Oligarchs Out

In the 21st century, London has increasingly been a safety deposit box for the wealthy of the world – so many people with incomprehensible amounts of wealth, including (but not exclusively) the so-called Russian “oligarchs” (“one of a small group of powerful people who control a country or an industry”).

Just look at some of the properties we’re talking about: The London mansions owned by Russian oligarchs from ‘Billionaire’s Row’ pad to estate almost size of Buckingham Palace (MyLondon, 4 March 2022). See also this BBC piece this morning (5 March 2022): The mega-rich men facing global sanctions.

Obviously, if you come by your wealth legitimately so be it, but the sums these people apparently own would suggest at best that something is wrong with the very structure of capitalism, and at worst…well draw your own conclusions. And to what extent is this all assisting the evils of the Putin regime – and its equivalents briefly eclipsed in the news cycle?

The UK financial sanctions list (4 March 2022) currently identifies 196 Russian individuals, with the reason for each person being on the list.

For a good introduction to the complex and evolving world of sanctions, I found DAC Beachcroft’s 4 March 2022 briefing UK Sanctions – The Evolving Response to the Russian Invasion of Ukraine and what it means for UK businesses particularly useful:

“Prior to 10 February 2022, the Regulations allowed the UK Government to ‘designate’ (that is, to impose sanctions on) a person who is or has been involved in ‘destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine’. Individuals and entities that are so ‘designated’ are listed on the UK Consolidated Sanctions List (“the UK Sanctions List”) along with confirmation of the reasons for designation.”

“Asset freeze” sanctions “seek to impose prohibitions or requirements for the purposes of:

1. freezing the funds or economic resources owned, held or controlled by certain individuals and entities;

2. preventing financial services being provided to or for the benefit of certain individuals or entities;

3. preventing funds or economic resources from being made available to or for the benefit of certain entities or individuals; or

4. preventing funds or economic resources from being received from certain individuals or entities.”

“On 10 February 2022, the UK Government expanded its power to designate entities and individuals from a wide variety of sectors as it gave itself the power to designate persons ‘involved in obtaining a benefit from or supporting the Government of Russia’, including:

1. Carrying on business as a Government of Russia affiliated entity

This will include any entity which is owned directly or indirectly by the Russian Government or in which the Government of Russia holds directly or indirectly a minority interest or which has received some form of financial or other material benefit from the Government of Russia.

2. Carrying on business of economic significance or in a sector of strategic significance to the Government of Russia

This includes the Russian, chemicals, construction, defence, electronics, energy, extractives, financial services, information and communications and transport sectors.

3. Owning or controlling directly or indirectly or working as a director or trustee of a Government of Russia affiliated entity or an entity falling within any of the other above categories.”

As described in Commons Library briefing Countering Russian influence in the UK (25 February 2022), the so-called “golden visa” scheme has now been scrapped:

“On 17 February, the Government announced the immediate closure of the Tier 1 (Investor) visa to new applicants. The visa offered up to five years’ permission to stay in the UK and a route to permanent residence, in return for a minimum £2m investment. A review of all investor visas granted between 2008 and April 2015 was announced in 2018. The Government has said results will be published “in due course”.

Russians are the second most common nationality granted investor visas since 2008, although they accounted for a much smaller proportion of applicants since 2015. Just over 2,500 investor visas have been issued to Russians since 2008 (roughly one fifth of all such visas issued). People granted investment visas before 2015 may have now completed the residence requirement for permanent residence (and possibly British citizenship).”

Events have of course prompted the Government belatedly to fast-track the Economic Crime (Transparency and Enforcement) Bill. Its 2nd Reading will be on 7 March 2022. As set out in its explanatory notes, the Bill’s main objectives are to:

“Prevent and combat the use of land in the UK for money laundering purposes by increasing the transparency of beneficial ownership information relating to overseas entities that own land in the UK. The Bill therefore creates a register of the beneficial owners of such entities. The register will be held by Companies House and made public.

Reform the UK’s Unexplained Wealth Order (UWO) regime to enable law enforcement to investigate the origin of property and recover the proceeds of crime. The measures in the Bill aim to strengthen the UK’s fight against serious economic crime; to clarify the scope of UWO powers; and to increase and reinforce operational confidence in relation to UWO powers.

Amend financial sanctions legislation, including the monetary penalty legal test and information sharing powers to help deter and prevent breaches of financial sanctions.”

However, is this going far enough? There have been pieces in the media reporting that the French government had “seized” a Russian oligarch’s yacht. There is no detail as to what the precise legal status of that action was – there would need of course to be a solid legal basis for confiscation (presumably without compensation) but it is interesting that Boris Johnson and Michael Gove have been reported to be looking at the potential to bolster the Economic Crime Bill so as to facilitate the confiscation of UK property owned by Russian oligarchs (see for instance Michael Gove calling for UK to seize London homes of Russian oligarchs CityAM 27 February 2022 and Michael Gove considers options for seizing oligarchs’ property The Times 3 March 2022). Is this just tough talk and no action? I know you may not want to hear this but… any legislation, and individual decisions made under it, would need to be tightly framed to be consistent with the European Convention on Human Rights (and in a rule of law based, democratic, society that is surely right):

“Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” (Article 8).

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” (Article 1 of the First Protocol)

Of course, confiscation without compensation may be properly framed as necessary in the public interest but this will need care.

The London Mayor issued a press statement on 26 February 2022, Mayor demands seizure of property connected to oligarchs, supporting the confiscation of assets but going further in terms of measures to seek to minimise the number of empty homes in the capital (surely these measures are essential to ensure that we can look in the eye those who say that there is no need for additional new homes?) and to penalise foreign buyers more generally (jury out as far as I’m concerned – baby, bathwater etc):

“The Mayor has previously criticised the Government’s failure to deliver on the promise of a register of overseas property ownership and has now set out further measures to charge those who buy property in the UK with no intention of living here and leave them empty while London faces a housing crisis.

