Multiple planning permissions, antique planning permissions: Hillside

There is so much that planning legislation does not address and where principles have had to evolve from case law. One of those is the extent to which development pursuant to one planning permission can be carried out without jeopardising the ability of a developer to carry out work pursuant to another planning permission which was granted over the same area of land.

The principle established in Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 has been essential to the modern planning system. In that case, Lord Widgery CJ set down the test as follows:


“One looks first of all to see the full scope of that which is being done or can be done pursuant to the permission which has been implemented. One then looks at the development which was permitted in the second permission, now sought to be implemented, and one asks oneself whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented.”

The case turned on a simple situation of two planning permissions that were granted for the construction of a bungalow on the same plot of land, one positioning the bungalow at the centre of the site and the other in one corner.

The principle is now routinely applied to much more complex situations, for instance where outline planning permission has been granted for a large multi-phase development, a “drop-in” planning permission is often secured for a different form of development on part of the site and permission secured under section 73 for any necessary amendments to conditions attached to the main permission so as to ensure that if development is carried on part of the site under the drop-in permission rather than the main permission, there will be no breach of any conditions attached to the main permission. Any other procedural route, for instance requiring planning permission to be applied for afresh for the whole outline planning permission area would be unnecessarily unwieldy.

The same principle is also relevant when reliance is sought on what I might term “antique” planning permissions, planning permissions which may be hugely valuable if still determined to be live, because they were granted in a more liberal policy climate and when development was not so constrained in terms of planning conditions and obligations. Whilst Parliament legislated for a comprehensive review and modernising of old minerals permissions, it has not done this in relation to permissions for other forms of development.

Last week, in Hillside Parks Limited v Snowdonia National Park Authority (Court of Appeal, 3 November 2020), in a judgment by Singh LJ, the Court of Appeal considered the question of whether one such antique planning permission was still “live”, a 1967 permission for the development of 401 dwellings on 29 acres of land at Balkan Hill, Aberdyfi, granted by Merioneth County Council, as was. The development, governed by a master plan which has been repeatedly varied, has still only been partly built out. In 1987 there was litigation as to whether the permission could still be relied upon and Drake J held that it could. As summarised by the Court of Appeal in the latest proceedings, Drake J held as follows:

“First, the full planning permission of 10 January 1967 was lawfully granted. Secondly, the 1967 permission was a “full permission which could be implemented in its entirety without the need to obtain any further planning permission or planning approval of details”. Thirdly, “the development permitted by the January 1967 Permission has begun; and that it may lawfully be completed at any time in the future”. The fourth declaration concerned the satisfaction of the condition attached to the 1967 permission.”

Snowdonia National Park Authority became the local planning authority in 1996.

“Departures from the Master Plan were granted by the Authority on:


(1) 27 June 1996 for a single dwelling house as a variation to the 1967 Permission.


(2) 20 June 1997 for “two terraces forming: 1 attached dwelling, six apartment units and 8 garages with apartments over” as a variation to the 1967 permission.


(3) 18 September 2000 for a two-storey detached dwelling house and garage on Plot 5 of the Site.


(4) 24 August 2004 for 5 detached houses and 5 garages as a variation to the 1967 permission.


(5) 4 March 2005 for the erection of a 2-storey dwelling and detached garage on Plot 17 on the Site.


(6) 25 August 2005 for the erection of a detached dwelling at Plot 3 of “Phase 1” on the Site.


(7) 20 May 2009 for the erection of 3 pairs of dwellings.


(8) 5 January 2011 for 1 dwelling at Plot 3 on the Site.”

The facts are frustratingly unclear from the judgment, as to the precise nature of these permissions, and indeed the extent to which they were in fact variations of the masterplan approved by way of the 1967 permission.

“On 23 May 2017, the Authority contacted the Appellant, stating that, in its view, the 1967 permission could no longer be implemented because the developments carried out in accordance with the later planning permissions rendered it impossible to implement the original Master Plan. The Authority required that all works at the Site should be stopped until the planning situation had been regularised.”

Hillside sought a declaration from the High Court that the authority was bound by the ruling of Drake J back in 1987, that the permission could still be relied upon and that the “planning permission may be carried on to completion, save insofar as development has been or is carried out pursuant to subsequent planning permissions granted for alternative residential development”. The claim was rejected by HHJ Keyser QC at first instance. He held that the 1987 order was not wrongly made but that “the development which has occurred since 1987 now renders the development granted by the 1967 permission a physical impossibility and that future development pursuant to that permission would no longer be lawful.”

The Court of Appeal did not consider that there had been anything inappropriate about the way that the judge had dealt with Drake J’s ruling and did not consider that the authority should be prevented from raising the “Pilkington” issue even though its predecessor had not raised it before Drake J. In weighing up whether to allow that issue to be raised, the court recognised that “there are undoubtedly important private interests, including the commercial interests of the Appellant. However, there are also important public interests at stake, including the public interest in not permitting development which would be inappropriate in a National Park.”

Singh LJ’s next comments are of interest, and perhaps of some concern, if they are to be interpreted in any way as casting doubt on effectiveness of the modern “drop-in permission plus section 73 permission” process I referred to earlier:

“Furthermore, I would accept the submission made by Mr Lewis on behalf of the Respondent that there have been significant legal developments since the decision of Drake J in 1987. In particular, the decision of the House of Lords in Sage has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required.

In Sage the main opinion was given by Lord Hobhouse of Woodborough, although there was also a concurring opinion by Lord Hope of Craighead. Mr Green emphasised that, on the facts of that case, what Lord Hobhouse was considering in terms was a planning permission for “a single operation”: see e.g. para. 23. It was in that context, submits Mr Green, that the House of Lords held that a planning permission must be implemented “fully” and that a “holistic approach” must be taken. Mr Lewis observed that, at para. 6, Lord Hope used the word “totality of the operations” (plural rather than singular). In my view, the important point of principle which arises cannot be determined according to semantic differences between the different opinions in the House of Lords. I would accept Mr Lewis’s fundamental submission that the decision in Sage made it clearer than it had previously been that a planning permission should be construed “holistically.”

As a matter of principle, I would endorse the approach taken by Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another [2010] EWHC 1621 (Admin), in particular at paras. 19-20, where Sage was cited. Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:


“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful.”

At the hearing before us there was an interesting debate about a point which ultimately this Court does not need to resolve on this appeal. That issue is whether, in the circumstances envisaged by Hickinbottom J, all the development which has already taken place, apparently in accordance with the first grant of permission, is rendered unlawful simply by virtue of the fact that subsequent operations take place pursuant to another permission which is inconsistent with the first. The phrase used by Hickinbottom J (“subsequent development”) might suggest that it is only the later development which would fall to be regarded as unlawful. Mr Lewis contended that as a matter of principle it must be the whole of the development, including any development that has already taken place. That would have the consequence that there could be enforcement action, and potentially criminal liability, in relation to the development that has already taken place, even though it was at the time apparently in accordance with a valid planning permission. Mr Lewis submitted that in such circumstances it would be unlikely that enforcement action would be taken in practice. Even if that is right, that would mean that whether or not enforcement action is taken would be a matter of discretion rather than law. These are potentially important questions on which we did not receive full argument because they do not need to be decided on this appeal. I would therefore prefer to express no view on them.”

This concept of the planning permission having to be built out as a whole surely needs to be unpacked a little bit more. Sage v Secretary of State (House of Lords, 10 April 2003) was a case about the part-construction of a dwelling. Care needs to be taken in extending any concept that the development needs to be “implemented in full” and is to be regarded as authorising a “single operation” to modern multi-phase permissions. There is no specific requirement that such a development, once started, must be completed – if the local planning authority has a concern in that respect it can serve a completion notice (although of course that procedure is not without its difficulties).

Singh LJ rejects Hillside’s reliance on another old case, F. Lucas & Sons Ltd v Dorking and Horley Rural District Council (1966) 17 P & CR 111, as part of its argument that development pursuant to the 1967 permission on parts of the site was not inconsistent with development on other parts of the site pursuant to other permissions, but was he right to? As summarised by Singh LJ:

“Lucas was decided by Winn J in 1964. In that case, in 1952, planning permission was granted to develop a plot of land by the erection of 28 houses in a cul-de-sac layout. Later the plaintiffs applied for permission to develop the same plot by building six detached houses, each on a plot fronting the main road. Permission for this later development was granted in 1957 and two houses were built in accordance with it. Later, however, the plaintiffs proposed to proceed in reliance on the earlier permission from 1952 by building the cul-de-sac and the 14 houses on the southern side of it. That land was still undeveloped at that time. The plaintiffs sought a declaration that the earlier permission was still effective and entitled them to carry out the proposed development on that part of the site where it could still take place. Winn J concluded that the 1952 permission was not to be regarded in law as a permission to develop the plot as a whole but as a permission for any of the development comprised within it. Accordingly, it did authorise the “partial” development proposed by the plaintiffs.”

