Strong Beer: London Tall Buildings & The Master Brewer Case

If you are dealing with any proposal for a building of six storeys or more in London, R (London Borough of Hillingdon) v Mayor of London (Lang J, 15 December 2021) is a vital case, because it resolves for now the question of how the relevant policy in the London Plan, policy D9, is to be interpreted. Is it right, as have some have contended, that tall buildings may only be developed in locations identified as suitable in boroughs’ local plans? Lang J says no.

The three relevant parts of the policy for the purposes of this issue, as quoted in the case, read as follows:

“Definition

A

Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.

Locations

B

1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.

2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.

3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.

Impacts

C

Development proposals should address the following impacts:

1) visual impacts […]

2) functional impact […]

3) environmental impact […]”

(there is also a fourth part – as to provision for public access).

The big question has been whether the first and second parts of the policy have to be passed before a scheme can be judged as against the detailed criteria in part C.

The text underlined had been added pursuant to a direction by the Secretary of State dated 10 December 2020 before the plan was then adopted on 2 March 2021.

Quoting from the judgment:

“The Secretary of State’s covering letter, dated 10 December 2020, said as follows:

“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”

DR12 set out a “Direction Overview” as follows:

“The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density.

This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide.

It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”

The ‘statement of reasons’ for DR12 stated inter alia:

“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”

The issue had come before the court in the context of planning permission granted by the Mayor of London for the redevelopment of the former Master Brewer Motel site in Hillingdon – a development promoted by Inland Homes for a series of buildings of up to 11 storeys in height. Hillingdon Council had resolved to refuse planning permission on the basis that tall buildings in this location would be contrary to its local plan but the Mayor had recovered the application for his own determination and approved it on 30 March 2021.

There were three grounds to the judicial review brought by the Council:

“i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.

ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality.

iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.”

I am only focusing on the first ground but the third ground may also be of interest on the question of when an application needs to be re-consulted upon or re-considered in the light of changes in policy.

The analysis carried out by the judge is interesting.

First of all she considers whether the meaning of the policy was “clear and unambiguous” such that under legal principles of interpretation, the courts should not have regard to extrinsic materials to assist in interpretation. She recorded that “[a]ll parties contended that the meaning of Policy D9 was clear and unambiguous, despite the differences in their interpretation of it. In those circumstances, applying the principles set out above, I consider that I ought not to have regard to the letter from the Secretary of State to the Defendant dated 10 December 2020 (paragraph 46 above) as it is not a public document which members of the public could reasonably be expected to access when reading Policy D9. Furthermore, it is of limited value as, taken at its highest, it sets out the Secretary of State’s intentions, whereas the Court must consider the meaning of the words actually used in Policy D9, as amended by DR12, which in my view did not give effect to the expressed intentions in the letter.”

(I’m scratching my head as to how the various parties to litigation can be arguing as to the meaning of a policy but can agree that the meaning of the policy is “clear and unambiguous”. In saying that the Secretary of State’s direction letter “was not a public document which members of the public could reasonably be expected to access when reading Policy D9”, I take it that she was not saying that it was not a “public document”, which of course it was, but that a member of the public should not be expected to go searching for such documents to assist with interpretation of a policy if it is indeed clear and unambiguous).

She then concludes that the council’s interpretation of the policy “cannot be correct”:

“Read straightforwardly, objectively and as a whole, policy D9:

i) requires London Boroughs to define tall buildings within their local plans, subject to certain specified guidance (Part A);

ii) requires London Boroughs to identify within their local plans suitable locations for tall buildings (Part B);

iii) identifies criteria against which the impacts of tall buildings should be assessed (Part C); and

iv) makes provision for public access (Part D).

There is no wording which indicates that Part A and/or Part B are gateways, or pre-conditions, to Part C. In order to give effect of Mr Howell Williams QC’s interpretation, it is necessary to read the words underlined below into the first line of Part C to spell out its true meaning:

“Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”

But if that had been the intention, then words to that effect would have been included within the policy. It would have been a straightforward exercise in drafting. It is significant that the Secretary of State’s direction only required the addition of the word “suitable” to Part B(3). It did not add any text which supports or assists the Claimant’s interpretation, even though the Secretary of State had the opportunity to do so.

In my view, the context is critical to the interpretation. Policy D9 is a planning policy in a development plan. By section 70(2) TCPA 1990 and section 38(6) PCPA 2004, there is a presumption that a determination will be made in accordance with the plan, unless material considerations indicate otherwise. Thus, the decision-maker “will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”: per Lord Clyde in City of Edinburgh at 1459G. Furthermore, the decision-maker must understand the relevant provisions of the plan “recognising that they may sometimes pull in different directions”: per Lindblom LJ in BDW Trading Ltd at [21], and extensive authorities there cited in support of that proposition. As Lord Reed explained in Tesco Stores Ltd v Dundee City Council, “development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another”.

The drafter of Policy D9, and the Defendant who is the maker of the London Plan, must have been aware of these fundamental legal principles, and therefore that it was possible that the policy in paragraph B(3) might not be followed, in any particular determination, if it was outweighed by other policies in the development plan, or by material considerations. It seems likely that policy provision was made for such cases, given the importance of the issue.

In considering whether to grant planning permission for a tall building which did not comply with paragraph B(3), because it was not identified in the development plan, it would surely be sensible, and in accordance with the objectives of Policy D9, for the proposal to be assessed by reference to the potential impacts which are listed in Part C. The Claimant’s interpretation leads to the absurd result that a decision-maker in those circumstances is not permitted to have regard to Part C, and must assess the impacts of the proposal in a vacuum.”

Therefore:

“Notwithstanding the non-compliance with Part B of Policy D9, the Defendant determined that the proposal accorded with the provisions of the development plan when read as a whole. That was a planning judgment, based on the benefits of the proposal, such as the contribution of much-needed housing, in particular affordable housing, and the suitability of the Site (brownfield and sustainable, with good transport). The Defendant was satisfied, on the advice of the GLA officers, that sufficient protection from air quality impacts would be achieved. The Defendant was entitled to make this judgment, in the exercise of his discretion.”

Accordingly, boroughs do not have a veto, by virtue of their local plans, as to where tall buildings may be located in their boroughs – policy D9 is not to be interpreted in a way automatically treats proposals for tall buildings as contrary to the development plan where they are not supported in the local plan.

Whether or not this is what the previous Secretary of State intended with his direction may be another matter but of course the London Plan is adopted and free from the possibility of legal challenge (and, pragmatically, the Secretary of State could have course chosen to call in the application but did not) – and if parts A and B were indeed to be a necessary gateway there would be the immediate issue that any development of buildings of six storeys or more would be stymied as contrary to the development plan until boroughs’ plans had caught up with, and been examined in the context of, the new policy approach – hardly consistent with the Secretary of State’s urging for London to achieve a significant increase in housing delivery.

To mark the end of 2021 and, self-indulgently, the 5th anniversary of my firm, we have a unique Clubhouse event planned for 6 pm this Tuesday 21 December: “START ME UP: how Town Legal started 5 years ago – & why”. There will be a stageful of “day one” Townies: Clare Fielding, Patrick Robinson, Meeta Kaur, Benita Wignall, Spencer Tewis-Allen, our former chairman (and ex Herbert Smith Freehills COO) John Mullins and former associate Ricky Gama (now Leigh Day) as well as our good friends, without whom…, Drew Winlaw (Simmons Wavelength) and Beau Brooke (Kindleworth). If you ever wondered what it takes to create a professional services firm from scratch, do tune in. Link to app here.

Simon Ricketts, 17 December 2021

Personal views, et cetera

Photo by Jon Parry courtesy Unsplash

Devolver

Tomorrow never knows. The Levelling Up white paper was due to be published next week but won’t now appear until early 2022.

Here, there and everywhere. If the leaks are to be believed, we may be in line for some radical reforms, indeed sounding much like proposals from the Centre for Cities that I referred to in my 25 September 2020 blog post The Devolution Dance: The Planning White Paper & Local Government Reorganisation, Neighbourhood Planning.

Ministers plan sweeping changes to local government as part of levelling up agenda, leaked paper reveals (Independent, 10 December 2021)

“The government plans to radically alter local government in England, replacing it with a single-tier mayoral-style system.”

“The ambition is to strip back layers of local government and replace them with a single-tier system, as in Northern Ireland, Wales and Scotland, but the government is already braced for a backlash to the plans, according to one senior official.”

“The plans proposed in the draft paper would mean a huge overhaul of local government, and either scrapping or merging England’s 181 district councils and 24 county councils.”

“The step towards single tier local government would need to be under way by 2023 in order to coincide with changes in funding for regions. A new Local Growth Funding Roadmap detailing how this will work will be released in 2022, and then enforced in 2023, according to the paper.”

“The document lays out 13 missions with which to “anchor” the agenda, which the prime minister has described as the central purpose of his administration, and all come with a 2030 deadline.”

“Several parts of the draft paper show that key decisions from the levelling up cabinet committee and the Treasury have yet to be signed off.”

Ministers examine shake-up of regional development in England (FT, 7 December 2021)

Local Enterprise Partnerships (LEPs) appear to be for the chop.

American-style Governors could level up England (The Times, 4 December 2021)

Is the concept of a “governor” going to be any more attractive for local electorates than that of a Mayor?

“County deals” (see this Institute for Government explainer) seem to be the reported carrot/stick.

There is also, groan, the possibility of a “statutory levelling-up quango”.

For no-one. I reported in my 24 September 2021 blog post Levelling Up Is… on the BEIS Commons Committee’s 22 July 2021 report Post-pandemic economic growth: Levelling up. On 3 December 2021 the Government published its response, which, ahead of publication of the white paper, is largely unspecific.