As well as the register of overseas ownership, the Mayor is calling for:

• Seizure of property assets held by allies of President Putin

• Raising the amount overseas owners have to pay for leaving their home empty by increasing the council tax ‘empty homes premium’

• Raising capital gains tax on overseas buyers from 28 per cent to 40 per cent

• Increasing the taxes paid by overseas companies investing in property by increasing the Annual Tax on Enveloped Dwellings”

For further reading, there is this article in yesterday’s edition of the Economist: The rise and fall of Londongrad (behind pay wall, 5 March 2022).

Finally, there are some ways to support the people of Ukraine.

This week’s Clubhouse event will be at a slightly earlier time, at 5pm on Tuesday 8 March. Its theme is “BREAK THE BIAS – women in planning/law”, to mark this year’s International Women’s Day theme. We have various speakers including Meeta Kaur, Nikita Sellers, Caroline Daly, Nicola Gooch and Zenab Hearn. Link here.

Simon Ricketts, 5 March 2022

Personal views, et cetera

Liberty Leading The People (Delacroix)

Two Plugs

In lieu of a proper blog post this week…

First, a reminder about the Town Library weekly Planning Court updates. You can still register for free to receive a weekly summary of all judgments handed down from the Planning Court (and on appeal from the Planning Court) (those following a final hearing that is – wouldn’t it be great to have permission-stage orders as well…?). There is an on-line index that goes back 4 years and our internal index goes back to the creation of the court in 2014.

By way of example, this week, my colleague Safiyah Islam summarised Finch v Surrey County Council (Court of Appeal, 17 February 2022) as follows:

“The Court of Appeal has upheld the judgment of the High Court on the question of whether it was unlawful for Surrey County Council not to require the environmental impact assessment (“EIA”) for a commercial crude oil extraction project to include an assessment of the impacts of greenhouse gas emissions resulting from the eventual use of the refined products of that oil as fuel.

The High Court had found that, while it was common ground that an environmental statement should assess both the direct and indirect effects of the development for which planning permission was sought that are likely to be significant, “indirect effects” must still be effects which the development itself has on the environment. It noted that the EIA process was concerned with the use of land for development and the effects of that use; it was not directed at the environmental effects which resulted from the use of an end product.

The Court of Appeal agreed that the Council had not acted unlawfully but while the High Court considered that in the circumstances of this case, the assessment of greenhouse gas emissions from the future combustion of refined oil products at the development site was, as a matter of law, incapable of falling within the scope of the EIA for the planning application, the Court of Appeal held that the existence and nature of “indirect” effects would always depend on the particular circumstances of the development under consideration and that establishing what should be included in an environmental statement was for the relevant planning authority. The need for a wider assessment of greenhouse gas emissions may sometimes be appropriate; what needs to be considered is the degree of connection between the development and its putative effects.

In this case, though the project itself was confined to the construction and use of a well site for the commercial extraction of crude oil for onward transport to refineries, the eventual combustion of the refined products of the oil extracted at the site was “inevitable”, not merely “likely” or “possible”. This being so, the Court of Appeal decided that it was for the Council to establish whether, bearing in mind the intermediate stages which would have to occur before combustion could take place, the greenhouse gas emissions which would be generated in that way were properly to be regarded as “indirect” effects of the proposed development. It was not the court’s role in a claim for judicial review to substitute its own view for the planning authority’s on a question of this kind.”

Given that I am not responsible for the summaries, I think I can say that it really is an amazing resource to receive week by week.

Secondly, a reminder about our clubhouse Planning Law Unplanned event happening from 6 to 7.15 pm this Tuesday, 1 March 2022. Did you hear Hashi Mohamed’s radio 4 documentary, Planning, Housing and Politics on 21 February 2022? We thought it would be great to unpack some of the themes, and perhaps some things which weren’t covered, in a longer session. Hashi and some of those who spoke on the programme will be joining us. Do come along to listen or make your views known. Link to app and event here (and there are recordings of many of our recent events available to listen to on the app).

Simon Ricketts, 25 February 2022

Personal views, et cetera

Photo by Loli Mass courtesy of Unsplash

Developers As Proscribed Organisations: The Government’s Amendments to the Building Safety Bill

The Government is seeking a general legislative power to shut down particular developers’ activities, with no rights of appeal, no rights to compensation and no published set of the criteria which it would apply.

Zack Simons’ concerns set out in his 17 February 2022 #Planoraks blog post are well justified.

My 21 January 2022 blog post “Planning Powers” A Pawn In Unsafe Cladding Negotiation explained the Government’s efforts to “persuade” developers to contribute a further £4bn towards remediating unsafe cladding, on top of the residential property developer tax which applies from 1 April 2022 – with the Secretary of State authorised by the Treasury to “use a high-level “threat” of tax or legal solutions in discussions with developers as a means of obtaining voluntary contributions from them” with one of the threats used being “restricting access to…the use of planning powers”.

This threat is now included within Government amendments which have been tabled to the Building Safety Bill ahead of its Committee stage in House of Lords, which starts on 21 February 2021. The amendments were accompanied by a Government press statement on 14 February 2022, Government to protect leaseholders with new laws to make industry pay for building safety.

“Tough new measures that will force industry to pay to remove cladding and protect leaseholders from exorbitant costs have been unveiled by Secretary of State for Levelling Up Michael Gove today (14 February 2022).

For those in industry not doing the right thing, the government will be able to block planning permission and building control sign-off on developments, effectively preventing them from building and selling new homes.”

“Reflecting the scale of the problem, the government will also be able to apply its new building safety levy to more developments, with scope for higher rates for those who do not participate in finding a workable solution.

The government hopes to not have to use these powers; it wants responsible developers and manufacturers to operate freely and with confidence, to help deliver the homes people need. If they do not act responsibly, they must face commercial and financial consequences.”

See also this 14 February 2022 Inside Housing piece House builders face ‘shutdown’ if they do not pay cladding costs under new government plan.

