/bar/café, a well-being suite comprising gym, treatment rooms and pool, a communal lounge and storage facilities; car parking for residents, visitors and staff of the assisted living community; comprehensive landscaping comprising communal and private spaces; and associated groundworks.”
The decision letter and inspector’s reasoning is well summarised in a blog post by Housing LIN – “Planning Inspector sets out the distinctive elements of Extra Care scheme resulting in C2 Use Class conclusion” (8 February 2018). 

The inspector was presented with the Mayor of London’s position but it did not alter his conclusions on the facts of the case. 
 Thirdly, in its recent report Housing For Older People (8 February 2018) the Commons CLG Select Committee specifically considered the treatment of specialist older people’s housing in the planning system and particularly in the Use Classes Order:

125. We also heard that the “inconsistent and cumbersome” application of the C2 and C3 planning classifications to extra care housing was problematic for developers. Some local authorities apply the C2 classification, applied to residential care homes and nursing homes, to extra care housing which reduces planning charges. Others classify this type of housing as C3, along with mainstream housing, which means full charges apply. Audley Retirement argued that extra care housing should fall within the C2 class:

“Extra care is set up to fulfil many of the functions that care homes can provide in terms of care delivery as and when the resident requires it, monitored by an onsite care team and there is access to communal facilities. There are controls over who can occupy them by age and a need for care that do not exist on C3 standard dwellings.”

Extra care housing developers had a range of suggestions for countering this issue: an “extension and additional clarity” on C2 so that it captures extra care housing; the creation of a sub-section of C2 which attracts lower planning charges; and the creation of a “dedicated use class” for extra care housing which would enable planning contributions to be streamlined.

126. When we asked about this, the then Housing Minister, Alok Sharma, told us that the guidance will look at the “precise terminology that is used to describe the different types of older people’s housing”. 
The Select Committee concludes:
We believe that the level of planning contributions on specialist housing, which are increased as a result of the non-saleable communal areas which are a feature of this type of housing, is impeding the delivery of homes. We recommend either the creation of a sub-category of the C2 planning classification (which currently applies to residential care and nursing homes) for specialist housing, which would reduce the contributions required from developers, or the creation of a new use class for specialist housing which would have the same effect.”
In the light of these considerations, how can draft London Plan policy H15 C possibly be justified?
Simon Ricketts, 17 February 2018
Personal views, et cetera 

Nothing Was Delivered

“Nothing was delivered/And I tell this truth to you/Not out of spite or anger/But simply because it’s true” (Bob Dylan)

It was the first meeting on 5 February of the prime minister’s housing implementation taskforce. The subsequent press statement summarises the event as follows:
Today the Prime Minister chaired the first meeting of the Housing Implementation Taskforce at Downing Street.

She stressed the integral role all Government departments have in helping to fix the broken housing market and deliver 300,000 additional homes by the mid-2020s.

The taskforce discussed the steps Government has already taken, including further investment at the Budget, planning reform, releasing land faster, the Housing White Paper and building more affordable housing. They emphasised the key role of Homes England in driving forward change, and also focused on the supply of new housing, public sector land sales, land banking, house-building skills and building the infrastructure needed for new housing developments.

The Prime Minister reiterated that a step change was needed right across Government and that all departments needed to think creatively about how they can contribute to building the homes the country needs.
That “300,000 additional homes by the mid-2020s” reference is an interesting one, reflecting the Government’s previous 11 January 2018 announcement of the creation of Homes England:
Homes England will play a major role in fixing the housing market by helping to deliver an average of 300,000 homes a year by the mid-2020s.
This is surely a tactical step back from the Conservative party’s 2017 manifesto commitment, with no longer any pre-2022 election target:
We will meet our 2015 commitment to deliver a million homes by the end of 2020 and we will deliver half a million more by the end of 2022.”
A significant proportion of the country’s homes will need to come forward in London – the Mayor of London’s draft London Plan sets a target of around 65,000 homes a year, a significant increase from the previous plan figure of 42,000. 
These figures are only going to be achieved with a large degree of consensus between central government, the Mayor, boroughs and local communities. If I were prime minister (perish the thought) I would be worrying that in many areas, but particularly in London, there is increasing “spite or anger” (in the words of Mr Dylan). Inevitably, in any year with borough elections, planning becomes politicised but this year, with the repercussions of the Grenfell tragedy, the predictions of Conservative council losses and the internal battles within the Labour party, this is particularly so. EG has tracked the number of refusals in London up to the end of 2017. It makes for uncomfortable reading and the position will only be worsening. 