Surely this was exactly the effect of Hillside’s permission, and certainly how I would categorise modern planning permissions for multi-phase development. As long as conditions are not breached and there is adequate assessment of the cumulative effects, what is the problem?

Singh LJ says this about Lucas:

“…Lucas was a highly exceptional case. It has never been approved by an appellate court. It has never been followed or applied, so far as counsel have been able to show us, by any court since. Furthermore, it was described as being an exceptional case by Lord Widgery CJ (a judge with immense experience in the field of planning law) in Pilkington. Both this Court and the House of Lords have had the opportunity in the many decades since Lucas to consider whether it should be regarded as setting out a general principle or not.

In my view, it would not be appropriate for this Court now to overrule Lucas. In order to do so we would have to be satisfied that it was wrongly decided on its particular facts. It is not possible to be satisfied of that, not least because we do not have the advantage of seeing the precise terms of the planning permission which was granted in that case. It suffices to say that the case should be regarded as having been decided on its own facts.

As Hickinbottom J observed in the case of Singh, at para. 25, it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented.”

Lawyers: what do you make of all this? Further thought is required but I am concerned that this judgment may have introduced further uncertainty into our system, which is complicated enough thank you!

Simon Ricketts, 7 November 2020

Personal views, et cetera

Flag of Merioneth/Meirionydd

If You’re Gonna Do It, Do It Right: Final Thoughts On White Paper

Sorry for starting with an earworm.

Despite its passionate and urgent advocacy, George Michael probably didn’t have planning system reform in mind when he wrote I’m Your Man, but that “If You’re Gonna Do It, Do It Right” chorus has certainly been on an internal loop while writing this post.

We finally nearing the 29 October 2020 deadline for consultation responses in relation to the Planning White Paper.

One small benefit of this Covid-19 period has been the extent of on-screen engagement by some of those behind the proposed reforms, and wider webinar discussions, most of them freely available on YouTube. Congratulations to MHCLG for being prepared to engage in this way.

For me the most illuminating sessions have included (to pick a few):

⁃ Christopher Katkowski QC on Have We Got Planning News For You on 7 August 2020 (13,000 views!) and Christopher being interviewed on 19 October 2020 by Steve Quartermain and Nick Kilby (Cratus). In the second interview, drawing on two and a half months of public discussion during the consultation period, Steve is able to home in on a number of the key unresolved issues. (Particular thanks to Chris for the huge amount of work and thinking he has put into these proposals and for being prepared to speak on so many platforms).

⁃ Steve Quartermain’s hour long discussion with the Secretary of State.

⁃ (I’m biased here) a Town/No 5 chambers webinar on the likely practical implications of the reforms and MHCLG’s director of planning Simon Gallagher participation in a Town webinar on 7 October on the proposed Infrastructure Levy.

What about Parliament? Well, there was a Commons debate on 8 October 2020 into the following motion by Conservative MP for the Isle of Wight, Bob Seely:

“I beg to move,

That this House

welcomes the Government’s levelling up agenda and supports appropriate housing development and the Government’s overall housing objectives;

further welcomes the Government’s consultation, Planning for the Future, updated on 6 August 2020, as a chance to reform housing and land use for the public good;

welcomes the Government’s commitment to protect and restore the natural environment and bio-diversity;

and calls on the Government to delay any planned implementation of the changes to the standard method for assessing local housing need proposed by the Government’s consultation, Changes to the Current Planning System, published on 6 August 2020, and Proposal 4 of the Government’s consultation, Planning for the Future, on a standard method for establishing housing requirement, until this House has had the opportunity to hold a debate and meaningful vote on their introduction.”

39 members spoke in the debate – let nobody think that any stage of the proposed reforms will be uncontroversial – many of the members raising individual constituency issues.

The non-binding motion was agreed without a vote, with MHCLG minister Christopher Pincher making assurances in his speech in response that:

“We will reflect carefully on what we have heard and the feedback we receive. As we advance, we will endeavour to keep the House well-informed of these important changes, because make no mistake: they are important. They are what we need to do to deliver 300,000 good-quality new homes a year in the places that need them, and in the long run, they are what we need to do to build back better after covid-19. They are what we need to do to meet the aspirations of the people we serve now and in the generations to come.”

On the same day, the Housing, Communities and Local Government Commons Select Committee launched an inquiry into the future of the planning system in England. The call for evidence has a deadline of 30 October 2020 and invites responses on the following issues:

“ 1 Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?

2. In seeking to build 300,000 homes a year, is the greatest obstacle the planning system or the subsequent build-out of properties with permission?

3. How can the planning system ensure that buildings are beautiful and fit for purpose?

4. What approach should be used to determine the housing need and requirement of a local authority?

5. What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?

6. How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?

7. What changes, if any, are needed to the green belt?

8. What progress has been made since the Committee’s 2018 report on capturing land value and how might the proposals improve outcomes? What further steps might also be needed?”

I’m reluctant to put down here my own concluding thoughts but I supposed they can briefly be summarised as follows:

1. All credit to those who have put so much work into the proposals, and I have no complaint about the objectives set out in the paper. However, the task is too vast to be dealt with as proposed.

2. The so-called white paper falls short of the necessary detail to be any practical account of what changes are proposed. Those behind the proposals admit as much. There are big gaps, which go beyond being details to join the dots but which rather need to be addressed so that there is proof of concept.

3. The next step should be a full white paper, or sequence of white papers (reform of CIL and section 106 for instance is a huge undertaking which needs its own spotlight), developed through more detailed discussion involving a much wider group of (ugh) stakeholders – including wider representation from the development industry, planners (yes, include planners!), local government, communities.

4. If we rush headlong to legislation it will be botched. We know this to be true!

5. The changes are reliant on changes to EIA and SEA procedures, for which we do not yet have any proposals (they are promised “this Autumn”). They need to move forward in tandem. Again, there is not yet any proof of concept. How can the procedures be simplified without watering down protections?

6. On a similar theme, the changes will be facilitated by the local government organisational changes that were to be included in the devolution and local recovery white paper (see my 25 September 2020 blog post). Again, there is merit in proceeding in tandem so that we are clear as to the role for the London Mayor, for combined authorities and indeed for counties (which seem to be featuring again in discussions in the continued absence of any proper regional approach).

7. Some objectives may be able to be achieved by simple changes, for instance introducing model development management policies into the NPPF alongside guidance that local planning authorities should not duplicate these in their individual plans without good reason.

8. The biggest unanswered questions for me are:

⁃ the process by which Government will give each authority the housing number that it must plan for, what proxy there will be for the current duty to co-operate and how the process can be on the one hand swift but on the other hand transparent, fair and open to challenge.

⁃ the practicality of defining all land as opportunity, renewal or protection and particularly: (a) whether outline permission for opportunity areas is achievable as part of the plan process within the timescale and providing a worthwhile level of detail (b) whether an enhanced presumption in favour of the plan for renewal areas will be counter-productive in killing off any development that is not in accordance with the authority’s wishes and (c) what we really mean by protection areas (see Zack Simons’ spot-on 15 October blog post – one in fact of a brilliantly questioning series which deserve detailed answers).

⁃ the proposed infrastructure levy and in particular the realism or otherwise of the “it will be simpler than CIL” mantra.

I hope that we are not proceeding to construction stage with this new planning system, before we have resolved some fundamental structural elements. (Apologies, I know George Michael would have put that better).

Simon Ricketts, 24 October 2020

Personal views, et cetera

Do Your Conditions Have Symmetry In Mind?

A judgment of the Court of the Appeal yesterday – DB Symmetry Limited v Secretary of State (Court of Appeal, 16 October 2020) – has potentially wide implications.

The court ruled that a condition on a planning permission cannot as a matter of law require land to be dedicated as highway. Unless a realistic interpretation can be given to the condition which avoids that outcome, and if the condition is not considered to be severable from the permission as a whole, in some circumstances the validity of the planning permission may be at risk.

Such a requirement needs instead to be included in that endangered species, the section 106 agreement.