Obviously culpable developers need to pay up. But what is proposed is startling to say the least:

So the Secretary of State is seeking the power to prohibit in regulations “persons of a prescribed description from carrying out development” or specified types of development (whether or not they have the benefit of planning permission) as well as the power to “by regulations impose a building control prohibition, as regards buildings or proposed buildings, in relation to persons of a prescribed description” which would prevent them from being able to apply for or be granted building control approval. The Secretary of State would also be able to prescribe “certificates” (not sure what that description is meant to capture) which would not be able to be granted under the Town and Country Planning Act 1990 (and which if granted would be of no effect).

These prohibitions “may be imposed for any purpose connected with—

(a) securing the safety of people in or about buildings in relation to risks arising from buildings, or

(b) improving the standard of buildings.”

The provisions are drafted far too widely. What (unprecedented?) power it would give this Government (and any future Government). Of course, where prohibitions are plainly unjustified (for instance against developers who have done wrong other than not to accede to these demands for a “voluntary” payment or perhaps even if they have made a payment) the regulations could be challenged by way of judicial review (NB we need to keep an eye on ongoing judicial reform!). However, if the legislation were to give the wide discretion currently planned, this would not be easy – any grounds of challenge might need to rely on the limited protections provided by the Human Rights Act (NB we need to keep an eye on… yes, you’re there before me).

I’m concerned that these amendments have been introduced at this late stage in the passage of the Bill, with little advance notice so as to enable proper Parliamentary and more general public scrutiny.

Developers need to meet their liabilities. But this whole exercise seems to be much more of a blunderbuss – aimed at the easiest, biggest, targets and ignoring the significant role that poor regulation (and indeed de-regulation) has played in this whole scandal. Do we really want this legislation on the statute book which could well be misused in the future? Or is it all just a bluff to secure that £4bn?

If anyone would like to participate in a future Planning Law Unplanned clubhouse discussion on the topic, please let me know. 8 March 2022 is a possibility.

In the meantime:

⁃ Spencer Tewis-Allen is leading a discussion on build to rent at 6 pm on 22 February – link to clubhouse app and event here.

⁃ Hashi Mohamed is our special guest at 6 pm on 1 March, discussing his Radio 4 programme Planning, Housing and Politics – link to clubhouse app and event here.

Simon Ricketts, 18 February 2022

Personal views, et cetera

Local Plan Breaking

Computer analogies about the planning system used to be all the vogue. Remember open-source planning anyone, and all that talk of rebooting? Sadly, the phrase “spinning wheel of death” now comes to mind in relation to so many local plan processes up and down the country, particularly in green belt authority areas.

The chief planner’s letter to chief planning officers published on 11 February 2022 said this:

“We will be providing a further update on our approach to changes in the planning system in the Spring. This will provide further detail on how we will take forward measures to create a modernised and effective planning system that empowers communities to support, and local authorities to deliver, the beautiful, environmentally-friendly development this country needs.

Whilst we understand that many colleagues in local government are looking forward to further detail on the precise details of our changes to planning, I would like to take this opportunity to encourage local authorities to continue work to ensure they have an up-to-date local plan in place in a timely manner.”

Surely something more than words of encouragement to local plan making authorities is needed in the face of what is now a growing systemic issue (thank you to my colleague Stephanie Bruce-Smith for the list, media links and quotes):

• Basildon Council resolved on 10 February 2022 to withdraw its plan, two years into an examination in public:

“Committee papers released prior to the full council meeting last night said the motion to withdraw the plan was “based upon, in part, to the current Conservative Administration views and beliefs in placing a greater emphasis on protecting the Greenbelt for current and future generations than the previous administration.”

• Welwyn Hatfield Borough Council resolved on 27 January 2022 to seek to take a different stance to that of the inspector of its local plan, voting down proposed modifications that would have achived the inspector’s required 15,200 homes in favour of a reduced number of 13,279:

“The Leader of the Council said the administration was “stuck between a rock and a hard place” [after backing plan to fight inspector on housing targets], but presented a “viable alternative” which involved less building on the green belt.”

• Hertsmere Borough Council resolved on 26 January 2022 to abandon its draft plan:

“Cllr Bright acknowledged the decision meant the council was unlikely to meet [the 2023 deadline], but said, “this potential decimation of large swathes of the Green Belt has been too much for local people and local councillors to accept”.

• Mid Sussex District Council resolved on 21 January to delay work on its draft plan:

“The scrutiny committee voted in favour of a motion to discuss the district plan review so that “further work and consideration can take place and the outcome of any change in government policy can be known”, the committee’s chairman said.”

• Ashfield District Council resolved in November 2021 to pause work on its emerging plan:

“Coun Matthew Relf (Ash Ind), cabinet member for place, planning and economic regeneration on the district council, said: […]

“Now Michael Gove has stated that the very assumptions we were forced to use are out of date and all Government housing policy is being looked at.

“To that end, we will pause the local plan timetable until we get greater clarity.”

• Arun District Council resolved on 6 October 2021 to pause work on its emerging plan:

“At an Arun District Council planning policy committee on Wednesday (October 6), members voted to put the work on hold [and look again in 6 months’ time].

This was in light of proposed reforms to the planning system as a result of the government’s white paper ‘Planning for the Future’ and the upcoming Planning Bill.”

You may know of other examples. The draft Royal Borough of Windsor and Maidenhead plan of course only squeaked through 22 – 17 on 8 February 2022:

“Cllr Coppinger said it was “the most important paper” he has brought to the council, adding the borough is “desperate” for affordable family housing.

He warned if the local plan is not adopted, government would ‘force’ the council to adopt it as all local authorities must have an updated plan in place.”

We wait to see what consequences, if any, await those authorities which have decided to take a “wait and see” approach, rather than proceed with green belt release.

The Secretary of State has powers to intervene (see my 18 November 2017 blog post Local Plan Interventions) but Joanna Averley’s “encourage” wording seems some way short of that…yet (contrast with this week’s designation of Uttlesford District Council for “not adequately performing their function of determining applications for planning permission for major development”, meaning that applications for planning permission for major development may now be made direct to the Planning Inspectorate). Much of this is all of course the entirely foreseeable consequence of the ongoing uncertainty as to what reforms to the planning system will now be made. We look forward to the Spring, in so many ways.