Against that background, is there a crisp appeals process? Not at all. The Planning Inspectorate’s performance statistics are still poor:


Anecdotally, many developers and authorities are keeping politically controversial decisions away from committees until the other side of the 3 May local government elections, even though the formal purdah rules, summarised in a useful Local Government Association guide, largely allow for statutory processes to carry on.
The politically charged atmosphere in many boroughs isn’t just leading to refusals of permission against officers’ recommendations – leading in turn to officers having to spend time defending appeals, with inevitable repercussions for capacity to cope with other applications in the system – but it’s impeding the work of boroughs that seek to achieve housing development, particularly in relation to estate regeneration schemes, without which those London numbers are not going to be met. 
Progress on the Haringey Development Vehicle initiative, brought forward by Haringey Council with private sector joint venture partner Lendlease, has now been halted by leader councillor Claire Kober, with no further decisions to be taken before purdah commences on 26 March until after the 3 May local election. Given that, following sustained pressure over the project, she announced on 30 January that she will not be standing for re-election, its long term future may be in doubt. This was a strategy to bring about widespread development on sites in the council’s ownership, including the proposed delivery of up to 6,400 homes. The HDV would in due course formulate development proposals for sites and make planning applications, applications which would be assessed as against planning policy, with the power for the Mayor to intervene in the usual way, but plainly in Haringey even the nature of the vehicle to be used to bring about development, presumably because of the role to be played in it by a private sector developer, was seen by objectors as unacceptable. 
There is room for debate in a democracy as to the form that regeneration should take and the extent and types of affordable housing to be provided but if the HDV is not to happen, what will? In current political and financial reality, my fear is that an opportunity to increase housing at scale, including affordable housing, will be lost. It is vital that affordable housing, with tenures to meet needs, is provided. Will the collapse of the HDV render this more or less likely? What’s the alternative? What’s the objectors’ plan? To continue this position until a 2022 general election? 
Whilst the politics played out, unpleasantly according to Councillor Kober’s account, Ouseley J was writing his judgment in Peters v London Borough of Haringey. This was a crowdfunded judicial review that had been brought on behalf of campaign group Stop HDV, seeking to establish that the council had acted outside its powers in proceeding with the project. The hearing had taken place over two days in October 2017 but Ouseley J’s judgment, over 50 pages long, was only handed down on 8 February 2018. 
The main ground of challenge was a legalistic one if ever one there was: that the council had acted outside its powers in establishing with Lendlease a limited liability partnership as the vehicle to take forward its strategic aims, on the basis that section 4(2) of the Localism Act 2011 provides that where “a local authority does things for a commercial purpose, the authority must do them through a company“. The judge rejected the argument:
To my mind, there is no doubt but that the Council’s purpose in entering into the arrangements setting up the HDV and governing its operation, including the relationship between the two partners, cannot be characterised as “a commercial purpose” within the scope of the Localism Act. Even more clearly is its dominant purpose not commercial. Any commercial component is merely incidental or ancillary, and not a separate purpose.”

“…the phrases to which Mr Wolfe took me do not show a separate commercial purpose, whether minor or not. It is important to examine why this is all being done. The purpose behind the Council’s entering into the HDV and associated arrangements is not that of a property investor, simply seeking to make a profit or to achieve a return on development or improved rentals. The purpose of the Council is to use and develop its own land to its best advantage so that it can achieve the housing, employment and growth or regeneration objectives that it has laid down. In order to achieve as much as it can, it has to achieve the best consideration on any disposal of its land; and it must be in other respects financially prudent, to produce returns in various ways which can be used to further its policy objectives. Achieving the return is neither the activity nor its purpose of itself.”