I want to tell you. With interesting timing, the County Councils Network published on 8 December 2021 its report prepared with assistance from Catriona Riddell, the future of strategic planning in England: effective decision making and robust governance, with proposals for an accountable strategic planning body which would prepare a strategic growth plan and a strategic planning advisory body to test and advise as to whether its vision is being delivered.

She said she said. Even though she has admitted that she doesn’t like the Beatles, I’m delighted that Catriona has agreed to be our special clubhouse Planning Law Unplanned guest at 6pm this Tuesday 15 December 2021, which will be a great opportunity to see if all of this thinking can come together. Do we need to get back to strategic or at least county level planning, and in place of LEPs something more resembling the old RDAs? I would love you to join us, link to app here.

Got to get you into my life. Do also listen back to our planning enforcement chat last week, now available on replay. Given how the conversation ended up, yes of course we should have called it “Everybody’s got something to hide, except me and my monkey”.

Good day sunshine.

Simon Ricketts, 11 December 2021

Personal views, et cetera

What Are Conservation Covenants?

The Environment Act 2021 was born on 9 November 2021, over 22 months after the first version of the Bill received its first reading on 30 January 2020 – a gestation period equalled in the animal kingdom only by the African elephant.

One of the less controversial but potentially most useful elements of the Act is Part 7, namely the introduction of a mechanism for land owners to enter into “conservation covenants”. What is this new beast?

In simple terms, a conservation covenant is a private voluntary agreement between a land owner and a local authority or other responsible body designated by the Secretary of State with commitments given by the land owner, enforceable against successors in title, to do or not do specified things on the land that have a “conservation purpose”.

The Law Commission first recommended in a 2014 report that this regime be introduced in legislation, given that existing legal mechanisms each have significant legal and/or practical limitations, for instance planning obligations need to fall within the types of commitment specified in section 106(1) of the Town and Country Planning Act 1990 and regulation 122 of the CIL Regulations will often be a constraint on the authority’s ability to take the obligation into account in its decision making; restrictive covenants more generally carry with them the constraint of requiring the party with the benefit of the covenant to have an interest in land that will take the benefit of the covenant (the “dominant tenement” as any legal fule kno) and with the covenant having to be a negative obligation in order to be automatically enforceable against successors.

The Commission gave three examples of how conservation covenants might be used:

• “protecting woodland over the generations”

“Example: The owner of an extensive family estate, much of which is forested and used by the public for hiking, intends to leave the land to her children. She wants to ensure that the forest is maintained and that public access continues, but she is not sure that her children – or future generations – would share those priorities”

• “selling heritage property”

“Example: A heritage group has invested funds in buying and restoring a Tudor house. The organisation wishes to sell the property, but wants to ensure that the work it has undertaken, and the heritage value of the property, is preserved.”

• “”protecting a biodiversity offsetting site”

“Example: A local planning authority is faced with a planning application for an affordable housing development. The proposed development site is a wild flower meadow. If the development were to go ahead the meadow would be destroyed completely. In this instance the planning authority is willing to grant planning permission, provided the damage caused to the meadow is offset by the creation and long-term maintenance of a similar site elsewhere.”

(Of course there has since been significant progress in relation to the principle of biodiversity net gain – see the provisions in Part 6 of the Act summarised in my 2 October 2021 blog post Ecology By Numbers: Biodiversity Net Gain In The Environment Bill).

DEFRA then carried out a consultation in 2019. Its subsequent response to the consultation process confirmed that it would proceed with legislation, by way of the Environment Bill, and would develop guidance.

The provisions in Part 7 of the Act the provisions do indeed give effect to what was proposed. For a good summary I recommend that you look at the explanatory notes to the Act (pages 132 to 141). Some highlights from that summary:

• It must be apparent from the agreement that the parties intend to create a conservation covenant.

• Any provision must be of a “qualifying kind”, which can take one of two forms. “First, it may require the landowner to do, or not to do, something on specified land in England, or require the landowner to allow the responsible body to do something on such land. Second, it may require the responsible body to do something on such land.” The agreement can also include ancillary provisions.

• The land owner must have a “qualifying estate” in the land – namely a freehold interest or a leasehold estate of more than seven years.

• A conservation purpose “extends to the natural environment of the land, such as plants and animals and their habitats; the land’s natural resources, such as water on the land; the land as a place of archaeological, architectural, artistic, cultural or historic interest; and the setting of the land. The reference to setting provides for the protection of land around a conservation site, which may affect its conservation status. For example, the architectural or artistic value of a country house could derive in part from the landscape in which it is set.” This is important! Conservation covenants are not just about nature conservation but can also be used in relation to, for instance, heritage conservation (see back to that second example from the Law Commission report).

• Bodies (including local authorities) need to apply to the Secretary of State to be designated by the Secretary of State to be a responsible body. If not a local body, the applicant body “will, additionally, have to satisfy the Secretary of State that at least some of its main purposes, functions or activities relate to conservation”. Criteria will need to be published by the Secretary of State. (Interesting that local authorities are not automatically designated).

• A conservation covenant is a local land charge and once registered is effective against subsequent owners of the land. It has indefinite effect unless otherwise stated in the agreement (and subject to the length of the relevant lease if entered into by a leaseholder). Enforcement will usually be by way of seeking an injunction or order for specific performance. It can be discharged or modified by agreement or by application to the Upper Tribunal.

• Section 135 (1) “gives the High Court, the county court or the Upper Tribunal, on application of any person interested, the power to make a declaration as to the validity of a conservation covenant, whether land is subject to an obligation under a conservation covenant, who is bound by or has the benefit of such an obligation, and the true construction (that is, meaning) of such an obligation. It will be for the court or the Upper Tribunal to decide whether an applicant has sufficient interest to make an application. The power to make a declaration extends to any agreement or order that modifies a conservation covenant. A person might seek a declaration under subsection (1) in circumstances where they needed to know the status of a conservation covenant – for example, in order to resist an action enforcing a breach or because the land was wanted for a different use.”

There is no news yet as to when the Regulations will be made to bring Part 7 into force. The biodiversity net gain provisions are likely to be a couple of years away from being switched on. Let’s hope that conservation covenants are not that far off, although of course we do need some good guidance to accompany what could prove to be a well-used procedure, because the opportunities for use of conservation covenants are wide: commitments to provide biodiversity net gain off-site are an obvious example but think also about commitments in relation to offsetting to address nitrate, phosphate or water neutrality for instance, as well as commitments which might previously have involved transferring land to a conservation or heritage group – the land will now be able to be retained with long term commitments given by way of a CC.

This week’s Clubhouse session (6pm 7 December) will be a descent into the strange world of planning enforcement. Whatever your perspective, Scott Stemp and Nicola Gooch will be leading us through the murky depths. Stories welcome. Link to app here.

Simon Ricketts, 3 December 2021

Personal views, et cetera

Extract from photo by Hu Jiarui , courtesy Unsplash

Integrated Rail Plan, Unplanned?

Wouldn’t it be good if Government plans were proper plans, subject to detailed assessment of their environmental effects, including formal assessment of reasonable alternatives and with the requirement for further assessment of material changes? But we lost that argument a long time ago, in R (HS2 Action Alliance) v Secretary of State for Transport (Supreme Court, 22 January 2014). The Supreme Court held that the Government’s January 2012 white paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” was not subject to any requirement for strategic environmental assessment as it was not a plan that “set the framework” for subsequent decision making.

As per the judgment press summary:

“DNS is an elaborate description of the HS2 project, including the thinking behind it and the government’s reasons for rejecting alternatives. However, it does not constrain the decision-making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any “criteria” contained in previous Government statements.”

So we were to take it all with a pinch of salt, including images such as this, showing the proposed “Y” route, to Manchester (and ultimately Glasgow) and Leeds (and ultimately Edinburgh via Newcastle):

Department for Transport, January 2012

Bear all this in mind when you read the Department for Transport’s Integrated Rail Plan for the North and Midlands published on on 18 November 2021. The plan “confirms” £54bn of spending on rail and local transport in the Midlands and North in addition to the £42bn already included for HS2 Phases 1 and 2a between London, the West Midlands and Crewe and has these images showing the journey time savings proposed:

What an opportunity to make good promises as to Levelling Up and Building Back Better.

The accompanying press statement summarises the proposals as follows:

“It is a £96 billion plan that outlines how major rail projects, including HS2 Phase 2b, Northern Powerhouse Rail and Midlands Rail Hub, will be delivered sooner than previous plans so that communities, towns and cities across the North and Midlands are better connected with more frequent, reliable and greener services and faster journey times.

The plan confirms that the government will:

• build 3 new high-speed lines including:

• HS2 from Crewe to Manchester

• HS2 from the West Midlands to East Midlands Parkway, enabling HS2 trains to join existing lines to serve Nottingham and Derby city centres (unlike original plans)

• a new high-speed line between Warrington, Manchester and Yorkshire, as part of Northern Powerhouse Rail

• electrify and/or upgrade 3 existing main lines including:

• the Transpennine Main Line between Manchester, Leeds and York

• the Midland Main Line between London St Pancras, the East Midlands, and Sheffield

• upgrading and improving line speeds on the East Coast Main Line

The plan also confirms that the government will progress options to complete the Midlands Rail Hub and spend £100 million to look at how best to take HS2 trains to Leeds, including assessing capacity at Leeds station and starting work on the West Yorkshire mass transit system.”

Piecing together the implications one sees that the previous commitment to build HS2 to Leeds in accordance with that 2012 plan has now become simply an extension to East Midlands parkway with HS2 trains then able to go on existing lines to Nottingham and Derby. The long anticipated “Y” becomes a “\”. As recently as 28 May 2021, New Civil Engineer had reported the Transport Secretary saying exactly the opposite: DfT commits to HS2 eastern leg after months of uncertainty.