The case arose from the first planning permission to be granted for part of the Swindon New Eastern Villages urban extension (“NEV”), which will eventually comprise 8,000 homes, 40 hectares of employment land and associated retail, community, education and leisure uses. The planning permission in part authorised the construction of a section of spine road envisaged eventually to connect through the wider development.

The report to committee in relation to the planning application explained “that the application site was part of a wider development proposal. It was to “integrate physically and functionally” with adjoining development. The NEV was to come forward as “a series of new interconnected villages.” Each scheme had to demonstrate how it fitted into the wider NEV. The proposal “must provide connections to future development within the [NEV] in the interests of enabling the comprehensive and sustainable development of the NEV as a whole”.

A condition was attached to the planning permission, condition 39:

“Roads

The proposed access roads, including turning spaces and all other areas that serve a necessary highway purpose, shall be constructed in such a manner as to ensure that each unit is served by fully functional highway, the hard surfaces of which are constructed to at least basecourse level prior to occupation and bringing into use.

Reason: to ensure that the development is served by an adequate means of access to the public highway in the interests of highway safety.”

The developer took the position that this condition did not require the dedication of the roads as public highway. I do not know why: perhaps wishing to retain greater control over their maintenance as private roads, perhaps wishing to retain the ability to charge a premium to those who might in the future wish to connect into the roads, including other developers.

As explained by Lewison LJ in the judgment, “the developer applied to Swindon for a certificate under section 192 of the Town and Country Planning Act 1990 that the formation and use of private access roads as private access roads would be lawful. Swindon refused the certificate; and the developer appealed. On 6 November 2018 Ms Wendy McKay LLB, an experienced planning inspector, allowed the appeal. She certified that the use of the access roads for private use only would be lawful.”

The council challenged the decision and at first instance Andrews J quashed it.

The Court of Appeal disagreed in no uncertain terms, regarding itself as bound by a 1964 Court of Appeal judgment, Hall & Co Ltd v Shoreham by Sea Urban DC:

“In Hall & Co Ltd v Shoreham by Sea Urban DC [1964] 1 WLR 240 sand and gravel importers and the owners and occupiers of land in an area scheduled for industrial development, applied for planning permission to develop part of their land for industrial purposes. The land adjoined a busy main road which was already overloaded. The highway authority intended to widen it at a future date and to acquire for that purpose a strip forming part of the developer’s land. The planning authority granted planning permission subject to a condition requiring the developer to “construct an ancillary road over the entire frontage of the site at their own expense, as and when required by the local planning authority and shall give right of passage over it to and from such ancillary roads as may be constructed on the adjoining land.” It is to be noted that the condition did not require the transfer of the land itself.

This court held that the imposition of that condition was unlawful. At 247 Willmer LJ summarised the developer’s argument as follows:

“It is contended that the effect of these conditions is to require the plaintiffs not only to build the ancillary road on their own land, but to give right of passage over it to other persons to an extent that will virtually amount to dedicating it to the public, and all this without acquiring any right to recover any compensation whatsoever. This is said to amount to a violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute.

…

“The defendants would thus obtain the benefit of having the road constructed for them at the plaintiffs’ expense, on the plaintiffs’ land, and without the necessity for paying any compensation in respect thereof. Bearing in mind that another and more regular course is open to the defendants, it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended.”

“Harman LJ said at 256: “It is not in my judgment within the authority’s powers to oblige the planner to dedicate part of his land as a highway open to the public at large without compensation, and this is the other possible interpretation of the condition. As was pointed out to us in argument, the Highways Acts provide the local authority with the means of acquiring lands for the purpose of highways, but that involves compensation of the person whose land is taken, and also the consent of the Minister.”

In the light of Hall, Lewison LJ concluded:

“I consider that, at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition. Whether the unlawfulness is characterised as the condition being outside the scope of the power because it requires the grant of rights over land rather than merely regulating the use of land; or whether it is a misuse of a power to achieve an objective that the power was not designed to secure; whether it is irrational in the public law sense, or whether it is disproportionate does not seem to me to matter. In my judgment Hall establishes a recognised principle which is binding on this court.”

“If the judge interpreted [advice in a previous Government circular] as authorising the imposition of conditions which not only required a developer to provide an access road, but also to dedicate it to public use as a highway, I consider that she was wrong. Such an interpretation would be flatly contrary to consistent government policy for nearly 70 years. In my judgment Hall does impose an absolute ban on requiring dedication of land as a public highway without compensation as a condition of the grant of planning permission. I also consider, contrary to Mr Harwood’s submission, that there is no difference for this purpose between dedicating a road as a highway and transferring the land itself for highway use. As I have said, the condition in Hall did not require the land itself to be transferred, yet it was still held to be unlawful.”

The reference to “at least at this level in the judicial hierarchy” is interesting – has the council the appetite to apply for permission to appeal to the Supreme Court? Hall was decided in another time and is it right that the operation of conditions should continue to be constrained in this way? Whilst Hall and Symmetry were both cases about conditions that potentially required the dedication of land as highway, the same principle would apply to conditions requiring the dedication, disposal or transfer of land for other purposes, e.g. open space or affordable housing. Care is required! The distinction nowadays between the “imposition” of planning conditions and the “agreement” of section 106 planning obligations is surely somewhat artificial – on major schemes, conditions are negotiated by the parties to almost an equivalent extent as planning obligations may be – and if the applicant isn’t happy with a condition that has been imposed, section 96A and section 73 are always available. Furthermore, Willmer J’s 1964 reference to the relevant condition amounting to a “violation of the plaintiffs’ fundamental rights of ownership which goes far beyond anything authorised by the statute” looks quaint from a 2020 perspective, where the price of planning permission for any significant scheme entails multiple violations of those so-called “fundamental rights” – and, on proposals within areas allocated for comprehensive development, in my view “anti-ransom” arrangements are essential planning prerequisites – why shouldn’t a condition be enabled to achieve that objective?

Once the Court of Appeal had concluded that the condition could not lawfully have the effect of requiring roads to be dedicated as public highway, it needed to consider whether another interpretation could realistically be given to the condition.

“In her decision letter, the inspector expressed her conclusion at [20] as follows: “Whilst the term “highway” usually means a road over which the general public have the right to pass and repass, the phrase “fully functional highway” cannot be divorced from the beginning of the sub-clause which states “shall be constructed in such a manner as to ensure…”. In my view, Condition 39 simply imposes a requirement concerning the manner of construction of the access roads and requires them to be capable of functioning as a highway along which traffic could pass whether private or public. It does not require the constructed access roads to be made available for use by the general public. I believe that a reasonable reader would adopt the Appellant’s understanding of the term “highway” as used in the context of the condition with the clear reference to the construction of the roads as opposed to their use or legal status. The distinct inclusion of the term “public highway” in the reason for imposing Condition 39 reinforces my view on that point.”

Lewison LJ:

“I do not think that the judge really appreciated the consequences of her decision. In my judgment, if the judge was right in her interpretation of the condition, the condition (and probably the whole planning permission) is invalid. In those circumstances, the validation principle comes into play. The question, then, is whether the inspector’s interpretation of condition 39 was realistic (even if not the most obvious or natural one).”

“In my judgment, the interpretation adopted by the inspector is, to put it no higher, a realistic one even if it is not the most natural. The validation principle therefore applies; and condition 39 should be given the meaning that she ascribed to it.”

Surely if the court had not managed to get to this interpretation of the condition it would not have quashed the whole consent? For the council that would have certainly been a “You’re only supposed to blow the bloody doors off!” moment.

What if the condition had been negatively worded: not to occupy more than x dwellings until defined roads had been constructed and satisfactory arrangements had been made for their adoption as public highway? Any different outcome?

The obvious practical lesson is to document these sorts of dedication and land transfer requirements other than by condition but let’s see if there’s a further appeal.

Simon Ricketts, 17 October 2020

Personal views, et cetera

Adonis blue (image from Wikipedia)

Planning Law For The Future

A Town/Landmark Chambers webinar on the Planning Court in practice and the future implications of the Faulks review is taking place at 5.30pm on 14 October, when I will be joined by Landmark Chambers’ John Litton QC, Tim Buley QC and Jenny Wigley, together with my Town partner Duncan Field. Free registration here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

The webinar is in part a follow-on from the development of the Town/Landmark Chambers Case Explorer (a case searching and statistical analysis tool containing every judgment of the Planning Court since its creation in 2014 to June 2020, together with appellate judgments) and in part will consider the likely implications of the Faulks Review Of Administrative Law, which I covered in a 12 September 2020 blog post . The call for evidence deadline of 19 October 2020 is fast approaching.