As a half-term holiday treat, there will be no clubhouse session this week, although recent events are available on replay on the Planning Law Unplanned club page. Spencer Tewis-Allen is planning a “build to rent” themed discussion for 22 February 2022.

Simon Ricketts, 12 February 2022

Personal views, et cetera

AA PA CAB

There was a customarily short and clear judgment from Holgate J this week as to how decision makers should approach applications for prior approval for the upward extension of buildings under the General Permitted Development Order: CAB Housing Limited v Secretary of State (3 February 2022)

So I’m saying nothing, you will be pleased to hear, about the 2 February 2022 Levelling Up white paper There are plenty of summaries available – and you do need a summary! Or listen to the Planning Law Unplanned clubhouse event we held, featuring Catriona Riddell (linkedin piece here), Iain Thomson (linkedin piece here) and Victoria Hutton (linkedin piece here).

Nor anything about mythical Bob, the Government’s 31 January 2022 Benefits of Brexit paper, which seemed to have little new to say in terms of the subject matter of this blog.

Nor anything about the energy price cap – although that does give additional topicality to our our next Planning Law Unplanned clubhouse event plugged at the end of this post.

Nor anything about the continuing NIMBY vs YIMBY noise that I got drawn into on twitter this week – although there is at least some link between Holgate J’s judgment & all that: someone came out with the usual trope that a planning system with a large discretionary element to decision making is “good for the lawyers”. I didn’t respond, but thought to myself that a less discretionary system, whether based on zoning or permitted development rights, is of course even better for the lawyers – because it all becomes about where the legal boundary lines are.

When Parliament amended the General Permitted Development Order to allow upwards extensions, subject to defined criteria and limitations together with the need to seek prior approval for certain aspects of the proposals, the description of the matters in relation to which prior approval is required was far too vague. What do matters such as “impact on amenity” and “external appearance” actually mean? Do you take as a given the right to extend up to two storeys upwards and in that context consider external appearance, akin to considering reserved matters with the equivalent of outline planning permission already having been granted for the two storeys, or can issues of principle as to the acceptability of that upwards extension be considered, as long as they relate to amenity or external appearance,? Obviously this is a particularly critical question where the local planning authority may be resistant in principle to upwards extensions – these new rights trumpeted by the Government become rather less meaningful.

The Cab Housing case related to three appeal decisions where the relevant inspector had dismissed appeals in relation to proposals under Class AA of Part 1 of the GPDO (upwards extensions to detatched houses).

Over to Holgate J to explain:

“These challenges raise important issues regarding the true interpretation of Class AA of Part 1. First, are the claimants correct in saying that a planning authority’s control of impact on amenity limited to effects on properties contiguous with, or abutting, the subject property and are those effects limited to overlooking, privacy and loss of light? Alternatively, does that control embrace impact upon all aspects of the amenity of neighbouring premises, as the Secretary of State contends? Second, is the authority’s control of the external appearance of the subject dwelling limited to the “design and architectural features” of its principal elevation and any side elevation fronting a highway, and is it further limited to the effects of those matters upon the subject dwelling itself? The claimants contend for that interpretation and they say that the authority is not allowed to consider the effects of external appearance upon any property outside the subject dwelling. Alternatively, is the correct interpretation, as the Secretary of State contends, that the control covers (1) all aspects of the external appearance of the proposed development, and not simply the two elevations specifically referred to in AA.2(3)(a)(ii)) and (2) impact upon other premises, and not simply the subject dwelling itself?

In the decisions challenged in these proceedings, the Inspectors took the broader approach in relation to external appearance and, in two cases, to amenity. It is common ground that if the claimants’ construction of the GPDO 2015 is correct, then each of the decisions must be quashed as ultra vires. The decisions would have been taken outside the ambit of the powers exercisable by the Inspector. But, if the defendant’s interpretation is correct, then it is also common ground that each of the three Inspectors reached decisions which fell within their powers, their decisions are not otherwise open to legal challenge and the applications for statutory review must be dismissed.

The claimants point out that other Inspectors have taken a different view upon the scope of the controls exercisable in the determination of an application for prior approval under Class AA of Part 1. It has been said that the decision-maker is not allowed to assess the impact of the external appearance of a proposed addition of 1 or 2 storeys on any area outside the subject building, for example, the streetscape. It has also been said that the principle of an upwards extension of up to 2 storeys is “established” by the permitted development right itself, so that the decision on the application for prior approval should not frustrate, or resile from, that principle. Such statements have even been made in relation to other permitted development rights where the GPDO 2015 requires “external appearance” to be controlled, without going on to refer to specific elevations (see e.g. the decision letter dated 6 July 2021 on Kings Gate, 111, The Drive, Hove). If the Secretary of State’s interpretation of the GPDO 2015 is correct, then all these decisions were potentially liable to be quashed on an application under s.288 brought within time. Plainly there are differences of interpretation which need to be resolved. There is also the question: to what extent is it correct to say that the principle of development is established where a permitted development right is subject to prior approval?

The issues in this case also affect the proper construction and ambit of permitted development rights granted by GPDO 2015 under Classes ZA, A, AA, AB, AC and AD of Part 20. These provide for up to two storeys of multiple units of residential units to be erected on top of an existing purpose-built block of flats, or on top of detached or terraced buildings in commercial or mixed use or residential use.

The claimants’ narrower approach to the legal scope of prior approval in these Classes also has implications for non-residential permitted development rights. For example, the right to erect or extend an agricultural building under Class A of Part 6 of Schedule 2 to the GDPO 2015 is potentially subject to control by prior approval in respect of the “external appearance” of the building proposed. If, as some decision-makers have said, that control is limited to assessing the effects of that appearance on the building itself, then it would follow, for example, that the effects of that external appearance on the setting of a listed building nearby could not be controlled. Can this really be right?”