“The acquisition of other land in the context of regenerating a large estate is a commonplace, and, backed by compulsory purchase powers, it demonstrates not one whit that a separate activity of property development is being undertaken.”
In any event, the judge considered that the challenge in relation to this ground and others (lack of consultation, Equality Act) had been brought out of time. I understand that the claimant is likely to seek permission to appeal. 
In another part of London, progress is still slow on another regeneration project that has been to the High Court and back, the Aylesbury Estate. I covered in my blog post Regeneration X: Failed CPOs the decision of the Secretary of State to decline to confirm Southwark Council’s CPO based on his concern as to the effects of acquisition on leaseholders, a decision which was subsequently quashed by consent following a challenge brought by the council. A second inquiry that has been taking place into the order was adjourned on 31 January 2018 to resume for a further two weeks on 17 April. Judging from a ruling by the inspector prohibiting further filming at the inquiry it has been a lively event so far. 

According to the council’s statement of case:
The acquisition of the Order Land will enable demolition of the existing buildings in order to replace the 566 existing units of social and privately owned housing with a mixed tenure development comprising 830 homes. Of these, 304 will be social rent, 102 will be intermediate (affordable homes available as shared ownership or shared equity) and 424 will be private (of which 48 will be for open market rent and the remainder for sale). Included in the social rent homes are 50 extra care units and 7 units for people with learning difficulties.”
Inevitably, whatever the gains in housing numbers to be achieved (and indeed the affordable housing of all tenures to be provided), there will be legitimately held concerns on the part of residents directly affected. The Mayor announced on 2 February 2018 “mandatory ballots of residents for schemes where any demolition is planned as a strict condition of his funding“. 
Meanwhile, elsewhere in Southwark, Delancey has continued to face resistance in relation to its proposed redevelopment of the Elephant and Castle centre. At a committee meeting on 16 January, members overturned an officer’s recommendation to grant planning permission. A final decision has now been deferred, following a revised offer as to affordable housing and other commitments reportedly made by the developer. 
Delivery of the right schemes, in a way which maximises the potential for affordable housing and the wide range of other requirements set out in the draft London Plan will not be easy. How will land owners and developers respond? Will the Mayor continue to intervene to direct refusal where the affordable housing proportion offered is considered to be less than the maximum reasonably achievable? Will he use his call-in powers where boroughs unreasonably withhold permission for schemes which would deliver homes at scale? The Government had proposed back in 2015 reducing the threshold above which the Mayor could intervene on planning applications from 150 to 50 homes but unless the Mayor is seen as using his existing powers regularly and proactively to increase housing delivery, this may remain on the Government’s to-do list. 
The housing numbers that the Government is targeting will not be achieved without an active and engaged private sector. What if land owners choose not to release their land? There is a remarkable degree of consensus between the Conservative and Labour parties as to the desirability of using compulsory purchase powers. I covered the Conservative party’s manifesto thinking in my blog post Money For Nothing? CPO Compensation Reform, Land Value Capture (20 May 2017), in which I tried to set out some of the complexities arising from any proposal to change CPO compensation principles so as to strip out planning “hope” value (as opposed to just being smarter about using CPO powers in a way that hope values haven’t arisen in the first place). There was much publicity this month arising from an announcement from Labour shadow minister John Healey reported in the Guardian on 1 February that “Labour is considering forcing landowners to give up sites for a fraction of their current price in an effort to slash the cost of council house building“. 
Landowners currently sell at a price that factors in the dramatic increase in value when planning consent is granted. It means a hectare of agricultural land worth around £20,000 can sell for closer to £2m if it is zoned for housing.

Labour believes this is slowing down housebuilding by dramatically increasing costs. It is planning a new English Sovereign Land Trust with powers to buy sites at closer to the lower price. 