But what I wanted to give you a taste of in this short post is how, with data scientist Joseph White of legal engineers Simmons Wavelength, we’ve begun to play around with new ways of exploring the contents of the Planning Court Case Explorer, and in particular the ways in which case law develops – the Planning Court Case Network.

The following images illustrate a visualised “citation network” of Planning Court cases. Each circle or ‘node’ represents a case, and each line or ‘edge’ between two nodes represents where one case has cited another (a line that curves clockwise from one case represents where that case has cited another, and a line that curves anti-clockwise represents where it has been cited). The more times a case has been cited, the larger the node.

The lone nodes on the perimeter represent cases that do not cite other cases and which have not been cited in subsequent cases.

Selecting an individual case node allows you to see some case topic keywords (extracted with a data science technique for language processing), a link to Bailii and all “incoming” links (later cases that cite the selected case) and “outgoing” links (earlier cases that the selected case cites itself).

In terms of the network layout, citations between cases draw them closer together, so what naturally emerges is dense groups or ‘clusters’ of cases that are closely related to each other (which is also represented to a certain extent by the colours).

The connections are fascinating. Whilst the data is not guaranteed to be 100% accurate we can see what are the most influential cases: Suffolk Coastal assumes centre stage as the most cited case in the whole network (62 citations!). Champion, has its own network of 30 citations, and Dover District Council v CPRE Kent has 22 citations.

Just pretty images or can I be the first to say… PlanLawTech?!

Simon Ricketts, 10 October 2020

Personal views, et cetera

Learn An Instrument They Said. So I Picked Up The GPDO

At last – the Secretary of State announced on 30 September 2020 that dwellings created by way of permitted development rights will need to comply with the nationally described space standard.

There is no timescale given for when the change will be effected, which will need to be by way of a further statutory instrument amending the 2015 General Permitted Development Order. We have already had four such SIs already this year and further changes are in the queue, such as giving effect to the 14 July 2020 announcement that planning permission will be required for the demolition of theatres, concert halls and live music venues and giving effect to the proposed relaxation of permitted development rights for 5G infrastructure (of which more below). Good luck keeping up! (It’s odd how the Government can keep updating the Planning Practice Guidance but Parliament still does not make available up to date consolidated versions of secondary legislation, whether in our planning law field or for instance in relation to coronavirus measures.)

I dealt with the nationally described space standard in my 23 March 2019 blog post We Have Standards. Since being introduced in 2015, it has been up to each local planning authority to decide whether to adopt the standard as policy in its local plan. Once it is made a legal requirement for permitted development schemes we will have the curious position that in some areas, where authorities have not adopted it as local policy, it will be required for permitted development schemes but not for projects which are pursued by way of a traditional planning application.

It is disappointing that the additional requirement was not introduced in the June and July 2020 statutory instruments, which for instance introduced the additional prior approval requirement of “adequate natural light” (NB “adequate” undefined – wait for the arguments).

Public pressure and a continuing trail of adverse media stories in relation to office to residential schemes presumably have played their part (most recently Rowan Moore’s 27 September Observer piece ‘It’s like an open prison’: the catastrophe of converting office blocks to homes). As for the 30 September timing of the announcement? That’s obvious – later that day a Commons debate took place, as scheduled, in relation to Labour’s motion that the three statutory instruments amending the General Permitted Development Order be revoked. The announcement neutralised one of the most obvious lines of attack. Predictably the motion was defeated, entirely along party lines, 327 votes to 206 votes.

This month will of course see the hearing into the GPDO changes judicial review that I covered in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR.

And now there is yet another judicial review underway, into the Government’s 22 July 2020 announcement that it proposes to extend “permitted development rights to support the deployment of 5G and extend mobile coverage”. There is a piece about the challenge here: Government faces legal challenge over 5G phone masts ‘safety fears’ (Evening Standard, 1 October 2020). As with the Rights: Community: Action judicial review it is crowd funded. The Rights: Community: Action challenge appears to have raised £12,245 “of £25,000 stretch target from 271 pledges”. The 5G challenge appears to have raised £66,615 pledged “of £150,000 stretch target from 2,004 pledges”.

As with most crowdfunded litigation there is no analysis for potential donors on the crowdjustice website of its prospects of success, or what the judicial review process entails, but there is a link to the prospective claimants’ pre-action letter dated 21 August 2020 which alleges that the consultation process leading to the 22 July 2020 announcement was unlawful and was in breach of the public sector equality duty – and Aarhus Convention costs protection is sought. Without prejudging at all whether there is any basis for the complaints, this all is of course familiar territory in relation to these sorts of claims.

Finally, some plugs:

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

5.30 pm 14 October 2020

PC in 2020 – Has the Planning Court proved a success? What should be its future, and that of judicial review and statutory challenges in the planning system, in the light of the Faulks review?

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ

And lastly, watch out for a new series by Cratus and Town, Steve Quartermain in Discussion. The first episode is an hour long conversation with Secretary of State Robert Jenrick. More news will appear on the Cratus website.

Simon Ricketts, 3 October 2020

Personal views, et cetera

Linda Manzer’s pikasso guitar

The Devolution Dance: The Planning White Paper & Local Government Reorganisation, Neighbourhood Planning

A quick two-step:

1. Given its relevance to the proposals in the planning white paper, what is the Government’s current thinking on local government reorganisation (details of which are to be set out in the devolution and local recovery white paper)?

2. What role is envisaged for neighbourhood planning in the planning white paper?

Local government reorganisation

The planning white paper’s proposal that each district and borough be handed by MHCLG its own local housing need figure to meet in its plan would clearly be more manageable by Government if there were to be fewer districts and boroughs, or if there were to be more joint planning arrangements and Mayor-led combined authorities (“We also propose that it would be possible for authorities to agree an alternative distribution of their requirement in the context of joint planning arrangements. In particular, it may be appropriate for Mayors of combined authorities to oversee the strategic distribution of the requirement in a way that alters the distribution of numbers, and this would be allowed for.”).

Perhaps we are all putting two and two together and making five but there has been some expectation that with Strictly Come Dancing style choreography the devolution and recovery white paper would sashay in any moment now to propose the acceleration of the current process that has been underway in recent years, locally driven through funding constraints, of the ad hoc amalgamation of individual districts and boroughs into new unitary authorities.

Not quite panic on the dance floor but this prospect is causing temperatures to rise in various quarters, e.g. Leader denies Surrey plan to create largest unitary council in England is ‘county power grab’ (Surrey Live, 5 September 2020) (“Waverley Borough Council’s leader has denounced a county council proposal to create the largest unitary authority in England as “a disaster” and “a power grab by Surrey that should be resisted at all costs“.), Lancashire councils face abolition in shake-up (BBC, 29 July 2020) (“One senior Conservative figure in Lancashire argued the three-way division risked a “bloody civil war” within the party locally.”).

Before having to resign from Government on 8 September 2020, Simon Clarke was the MHCLG minister overseeing the white paper. He gave a speech to the Northern Powerhouse Summit on 15 July 2020:

“This September, the government will therefore be publishing the Devolution and Local Recovery White Paper…which will lay a clear path for levelling up every region of our country.

It will provide a roadmap for establishing a series of new mayors within the next ten years – representing the greatest decentralisation of power in our modern history.

In our towns, cities, and rural counties, we will give local places the ability to come forward with new mayoral devolution deals which work for every community, allowing them to become masters of their own destiny.

The White Paper will also redefine the way in which local government serves its communities by establishing the unitarisation of councils as a vital first step for negotiating these mayoral devolution deals in the future.

A move to unitarisation will streamline the delivery of good governance…”

Strong stuff. But then, possibly in the light of Clarke’s departure, the rumours started that the devolution and recovery white paper was to be delayed – the MJ reported that it was due to be published in October, during the week of the Conservative party conference, but has been “put on the back burner, pending a rethink”. See also LGCplus’ piece on 21 September 2020: Ministers accused of ‘starting fires and walking’ as reorganisation momentum collapses.

The rumours as to timing appear to be inaccurate, given MHCLG minister Lord Greenhalgh’s response to a question in the House of Lords on 22 September 2020:

“We intend to publish the devolution and local recovery White Paper the autumn. This will set out our plans for expanding devolution across England to support economic recovery and levelling up, building on the success of our directly elected combined authority mayors.”