There is much else to unpack. Those maps stress journey time reductions (which is of course not the only factor at all in securing an improved rail network) but so much is down to the detail: routes, specifications, delivery timescales and of course (HS2 to Leeds being a perfect example) the risk of elements subsequently simply being lopped off. Any supporting assessment work is simply unavailable (see my opening comments).

Let’s go back to New Civil Engineer: The integrated rail plan is a half-baked plan which fails rail passengers (New Civil Engineer, 22 November 2021 – a piece incidentally which accepts the logic of the decision not to extend HS2 to Leeds).

Then let’s turn to the knowledgable Jonathan Stott at Gateley Hamer: Integrated Rail Plan: Midlands wins by country mile and North West in 2nd as Yorkshire handed mass-transit consolation (22 November 2021).

As Jonathan identifies, Yorkshire is potentially the biggest loser, with also a retreat from the proposals for Northern Powerhouse Rail, a new-build high speed line between Leeds and Manchester. The regional press had a field day:

West Yorkshire Mayor Tracy Brabin has written to Grant Shapps setting out the various failings of the proposals, saying that she and other West Yorkshire leaders “are angry and frustrated by the promises that have been seemingly broken. Our communities feel betrayed”. (26 November 2021).

Transport for the North: Integrated Rail Plan branded ‘woefully inadequate’ (18 November 2021)

The reconsideration (not yet a final scrapping) of HS2 between the East Midlands and Leeds brings little relief incidentally to those whose homes and businesses have long been blighted – safeguarding of the route will remain whilst further analysis is done.

⁃ How HS2 U-turn has sent £115 million down the drain after it was spent buying houses on abandoned route – and we can’t even sell them off yet (Mail Online, 19 November 2021)

⁃ HS2: Housing estate in limbo after eastern leg axed (BBC, 18 November 2021)

Manchester of course still gets HS2, but with proposals for a terminus station there, with an above ground, rather than tunnelled, route – long a cause for concern on the part of Andy Burnham: Government planning ‘to put HS2 on stilts through Manchester’ (Guardian, 19 November 2021). Fat chance incidentally of any extension of HS2 to Scotland any more it would appear. The Transport Secretary hardly oozes sympathy in his reactions to Burnham’s concerns:

“If we spend £6bn or £7bn building the station underground at Manchester, we will take away from Liverpool, Leeds, Hull or some of the other places that are calling for money … Manchester is a principal beneficiary of this entire programme and we wish his constituents well in their new journey times.”

Journey times, journey times.

Meanwhile, whilst London is certainly suffering in terms of the unrelieved financial pressures upon Transport for London (see eg Nick Bowes’ Centre for London 10 November 2021 blog post Mind the gap: What’s next for the funding crisis at the heart of London’s transport system), there is at least finally some good news around the corner: Crossrail starts final testing phase ahead of opening (IanVisits, 22 November 2021).

The integrated rail plan and what it does or doesn’t do for levelling up is going to be the topic for this week’s clubhouse Planning Law Unplanned session. Guest speakers cover all the bases: from Birmingham the aforementioned Jonathan Stott, from Manchester Urbed’s Vicky Payne, from Leeds barrister Stephanie Hall and from London my Town partner Raj Gupta. Join us via this link.

Courtesy the Bash Mash and JonLawton10

Views On Design – Three Recent Decisions

It is interesting to consider what the Secretary of State has said about design matters in three recent decisions, subsequent to the July 2021 revisions to the NPPF and new national model design code (see my 27 July 2021 blog post Beauty & The Beach).

Westferry Printworks

Image courtesy of Westferry Developments

Following the quashing of his predecessor’s decision to allow the appeal by Westferry Developments Limited in relation to the non-determination by the London Borough of Tower Hamlets of its application for planning permission for 1,524 dwellings and associated development on the former Westferry Printworks site (see my 23 May 2020 blog post) the Secretary of State has now dismissed the appeal in a decision letter dated 18 November 2021.

On design he says this:

“The Secretary of State has given careful consideration to the Inspector’s analysis at IR.A.420-435 and IR.B.235-240 and IR.B.302 in relation to the effect of the scale, height and massing of the proposed development on the character and appearance of the surrounding area. For the reasons given at IR.B.235-236 and IR.B.302 the Secretary of State agrees that the appeal scheme would be harmful to the character and appearance of the area (IR.B.302).

The Secretary of State agrees with the Inspector’s assessment at IR.A.436 that the spacing between the proposed towers and the way materials and the detailed design of the facades would bring texture and variety to the appearance of the buildings. However, for the reasons given at IR.B.235-236, the Secretary of State further agrees that the appeal scheme would result in a proposal of excessive height, scale and mass which would fail to respond to the existing character of the place. He further agrees that it would not enhance the local context by responding positively to local distinctiveness and, like the Inspector, considers that the proposal would conflict with LonP 2021 Policy D3 (IR.B.236).

For the reasons given at IR.A.436-438 and IR.B.237, the Secretary of State agrees that although the site is within a Tall Buildings Zone (TBZ) as identified in the development 6 plan, the scale, height and mass of the proposal is such that it would not make a positive contribution to the skyline nor the local townscape or achieve an appropriate transition in scale to buildings of significantly lower height. He further agrees that it would not reinforce the spatial hierarchy of the local and wider context, and would cause harm to the significance of heritage assets, would harm the ability to appreciate a World Heritage Site (WHS) and would compromise the enjoyment of an adjoining water space (IR.B.237). He further agrees at IR.A.436 that the proposal would not be well related to the street scene of Westferry Road (IR.A.436). For the reasons given, he agrees that the proposal would conflict with LonP Policy D9. He also agrees at IR.B.238 that the proposal would conflict with LP 2031 Policy S.DH1 because it would not be of an appropriate scale, height, mass, bulk and form. He further agrees, for the reasons given at IR.B.239, that the proposal would conflict with Policy D.DH6.

The Secretary of State further agrees that for the reasons given at IR.B.240, the proposal would not accord with the design principles set out in site allocation 4.12 (Westferry Printworks) of the LP 2031 and would therefore conflict with site allocation 4.12.

For the reasons given, the Secretary of State agrees with the Inspector at IR.B.302 that overall, the proposal would not represent high quality design which responds to its context. He further agrees that significant weight should be attached to the harm to the character and appearance of the area because of the degree of harm that would be caused and the wide area over which that harm would be experienced (IR.B.302).

The Secretary of State has taken in to consideration the appellant’s representation of 27 August 2021, including that the proposal is representative of the highest quality design and appearance and that the development would deliver an attractive well-designed landscape masterplan that is easily accessible for pedestrians and cyclists; that trees are integral to the proposed streetscape; and that the proposals will deliver a safe, secure and attractive environment. The appellant considers that the proposed development is compatible with the emphasis in the revised Framework for building and places to be beautiful and sustainable. The Secretary of State has also taken into account the Council’s representation of 26 August 2021. This considers that the amended Framework and the requirement to consider the National Design Guide further reinforces and strengthens the Council’s case, and sets out where the Council considers that the proposal does not align with the principles in the National Design Guide.

For the reasons given in this letter, the Secretary of State considers that overall, the appeal scheme does not reflect local design policies or government guidance on design, and is not in accordance with paragraph 134 of the Framework. This view is further reinforced by his conclusions on heritage issues, below. He considers that the shortcomings of the proposal in terms of the failure to accord with the provisions of the revised Framework carry significant weight against the proposal.”

The Tulip, 20 Bury Street, London EC3

Image courtesy of Bury Street Properties

On behalf of the Secretary of State, the Minister for Housing, Christopher Pincher, dismissed an appeal by Bury Street Properties against the refusal by the City of London Corporation for planning permission for a 304 metre high visitor attraction in the City of London. His decision letter dated 11 November 2021 and inspector’s report make fascinating reading.

Zack Simons gave a great summary of the decision on clubhouse last Tuesday and you can listen again here.

There are some fascinating passages both in the decision letter and in inspector’s David Nicholson’s elegantly written report. Aside from his conclusions on heritage impact (particularly the effect of the proposal on the setting of the Tower of London world heritage site), there is a detailed analysis at paragraphs 32 to 41 of the six criteria for good design set out in paragraph 130 of the NPPF (the six criteria are unchanged from the previous version of the NPPF but it is interesting to see them used in this way):

• Function

“…the Secretary of State agrees that the scheme would function properly with regard to delivering a very high level viewing experience together with some exciting fairground-style additions. He further agrees with the Inspector’s comments about the level of skill and effort which has been put into resolving the entrance and exit requirements in such a tight space and the quality of the detailing. However, he agrees with the Inspector’s concerns that the number of visitors would need to be limited to prevent overcrowding at ground level. Overall, he agrees with the Inspector that the extent to which the design would overcome the constraints (of the site) and function well is a matter which should be given moderate weight (IR14.72).

For the reasons given in IR14.73, the Secretary of State agrees with the Inspector that little if any thought has been given to how the building would function over its extended lifetime. He notes that there are no plans for its re-use when it has served its purpose as a viewing tower, or for its demolition. He agrees that if the owner were disinclined with little incentive, it would leave either an unmaintained eyesore or a large public liability, and this counts heavily against its design quality.”

• Visually attractive

“The Secretary of State agrees with the Inspector, for the reasons given at IR14.74, that while the quality of the presentation materials is of an exceptional standard, achieving the highest architectural quality goes well beyond the level of detailing and presentation. While he recognises that the quality of the presentation materials has made it easier to appreciate how the scheme is designed and how it impacts on its surroundings, he considers that the quality of the presentation materials is not directly relevant to the quality of the design and does not carry weight in this matter.