This would be enabled by a change in the 1961 Land Compensation Act so the state could compulsorily purchase land at a price that excluded the potential for future planning consent.”
I haven’t seen any more detailed analysis of the proposal or indeed any fleshing out of the idea of an English Sovereign Land Trust. Personally I would prefer to see Homes England grasp the nettle, with their existing wide compulsory purchase powers, to acquire sites at a scale which would be difficult to achieve without compulsory purchase, thereby minimising “no scheme world” values. Labour’s English Sovereign Land Trust concept sounds very rural in concept and not a substitute for facing up to difficult challenges about maximising use in cities of public sector land, about densifying suburbs and about effective approaches to estate renewal. 
And given the supposed cross-party support for increasing housing delivery, wouldn’t it be good to try to depoliticise the process where we can, rather than demonise the participants whether from public or private sector? I’ve previously blogged about the multiplicity of reviews being undertaken, to which list can now be added the CLG Commons Select Committee’s land value capture inquiry, for which the deadline for evidence is 2 March 2018). What scope can we find for consensus, about priorities, about the respective roles of the public and private sector, about funding of social housing and about the appropriate use of compulsory purchase?
Simon Ricketts, 10 February 2018
Personal views, et cetera

Restricting Pre-Commencement Conditions: It Will Be A Start

A few words on planning law before something more important. 

This week it was good to see MHCLG’s consultation document Improving the use of planning conditions: consultation on draft regulations (30 January 2018). Unnecessary pre-commencement conditions and the jams caused to project programmes are a pain. However, I’m not sure that this remedy is the panacea (I’m trying to resist the temptation to coin the term “planacea”, oh..). 

 What is proposed is that any decision maker cannot grant planning permission containing a pre-commencement condition unless the applicant has either agreed to the terms of the condition or hasn’t responded within ten working days.

 That is positive and should reflect good practice, certainly on bigger schemes where lists of draft conditions are shared by officers for discussion with the applicant prior to permission being issued. However, as usual, if you delve into the legal detail, I’m not sure that the mechanism will be as broad in its scope as you might think, due to the definition of “pre-commencement condition” in the parent legislation. Section 100ZA(8) Town and Country Planning Act 1990, introduced by section 14(1) of the Neighbourhood Planning Act 2017, defines “pre-commencement condition” as:

 “a condition imposed on a grant of planning permission (other than a grant of outline planning permission within the meaning of section 92) which must be complied with—

 (a) before any building or other operation comprised in the development is begun, or

 (b) where the development consists of a material change in the use of any buildings or other land, before the change of use is begun.”

 This rules out use of the procedure on outline planning permissions! That certainly isn’t identified in the consultation paper. I can see why the procedure shouldn’t apply to the standard condition setting out the matters for which reserved matters approval is required but for all other pre-commencement conditions the position is the same as for full planning permissions.

The definition also has the effect of restricting the process to “pure” pre-commencement conditions. The requirement would not apply to a condition that prevented any development from proceeding save for defined initial works which might be very minor, but for which discharge might still be critical to the overall development programme, or to conditions that might need to be discharged before particular phases of development could proceed. “Pure” pre-commencement conditions are indeed a particular evil for developers as they will often be in the way of the planning permission being kept alive by the carrying out of an initial material operation (and may indeed lead to difficult CIL liability issues – set out in a good 5 January 2018 blog post CIL – false starts can be punishing by Roy Pinnock) but they are no more problematic for the timely carrying out of the whole development than other conditions.

What if an applicant resists a requested pre-commencement condition? Of course it is to be hoped that a compromise will be found. But if not, ultimately the decision maker’s only option may be refusal of the application.

What if a decision maker fails to follow the procedure and issues a permission with an unwelcome pre-commencement condition? In theory of course the applicant might consider challenging the permission by way of judicial review but surely this would be a sledgehammer to crack a nut as opposed to a section 96A or 73 application to amend the condition.
So that was all I had to say on a short consultation paper.
But what really has been on my mind this week has been the sad news of the death of retired Court of Appeal judge Sir Henry Brooke. As a lawyer and more specifically in the last few years as a legal blogger he was an inspirational figure to me. I didn’t know him personally but felt as if I did. His humanity, intellectual generosity, and wisdom – along with a healthy and undimmed preparedness to put technological advances and social media to practical use – was evident in all he blogged and tweeted. For instance, if you’ve benefited from the use of technology in court, or clicked into Bailii case transcripts? Thank Sir Henry. In the time I’ve saved you by this short post, do dip into his “musings, memories and miscellanea” blog, within which you will find this transcript of his 2008 Peter Boydell memorial lecture on The role of Mediation in Planning and Environmental Disputes. My condolences to Sir Henry’s family.