But are we to see a watering down of the strong armed “unitarisation as a vital first step towards mayoral devolution deals” messaging of that Clarke speech? In Greenhalgh’s subsequent responses to questions in the same 22 September session, he seems to play down how radical the proposals will be:

“We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward. We are not looking at top-down devolution, but focusing on local city and growth deals as the way forward.”

“… there will be no blanket abolition of districts and that we will take a locally driven approach and ensure that decision-making is taken as close as possible to the people we are serving.”

So possibly not the big bang argued for in a Centre for Cities report, Levelling up local government in England (11 September 2020), which proposed “redrawing the English political map, replacing the 348 existing authorities with 69 unitary or combined ones with greater powers and resources and whose political boundaries match the economic geography in which people live and work.”

“ • Everywhere will reform — all two-tier systems will be reformed to become single tier, while economic powers held in the lower tier of Mayoral Combined Authorities will move up

• Everywhere will have a directly-elected leader — voters will have a clear choice about who will be in charge and they will have clear four-year mandate to act

• Local government boundaries will match local economic boundaries — they will always be blurry, but the aim should be to contain as much of the local economy within the local authority area as possible — that is the area over which most people locally work and live their lives

• Local government will have the capacity to govern effectively while remaining local — economic powers should be held by local governments covering at least 300,000 people and no more than 800,000. This is to strike a balance between covering the local economy and maintaining a connection with local people and businesses. Lower-tier authorities in Greater London and where there is a Mayoral Combined Authority will focus on personal services and may be smaller than 300,000 people”

Could local government seriously cope with such wholesale change at the same time as swallowing a significantly changed planning system? Is it right to require local authority amalgamations as a pre-condition of funding? Does large scale unitarisation leave a local democratic deficit? But, on the other hand, can the system proposed in the planning white paper have a hope of working with so many individual authorities and without even the current discipline, wonky as it is, of the duty to co-operate? And, for London, what will be the role of the Mayor of London?

Of course, as we move towards larger unitary authority areas, thoughts turn to the potentially increased role for neighbourhood planning.

Neighbourhood planning

Someone asked me last week to summarise what the planning white paper meant for neighbourhood planning – would it end up with a greater or a reduced role under the new system? Not an easy question to answer on the basis of what is said in the document but I think we can at least deduce the following:

• neighbourhood planning is to be retained;

• it will in some ways have an enhanced role, including potentially in relation to the preparation of design guides and design codes;

• the Government appears serious about making community engagement more effective, through, for instance, greater use of technology;

• the neighbourhood share of CIL (up to 25%) will be retained under the new combined infrastructure levy;

• but in other ways the communities will have less influence through neighbourhood planning, (1) partly as a consequence of overall housing numbers for local authorities being imposed by Government, (2) partly through development management policies being standardised nationally through the NPPF and (3) partly as a consequence of various types of development approval being removed from the traditional planning application process (for instance growth areas in local plans having the equivalent of outline planning permission and by further expansion of permitted development rights).

There are only two proposals in the white paper that directly focus on the role of neighbourhood planning:

“Proposal 9: Neighbourhood Plans should be retained as an important means of community input, and we will support communities to make better use of digital tools

Since statutory Neighbourhood Plans became part of the system in 2011, over 2,600 communities have started the process of neighbourhood planning to take advantage of the opportunity to prepare a plan for their own areas – and over 1,000 plans have been successfully passed at referendum. They have become an important tool in helping to ‘bring the democracy forward’ in planning, by allowing communities to think proactively about how they would like their areas to develop.

Therefore, we think Neighbourhood Plans should be retained in the reformed planning system, but we will want to consider whether their content should become more focused to reflect our proposals for Local Plans, as well as the opportunities which digital tools and data offer to support their development and improve accessibility for users. By making it easier to develop Neighbourhood Plans we wish to encourage their continued use and indeed to help spread their use further, particularly in towns and cities. We are also interested in whether there is scope to extend and adapt the concept so that very small areas – such as individual streets – can set their own rules for the form of development which they are happy to see.

Digital tools have significant potential to assist the process of Neighbourhood Plan production, including through new digital co-creation platforms and 3D visualisation technologies to explore proposals within the local context. We will develop pilot projects and data standards which help neighbourhood planning groups make the most of this potential.”

“Proposal 11: To make design expectations more visual and predictable, we will expect design guidance and codes to be prepared locally with community involvement, and ensure that codes are more binding on decisions about development.

“As national guidance, we will expect the National Design Guide, National Model Design Code and the revised Manual for Streets to have a direct bearing on the design of new communities. But to ensure that schemes reflect the diverse character of our country, as well as what is provably popular locally, it is important that local guides and codes are prepared wherever possible. These play the vital role of translating the basic characteristics of good places into what works locally, and can already be brought forward in a number of ways: by local planning authorities to supplement and add a visual dimension to their Local Plans; through the work of neighbourhood planning groups; or by applicants in bringing forward proposals for significant new areas of development.”

Many of you know much more about local government and neighbourhood planning matters than me – all comments welcome (even if we’re just dancing in the dark).

Simon Ricketts, 25 September 2020

Personal views, et cetera

Salsa made easy.

GPDO & UCO Amendments: Guidance, Scrutiny

On 18 September 2020 MHCLG amended its guidance to take into account the amendments to the General Permitted Development Order and Use Classes Order that I have covered in recent posts.

So now we have:

⁃ Updated Planning Practice Guidance on when planning permission is needed

⁃ Updated Planning Practice Guidance on town centres and retail

⁃ Updated Planning Practice Guidance on planning application fees to reflect the new permitted development rights to build upwards

⁃ “Key fact sheets” on recent permitted development rights and changes to the Use Classes Order

The new guidance is simply explanatory and I haven’t spotted anything new as to, for instance, the circumstances in which local planning authorities should or should not restrict the operation of the Orders by way of condition.

In the meantime, there remains some Parliamentary focus on the nature of the changes.

The House of Lords Secondary Legislation Scrutiny Committee published a critical report on 10 September 2020:

“These instruments make substantial and wide-ranging changes to planning legislation. According to the Ministry of Housing, Communities and Local Government, the aim is to encourage and speed up the delivery of housing and to support the economic recovery after the pandemic, especially in relation to England’s high streets. The changes are de-regulatory and concerns have been raised that they could lead to the construction of low-quality housing, an increased concentration of fast food restaurants with an impact on the health of local residents, and reduce the ability of local authorities to shape the character of their high streets. These are issues which the House may wish to explore, including in the context of the Government’s plans for further, more fundamental reform of the local planning system which have been published for consultation. While the Committee notes the Government’s intention to support the economic recovery from the pandemic, the plans for further reform do raise the question whether it would have been more appropriate to take forward the significant and far-reaching changes made by these instruments in a future planning bill, enabling Parliament to scrutinise the changes more fully.”

My 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR referred to the motions which Labour has tabled in response to the GPDO changes. A Commons debate is now scheduled for 30 September 2020.

Simon Ricketts, 19 September 2020

Personal views, et cetera

Faulks Review Of Administrative Law: Call For Evidence

In my 15 August 2020 blog post, Introducing The Planning Court Case Explorer, I referred to the independent review of administrative law chaired by Lord Faulks, that the Government has commissioned. The review has now published, quietly it must be said, a call for evidence on 7 September 2020, with a deadline for responses of noon on 19 October 2020 (to be emailed to IRAL@justice.gov.uk).

The examination question that the review has been given by the Government is this:

“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”

The review is politically charged. The Conservative party’s 2019 manifesto said this:

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”

Lord Faulks’ standpoint is well-documented.

I suspect their focus will be on the, inevitably politicised, constitutional law litigation that we saw last year. That is an issue which is above this blog’s pay grade, but as a planning lawyer I’m concerned that any reform to administrative law may be to the detriment of the role of the Planning Court in relation to disputes arising under our planning system. And as we begin to move to a new system, the Planning Court will have a crucial role in joining the dots given the inevitable uncertainties that will arise. We need that process to be fast, efficient and, above all, trusted. The oversight of the process by the courts is a vital element in ensuring that our system continues to comply with, for example, the requirements of the Aarhus Convention and of Article 6 of the European Convention on Human Rights (and if anyone suggests that these things don’t matter, just wait till their property is compulsorily acquired without justification, or a dodgy planning permission is issued without any proper remedy in the courts).