His conclusion was that this was not right:

“(i) Where an application is made for prior approval under Class AA of Part 1 of Schedule 2 to the GPDO 2015, the scale of the development proposed can be controlled within the ambit of paragraph AA.2(3)(a);


(ii) In paragraph AA.2(3)(a)(i) of Part 1, “impact on amenity” is not limited to overlooking, privacy or loss of light. It means what it says;


(iii) The phrase “adjoining premises” in that paragraph includes neighbouring premises and is not limited to premises contiguous with the subject property;


(iv) In paragraph AA.2(3)(a)(ii) of Part 1, the “external appearance” of the dwelling house is not limited to its principal elevation and any side elevation fronting a highway, or to the design and architectural features of those elevations;


(v) Instead, the prior approval controls for Class AA of Part 1 include the “external appearance” of the dwelling house;


(vi) The control of the external appearance of the dwelling house is not limited to impact on the subject property itself, but also includes impact on neighbouring premises and the locality.”

The judge seeks to downplay the significance of these conclusions:

“The decision of each Inspector was entirely lawful. That is as far as the Court’s function permits this judgment to go. Individual decision-makers will make their own planning judgments applying the prior approval controls, correctly interpreted, to the materials before them. This judgment does not mean that individual decision-makers would be bound to determine the appeals on the three properties the subject of these proceedings in the way that in fact occurred. That is always a matter of judgment for the person or authority taking the decision. I would also add that there is no evidence before the Court to show that the correct interpretation of Class AA of Part 1, along with the related Classes in Part 20, will in practice make it impossible or difficult for developers to rely upon these permitted development rights.”

As it is, given their inherent restrictions and limitations, these new GPDO rights have not yet delivered substantially more homes. Holgate J is of course right that his interpretation will not make it impossible for developers to rely on them – but surely it will make it more difficult in many cases. Despite the analysis in the judgment as to what was said in consultation documents in relation to the new rights, I’m left wondering whether the Government appreciated what confusion these changes would cause and, ultimately, their potentially limited advantages over an application for full planning permission?

As trailed earlier, this week’s Planning Law Unplanned clubhouse event will be all about reducing energy use and increasing renewables, with a sparky collection of guests I assure you… 6 pm, Tuesday 8 February 2022, link to app and event here.

Simon Ricketts, 5 February 2022

Personal views, et cetera

Extract from Genesis, Abacab

Planning Appeal Timescales: Better Faster (But Harder?)!

I tried DLUHC in wordle but the app didn’t accept it.

Never mind – there was one significant announcement from the Department this week which I thought would cause more of a stir than it did, an announcement which could be really positive news for all of us who have been anxious for a long time that one of the operational failings of the current planning system is how long appeals take, such that in many instances, no matter how difficult it may be to make progress with the local planning authority, appeal is not a practical remedy (and perversely the delays are currently worse for smaller schemes than for schemes where any appeal is likely to be determined by way of inquiry).

The Department has now announced by way of a letter from housing minister Christopher Pincher to Sarah Richards, chief executive of the Planning Inspectorate dated 20 January 2022 (but published on 26 January 2022) that:

“As an initial milestone in making more consistent, timely decisions The Planning Inspectorate should be working towards consistently achieving decisions in these ranges:

· Appeals decided entirely using writing evidence in 16 – 20 weeks

· Appeals decided including at least some evidence through hearing or inquiry 24 – 26 weeks (30 weeks to recommendation for called in or recovered cases)”

These targets for written representations appeals and hearings are new.

Detailed measures are set out for:

• The proportion of appeals which are valid on first submission

• How long appeal decisions take from valid receipt to decision

• Customer satisfaction.

These measures apply regardless of the legislative basis for the appeal, for example whether it is in relation to enforcement or resulting from the refusal of a planning application.

These targets and measures should make a real difference.

But there is a much more radical coda to the letter:

“As you know, the Government is also committed to improving and modernising the planning system. The work you are undertaking to develop twenty-first century digital public services is an important part of this. I would welcome you complementing that by identifying what steps might be necessary to achieve a further significant consistent improvement in appeal timescales beyond those above so that most appeals could be consistently decided in 4 – 8 weeks, or faster, whilst maintaining good standards of decision. Consideration can then be given to whether these steps might be appropriate.”

Yes, you read that correctly – an aspirations that “most appeals could be consistently decided in 4 – 8 weeks, or faster”. PINS director operations Graham Stallwood spoke at a Clubhouse session last week about what steps PINS is taking towards digitalising its processes (a replay of the whole event is here and Graham’s comments are from 53 minutes in). It will be interesting to see what further changes will be recommended to procedures to achieve anything like those timescales.

The Planning Inspectorate’s response dated 27 January 2022 welcomes the new measures. PINS will “start reporting on them to ministers and customers straight away as part of our monthly statistical release and performance updates.”

There is this statement from Sarah Richards:

“I welcome the minister’s request to report to him on what would be necessary to support a further significant improvement in appeals. This recognises the importance of a fair appeal system to the nation’s economy and is an important opportunity to reflect on how the appeal system can be reframed to operate sustainably for the future. We will engage with key stakeholders on this in due course before we report to the minister.”

My understanding is that PINS is likely to be starting that process this Spring. There will be no Bridget Rosewell overseeing it all this time round. No doubt it will in part be an equivalent series of pragmatic incremental gains in terms of efficiencies and timescales but I would have thought that some statutory timescales set out within secondary legislation may need to be revisited. And let’s not be under any illusion: “4-8 weeks appeal timescales” are going to need significant changes in terms of processes but also behaviour:

• (As discussed by Graham at the Clubhouse event) how can we get to a position where on appeal a link can simply be provided to the documents on the LPA’s planning portal rather than starting a wholly new paper chase, and appeal submission can be pass/fail in terms of submission of the correct documents, as if you were applying for a passport?

• What fresh evidence should be allowed to be submitted at the appeal stage (and what does this mean in practice for those preparing their applications – at application stage your documents will need to be forensically prepared so as to be “appeal ready”)?

• What should decision letters look like?

• How do we avoid unintended consequences given that on these timescales, it will usually be quicker to appeal as soon as you can rather than engage in protracted negotiations with the LPA – and so will the appeal system very quickly get clogged up?