 Simon Ricketts, 2 February 2018

 Personal views, et cetera

Expletive Deleted: Revising Policy

I learned today from an Independent piece (27 January 2018) that “an “expletive” originally meant any unnecessary word or phrase used to fill out a sentence. It comes from the Latin ex-, out, and plere, fill, and came to mean a swear word only in the 19th century.”
This coincides with what I was going to cover in this blog post, namely the need for more precise drafting of policy, particularly in relation to the NPPF, and particularly if the courts continue with their present approach to policy interpretation disputes.  

When the Commons CLG Select Committee reported in 2011 on its inquiry into the draft of what became the current NPPF, its conclusions included this passage:
Brevity and simplicity are to be applauded in any document. However, we consider that the NPPF does not achieve clarity by its brevity; critical wording has been lost and what remains is often unhelpfully vague. If the NPPF is to be a document that assists with practical decision-making, rather than a lawyers’ charter or an easy-to-read guide to the planning system, its drafting must be more precise and consistent, and sufficiently detailed to enable local authorities to write their own Local Plans. The Government should carefully consider the alternative drafts, submitted by many organisations as part of DCLG’s consultation, in order to produce a tighter, clearer document, and should not make a fetish of how many pages it is. Examples of such words and phrases needing tighter definitions in the NPPF include: ‘significant weight’; ‘great weight’; ‘substantial weight’; ‘considerable weight’; ‘significant flexibility’; ‘a high degree of certainty’; ‘sustainable economic growth’; ‘absent’; ‘silent’; ‘indeterminate’; ‘out-of-date’; ‘certificate of conformity’, ‘where practical’; and ‘where reasonable‘.”
Whilst changes were made in the final 2012 document, too much was left loose. In retrospect, there was an obvious reason: the one document was trying to provide at least three separate things:
– political advocacy as to policy outcomes sought by the Government

– a precise framework for local authority policy making and decision taking

– a significantly condensed version of numerous previous policy documents

It may be fine and convenient to use loose, sometimes emotive (“the golden thread”) or purely exhorting language for a document with solely that first role, but certainly not the second or third, where precise words matter.  
It is also a mistake to imagine that, in order to be more precise, a document has to be longer. In fact there are far too many adjectives and adverbs in the current NPPF and I would be red-pen brutal. Is each necessary? For instance, what is the difference between “evidence” and “compelling evidence” (para 48), “positively seek” vs “seek” (para 14) or “significantly and demonstrably outweigh” vs “significantly outweigh” (also para 14)?
If the word is necessary, is its meaning sufficiently defined or calibrated? By this I mean, what precisely is meant by, for instance, “substantial” (used 11 times), or “significant”/”significantly” (used 27 times) or “exceptional” (used 9 times)? If the answer is that this is for the LPA to determine, say that. However, I am not sure that this is often what is meant and the participants descend into trying to weigh the indeterminate presumption in favour of the plan in section 38(6) of the 2004 as against various matters which are either given an uncertain degree of additional weight by national policy or by statute (for instance the unhelpfully differing terminology in relation to specific duties on decision makers in relation to listed buildings, conservation areas and AONBs in sections 66(1) – “special regard” – and 72(1) – “special attention” – of the Listed Buildings Act 1990 and section 85(1) – “regard” – of the Countryside and Rights of Way Act 2000 respectively). 
Apples with pears perhaps but contrast the analysis of proposals as against policy with the more methodical and internally consistent categorisation of effects in the environmental impact assessment process. Through the good work of IEMA and others, standardised terms have recognised meanings. We need to work towards that in relation to for example judging harm to designated heritage assets for the purposes of paragraphs 132 to 134 of the current NPPF – practical consequences flow from whether there is likely to be “harm” and whether any harm is likely to be “substantial” or “less than substantial”, with practitioners recognising different degrees of harm within those policy categories. 
This doesn’t just matter to lawyers. Jonathan Edis and Elizabeth Stephen in A Consultant’s view of the NPPF (Papers from the Institute of Archaeology, 2013):