The Secretary of State agrees with the Inspector that there is some comfort that the attention to detail would be followed through into the finished article (IR14.83). For the reasons given at IR14.75-14.83, he agrees with the Inspector that however carefully detailed, in terms of aesthetics the result would be visually compromised, being neither a continuous flowing object, as with the Gherkin, nor a structure of three distinct parts, as with the Monument (IR14.77). He also shares the Inspector’s reservations about the finish to the concrete of the Tulip (IR14.78-14.79). In terms of symmetry, the Secretary of State agrees with the Inspector that while there have obviously been considerable effort and architectural dexterity employed in modelling the top of the building, the way the gondolas, slide and skywalk have been incorporated into the viewing areas has produced a compromised design that is neither a flamboyant expression nor a consistent elegance (IR14.81).

In terms of overall appearance, the Secretary of State, like the Inspector, finds too many compromises to amount to world class architecture. He considers that taking into account his conclusions in paragraphs 35-36 above and paragraph 46 below, the 8 proposal does not draw support from paragraph 126 of the Framework, which promotes the creation of ‘high quality, beautiful and sustainable buildings and places’.”

• Sympathetic to local character and history

“…the Secretary of State agrees with the Inspector that the form and materials of the Tulip at its proposed height and location would be a poor and unsympathetic response to the historical context. He considers that this weighs very heavily against the quality of the design, and has reflected this in the very considerable weight attributed to the heritage harm.”

• Strong sense of place

“The Secretary of State agrees with the Inspector, for the reasons given at IR14.88 to 14.90, that the base of the Tulip and the Pavilion would create distinctive spaces and the double height arches between the buttresses would be attractive and welcoming alongside the green wall. He further agrees that the sense of drama and expression of structural forces at the base of the Tulip would be striking, and that the Pavilion would be a bright new building with an exciting roof garden at high level. However, he also agrees that the space around the entrances might feel uncomfortable and shares the Inspector’s reservations about the treatment of the Pavilion’s street elevation and how the ground level functions would be achieved. Overall, he agrees with the Inspector’s conclusions that while the scheme would enhance detailed elements of the existing context it would do so at a cost to openness (IR14.90).”

• Optimise the potential of the site

“For the reasons given at IR14.91, the Secretary of State agrees with the Inspector that while the scheme would develop this windfall site to the full, and considerable skill has gone into overcoming the functional requirements within such a tight site and turning these into attractively detailed elements, nevertheless, this would not overcome the loss of open space and part of the backdrop to the Gherkin.”

• Inclusive and accessible

“…while the scheme would be generally accessible to all, its inclusivity would be limited by the cost of the main attractions.”

The Secretary of State concludes on design that he “agrees with the Inspector that the approach would be a muddle of architectural ideas and would be compromised, and that the unresolved principles behind the design would mean that in many regards it would fall between two stools. He further agrees that the development would not amount to a design of outstanding quality, and that the quality of design would not be nearly high enough as to negate its harm to the settings of heritage assets.”

“The Secretary of State has gone on to consider these findings against the revised design policies in the Framework. He concludes that those design elements set out above which weigh against the scheme, both in terms of design process and outcome, have greater weight than the positive elements which have been identified. Overall, the Secretary of State agrees with the Inspector at IR14.106 that the proposal would not amount to a design of outstanding quality.”

“In particular, The Secretary of State considers that the revisions to the Framework make clear that the creation of high quality, beautiful and sustainable buildings and places is fundamental to what the planning and development process should achieve (Framework paragraph 126) and he considers this emphasis on design quality to be an important material consideration in this case.”

“The Secretary of State has further considered whether there is conflict with government guidance on design. In the light of his conclusions above, and for the same reasons, he considers that the proposal is not in accordance with aspects of the National Design Guide, in particular those elements of the Guide dealing with context and resources. He has taken into account the representation of 7 September made on behalf of the appellant which refers to the National Design Guide and the evidence submitted to the inquiry. However, as above, because of significance of the areas of conflict, and the resultant degree of harm, overall he considers that that the proposal does not reflect government guidance on design. He considers that design as a whole carries significant weight against the proposal.”

It is well worth reading the more detailed analysis in inspector David Nicholson’s report. Given public discourse about the “beauty” agenda, reflected in the revised NPPF and national model design code, he makes this interesting comment:

“I did not pursue the notion of beautiful found in the draft NPPF. It is evident, for all the reasons that they set out, that the Appellant and its supporters consider that the scheme would be beautiful while objectors think it would not. While I certainly accept that innovative designs can be beautiful, in other regards I consider that the concept of beauty or otherwise for this appeal is in the eye of the beholder and that any further discussion is unlikely to be helpful”.

Amen to that.

Brighton Marina

Image courtesy of the Outer Harbour Development Company Partnership

The Secretary of State dismissed an appeal by the Outer Harbour Development Company Partnership in relation to the non-determination by Brighton and Hove City Council of an application for planning permission for phase two of a phased residential-led mixed use development at Brighton Harbour Outer Harbour. On design, the decision letter dated 11 November 2021 includes the following:

“For the reasons given he agrees with the Inspector that the various spaces want for discipline and overall there are not enough ‘events’ or ‘signposts’ to make for a properly legible route across the site (IR11.17). Furthermore, he agrees with the Inspector that in terms of the regularity of the façade treatments, and the homogenous mass that would be created, together with the failure to provide a proper landmark or bookend, the scheme lacks the exuberance and ambition that the best of Brighton’s seaside buildings exhibit. He also agrees that it would not, therefore, be a positive contributor to its context and in many respects, it would fail to take the great opportunity the appeal site presents (IR11.22).”

“The Secretary of State agrees with the Council that the updated NPPF gives even stronger weight to the need to follow local design guidance. For the reasons given in this letter, he agrees with the Council’s assessment of the areas of conflict with the UDF. He has taken into account the Appellant’s representations on the matter. However, given the significance of the areas of conflict, and the resultant degree of harm, particularly in respect of heritage, harm to the setting of the National Park and living conditions, he considers that overall there is conflict with the newly adopted UDF, this being a material consideration in its own right. In the light of this conclusion, he considers that overall the proposal fails to reflect local design policies, as required by paragraph 134 of the Framework. He further considers that it fails to reflect the elements of paragraph 130 relating to layout, the requirement to be sympathetic to local character and history, establishing a strong sense of place and providing a high standard of amenity.

The Secretary of State has further considered whether the proposal reflects government guidance on design. In the light of his conclusions above, and for the same reasons, he considers that the proposal is not in accordance with the aspects of the National Design Guide dealing with context, layout, form, appearance, external appearance and public spaces. He has taken into account the appellant’s statement in their representation of 5 August that the provisions set out in paragraph 134 of the revised Framework are covered within Mr Aspland’s POE, which sets out how the landscape design proposals meet the relevant objectives of the National Design Guide. However, as above, because of significance of the areas of conflict, and the resultant degree of harm, overall he considers there is conflict with the National Design Guide. He therefore agrees with the conclusion in the Council’s representation of 24 August that the proposal does not reflect government guidance on design.

Overall, the Secretary of State considers that the shortcomings in terms of the failure to accord with the provisions of the revised Framework carry significant weight against the proposal.”

Taken together, it is clear that care is needed to ensure that proposals are indeed consistent with the revised chapter 12 (“achieving well-designed places”) of the NPPF. But how? On Tuesday 23 November 2021 at 4.30 pm I’m participating in a Montagu Evans webinar: “Planning for beauty, or the “provably popular”. A new urban design agenda?” which I hope will explore the practical implications. I will be joining Chris Miele (Montagu Evans), Charles Banner QC (Keating Chambers) and leading architect Deborah Saunt, one of the founding directors of DSDHA. If of interest please do register here.

In consequence, there will be no Planning Law Unplanned session on Tuesday. You will have to make do with listening back to last week’s session – featuring Zack Simons, as mentioned above, along with Kate Olley, who discussed last month’s Sage case.

Simon Ricketts, 19 November 2021

Personal views et cetera

Stonewater – Paper – Scissors

We all had a good, evidence-based, moan about CIL on clubhouse last week.

Stonewater (2) Limited v Wealden District Council (Thornton J, 15 October 2021) is of course only the latest example of the complexities and uncertainties that arise – in particular on the question of application of reliefs and exemptions (the importance and number of which has been driven by the fact that CIL liability is in most cases so significant) but also on the question of how to mesh the operation of the CIL regime with the operation of the planning system without jamming the whole thing up.

There are plenty of good summaries and critiques of the judgment by now (for instance this Town Library summary by my colleague Safiyah Islam, or this 18 October 2021 blog post by Nicola Gooch, CIL, S.106 Agreements & Affordable Housing Relief: What happens when the housing crisis hits political reality).

This is my take:

Land with planning permission for 169 houses was acquired by Stonewater, a registered provider of affordable housing. The section 106 agreement provided for 59 dwellings within the development to be affordable housing, with a specified tenure mix. The number of affordable housing units was to “comprise 35% of the Dwellings within the Phase (which shall be rounded up to the nearest whole unit”.

Stonewater’s model was more enlightened than that of the developer which had secured the permission. Stonewater “regularly acquires sites which are subject to a section 106 agreement which secure a low or policy compliant level (35%) of affordable housing, with a view to increasing affordable housing delivery to 100%. The Court was told that this is not unusual, and the Claimant is not alone in doing so. Grants from Homes England are based on the principle that registered social housing providers provide additional affordable housing over and above the levels secured in planning obligations.”

Relief from CIL is available for affordable housing via social housing relief. There are criteria set out in regulation 49 of the CIL Regulations which do not include any requirement that the affordable housing is secured by way of section 106 agreement or condition. After all, if there is a clawback period of seven years within which CIL has to be paid with interest if the occupation no longer meets the criteria for relief.