• Will any necessary trade-offs as between on the one hand an element of procedural flexibility and on the other hand speed prove counter-productive for prospective appellants? Is there a point at which appeals become too quick? And what resources will be required on the part of LPAs and third parties to be able to participate effectively?

• Not mentioned, but are we going to see appeal fees introduced, at least for some types of appeal?

This is all a long way from the current performance statistics (20 January 2022):

We will be talking about all of this at our Clubhouse session at 6 pm on Tuesday 1 February. At this session we don’t have any special guests because we want to hear from you. Your current experiences of the system, good and bad, and what you think of these proposals. Whether you are a planning consultant, local authority planner, community group representative, advocate or developer, what do you think? Link to app here.

Simon Ricketts, 28 January 2022

Personal views, et cetera

PS I know there have been distractions around those parts recently but it is still startling to see a ministerial letter with a phrase such as “until such time as me or my successors agree new measures”. Yuck. (Or should that be YUHC?).

Courtesy Daft Punk

“Planning Powers” A Pawn In Unsafe Cladding Negotiation

It’s a scandal that leaseholders, through no fault of their own, have been exposed to potentially massive liabilities in relation to building defects for which obviously they were in no way responsible.

Isn’t it obvious that where buildings have been constructed unsafely, in breach of legal standards at the time, then those responsible for that work should be liable (with speedy resolution of that issue and gap funding for works in the interim), but that where the work was done to legal standards at the time we as taxpayers should pick up that burden?

In terms of arriving at a solution, has Michael Gove’s 10 January “developers must pay” announcement made things worse or will it prove to be a turning point?

We’re all guilty of swimming along in our separate lanes. I’m a planning lawyer, not a construction lawyer, property litigator or tax lawyer. But I wanted to understand the basics of what exactly is happening here, particularly since the Secretary of State was reported as threatening to use the planning system to make life more difficult for developers if they don’t agree a “fully funded plan of action”.

Since February 2021, we have known that the Residential Property Developer Tax will apply from 1 April 2022 in relation to residential property development recognised in accounting periods ending on or after that date. It will apply to companies or groups of companies undertaking UK residential property development with annual profits in excess of £25 million and is a new 4% tax on profits they make on UK residential property development. As set out in HMRC’s 27 October 2021 policy paper, “the tax forms part of the government’s Building Safety Package aiming to bring an end to unsafe cladding, provide reassurance to homeowners and support confidence in the housing market. Given the significant costs associated with the removal of unsafe cladding, the government believes it is right to seek a fair contribution from the largest developers in the residential property development sector to help fund it.” The Government’s aim is to raise £2bn of revenue over a ten year period.

We have also known that the Building Safety Bill is currently going through the House of Lords. Clause 57 of the Bill would enable the Secretary of State to impose a building safety levy “for the purpose of meeting any building safety expenditure”. As explained in a November 2021 DLUHC building safety levy factsheet:

“This is a new levy on developers. In addition to the new Residential Property Developer Tax (which will tax the profits of larger developers for at least 10 years), the levy will contribute towards fixing historical fire safety defects, including unsafe cladding.

We will establish three regulatory “Gateways” at key stages in design and construction, and introduce new requirements during construction, that will apply to higher-risk buildings:

· Planning Gateway one – at the planning application stage

· Gateway two – before building work starts

· Gateway three – when building work is completed

These are stop/go decision points that must be passed before a development can proceed to the next stage, strengthening regulatory oversight of design and construction. At Gateway two, construction cannot begin until the Building Safety Regulator approves the building control application.

There will be sanctions for failure to pay the levy which will be defined in regulations. This will result in the Gateway two application not being approved by the Building Safety Regulator.”

“The levy will apply to developments within scope of the Gateway 2 regulatory process, unless otherwise excluded. That means residential buildings or care homes over 18m or 7 storeys – but subject to exclusions, which we are consulting on.”

Consultation has been carried out as to the design of the levy but we have been waiting for the Government’s response and the quantum of the levy has not yet been determined.

The Secretary of State has been faced with the dilemma of how to relieve leaseholders from their unjustified burden at as little cost to the public purse as possible, presumably recognising that the building safety levy is not going to be able to achieve anything like what is needed .

It was revealed via a 7 January 2022 tweet from the BBC’s Lewis Goodall that Michael Gove had sought clearance from the Treasury “to make a statement resetting the Government’s approach to building safety ahead of Commons Report Stage of the Building Safety Bill”.

The tweet included a screenshot of the response from HM Treasury which authorises DLUHC to seek to secure £4bn funding from developers:

“You may use a high-level “threat” of tax or legal solutions in discussions with developers as a means of obtaining voluntary contributions from them.”

“…the taxpayer should not be on the hook for further costs of remediation”.

“DLUHC budgets are a backstop for funding these proposals (in full i.e. the £4bn if required) should sufficient funds not be raised from industry. You must prioritise building safety oversupply”.

“Lenders and insurers are not included in the “polluter pays” piece – and no contributions should be sought from them”.

Formal announcements were then made by the Secretary of State in the form of:

• a press statement, Government forces developers to fix cladding crisis (DLUHC, 10 January 2022)

“Mr Gove has today written to industry giving them a deadline of early March to agree a fully funded plan of action including remediating unsafe cladding on 11-18 metre buildings, currently estimated to be £4 billion.

He warns he will take all steps necessary to make this happen, including restricting access to government funding and future procurements, the use of planning powers and the pursuit of companies through the courts. He adds that if industry fails to take responsibility, the government will if necessary impose a solution in law.”

• The “Dear Residential Property Developer Industry” letter referred to in the announcement:

“I am sure you are as committed as I am to fixing a broken system. I want to work with you to deliver the programme I have set out. But I must be clear, I am prepared to take all steps necessary to make this happen, including restricting access to government funding and future procurements, the use of planning powers, the pursuit of companies through the courts and – if the industry fails to take responsibility in the way that I have set out – the imposition of a solution in law if needs be.”