I just read again the House of Lords rulings in the Alconbury cases (9 May 2001), which concerned the question as to whether various aspects of the planning system as it was at that time met the requirements of the European Convention on Human Rights, at that point having recently been incorporated into UK law by way of the Human Rights Act 1998. The House of Lords concluded that the system complied with the Convention, but on the basis that an essential element of that system was the supervisory role of the courts in reviewing the lawfulness and rationality of administrative decisions taken in the process.

My nervousness as to where we may eventually end up is accentuated by the current furore over clause 45 of the United Kingdom Internal Market Bill, due to receive its second reading in the House of Commons on 15 September.

Imagine if the next Town and Country Planning Act rendered non-justiciable any regulations made under that Act? How convenient for a Government keen to proceed fast by way of secondary legislation and no doubt unhappy with the inevitable challenges it faces along the way (of which the Rights Community Action judicial review covered in last week’s blog post is a classic example).

Or if procedural failures in relation to decisions led to a rap over the knuckles for the authority rather than an undoing of what was done outside its powers?

Or if judicial review were codified in statute in such a way as to close out challenges to rationality or challenges on grounds such as bias, or legitimate expectation?

Of course, I hope that all of this is unlikely. I have some residual faith that there remains a basic understanding of the importance of the rule of law. I was pleased to see on Friday that the British Property Federation is canvassing its members in reaction to the call for evidence and I hope that other industry bodies do the same. After all, business needs predictability and to know that it is to be treated fairly – this is not just the domain of campaigners and communities!

If you have specific experiences of the role of judicial review in relation to the planning system, please do consider responding to that call for evidence.

As with any examination questions, do read the initial rubric first:

“The Independent Review of Administrative Law (IRAL) panel invites the submission of evidence on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally. The panel is particularly interested in any notable trends in judicial review over the last thirty to forty years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before, and whether it should be struck differently going forward.

The panel would like to hear from people who have direct experience in judicial review cases, including those who provide services to claimants and defendants involved in such cases, from professionals who practice in this area of law; as well as from observers of, and commentators on, the process. The panel are particularly interested in receiving evidence around any observed trends in judicial review, how judicial review works in practice and the impact and effectiveness of judicial rulings in resolving the issues raised by judicial review.”

So, what matters is direct experiences, evidence and data rather than rhetoric.

These are the specific areas which the review will be considering:

“• Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

• Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

• Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

• Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.”

The call for evidence starts with a questionnaire for “Government Departments” (but which I would suggest is equally relevant for local authorities):

“1. In your experience, and making full allowance for the importance of maintaining the rule of law, do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions? If so, could you explain why, providing as much evidence as you can in support?

a. judicial review for mistake of law

b. judicial review for mistake of fact

c. judicial review for some kind of procedural impropriety (such as bias, a

failure to consult, or failure to give someone a hearing)

d. judicial review for disappointing someone’s legitimate expectations

e. judicial review for Wednesbury unreasonableness

f. judicial review on the ground that irrelevant considerations have been taken into account or that relevant considerations have not been taken into account

g. any other ground of judicial review

h. the remedies that are available when an application for judicial review is successful

i. rules on who may make an application for judicial review

j. rules on the time limits within which an application for judicial review must be made

k. the time it takes to mount defences to applications for judicial review

2. In relation to your decision making, does the prospect of being judicially reviewed improve your ability to make decisions? If it does not, does it result in compromises which reduce the effectiveness of decisions? How do the costs (actual or potential) of judicial review impact decisions?

3. Are there any other concerns about the impact of the law on judicial review on the functioning of government (both local and central) that are not covered in your answer to the previous question, and that you would like to bring to the Panel’s attention?”

No doubt the responses to these questions, from those inevitably on the receiving end of judicial review, will point to the delays and uncertainty caused by legal challenges, but of course that is only one side of the story, which is why it is so important that there are responses from a wide section of business and society to the main questions which I set out below:

“1. Are there any comments you would like to make, in response to the questions asked in the above questionnaire for government departments and other public bodies?

2. In light of the IRAL’s terms of reference, are there any improvements to the law on judicial review that you can suggest making that are not covered in your response to question (1)?

Section 2 – Codification and Clarity

3. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?

4. Is it clear what decisions/powers are subject to Judicial Review and which are not? Should certain decision not be subject to judicial review? If so, which?

5. Is the process of i) making a Judicial Review claim, ii) responding to a Judicial Review claim and/or iii) appealing a Judicial Review decision to the Court of Appeal/ Supreme Court clear?

Section 3 – Process and Procedure

6. Do you think the current Judicial Review procedure strikes the right balance between enabling time for a claimant to lodge a claim, and ensuring effective government and good administration without too many delays?

7. Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the Courts?

8. Are the costs of Judicial Review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?

9. Are remedies granted as a result of a successful judicial review too inflexible? If so, does this inflexibility have additional undesirable consequences? Would alternative remedies be beneficial?

10. What more can be done by the decision maker or the claimant to minimise the need to proceed with judicial review?

11. Do you have any experience of settlement prior to trial? Do you have experience of settlement ‘at the door of court’? If so, how often does this occur? If this happens often, why do you think this is so?

12. Do you think that there should be more of a role for Alternative Dispute Resolution (ADR) in Judicial Review proceedings? If so, what type of ADR would be best to be used?

13. Do you have experience of litigation where issues of standing have arisen? If so, do you think the rules of public interest standing are treated too leniently by the courts?”

We have arranged a joint Town Legal/Landmark Chambers webinar at 5.30 pm on 14 October 2020 to consider these questions in the specific context of the planning system, and the operation of the Planning Court. Event and registration details here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

Whether you come from the standpoint of a developer, local authority or community representative, when you strip away the legalism (as we will try to do) all of this really does matter in practice – not just in relation to the small minority of matters that end up in the Planning Court, but in relation to the operation of the system as a whole: fair and predictable procedures are only possible if we know that there are rules, and that remedies are available if they are broken. And when challenges are brought, they need to be resolved with speed, fairness and efficiency.

Simon Ricketts, 12 September 2020

Personal views, et cetera

PS two other webinars for your diary:

5.30 pm 15 September 2020

Permission In Principle – In Practice

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_5S0GAe6ySN2zfvsdtjd0uQ

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

The Great Hall, Royal Courts of Justice (courtesy Wikipedia)

Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR

Most of the summer blockbusters were paused from release this summer, except for Tenet, which no-one seems to understand. Oh and the statutory instruments making those major amendments to the GPDO (eg building upwards, and resi development to replace existing commercial buildings) and the Use Classes Order (eg the new class E), which hit our screens just before Parliament rose for the summer recess. The Planning For The Future white paper was published (visually spectacular) after Parliament had risen.

This post looks briefly at the role of Parliament in debating these documents, and at the Rights : Community : Action judicial review of the GPDO and Use Classes Order changes.

The amendments to the General Permitted Development Order and Use Classes Order

We’re talking about the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020/755, The Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 3) Order 2020/756 and The Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020/757 all laid before Parliament on 21 July, ahead of the Commons going into recess the following day, and came into effect on 31 August and 1 September. Parliament returned on 1 September.

The statutory instruments (“SIs”) were made under the negative resolution procedure. This means that although the SIs came into effect on when stated, either House can vote to reject them within 40 sitting days, following a motion (“prayer”) laid by a member of the relevant House. If rejected, the relevant statutory instrument is annulled, i.e. no longer of any legal effect.

There has been no Parliamentary debate so far on any of the SIs, although MHCLG minister Lord Greenhalgh did respond to questions in the Lords on 28 July 2020 (ahead of the Lords going into recess the next day).

Labour has laid a motion against the GPDO SIs, but (1) given the Government’s substantial majority there is surely no realistic likelihood of that succeeding on a vote and (2) the narrative in relation to the changes to the GPDO and Use Classes Order seems to have got hopelessly confused with concerns as to the separate proposals in the white paper in the minds of politicians,the press and the public – see for instance Valerie Vaz, shadow leader of the House of Commons, on 3 September 2020:

“We have prayed against the town and country planning permitted development regulations—I think there are three sets of them. The shadow Minister for Housing and Planning, my hon. Friend Mike Amesbury, has written to the Secretary of State. I hope that the Leader of the House will find time for that debate.

During August Parliament was not sitting, but extremely important announcements were being made. I cannot understand why the Government, who say consistently that Parliament is sovereign, do not come to the House to explain changes in policy. Apparently, algorithms will now be used in planning decisions. That takes away the very nature of making planning decisions—whether relevant considerations are taken into account or whether irrelevant considerations are taken into account—and it undermines administrative law. When you make a decision, you must give reasons.