The problem is that we know there is harm, but we are not given the words to describe it and convert it into a form where it can be put into the planning balance consistently. We know from recent appeal decisions that less than substantial harm can include levels of impact that are also described as significant and considerable, which concentrates a disconcerting number of similar adjectives in a small conceptual space. Lower down the scale we also know that less than substantial harm can accommodate effects which are described as minor, which is easier to swallow. However, the NPPF provides no framework within which to rank these terms, and there is no indication of how to describe the lowest level of harm to be considered under paragraph 134 of the NPPF

Definition doesn’t necessarily mean greater length or making the document less readable. The existing glossary could be expanded, or there could be a clearer read-through to the relevant passages in the Planning Practice Guidance (with hyper-text links in the NPPF to all defined terms). But in some instances, the policy wording in the NPPF could itself be made more specific. Indeed this is what the Government has consulted upon in relation to the relevant test for amending green belt boundaries: the guidance in paragraph 83 that “Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan” is proposed (see paragraph 1.39 of the Government’s February 2017 Housing White Paper) to be replaced with specific criteria that are to be applied. 
The problems arising from loose wording are evident from the extent of litigation that has revolved around specific words and phrases of the NPPF, litigation which has obvious costs, both direct (for the participants) and indirect (for society and the economy). 
In Suffolk Coastal (see my 5 May 2017 blog post NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?), Lord Carnwath described the NPPF as “a simplification of national policy guidance, designed for the lay-reader“, but it can’t just be that. (Indeed for the lay-reader I suspect it is hopelessly confusing and raises all sorts of unjustified expectations). It does need to have some legal precision if it is intended to have practical effects. Lord Reed in Tesco Stores Limited v Dundee City Council states that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context“. This is an interpretative role that the courts cannot step back from, although being careful to recognise that, as stated by Lord Carnwath in Suffolk Coastal, “the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”

Does Government analyse the extent to which litigation could have been reduced by clearer policy wording? Why for instance was the Suffolk Coastal saga not stopped well before the Supreme Court by a ministerial clarification of how paragraphs 14 and 49 are intended to work?

The courts are also placed in a bind. They are rightly turned to for resolution of disputes as to what the words actually mean, but they strain against overlaying their own interpretation upon the words themselves and from interfering with the application, as opposed to interpretation, of policy. Challenges are routinely being knocked back on the basis of “excessive legalism” but the disputes arising are often not in truth “legalistic”, they are (in line with the Tesco case) disputes as to what the policy in question actually means, which surely matters. Is it acceptable (from the perspective of fairness and predictability) or sensible (from the perspective of the Government achieving its desired policy outcomes and reducing delays caused by appeals) to have vague statements in policy that can be read in different ways (and which the courts will refrain from defining)?
The distinction between policy interpretation and policy application can be difficult to make. It often flows only from a decision by the court as to whether the decision-maker’s interpretation was correct, for which the applicant first has to litigate. For instance, this week the Court of Appeal in Jelson Limited v Secretary of State (19 January 2018) declined to quash an inspector’s decision on the basis of an alleged incorrect approach to arriving at a figure for objectively assessed housing needs in the relevant area. Christopher Lockhart-Mummery QC on behalf of Jelson pointed to various alleged mistakes in the inspector’s approach as against the requirements of the NPPF. 

As a result, Mr Lockhart-Mummery submitted, the inspector failed to approach her assessment of the “full need” for affordable housing as she should have done, and failed to identify, with “clarity and precision”, a robust figure for the “full, objectively assessed needs” for housing in the council’s area. 