Unsurprisingly, Stonewater sought social housing relief for the whole development, given that it proposed to deliver it all as affordable housing meeting the criteria in regulation 49. The council refused relief on the basis that a varied section 106 agreement would first be required, committing in the agreement for all the dwellings to be delivered as affordable housing. The council later additionally argued that the existing section 106 agreement was to be interpreted as rendering it unlawful for more than 35% of the dwellings to be delivered as affordable housing.

It might be asked why Stonewater didn’t simply enter into the section 106 agreement required – but of course that would have been likely to destroy its entitlement to Homes England funding given that on the face of it there would then be no additionality, and why should it enter into a further agreement if that was not required by the Regulations? Stonewater challenged the council’s decision by way of judicial review. The first issue melted away once the Secretary of State was joined as an interested party and the council conceded that a section 106 agreement obligation that a dwelling be delivered as affordable housing is not a prerequisite to a claim for social housing relief (although it can be useful evidence that the dwellings will be used in a way that meets the criteria for relief) – as did any notion that the relief is discretionary on the part of the authority rather than mandatory. So the only question was whether delivery of more than 35% of the homes would be in breach of the section 106 agreement.

The judge saw the 35% requirement as fixed, not a minimum:

“In my assessment, the language of the document points to an interpretation that the agreement controls the amount of affordable housing that can come forward, by fixing a specific requirement of 59 dwellings or 35% affordable housing. Paragraph 2(iii) of Schedule 1 says that precisely 35% of the units in any phase must be affordable. Accordingly, if the development proceeds in multiple phases, there must be 35% in each phase and thus, inevitably, as a matter of maths, 35% in aggregate. This specific requirement permeates the definitions, which draw a clear distinction between the ‘Affordable Housing Units’ which are “the 59 Dwellings … which shall be for use as affordable housing” and ‘the Private Dwelling Units’ which means everything other than the 59 Dwellings. Paragraph 3 of Schedule 1 provides the mechanism whereby the Council can exercise control in all cases (not just multiple phases) over the provision of affordable housing. The, broadly defined, Affordable Housing Scheme must be submitted for approval and development may not commence until the Council has approved it.

Accordingly, a scheme which provides less, or more units, of affordable housing would not comply with the section 106 requirement to provide 59 units and hence would be contrary to its terms and to that extent unlawful, albeit the Council would have a discretion to vary the Section 106 agreement or enter into a new agreement.”

I must say I find this a strained interpretation. As the claimant pointed out, there would be no reason in policy to restrict the amount of affordable housing in the scheme – why should the developer not be free to dispose of any of the dwellings at less than market value? Indeed, although not I think mentioned in the judgment, how would such a restriction meet the test in regulation 122? Would an authority really succeed in arguing that a developer was in breach of its section 106 agreement if it disposed of market units at less than market value? Of course not.

The judge asserted that “whilst affordable housing is generally desirable in policy terms, it does not follow that more affordable housing is always desirable without limit. There may be proper planning reasons to prefer a mixed scheme. For example, in this case, the Court’s attention was drawn to extracts from the Planning Officer’s report which suggest the expected CIL receipts from a scheme with 35% affordable housing were relevant to the decision making. The highways authority had expressed concern about the potentially severe impact from the development on the local highway network and considered mitigation was required. It was common ground that the necessary mitigation was to be funded by the CIL receipts from the development. However, it is neither necessary nor appropriate for this court to evaluate any preference for a mixed scheme on the facts of this case. It is sufficient to say that it is in accord with the statutory planning context, and / or “common sense”, to have a section 106 agreement which retains control over the provision of affordable housing. This does not defeat the achievement of more affordable housing since the Council, in the exercise of its planning judgment, may vary the Section 106 to permit this, if persuaded of its desirability.” However, how does this sit with the council’s position that it would grant the relief simply if Stonewater entered into a section 106 agreement varying the previous arrangements and requiring all the dwellings to be affordable?

Surely, instead, this was an overly prescriptive reading of the Regulations on the part of the authority and a strained interpretation of the section 106 agreement on the part of the judge? It is truly depressing to think about how long commencement of development is held up on schemes until disputes such as this are resolved – and how so much money has been wasted on all sides.

Simon Ricketts, 13 November 2021

Personal views et cetera

This week’s Planning Law Unplanned delicacies on clubhouse, at 6pm on Tuesday 16 November, will be Sage and Tulip. We’ll be hearing from Kate Olley, who appeared for Mr Sage in the recent High Court case on the important and topical question as to when planning permission is needed to run a business from home, and we’ll be discussing the Secretary of State’s refusal of planning permission for the Tulip in the City of London. Aside from Kate, our guests include arch-planorak, barrister Zack Simons. Thoughts on the decisions? Then join us, to listen or participate. Link to app here.

Courtesy wikipedia

Live/Work, Repeat

Do you get that blurry feeling too?

I could have been dictating this piece for the overnight typing pool, slipping into the firm’s library to check the case references and tricky spellings, being brought printouts of drafts by a messenger in a firm-logo-branded shirt before the desktop publishing department do their weird stuff on The Firm’s Only Apple Mac.

Those were the days, working in a law factory, as we used dismissively to call our daytime workplace over an overpriced drink in a city bar after hours, incommunicado until the next morning.

Or I could be writing it at home in an hour or two of self-discipline away from an overnight stream of emails and an intertwined social media timeline of planning, law, politics, music, football and hopefully an amusing cat video or ten.

I don’t even know whether writing this blog is work or not.

We’re all grappling more than ever before with questions such as:

⁃ Where are the boundaries between work and home?

⁃ What is the continuing role for formal workspaces when the necessary components for core “office” work are simply a laptop, mobile phone and quiet space; for lockup shops when everyone can be their own etsy or e-bay business, or for studios and workshops where the work carried out may largely rely on nothing more than manual dexterity plus some tech?

⁃ In an age where the average household is having multiple home deliveries of all sorts of goods, what level of business activity is to be regarded as normal or appropriate for a residential area? Can you even generalise – or does it depend on the nature of the area and its dwellings?

⁃ Is this all a Good thing or a Bad thing and to what extent is it any business of the planning system? If it was the industrial revolution that brought about such a sharp delineation between where we live and where we work, are we now in a post-industrial revolution and are there indeed environmental, social and economic benefits to a greater degree of community, as opposed to commuter, living? How to reinvent the office so that it is about unique human communication, rather than as a left behind place, its complex physical functions, systems and gadgets long outsourced to laptop and phone?

Two recent cases led to these thoughts. The main one was Sage v Secretary of State (Sir Duncan Ouseley, 28 October 2021) (I know, one planning law Sage case was confusing enough and here comes another). I very much recommend and won’t repeat our Town Library case summary written by my colleague Stephanie Bruce-Smith (work-related plug: you can still subscribe for free to these brilliant weekly summaries by the Town Legal team of all Planning Court and relevant appellate judgments here).

Sir Duncan Ouseley in his ruling considers whether the advice in the Government’s Planning Practice Guidance is correct as to when planning permission is needed “to homework or run a business from home”. The guidance says this:

“Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business use does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to noticeable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.”

Sound sensible to you? Then be wary, because the judge disagreed. He considered that the passage in brackets at the end of the first sentence is expressed too widely and also that the question of environmental impact (the matters referred to in the second sentence) is of limited relevance.

The facts as summarised by the judge were as follows:

“Mr Sage, lives in a two-storey semi-detached house with a garden, about 20 metres deep, in a residential street in a primarily residential area of Beckenham in the London Borough of Bromley. At the rear of his garden is a timber out-building, with windows, which is used in part as a garden shed, and in part as a gym. Mr Sage keeps gym equipment there including a treadmill, cross-trainer, weights, balls, bench, and punch bag. It has no toilet or showering facilities. The garden, and the shed, can be accessed via a passage to the side of the house, shared with the neighbouring property. Mr Sage uses the gym himself and he permits family and friends to use it. He has used the gym part of the shed since 2016 for his business as a personal trainer, for paying clients, who attend at the premises.”

Bromley had refused Mr Sage’s application for a certificate of lawful use, disagreeing that either the use was ancillary to the primary residential use of his property or that that the use fell within section 55 (2)(d) of the Town and Country Planning Act 1990: “the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;…“

(In passing, it’s not just about working from home, be careful about your hobbies: “Wallington v Secretary of State for Wales (1991) 62 P&CR 150, CA, concerned an enforcement notice alleging that the keeping of 44 dogs as a hobby was not incidental to the use of a dwelling house “as such”, that is as a dwellinghouse. The notice was upheld and the dogs limited to 6. The fact that the owner genuinely regarded this as a hobby “cannot possibly suffice to prove by itself” that the purpose was incidental to the enjoyment of the dwelling house as a dwellinghouse. Significance had to be given to the words “as such”.”)

An inspector dismissed Mr Sage’s appeal and he challenged that decision.

“This latter Guidance suffers from two main problems. The first question is what use is being made of the land, including its ancillary uses, and, in the case of a dwelling house, whether any purposes to which it is put are reasonably incidental to its use as a dwelling house. The passage in brackets at the end of the first sentence of this guidance is correct but too readily capable of leading to the concept, of a material change of use or a purpose incidental to the use of dwellinghouse as such, being misunderstood. This is because a business use in a dwellinghouse may well be secondary to the primary residential use of the dwellinghouse; but may still create a material change of use, be for a non-incidental purpose. A secondary use will involve a material change of use of the dwellinghouse to a mixed or composite use, as was found to have occurred here, unless it is so secondary that it is merely ancillary to the residential use as a dwelling house such that there is still just that one use; or in the case of a dwelling house, the purpose at issue is reasonably incidental to the enjoyment of the dwelling house as such. This is a crucial point which the Guidance ignores or blurs badly.

Second, a material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use. Environmental impact can be relevant as evidence that a material change has occurred, because a use of the new character may be capable of yielding environmental impacts or have done so already. The Guidance as written is apt to mislead as to what the real question is, and as to the true but limited relevance of environmental impact.