The Town and Country Planning Association says that 90% of planning applications are approved and there are 1 million unbuilt commissions [sic]. It is time for the shires to rise up and oppose these new policies. Will the Leader of the House ask the current Secretary of State for Housing, Communities and Local Government to come to the House to explain why he is using algorithms to stomp on our green and pleasant land?”

Quite aside from the probably theoretical possibility of any or all of the SIs being annulled, there is also the judicial review that has been brought by a new campaign group, Rights : Community : Action. It describes itself as “a coalition of campaigners, lawyers, planners, facilitators, writers and scientists, united by a shared commitment to tackle the Climate Emergency – with people and for people, and the environment.” There are four protagonists: Naomi Luhde-Thompson (currently on sabbatical from Friends of the Earth), Hugh Ellis (Town and Country Planning Association), Laura Gyte (Oxfam) and Alex Goodman (Landmark Chambers).

The group has put its Statement of Facts and Grounds on line. These are the grounds:

“(1) GROUND 1: In respect of each of the three SIs, the Secretary of State unlawfully failed to carry out an environmental assessment pursuant to EU Directive 2001/42/EC (“the SEA Directive”) and the Environmental Assessment of Plans and Programmes Regulations 2004 (“the SEA Regulations”).

(2) GROUND 2: In respect of each of the three SIs, the Secretary of State failed to have due regard to the Public Sector Equality Duty (“the PSED”) in s.149 of the Equality Act 2010 (“the EA 2010”).

(3) GROUND 3: In respect of each of the three SIs, the Secretary of State failed to consider the weight of the evidence against these radical reforms, including prior consultation responses and the advice of his own experts. This composite ground is divided as follows:

Ground 3a: The Secretary of State failed to conscientiously consider the responses to the consultation on proposed planning reforms which ran from 29 October 2018 to 14 January 2019

Ground 3b: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State failed to take into account the advice of the government’s own experts: in particular, the findings of the Building Better, Building Beautiful Commission’s “Living with Beauty” Report (“The BBBB Report”), and the findings of his own commissioned expert report “Research into the quality standard of homes delivered through change of use Permitted Development rights” (“The Clifford Report”).

Ground 3c: In respect of the two SIs that expand Permitted Development rights (SI 2020/755 and SI 2020/756), the Secretary of State adopted an approach which was unfair, inconsistent and/or irrational in the context of the approach taken to similar proposed Permitted Development reforms: namely those relating to the deployment of 5G wireless masts.

Ground 3d: In respect of SI 2020/756, the Secretary of State was required to re- consult before introducing Class ZA. There was a legitimate expectation of re- consultation on the proposal for a permitted development right allowing the demolition and rebuild of commercial properties, arising from an express promise to re-consult which was made in the original consultation document.”

Do read the Statement of Facts and Grounds itself for the detail. The Government has served summary grounds of defence but I do not think that they are on line.

The group is seeking an order “declaring that the decision to lay the SIs was unlawful. The Claimant also seeks an order quashing the SIs for unlawfulness.” It was also initially seeking an order “suspending the operation of the SIs until the disposal” of the claim, but it has now withdrawn that request.

On 2 September 2020 Holgate J made an order listing the claim to be heard in court “for 1.5 days in the period between 8th October 2020 to 15th October 2020”. It will be a “rolled up” hearing, i.e. there has been no decision yet as to whether any of the grounds are arguable. The Planning Court has pulled out all the stops to list the case quickly – after all, if any parts of the SIs were now to be quashed just think of the implications and complications! But there must be a good likelihood of the case going to the Court of Appeal or beyond, particularly if any of the grounds gain any traction. There could be uncertainty for some time.

No doubt the claim will touch various raw nerves amongst some – an attack on the Government’s “fast changes” agenda, part reliance on EU-derived environmental legislation, Aarhus Convention costs capping, crowdfunded litigation, “activist lawyers” – it ticks all the boxes! But let’s see what the court makes of it.

The Planning For The Future white paper

The white paper is of course out for consultation, along with the associated shorter term measures document, so it might be said that they don’t amount to significant policy announcements – but that would surely be simplistic: there is a clear direction of travel. With this in mind, being no expert on Parliamentary conventions and procedure, I have two questions:

1. Surely the announcements should first have been in Parliament if I read this House of Commons Library note on Government policy announcements (18 January 2013) correctly?

2. What is the precise status of Planning For The Future? It is expressed on the face of the document to be a “white paper” but would it not usually therefore be expected to have been tabled in Parliament as a numbered command paper and to include the wording: “Presented to Parliament by the Secretary of State for Housing, Communities and Local Government by Command of Her Majesty“? On one level, does it matter? But surely it does?

I also note that some of the shorter term measures (covered in last week’s blog post) could take effect soon after the consultation deadline of 1 October (particularly the introduction of the revised standard method – the “algorithm” if you will) so if there is to be any proper, informed, debate in Parliament I would suggest that there is little time to be lost.

Simon Ricketts, 5 September 2020

Personal views, et cetera

Planning For The Nearer Future: Consultation On Revised Standard Method, First Homes, Small Sites Affordable Homes Threshold & PiP

Still don’t know what I was waiting for

And my time was running wild, a million dead-end streets and

Every time I thought I’d got it made

It seemed the taste was not so sweet

I have said plenty already on the longer term changes proposed by the Government in its Planning for the future white paper (consultation responses deadline 29 October 2020). So I turned myself to face the shorter term proposals set out in Changes to the current planning system: Consultation on changes to planning policy and regulations (consultation responses deadline 1 October 2020). ChangesOne and ChangesTwo respectively perhaps.

The ChangesTwo tracklist:

“• changes to the standard method for assessing local housing need, which as well as being a proposal to change guidance in the short term has relevance to proposals for land supply reforms set out in Planning for the Future;

• securing of First Homes, sold at a discount to market price for first time buyers, including key workers, through developer contributions in the short term until the transition to a new system;

• temporarily lifting the small sites threshold below which developers do not need to contribute to affordable housing, to up to 40 or 50 units to support SME builders as the economy recovers from the impact of Covid-19;

• extending the current Permission in Principle to major development so landowners and developers now have a fast route to secure the principle of development for housing on sites without having to work up detailed plans first.”

Kings Chambers’ Constanze Bell hosted a good discussion on the proposals in a 28 August podcast with a panel comprising (Diana Richardson, Gladman), Paul Bedwell (Pegasus), Martin Carter (Kings Chambers) and Jonathan Easton (Kings Chambers).

Changes to the standard method

The Government “proposes a revised standard method for calculating local housing need which will be used as the basis for plans created prior to any changes outlined in Planning for the Future being introduced.”

There will be two steps:

Step 1 – the “baseline for the standard method should be whichever is the higher of 0.5% of existing housing stock in each local authority OR the latest projected average annual household growth over a 10-year period”

“The household projections element of the baseline will use the latest ONS national household growth projections for the local authority area (Principal projection, table 406). The projected average annual household growth over a 10-year period (10 consecutive years, with the current year being used as the starting point from which to calculate growth over that period) will be used.”

Step 2 – “We propose the standard method will include two adjustments to the baseline using the workplace-based median house price to median earnings ratio. Initially it is proposed that the ratio for the most recent year for which data is available in order to address current affordability of homes would be used. Then how affordability has changed over the last 10 years of published data would be incorporated, using that same statistic.”

Precise formula:

The Government proposes the following transitional arrangements: “from the publication date of the revised guidance, authorities which are already at the second stage of the strategic plan consultation process (Regulation 19) are given 6 months to submit their plan to the Planning Inspectorate for examination. Authorities close to publishing their second stage consultation (Regulation 19), should be given 3 months from the publication date of the revised guidance to publish their Regulation 19 plan and a further 6 months to submit their plan to the Planning Inspectorate.”

For a detailed analysis of the implications of the new formula see e.g. Lichfields’ blog post Setting a higher standard – a new method for assessing housing needs. (Bethan Haynes, 7 August 2020).

In theory, the new formula could be with us very quickly: “Following the outcome of this consultation, the Government will update the planning practice guidance with the revised standard method for assessing local housing need.”