I cannot accept those submissions. They collide with the most basic principle in the court’s jurisdiction to review planning decisions, which is that matters of planning judgment are not for the court, but for the decision-maker – here an inspector appointed by the Secretary of State – and that the decision-maker’s exercise of planning judgment will not be overturned except on clearly demonstrated public law grounds.”
The court held that the inspector had not misunderstood the approach to be taken and that her conclusions were therefore beyond challenge. 
Paragraphs 23 and 24 of Lindblom LJ’s judgment are important:
“As this court has emphasized in Oadby and Wigston Borough Council, against the background of its earlier decisions in Hunston Properties Ltd.and Gallagher Estates Ltd., national policy and guidance does not dictate, for decision-making on applications for planning permission and appeals, exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need against which to test the relevant supply (see paragraphs 35 and 36 of my judgment). In this respect, government policy, though elaborated at length in the guidance in the PPG, is not prescriptive. Where the Government wanted to be more specific in the parameters it set for decision-makers considering whether a local planning authority could demonstrate the required five-year supply of housing land, it was – in laying down the approach to calculating the supply of deliverable housing sites in paragraphs 47 and 49 of the NPPF, and, in particular, in carefully defining the concept of a “deliverable” site (see my judgment in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, at paragraph 36). 

Responsibility for the assessment of housing need lies with the decision-maker, and is no part of the court’s role in reviewing the decision. Although the decision-maker is clearly expected to establish, at least to a reasonable level of accuracy and reliability, a level of housing need that represents the “full, objectively assessed needs” as a basis for determining whether a five-year supply exists, this is not an “exact science” (the expression used in paragraph 2a-014-20140306 of the PPG). It is an evaluation that involves the decision-maker’s exercise of planning judgment on the available material, which may not be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Stratford-on-Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), at paragraph 43). Often there may be no single correct figure representing the “full, objectively assessed needs” for housing in the relevant area. More than one figure may be reasonable to use. It may well be sensible to adopt a range, rather than trying to identify a single figure. Unless relevant policy in the NPPF or guidance in the PPG has plainly been misunderstood or misapplied, the crucial question will always be whether planning judgment has been exercised lawfully, on the relevant material, in assessing housing need in the relevant area (see paragraphs 32 to 38 of my judgment in Oadby and Wigston Borough Council). A legalistic approach is more likely to obscure the answer to this question than reveal it (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council).”

This reflects what Lindblom LJ stressed in Mansell v Tonbridge and Malling Borough Counci (Court of Appeal, 8 September 2017):

The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a “doctrinal controversy”. But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker’s own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council). That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court’s interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

But “excessive legalism” is in itself a value-laden term. What is an acceptable level of “legalism”? What is the difference between correct legal interpretation and unacceptable legalism? Is legalism sometimes excessive even if it is based on a correct legal interpretation?
We have seen a similar approach by the courts in the retail planning area, where there is still much genuine uncertainty as to the proper application of the sequential test and specifically as to the flexibility required of the applicant in looking for potentially more central locations (NPPF, paragraph 24). I referred in my blog post Town Centres First? Two Recent Decisions (22 December 2017) to words of caution by Ouseley J, in refusing permission in relation to the Tollgate Colchester challenge) as to the dangers of relying too heavily on judicial interpretation of policy. We have now obtained a transcript of his judgment (contact me if you would like a copy). It includes this passage:

“I simply make this word of warning in the light of the decision I have come to, which I will shortly reveal, that what I said in Aldergate Properties also comes with a warning I gave in Aldergate Properties, that the language that the court uses to explain what a policy means in a particular context is not a substitute for the words of the policy itself, which fall to be construed and then applied in relation to the particular circumstances at issue. The words of para.24 are very simple but are intended, however, for application in a wide variety of circumstances, and no one phrase is necessarily apt for application, still less as a substitute, in all the circumstances. I had also intended by the use of the word “broad” and “approximate” something a little more flexible than the word “closely similar” as a substitute might have indicated.”

That may sound sensible, but the words of the policy allow for differing interpretations. How does one determine the appropriate interpretation for the specific circumstances and is the applicant and local community alike in the hands largely of the decision-maker? Is that the latitude the Government intended to give?
Whatever emerges as the draft revised NPPF really needs to be stress-tested and amended accordingly. Which are the words and phrases over which we will all inevitably fall out and how to lance those disputes now by a bit more clarity, rather than in court or at planning appeal? What is the Government willing to leave to authorities and inspectors to work out? I am not necessarily suggesting a longer document but certainly delineation between supporting explanatory test and policy; a more rigorous approach to defined terms, and an adjectival haircut. 
Simon Ricketts, 27 January 2018
Personal views, et cetera

Sajid Javid: Agent Of Change?