Once the use of the outbuilding for the business of a personal training studio for paying visitors is accepted as an ancillary to or reasonably incidental to the use of a dwellinghouse as such, the difficulty of measuring the materiality of a change in the scale of the activities or their mode of operation points to the limitations of using environmental impact as the measures not of impact but of materiality of the change of use. It appears quite difficult to contend that using the garden for exercise, warming up and warming down, post-exercise conversation, refreshment, or using the outbuilding with the doors open in hotter weather or if the air-conditioning is inadequate, or enabling visitors to traipse to the lavatory and back, involves a material change of use, when use of the outbuilding for 6 days a week for personal training did not. This is the more so if others, who are not commercial clients, do so. It is difficult to see that an increase in numbers and disturbance would be of itself a material change of use. The neighbours might change; a new owner of the house could intensify the use. There could be, as here, a local difference of view about the effect of the business. This all is grist to the mill of the limitations of the role of environmental impact in resolving the materiality of a change in use and the incidental nature of the additional use. The Guidance is far too loose to reflect the true focus of the question at issue.”

There is then this final fascinating passage:

“I also appreciate that there are many forms of service offered within a dwelling house, from private tuition, including in music or singing, child minding, medical services. I accept that what is normal or reasonably incidental now may have shifted with changes in work habits as a result of Covid. This is not relevant to this particular case. And an important distinction would have to be drawn between working from home, where work-related visitors were few and far between, and working from home which took the form of routine and frequent work-related visitors, notably customers. However, the question of how much actual noise the music or maths teacher and pupil make, how much actual disturbance is generated by young children or dogs being minded, is not the touchstone of the materiality of the change of use, although it may point to a nature or degree of use which is materially different from that of a dwellinghouse or its incidental purposes. One is a residential use, and the other is a residential and commercial use. Of course, they both may vary in their intensity and impact, but one cannot be controlled through the need for planning permission and the other can and should be.”

How is this distinction really to be drawn, clearly, in practice?

The second case is a judgment of the Central London County Court. AHGR Ltd v Kane Laverack (HHJ Johns QC, 27 September 2021). The judgment is unreported but summarised in County Court at Central London considers Live/Work units (Landmark chambers, 27 October 2021). Nostalgia time for some of us – “live/work units” are now a rather outmoded concept but were once given favourable policy status by certain London authorities in specific areas.

In leafing through books in the library (ok, by googling) I came across this excellent 2005 report by Andrew Lainton prepared for the London Borough of Hammersmith and Fulham, Does Live/work? Problems and Issues concerning Live/Work Development in London:

“ The concept took off in London during the late 1990s. The concept was initially welcomed by many planning officers as they saw it meeting multiple employment and housing objectives. Initially proposals were by individual and artists, however developers soon became involved as it became seen as a means of securing planning permission in areas where existing zonings made development difficult.

There was a gradual disillusionment with the concept and many planners began to see the concept as a ‘fig leaf’ for primarily housing schemes. Policies in most boroughs have significantly tightened.

Some developers are quite open that Live/Work is simply a ruse for securing planning permission. There is widespread evidence of large scale residential reversion and little evidence of continued employment occupancy, other than in areas where there is a strong market for small offices where units are more likely to revert to employment use. The search for examples of good ‘work/ live’ practice has proven a largely barren one.”

AHGR was a landlord and tenant case which concerned the proper interpretation of a user clause in a lease required use “as a live/work unit in accordance with the terms and conditions of the planning permission”.

Excitingly for us lawyers, but leading to a rather curious outcome, it revolved around the interpretation of “/“: does “live/work” means “live and work” or “live and/or work”? A salutary lesson for users of the dreaded slash…

To quote from the summary:

“The live/work unit had been built out as a flat, without apparent regard to the requirements set out in building regulations for commercial premises at the time. The user clause required use “as a live/work unit in accordance with the terms and conditions of the planning permission”. The Defendants (a barrister and doctor) had resided in the live/work unit primarily as their home, albeit that they had undertaken various work-related activities in their open-plan living space and spare room, such as writing books, publishing papers, and undertaking triaging and consultation of patients by phone. There was no designated work space in the unit and despite inspections over the years, no objections had been raised by the landlord’s agents to such use.”

“After a 4 day trial, HHJ Johns QC dismissed the claim. He concluded the planning permission meant “live and/or work”. The construction of the planning permission was central to the construction of the leasehold covenant and particular regard was had to: (i) the planning policy background to the permission, (ii) the absence of conditions, (iii) the fact that the plans marked the whole area as live/work, (iv) the fact that other plans referred to in the permission used a “/” to indicate “and/or”, (v) the planning framework (including the fact that a breach of planning control can have criminal sanctions) (vi) the fact that a “live and/or work” construction still serves a purpose of allowing a business to be run from the premises; and (vii) how the planning permission had been implemented. A 1999 Supplementary Planning Guidance document, which was relied on by the Claimant, did not alter that interpretation.

The Judge also held that if the clause had mandated work, the planning permission did not require running a business from the unit and the activities undertaken by the Defendants were sufficient.”

Given that the whole purpose of “live/work units” was to require an element of employment use, rather than just use for residential purposes the judgment does not sit well with any purposive approach to interpretation of the documents but life, and the nature of work, has certainly moved on.

I wrote a long time ago about the many definitional problems within the Use Classes Order C-classes, in my 1 July 2016 blog post Time To Review The “C” Use Classes? Those problems are multiplying. What new boundary lines do we need, if any?

Simon Ricketts, 6 November 2021

Personal views, et cetera

Our clubhouse session this Tuesday at 6pm will be another good one: CIL horror stories. Story tellers will include Tom Dobson, Zenab Hearn, Claire Petricca-Riding, Professor Samer Bagaeen and Graham Cridland. Link here.

Simonicity Towers

To The Centre Of The City, In The Night

Live arts should be the throbbing heartbeat of any city.

Cultural opportunities, the creative arts and a vibrant night-life are obviously a big reason why those who are the basis of the local economy and its growth, particularly young professionals, choose to put down their roots in a place.

Venues and studios for independent creative arts – for bands, performers and artists to play, rehearse, create – are the petri dish from which something grows that comes to define a city, that may become a mainstream business, employer and exporter in its own right (and we are increasingly in a world where the creative arts and tech are intertwining, making this even more likely).

I’m not talking of dead cultural artefacts, Government money for another Beatles attraction in Liverpool, I’m talking about the between-spaces, the meanwhile-uses, the forgotten-buildings, the spaces-set-aside-by-enlightened-owners – where (at low cost and with a looser set of constraints), from apparently unpromising seeds, flowers bloom.

This is personal for me – it may be for you too. I grew up in Southampton and it was all about the local music venues – seeing people like me 12 feet away on a foot-high stage, then trying it myself, amateur hour or what? – and then about choosing London as my university town, yes for the music and culture – got to confess it wasn’t at that point for the employment opportunities. Where I then stayed, for decades.

As I’ve gradually moved away in time and distance from all this, I’ve realised more and more how important grassroots/independent culture is – not just in the way that it provides a channel for young people to express the raw creativity that we all have before it’s schooled and worked out of us and which often is the most powerful (for being honest) form of artistic expression – but also how important it is for cities and towns themselves. Nowhere should end up as a husk, an artefact, a collection of once interesting buildings and not much else.

We’re going to have a discussion about all of this at a Clubhouse session at 5pm on Monday 1 November, at which I’m so glad that I will be joined by people who know much more than me about how to make culture thrive in cities. Clara Cullen is venue support manager at the Music Venue Trust, which exists to help protect, secure and improve grassroots music venues across the UK. Tom Clarke is national planning advisor at the Theatres Trust, which seeks to protect the future of live performance (of all kinds), by protecting and supporting theatre buildings which meet the needs of their communities (he’s also a live music nut). Stacey Adamiec is a strategic place maker, working with agents, landlords and authorities to create flexi and creative spaces. And most poignantly for me, we have Richard Williams. Richard at one time was leader of Southampton City Council but this is nothing to do with that. In 1981 he released a compilation album of tracks recorded by Southampton bands, called City Walls. It was my last year at home before heading to London – I loved that album as a snapshot in time and place. He then wrote a book about the process of getting it together, “A Curry With John Peel”, and then, this year, 40 years on (40 years!) he released another album of tracks by today’s Southampton bands, City Walls 2. To compare and contrast is fascinating. I am so looking forward to the discussion and very much hope that you can join us – details at the end of this blog post.

It’s been tough for grassroots venues. With conflicting needs for land, given the understandable pressure for brownfield sites to secure housing and employment development; with  less and less public funding, nationally or locally, and then in this recent time of pandemic, fear and lockdown.

But in recent years there have at least been some signs of light.

The “asset of community value” designation process introduced by the Localism Act 2011 has helped many venues (eg Heaven, Brixton’s Club 414, Guildford’s Boileroom, the Birds Nest in Deptford, Half Moon in Herne Hill and the After Dark club in Reading to name just a few) but of course the designation ultimately is more of a nudge than providing any absolute protection.

To have the “agent of change” principle included within national planning policy back in July 2018 was a big step forward. In the current NPPF this is paragraph 187:

“Planning policies and decisions should ensure that new development can be integrated effectively with existing businesses and community facilities (such as places of worship, pubs, music venues and sports clubs). Existing businesses and facilities should not have unreasonable restrictions placed on them as a result of development permitted after they were established. Where the operation of an existing business or community facility could have a significant adverse effect on new development (including changes of use) in its vicinity, the applicant (or ‘agent of change’) should be required to provide suitable mitigation before the development has been completed.”