• A statement to the House of Commons “…we will press ahead with the building safety fund, adapting it so that it is consistent with our proportionate approach. We will now set a higher expectation that developers must fix their own buildings, and we will give leaseholders more information at every stage of the process.”

Note the references in the announcement and letter to “the use of planning powers”. Remember that reference in the Treasury letter to high-level threats?

Tory cladding shift leaves relations with UK developers in tatters (FT, 18 January 2022)

On 20 January the Secretary of State met with “senior executives from 20 building firms” but according to the Guardian:

“ Stuart Baseley, the executive chairman of the Home Builders Federation, said the industry lobby group had made its position clear at the meeting and would continue to engage constructively with the government. “We absolutely agree that leaseholders should not have to pay to remediate buildings. However we firmly believe that any further solutions must be proportionate.”

He said the bill should be shared with “other companies, sectors and organisations”, including “freeholders and the materials providers who designed, tested and sold materials that developers purchased in good faith”.

“As we made clear to the government, we do not believe it should fall to responsible UK housebuilders to fund the remediation of buildings built by foreign companies, developers no longer trading, or other parties.”

Another piece, Others must help pay for cladding work, developers tell Gove following talks (Inside Housing, 21 January 2022) quotes Gove:

“We have made a start through the residential property developer tax and the building safety levy, both announced last February, but will now go further. I will today write to developers to convene a meeting in the next few weeks, and I will report back to the House before Easter. We will give them the chance to do the right thing. I hope that they will take it. I can confirm to the House today that if they do not, we will impose a solution on them, if necessary, in law.”

In the meantime, the House of Commons Levelling Up, Housing and Communities Committee announced an inquiry into building safety funding on 19 January 2022, with this statement from chair Clive Betts:

“The Secretary of State’s announcements on 10 January were a welcome step towards finally addressing the question of meeting the costs of making residential blocks safe rather than dumping the burden on flat-owners. Leaseholders should not be liable for the costs of removing hazardous cladding from their buildings nor the additional work necessary to make their flats safe.

“In our new inquiry, we want to examine the effectiveness and impact of the Government’s planned measures to make developers and industry pay. We also wish to scrutinise whether the Secretary of State’s approach goes far enough to finally fix this crisis and examine what the funding arrangement to be agreed with industry should look like. We will also want to examine the risk to the Department’s budget, particularly around social housing, if it is not able to secure sufficient funds from industry.”

The public evidence sessions for this inquiry are scheduled take place shortly and will conclude ahead of the Secretary of State’s planned report back to the House of Commons before Easter.”

How is all this going to play out? Who knows. If the development industry (a ridiculously loose term) doesn’t reach agreement with DLUHC, what really could we see in terms of the impacts on planning processes? Of course neither in law nor in practice could the Secretary of State discriminate in planning decision-making against any specific companies holding out from a deal but surely it will influence the priority or not that he gives to measures to increase housing supply by way of planning reform and/or his inclination or not to intervene with authorities where plan making has again stalled and surely it will influence the level at which the building safety levy is set, discriminating hugely against those bringing forward development proposals as against those companies which are responsible for past failings.

No-one should be under any illusion that these issues are easy. Is a “Dear Residential Property Developer Industry” letter accompanied by threats, in order to extract money from companies regardless of culpability, really the answer? We shall find out soon enough.

Meanwhile, this week’s clubhouse Planning Law Unplanned session is entitled “What do we mean by “digitising planning”? Possible futures”. We have five amazing guests: Euan Mills (digital planning lead, DLUHC), Graham Stallwood (director of planning, Planning Inspectorate), Mary Elkington, director, Figura Planning), Stefan Webb (place director, FutureGov) and Shelly Rouse, principal consultant, Planning Advisory Service). Join the app and event here.

Simon Ricketts, 21 January 2022

Personal views, et cetera

MAD World: Mapped Appeal Decisions

We launched Mapped Appeal Decisions today.

It’s a click-through interactive map that seeks to show the location of every planning appeal decision in England made between 1 January 2017 and 12 December 2021 following a public inquiry, with links to the relevant decision letter. Best viewed on a proper screen!

The data is drawn from our weekly Town Library planning appeal decisions updates over the period (free subscription still available via the link) and for all this work we at Town Legal are very grateful both to the Planning Inspectorate for the information publicly available on its website, which makes these sorts of applications possible, to OpenStreetMap for the base mapping and of course to our friends Simmons Wavelength for the legal engineering (in particular Joy Bradley for pitching the initial idea to me last year).

Any feedback would be very helpful. So far the extent of Green Belt across the country is shown on the map base but of course the possibilities are almost limitless.

Health warning: there are some decision letters where a postcode is not shown for the relevant site – they are not currently shown on the map. If you spot any other glitches do let me know.

Feel free to share the link or indeed this post with colleagues.

The only other thing I am going to mention in this week’s very short blog post is, as always, clubhouse Planning Law Unplanned. This Tuesday, 18 January at 6pm, the subject is SECRET WORLD OF BARRISTERS’ CHAMBERS, with as our guests, Paul Coveney (senior clerk, Francis Taylor Building), Marie Sparkes (head of business development and marketing, Keating Chambers), Gary Smith (chief clerk, Kings Chambers) and Mike Gooch (senior practice manager, Landmark Chambers). Everything you ever wanted to know but never dared to ask…

A link to the clubhouse app and event is here.

Simon Ricketts, 14 January 2022

Personal views, et cetera

Just What Is It That Makes First Homes So Different, So Appealing?

First Homes have been stuck onto the “affordable housing policy” collage, not as net additional affordable housing but as a replacement, mandated by policy, for other forms of affordable housing which would have been secured by local planning authorities in any event.

I summarised the 24 May 2021 government announcement and how the first homes mechanism is meant to operate in my 28 May 2021 blog post Moving Into First Homes: 3 Key Deadlines (TL;DR: at least 25% of all affordable housing secured on a development should be first homes; must be for first time buyers; must carry at least 30% discount in perpetuity; household income cap of £80,000, or £90,000 in London).