Sajid Javid’s statement Strengthened planning rules to protect music venues and their neighbours on 18 January 2018, confirming that the “agent of change” principle would be included in the revised NPPF, was widely supported. 
But this was hardly news was it? Go back to the February 2017 housing white paper:

Noise and other impacts on new developments 

A.140 The National Planning Policy Framework, supported by planning guidance, already incorporates elements of the ‘agent of change’ principle (this provides that the person or business responsible for the change should be responsible for managing the impact of that change) in relation to noise, by being clear that existing businesses wanting to grow should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established. 

A.141 We propose to amend the Framework to emphasise that planning policies and decisions should take account of existing businesses and other organisations, such as churches, community pubs, music venues and sports clubs, when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. This will help mitigate the risk of restrictions or possible closure of existing businesses and other organisations due to noise and other complaints from occupiers of new developments.

The latest statement takes this further forward not one jot. I was blogging about the agent of change principle back in October 2016 in my post Noise Annoys.

The prod for the 18 January announcement was the introduction into the House of Commons on 10 January 2018 of a private members’ bill, the Planning (Agent of Change) Bill, by Labour MP John Spellar. Following the debate on 10 January, the Bill (which has not actually been published at this stage, as is often the case with private members’ bills of this nature which are largely intended just intended to draw attention to an issue) was due to receive a second reading on 19 January but this has now been postponed until 16 March. Presumably the intention of the bill was simply to keep the Government focused on what it had already indicated to do. If this is how politicians have to spend their time but it all seems odd to this outsider. 
The agent of change concept really now does have momentum, with a strong campaign run by the Music Venue Trust and supported by the Local Government Association. It is frustrating that even such an apparently simple change to policy (oversold in Javid’s statement as a new “rule”) takes so long to introduce. 
The Welsh Assembly was able to move rather faster, introducing an equivalent policy change by its letter letter Supporting the Night Time Economy and the Agent of Change Principle (26 May 2017):
Existing policy in Planning Policy Wales already says new uses should not be introduced into an area without considering the nature of existing uses. Under the agent of change principle, if new developments or uses are to be introduced near a pre-existing business, such as a live music venue, it is the responsibility of the developer to ensure solutions to address and mitigate noise are put forward as part of proposals and are capable of being implemented. 

PPW also encourages local planning authorities to consider the compatibility of uses in areas and afford appropriate protection where they consider it necessary, as part of their development plans. The revisions to PPW will add to this and allow for the designation of areas of cultural significance for music through development plans.”



The letter advises Welsh planning authorities that they “should begin to apply this principle, where it is a relevant consideration, with immediate effect.” Javid could have taken this approach with his 18 January announcement and it is a disappointment that he did not.  
The Mayor of London has also of course introduced a policy into the draft London plan. 



There has also been coverage this week of the supposed news of further slippage in the publication of the draft NPPF, which would cause further delay to the final document. Senior MCHLG servant Melanie Dawes was reported in Planning magazine as saying to the CLG Commons Select Committee that it would be “ready for consultation in the next few months – I hope just before Easter or thereabouts”, meaning that we should assume it may be at the end of March (“or thereabouts”!). But again, this wasn’t news, given that Government chief planner Steve Quartermain’s 21 December 2017 letter to local authorities had promised the draft “early” in 2018. The letter states that the final version of the revised NPPF would be “before the end of the summer“. In my view this is careful wording: we should not necessarily assume that we will see it this side of the Parliamentary recess (which starts on 20 July). Which of course has an immediate influence on those authorities who had either been rushing to submit their local plans by the end of March 2018 or waiting until after that deadline, depending on their tactical judgment as to how they would be affected by the proposed standardised methodology for assessing housing needs – that end of March deadline is now a late summer deadline. 

Honestly, it would be enough to make one scream, if it wasn’t for the neighbours. 
Simon Ricketts, 19.1.18
Personal views, et cetera