Last year, in response to the pandemic, work by the Theatres Trust and others secured two important additional protections for concert halls, venues for live performance and theatres:

• A ministerial statement on 14 July 2020 confirming that venues should be protected, at least for a temporary period, against land owners seeking to argue lack of viability based on the then precarious financial position that many were in:

“The Government recognises that the temporary closure of theatres, concert halls and live music performance venues due to Covid-19 has the potential to lead to permanent loss of important cultural and economic assets, and is determined that otherwise viable facilities are not lost forever.

The purpose of this Written Ministerial Statement, is to set out how local planning authorities should approach decision-making to prevent the unnecessary loss of these venues. With immediate effect, local planning authorities should have due regard to their current circumstances when considering whether to grant planning permission for a change of use or demolition of a theatre, concert hall or live music performance venue that has been made temporarily vacant by Covid-19 business disruption.

Where an alternative use or demolition for a long-term vacant theatre, concert hall or live music performance venue is proposed, local planning authorities should consider the application in the normal way. The Theatres Trust is a statutory consultee under the Town and Country Planning (Development Management Procedure) (England) Order 2015 (S.I 2015/595) for applications seeking to develop any land where there is a theatre and will have an opportunity to comment on any application relating to theatres.

This policy remains in place until 31 December 2022 unless superseded by a further statement.”

• A change to the General Permitted Development Order on 9 November 2020, meaning that planning permission is now needed for their demolition, in the same way as had previously been introduced for pubs.

I’ll leave others to comment on whether the measures in this week’s Autumn Budget and Spending Review were sufficient but obviously there were various announcements which are potentially relevant:

• “£1.7 billion worth of projects to upgrade local infrastructure through the first bidding round of the £4.8 billion Levelling Up Fund”

• “the first 21 projects to benefit from the £150 million Community Ownership Fund – which will help communities across the UK protect and manage their most treasured assets. This investment puts community priorities at its core and will improve the local infrastructure crucial to everyday life, such as transport and town centres.”

• “Tax reliefs for museums, galleries, theatres and orchestras will further support the cultural life of towns and cities across the UK”.

• “a new temporary business rates relief for eligible retail, hospitality and leisure properties for 2022-23. Eligible properties will receive 50% relief, up to a £110,000 per business cap”

• “funding the £800 million Live Events Reinsurance Scheme”

The Government’s long-awaited Levelling Up White Paper will apparently provide additional proposals. I’m conscious that in many ways this shouldn’t all be about the Government, whose most important role may simply be to “do no harm”. There are an increasing number of important voices and organisations – aside from the Music Venue Trust and Theatres Trust and many other groups, in London of course since 2016 Amy Lamé has been our first “night czar” and able to cast a light on important underlying issues – including the safety of women out at night, and the return of the night tube (from 27 November).

But what more do we need to see, across the country (and in towns as well as cities)?

Do join us at 5pm on Monday – we can chew over all of this, led by our special guests, but hopefully share our own stories about how important grassroots live venues and indie city culture more generally are/have been for us, our families and communities. Just talking about the music is also fine! Link to app here.

Simon Ricketts, 28 October 2021

Personal views, et cetera

Extract from photo by Sebastian Ervi , courtesy of Unsplash.

Net Zero Strategy: We Can Have Cake & Eat It

“For years, going green was inextricably bound up with a sense that we have to sacrifice the things we love. But this strategy shows how we can build back greener, without so much as a hair shirt in sight. In 2050, we will still be driving cars, flying planes and heating our homes, but our cars will be electric gliding silently around our cities, our planes will be zero emission allowing us to fly guilt-free, and our homes will be heated by cheap reliable power drawn from the winds of the North Sea. And everywhere you look, in every part of our United Kingdom, there will be jobs. Good jobs, green jobs, well-paid jobs, levelling up our country while squashing down our carbon emissions.”

More cakeism from our prime minister, this time in his foreword to the Government’s Net Zero Strategy: Build Back Greener (19 October 2021).

The document is of course hugely important. Together with the Government’s heat and buildings strategy published the same day, this is the detailed plan, presented to Parliament pursuant to the Climate Change Act 2008, which sets out how our country will achieve its net zero carbon target by 2050. But it has a wider role ahead of next month’s COP 26 event in Glasgow, both pour encourager les autres and, more formally, to be “submitted to the United Nations Framework Convention on Climate Change (UNFCCC) as the UK’s second Long Term Low Greenhouse Gas Emission Development Strategy under the Paris Agreement.”

It’s a detailed document, 368 pages – full of initiatives, science, business exhortation, more acronyms than you could shake a stick at and a fair degree of management consultancy/policy wonk speak (for instance, repeated use of “no regrets” and “low regrets” options terminology). After an evening’s scrolling I’m in no place to determine whether it’s brilliant or bonkers in its world-leading optimism. In fact, as someone always in need of a mental map as to how these sorts of strategy fit into the wider international and national legislative and policy framework, it was a relief to get to the technical annex (from page 306) and the client science annex (from page 362), which made for refreshingly clear if bracing reading.

The document largely dismisses any idea that there are any hard choices ahead. We have all seen the media gossip as to internal differences of view within the Conservative party, for instance UK meat tax and frequent-flyer levy proposals briefly published then deleted (Guardian, 20 October 2021) and Tempers fray as Tories fail to unite for Cop26 climate talks (The Times, 23 October 2021). The withdrawn BEIS research paper Net Zero: principles for successful behaviour change initiatives – key principles from past government-led behavioural change and public engagement initiatives makes interesting reading but is hardly any smoking gun.

The lack of any emphasis being given to the planning system as a mechanism for helping to deliver change and regulate against unwelcome outcomes is telling. I was dutifully gathering the snippets but I then read this very good piece by Michael Donnelly which pieces them together very much how I would have liked to have done: Net zero strategy promises to ’embed’ transport decarbonisation in spatial planning and reiterates NPPF review (Planning magazine, 20 October, behind paywall).

The fullest and most direct reference to planning in the whole strategy is probably on page 267:

“National planning policies already recognise the importance of sustainable development and make clear that reducing carbon emissions should be considered in planning and decision making. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles, and reduce carbon emissions. The government is considering how the planning system can further support our commitment to reaching net zero. We will make sure that the reformed planning system supports our efforts to combat climate change and help bring greenhouse gas emissions to net zero by 2050. For example, as part of our programme of planning reform we intend to review the National Planning Policy Framework to make sure it contributes to climate change mitigation and adaptation as fully as possible.”

There is no indication of how the planning system can help, or when the NPPF is to be reviewed. Of course the twin dangers are of, on the one hand, a set of changes in the near future that address net zero and then a further set of changes to reflect whichever changed direction planning reform more generally is to embark upon following the pause to the white paper thinking, and, on the other hand, a long long wait, whilst everything is knitted together.

The role of the planning system is of course intertwined with the various proposals within the Environment Bill, given plenty of airtime in the document, and, after all this is policy bingo, there are plenty of references to levelling up.

The present vacuum ahead of any hard news on the NPPF or wider reforms is of course being filled with noise, suggestions, exhortations (see eg There’s a climate emergency, and the planning system is not helping (Andrew Wood, CPRE, 18 October 2021) and, particularly recommended, joint guidance published on 19 October 2021 by the RTPI and TCPA on planning and climate change). You’re at a gig and the lights have gone down, the background music has been killed and there’s the occasional roadie scuttling across the stage.

Normal people can stop reading at this point and jump to the end. But for the cut and paste junkies, here are some other quotes from along the way:

“Deliver four carbon capture usage and storage (CCUS) clusters, capturing 20-30 MtCO2 across the economy, including 6 MtCO of industrial emissions, per year by 2030”

“Following the Phase 1 of the Cluster Sequencing process, the Hynet and East Creating the skilled workforce to deliver net zero and putting UK Coast Clusters, will act as economic hubs for green jobs in line with our ambition supply chains at the forefront of global markets to capture 20-30 MtCO2 per year by 2030. This puts Teesside and the Humber, Merseyside and North Wales, along with the North East of Scotland as a reserve cluster, among the potential early SuperPlaces which will be transformed over the next decade.”

“We will also take a place-based approach to net zero, working with local government to ensure that all local areas have the capability and capacity for net zero delivery as we level up the country. And Government is leading the way – embedding climate into our policy and spending decisions, increasing the transparency of our progress on climate goals, and providing funding to drive ambitious emissions reductions in schools and hospitals.”

“These opportunities show that net zero and levelling up go hand in hand. Delivering net zero allows us to boost living standards by supporting jobs and attracting investment in the green industries of the future, which can be in areas that need this the most. Crucially, delivering net zero also involves supporting workers employed in high carbon industries that will be affected by the transition, by giving them the skills they need to make the most of new opportunities in the green economy. But the link between net zero and levelling up is wider than just the economy, net zero can deliver wider benefits for people and communities across the UK by helping spread opportunity and restore pride in place.

We are already taking action to make the most of these opportunities. We have embedded a net zero principle in our levelling up funding initiatives, such as the Levelling Up Fund and the Towns Fund, so that these schemes can contribute to meeting our net zero targets and help places to reduce their carbon impacts. Later this year, we will publish a Levelling Up White Paper. This will build on the actions the government is already taking to both deliver net zero and level up across the country, including the ones set out in this strategy, and set out new interventions to improve livelihoods and drive economic growth in all parts of the UK.”

“The characteristics of the net zero challenge – requiring action by multiple parties across the public and private sectors, delivery at pace, and management of large uncertainties – underline the need for strong coordination in policy development and clear signalling to markets. Government taking a systems approach to policy will help to navigate this complexity. We must consider the environment, society, and economy as parts of an interconnected system, where changes to one area can directly or indirectly impact others. This will help to ensure we design policy to maximise benefits, account for dependencies, mitigate conflicting interests and take account of learning as we go. It reduces the risk of unintended consequences, ensuring individual decisions designed to help achieve net zero do not end up hindering it or other important objectives.”