The House of Commons Library first homes information page (3 November 2021) is also useful for its links to the relevant announcements and documents.

As I summarised in the blog post, there were three key dates to implementation of the new regime:

“28 June 2021

From the guidance: “ Local plans and neighbourhood plans submitted for examination before 28 June 2021, or that have reached publication stage by 28 June 2021 and subsequently submitted for examination by 28 December 2021, will not be required to reflect the First Homes policy requirement”

(However: “Planning Inspectors should consider through the examination whether a requirement for an early update of the local plan might be appropriate.”)

28 December 2021

From the guidance: “The new First Homes policy requirement does not apply for the following:

• sites with full or outline planning permissions already in place or determined (or where a right to appeal against non-determination has arisen) before 28 December 2021”

28 March 2022

It also does not apply to “applications for full or outline planning permission where there has been significant pre-application engagement which are determined before 28 March 2022”.

So if you wish to avoid the new requirement and you are not in an area where a plan has been adopted under the transitional arrangements, you need to have submitted your application so that it will be determined (or so that that the statutory right to appeal on the basis of non-determination has arisen) by 28 December 2021 and if there is any doubt as to whether you will meet that deadline it would be prudent to have engaged in “significant pre-application engagement” such that the deadline for achieving permission is 28 March 2022.”

The first two dates have now passed. I have not yet seen examples of first homes being secured as part of a section 106 agreement. What experience is there out there?

As originally promised in the May 2021 announcement, on 23 December 2021 DLUHC published model section 106 clauses for first homes. At the same time it updated its planning practice guidance. It is really good to see the model clauses, which will be a useful starting point.

Stuart Tym from Shoosmiths wins the “working over Christmas” prize with his excellent 5 January 2022 Local Government Lawyer article First Homes: model Section 106 agreement (although I’m going to deduct a point for his conclusion that “the devil remains in the detail” – when is the devil not in the detail?!).

The first clubhouse Planning Law Unplanned session for 2022 is at 6pm on Tuesday 11 January and will be another really key event, particularly if you have any interest in the survival of theatre and live arts in the face of this pandemic: “MAKING DRAMA OUT OF A CRISIS: theatre vs covid”, featuring Broadway theatre producer (and ex US environmental lawyer) David Siesko; chair of Shakespeare’s Globe (and former planning lawyer) Margaret Casely-Hayford CBE, and theatre manager/Theatres Trust cultural policy manager Tom Stickland. Link to app here.

Simon Ricketts, 7 January 2022

Personal views, et cetera

Just What Is It That Makes Today’s Homes So Different, So Appealing? by Richard Hamilton (1956)

Imagine Being In A Constant State of Twixmas

This uncomfortable feeling of in-betweenness is familiar to anyone engaged with the planning system in 2021.

No real progress on planning reform, on local government reform (save for now being branded as “levelling up”) or on reform of EU-derived environmental legislation.

In the meantime, we have all been experiencing slower decision making on the part of local planning authorities (Planning consents issued within statutory 13 weeks fall to lowest levels since 2016 (Michael Donnelly, Planning Resource, 20 December 2021)), plan-making has slowed (with spurious excuses on the part of some authorities it must be said – Why the PM’s suggestion that greenfield housebuilding is unnecessary could further delay councils’ plan-making (David Blackman, Planning Resource, 4 November 2021)) and the Planning Inspectorate’s statistics have worsened (Number of appeals cases on PINS’ books rises again but decision numbers increase (Michael Donnelly, Planning Resource, 22 December 2021)). Sam Stafford’s 50 Shades Of Planning 14 December 21 blog post Life On The Front Line is unmissable reading, with its first hand accounts by local authority officers faced with an unprecedented resourcing crisis. I don’t care what our government department is called – it needs to be reading the dashboard and acting accordingly.

All year we have all been running hard on our individual hamster-wheels, working to each short-term deadline within these elongated processes. The policy twists and turns, to which our work has to respond, have been as dizzying as ever.

There has invariably been something new to write about as I’ve approached the end of the week and thank you all as ever for continuing to read and provide your feedback.

The four most popular Simonicity posts this year were:

1. Beautiful Day (30 January 2021)

2. I’m Sorry I Haven’t A CLEUD (12 June 2021)

3. Plug Pulled On Local Authority Meetings (26 March 2021)

4. Sad When Our Planning System Is Media Laughing Stock (10 September 2021).

I’ve already mentioned Sam’s 50 Shades of Planning. Clenched fist in solidarity as well to Zack Simons’ #Planoraks blog and to Nicola Gooch’s LinkedIn blog posts. I often read what they’ve written and think that I can probably get away that weekend with just posting a link to it and “I agree”.

Zack, Nicola and so many of you have also been generous with your time in appearing on or tuning into the weekly Planning Law Unplanned rooms that I started on the clubhouse app in February, aided and abetted of course by Paul, Charlie, Caroline, Victoria, Jonathan, Jo, Jon, Spencer and George. I have been keen to give a voice to as many people as possible and, through being fleet of foot, to use the slots to explore themes in a way which isn’t possible on other platforms.

The clubhouse app first allowed sessions to be recorded in November. Since then these have been the most popular (do give them a listen):

1. Zack Simons and Kate Olley on the Tulip appeal decision and the High Court ruling in Sage respectively

2. Catriona Riddell and other guests on the County Councils Network “Future of Strategic Planning” report

3. Scott Stemp and other guests on the strange world of planning enforcement

4. Many of my colleagues in “START ME UP: How Town Legal started up – and why”

We haven’t yet decided whether we’ll have a session on 4 January but at 6 pm on 11 January we have a fascinating discussion lined up: “MAKING DRAMA OUT OF A CRISIS: theatre vs covid”, featuring Broadway theatre producer (and ex US environmental lawyer) David Siesko; chair of Shakespeare’s Globe (and former planning lawyer) Margaret Casely-Hayford CBE, and theatre manager/Theatres Trust cultural policy manager Tom Stickland. Link to app here.

Here’s to 2022.

Simon Ricketts, 30 December 2021

Personal views, et cetera