Or could it? There can of course be no “correct” methodology – it’s all political choices as to which factors are considered to be most relevant, standardised into a formula that may or may not work as intended – and there has already a strong backlash from various quarters, for instance Conservative MP for Harborough, Neil O’Brien, The next algorithm disaster – coming to a Conservative constituency near you. This time, it’s housing growth. (ConservativeHome, 24 August 2020), from Chris Young QC and others A Standard Method That Works For The North (LinkedIn post 22 August 2020), and Planning algorithm may destroy suburbia, Tory MPs warn Boris Johnson (Times, 29 August 2020). Press speculation that the Government is already re-thinking is hopefully wide of the mark given that the consultation process hasn’t yet closed and therefore minds must in law remain open, but are we going to see yet another fudged outcome?

First Homes

I summarised the First Homes idea in my 29 February 2020 blog post Starter Homes Were A Non Starter – What Future For First Homes?

Basically they are intended to be a “for sale” product for first time buyers and other qualifying groups, sold at a 30% discount to market value, which must be maintained on re-sale. At that point the Government was consulting on the detail.

This is what it has concluded, subject to this further consultation:

⁃ “a minimum of 25 per cent of all affordable housing units secured through developer contributions should be First Homes. This will be a national threshold, set out in planning policy.”

⁃ “The Government proposes that, under the new system, a policy compliant planning application should seek to capture the same amount of value as would be captured under the local authority’s up-to-date published policy. For instance, a local policy may require 20% affordable housing on site, half of which is shared ownership, and half of which is social rent. The plan viability assessment will set out assumptions on the amount of value captured – for example, a social rent home may be discounted by 50% from market price, and a shared ownership home may be discounted by 20%. This allows the total value captured under the policy to be calculated. This value can then be reallocated to a different affordable housing mix under the new policy.”

⁃ “For the remaining 75% of affordable housing secured through developer contributions, there are two broad options:

• “Option 1: Where a local authority has a policy on affordable housing tenure mix, that policy should be followed, but with First Homes delivering a minimum of 25% of the affordable housing products…”

• “Option 2: A local authority and developer can negotiate the tenure mix for the remaining 75% of units.”

It will be open to authorities to require in their local plans that the discount be 40% or 50% rather than 30% but they will not be able to water down the requirement that 25% of the affordable homes to be provided on site must be First Homes.

Again, the proposal could be with us quickly, initially in the the form of “planning policy changes” (Planning Practice Guidance? NPPF changes? Written ministerial statement?):

“We intend to begin by making planning policy changes, to ensure that clear expectations are set. However, to ensure that First Homes are delivered, nationwide, on a consistent basis, we are keeping under consideration the option to strengthen the policy through primary legislation at a future date. We also intend to introduce an exemption from the Community Infrastructure Levy for First Homes, to enable delivery prior to wider developer contribution reform. This would require changes to regulations. Lastly, we are also considering significant reforms to the system of developer contributions. We will ensure that First Homes will continue to be delivered under a reformed approach”

However, it seems from the transactional arrangements set out below that the requirement will not immediately take full effect:

56. We recognise that local authorities may need to review the tenure mix for the remainder of the affordable housing that they are seeking to secure. Where local authorities choose to update their tenure mix to reflect this policy, they can do this through a local plan review, although we believe that prioritising the replacement of home-ownership tenures by First Homes will reduce the need for this.

57. We also recognise that there will be a number of local plans and neighbourhood plans that have been prepared based on the existing National Planning Policy Framework and that have reached more advanced stages of the plan-making process. Therefore, local plans and neighbourhood plans that are submitted for Examination within 6 months of this new policy being enacted will not need to reflect the First Homes policy requirements.

58. We also recognise that many developers will have been preparing planning applications under different assumptions. Where significant work has already been undertaken to progress a planning application, including where there has been significant pre-engagement with a local authority on the basis of a different tenure mix of affordable housing, the local authority should have flexibility to accept alternative tenure mixes, although they should consider whether First Homes could be easily substituted for another tenure, either at 25% or a lower proportion.”

Lifting the small sites threshold for SME builders

This could have a significant effect on development. In London, for instance, it will have big repercussions.

“We are proposing to raise the small sites threshold to up to either 40 or 50 new homes through changes to national planning policy and are seeking views on the most appropriate level. These thresholds balance the aim of supporting SMEs with the need to deliver new affordable homes. This will be for an initial period of 18 months in which we will monitor the impact of the raised threshold on the sector before reviewing the approach.”

“ In designated rural areas, we … propose to maintain the current threshold.”

The current threshold is 10 new homes, or site area of 0.5 hectares. The site area threshold will be increased “at the same proportion”, so presumably to 2 or 2.5 hectares (although should in fact the site area increase be less, to reflect likely density of development?).

Again the proposal could be in effect quickly:

“Following the consultation, a decision will be taken on whether to proceed with this approach. If it is taken forward, this could be through the introduction of a Written Ministerial Statement in the Autumn.”

If you are an SME developer with a scheme which may qualify, might it be worth your while seeing how this pans out? Of course it will not be straightforward – we are likely to see some local planning authorities seeking understandably to continue to rely on adopted local plan requirements for affordable housing, choosing to apply less weight to the written ministerial statement, and therefore the potential need to appeal.

Presumably the Government is hoping to see significant take-up, meaning inevitably less affordable housing. That would seem to be a politically-charged trade-off but may in reality simply leapfrog what would otherwise have been a viability process outcome in many instances.

Extending permission in principle

I summarised the current permission in principle regime in my 1 April 2017 blog post Great Expectations: Pip & The Brownfield Land Registers. The Town and Country Planning (Permission in Principle) (Amendment) Order 2017 subsequently set out the procedure for applying for PiPs. Lichfields’ 2 January 2018 blog post Take a chance on me: what we know about permission in principle on application is another good summary.

Local planning authorities are currently required to maintain brownfield land registers, in two parts.

– Part 1: previously developed land with an area of at least 0.25 hectares that is suitable and available for residential development and where residential development is achievable (all defined terms).

– Part 2: land in Part 1 where the local planning authority has exercised its discretion to enter the land in Part 2 and has decided to allocate the land for residential development having followed defined publicity, notification and consultation procedures. 

If your land is on Part 1 of the register you can currently apply for permission in principle for minor development (basically less than ten dwellings). If your land is on Part 2 of the register you already have permission in principle for the development set out in the register (which must not be large enough to require environmental impact assessment.

There is a further procedure in the Housing and Planning Act 2016, but not yet brought into effect, for automatic permission in principle to stem from allocation in defined categories of statutory development plans rather than just from designation on a brownfield land register.

The Government now proposes “to remove the restriction in the current Permission in Principle regulations on major development”. Although the paper is not specific, this must surely simply mean that permission in principle would now be able to be applied for in relation to major development (although still not development such as to require environmental impact assessment so, unless a negative screening opinion has been obtained, capped at 150 dwellings/5 hectares), as long as the site is on Part 1 of a local planning authority’s brownfield land register.

The paper proposes that there be no cap on the amount of commercial development proposed, although the scheme will need to be “residential-led”. The procedure is quicker than the outline planning application procedure (five weeks determination period, 14 days deadline for responses from statutory consultees).

There is not proposed to be any increase in the information requirements that currently apply to PiP applications for minor development. “However, we would be interested in whether, given the larger scale of development, there should be an additional maximum height threshold parameter, in terms of number of storeys, as part of the Permission in Principle. This would provide greater clarity to the applicant and local planning authority about the scale of housing development that is acceptable for the site, particularly in high density urban areas. Conversely, the inclusion of a maximum height parameter would add further complexity to the determination of Permission in Principle as it starts to bring in design considerations, and may in practice lead to greater confusion – for instance, a high height threshold may only be acceptable for part of the site given the impact on neighbouring dwellings.”

The Government is proposing to adjust the application fee regime to increase the cost saving in comparison with a traditional application for outline planning permission.

This all certainly gives additional focus to brownfield land registers (which I last looked at in my 5 January 2018 blog post Brownfield Land Registers: A Bit Of Progress). If you have land that is on Part 1 of a brownfield land register, it will certainly be a procedural route to consider.

Again, we could see the proposal come into effect relatively quickly. “Following this consultation, if we introduce Permission in Principle by application for major development, we aim to introduce amending regulations this Autumn, with the regulations expected to come into force by the end of the calendar year. Changes to the fee structure would require separate changes to the Planning Fees Regulations.”

Of course, this will also be a useful test as to how well permission in principle can be made to work in practice, ahead of the Government’s more ambitious proposals the subject of ChangesOne (and my 7 August 2020 blog post For The Future).

(Turn and face the strange)

Ch-ch-changes

Simon Ricketts, 29 August 2020

Personal views, et cetera