“New standards and regulation.

In certain areas government will need to support and complement market-led decarbonisation with standards and regulation to ensure that, where appropriate, green options are pursued, while high carbon options are phased out. This will help to accelerate low regrets areas like energy efficiency, such as ensuring our homes are built to new standards, and high impact areas like zero emission vehicles. It will also ensure suppliers of higher-carbon technologies and fuels provide low carbon alternatives, driving deployment at scale.

• Planning and infrastructure.

Low carbon solutions rely on transforming the infrastructure needed to deliver them. Increasing electricity generation needs to be accompanied by building out a flexible grid. Alongside dedicated hydrogen infrastructure, new CO2 transport and storage infrastructure is needed for the use of CCUS which will require investment of around £15 billion from now to the end of the Carbon Budget 6 period. We need to ensure that low carbon energy generation can be connected to sources of demand geographically, which means improving knowledge of local circumstances and opportunities for generation. We also recognise the importance of the planning system to common challenges like combating climate change and supporting sustainable growth.

• Sustainable use of resources.

Net zero will mean maximising the value of resources within a more efficient circular economy. It will need a significant increase in the use of certain types of resources – critical minerals like lithium, graphite, and cobalt, as well an increased demand on resources like copper and steel – from manufacturing green technologies to building large-scale infrastructure. This will require new robust supply chains and provide economic opportunities, but there will be environmental trade-offs, and potential negative impacts on habitats, biodiversity, and water resources to be managed carefully. For example, ammonia emissions from anaerobic digestion, which can use waste as a feedstock, can also affect biodiversity and health.

• Understanding land use trade-offs.

Like other resources, our land is finite and competition for it will need to be managed as we rely on natural resources and use land for multiple new purposes, such as perennial energy crops and short rotation forestry for energy generation, while allowing for afforestation and peatland restoration to sequester and avoid emissions. We will also need to ensure net zero is compatible with wider uses of land such as agriculture, housing, infrastructure, and environmental goals. These land use challenges are exacerbated by the impact of climate change on the availability of productive land and water in future.”

“New Buildings. We will introduce regulations from 2025 through the Future Homes Standard to ensure all new homes in England are ready for net zero by having a high standard of energy efficiency and low carbon heating installed as standard. This should mean that all new homes will be fitted with a low carbon heat source such as a heat pump or connected to a low carbon heat network. To reinforce this, we will consult on whether it is appropriate to end new gas grid connections, or whether to remove the duty to connect from the Gas Distribution Networks. As an interim measure to the Future Homes Standard, we plan to introduce an uplift in standards, effective from June 2022, for England that would result in a 31% reduction in carbon emissions from new homes compared to current standards. We will also respond to our consultation for the Future Buildings Standard for new non-domestic buildings.”

“47. We are driving decarbonisation and transport improvements at a local level by making quantifiable carbon reductions a fundamental part of local transport planning and funding. Local Transport Plans (LTPs) – statutory requirements that set out holistic place-based strategies for improving transport networks and proposed projects for investment – will need to set out how local areas will deliver ambitious carbon reductions in line with carbon budgets and net zero.

48. We will embed transport decarbonisation principles in spatial planning and across transport policy making. Last year, the government set out proposals for a new and improved planning system, central to our most important national challenges, including combating climate change and supporting sustainable growth. The National Model Design Code, published in July this year, guides local planning authorities on measures they can include within their own design codes to create environmentally responsive and sustainable places. The National Model Design Code provides tools and guidance for local planning authorities to help ensure developments respond to the impacts of climate change, are energy efficient, embed circular economy principles and reduce carbon emissions.”

“The UK has a limited amount of land and delivering net zero will require changes to the way this land is used, for example, for afforestation, biomass production, and peat restoration. Opportunities for land to be used for multiple purposes, such as agroforestry will help to make sure land use for decarbonisation purposes is balanced with other demands, such as housing development and food production. These changes are likely to have varying effects on wider environmental outcomes and may completely alter the character of some landscapes and rural livelihoods (see section below). Land use change must be designed in a systemic, geographically targeted way with appropriate local governance and delivery structures which consider the complex range of interacting social, economic, and demographic factors. To support this, government is developing a Net Zero Systems Tool which aims to allow key decision makers to gain new insights and understanding, by highlighting dependencies and trade-offs within the land use system, as well as by demonstrating the knock-on effects of proposed policies. In addition, through the Environment Bill, the Government is introducing Local Nature Recovery Strategies (LNRS), a spatial planning tool for nature, allowing local government and communities to identify priorities and opportunities for nature recovery and nature-based solutions across England. The Bill includes a specific duty on all public authorities to “have regard” to relevant LNRSs and the spatial information they provide will support the development of local plans and other land use change incentives. Delivery of priorities and opportunities identified in LNRS will be supported by a range of delivery mechanisms including our environmental land management schemes, and in particular, the Local Nature Recovery scheme. By 2028, Defra’s current plans are for total spend to be evenly split between farm-level, locally tailored, and landscape-scale investment within ELM.”

“Local green infrastructure and the environment

34. Government will launch a new National Framework of Green Infrastructure Standards in 2022. This will support local areas and regions to deliver well-designed green infrastructure where it is most needed to deliver multiple benefits. These networks of green and blue spaces and other natural features, including trees, provide an opportunity to benefit local economies and bring about long-term improvements in people’s health and wellbeing. At the same time, it can help us to mitigate and adapt to climate change, through capturing and storing carbon, shading and cooling, and reducing flooding.

35. The Environment Bill is also creating a new system of spatial strategies called Local Nature Recovery Strategies to target action for nature and to drive the use of nature-based solutions to tackle environmental challenges like climate change. It is expected that there will be approximately 50 Local Nature Recovery Strategies covering the whole of England with no gaps and no overlaps. Preparation of each Strategy will be locally led and collaborative, with local government taking a critical role. This will provide local government with a new tool through which they can work with local partners to identify where effort to create or restore habitat would have greatest benefit for climate mitigation, whilst also having positive benefits for nature and the wider environment. Between 2021 and 2027, we will be doubling our overall investment in flooding and coastal erosion to £5.2 billion.

36. In addition, £200 million will be invested in the Innovative Flood and Coastal Resilience Innovation Programme. This will help over 25 local areas over six years to take forward wider innovative actions that improve their resilience to flooding and coastal erosion. The Environment Agency is also working with coastal authorities on a £1 million refresh of Shoreline Management Plans.”

Normal people you can start reading again…

I hope that was at least a taster and I recommend that you dip into the document itself. Whatever happens to the planning system, the initiatives set out in the document are undoubtedly going to be central to our lives and work over the years to come.

We’re going to be discussing all this for an hour or so from 6 pm on Tuesday 26 October 2021 on clubhouse. I’ve never been to a book club session but maybe it’ll be a bit like that, without the tortilla chips or wine. Join us. Link to the app here.

Simon Ricketts, 23 October 2021

Personal views, et cetera

Extract from photo by Angèle Kamp , courtesy Unsplash.

For All The Posts I’ve Blogged Before…

There’s now an ask.

The blog posts, clubhouse events, any webinars you might have sat through in desperation through the last 18 months, they are all free, no charge.

Weirdly enough, planning lawyers just love talking about planning law.

Why did we become lawyers? Not so weirdly, but maybe we don’t talk about it enough, it wasn’t just for the sheer joy of sometimes winning an argument, completing a cryptic-crossword-puzzle of an agreement or working out what some statutory provision actually means. It wasn’t just because for us in the private sector of course there’s the money. It was because, maybe just a bit, maybe sometimes forgotten in the thrill of the CIL Regulations, at the root of it all we know that…

law matters.

It’s the law that protects those who find themselves homeless through no fault of their own, in a financial tangle not of their own making, discriminated against, exploited or needing legal protection from those around them.

And if you have a problem like that, you don’t need a well-paid planning lawyer, you need a proper hero of a lawyer, often just working as an unpaid volunteer, within a law centre or pro bono agency.

My ask is that, if you have got any value out of any of this stuff – the blog posts, the on line events – in all conscience please do consider clicking on this link and donating £10, or whatever you think fit, to the London Legal Support Trust. It’s never been more necessary.

I’m doing the London Legal Walk on Monday with 22 colleagues. 10 km is no big deal as an endurance event, this is no marathon but it’s still a big deal in terms of the hundreds of thousands of pounds that it raises. In previous years there have been 15,000 or so lawyers taking part. Perhaps a good afternoon to stay away from EC4.

We are walking with the Lord Chief Justice and thousands of lawyers to raise funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London.

Two-thirds of the UK population don’t know how to get legal advice and 14 million people who live in poverty can’t afford to pay for it. The London Legal Walk raises vital funds to ensure access to justice for some of our communities’ most poor and vulnerable people.

Your support is needed now more than ever with the long-term challenges brought on by the Covid-19 pandemic. Reduced funding in the charity sector means advice agencies are doing all they can to meet rising need despite a drastically restricted income.

The event supports over 100 legal advice agencies in London and the South East. We know that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly, fighting discrimination and exploitation.

Please sponsor our walkers as generously as you are able.

Many thanks for your support.

Sorry that there’s no planning law in this post. More round the corner I’m sure! And be sure to tune into Clubhouse at 6 pm this Tuesday 19 October 2021 , when Charles Banner QC will be leading a session on all things Hillside – it’s been almost a year since the Court of Appeal’s judgment. Now that the dust has settled (has it?) and while we still wait to see whether the Supreme Court will grant permission to appeal, what are its practical implications? Link to app here.

Simon Ricketts, 15 October 2021

Personal views, et cetera

Extract from photograph by Craig Whitehead, courtesy Unsplash