A PPG Change Could Easily Mop Up This Surface Water Flood Risk Sequential Test Mess

It’s finally raining properly this morning. What else could I write about…?

The government’s general advice is that planning permission shouldn’t be granted for development in flood risk areas without an assessment first being carried out as to whether the development could be accommodated in a lower risk area. Fair enough, but a change to the government’s planning practice guidance in 2022 for the first time expressly extended this advice to “areas at risk of surface water flooding“, rather than just areas at risk of flooding from rivers or the sea.

Paul Smith wrote a brilliant explainer on this issue from a developer’s perspective in his 4 April 2025 blog post How puddles could stop the government building the homes we need.

The December 2024 version of the NPPF didn’t resolve the problem but at least alleviated it with the emboldened passage:

“170. Inappropriate development in areas at risk of flooding should be avoided by directing development away from areas at highest risk (whether existing or future). Where development is necessary in such areas, the development should be made safe for its lifetime without increasing flood risk elsewhere.”

“172. All plans should apply a sequential, risk-based approach to the location of development – taking into account all sources of flood risk and the current and future impacts of climate change – so as to avoid, where possible, flood risk to people and property. […]

“173. A sequential risk-based approach should also be taken to individual applications in areas known to be at risk now or in future from any form of flooding, by following the steps set out below.

174. Within this context the aim of the sequential test is to steer new development to areas with the lowest risk of flooding from any source. Development should not be allocated or permitted if there are reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The strategic flood risk assessment will provide the basis for applying this test.

175. The sequential test should be used in areas known to be at risk now or in the future from any form of flooding, except in situations where a site-specific flood risk assessment demonstrates that no built development within the site boundary, including access or escape routes, land raising or other potentially vulnerable elements, would be located on an area that would be at risk of flooding from any source, now and in the future (having regard to potential changes in flood risk).”

The problem is that we are still currently left with the specific reference in the PPG to the need for a sequential test in relation to areas at risk of surface water flooding (the passage I have emboldened) (and Mead Realisations v Secretary of State (Court of Appeal, 30 January 2025) of course tells us that there is no “legal principle that prevents national policy in the NPPF being amended, or altered, by guidance in the PPG.”):

“What is the aim of the sequential approach?

The approach is designed to ensure that areas at little or no risk of flooding from any source are developed in preference to areas at higher risk. This means avoiding, so far as possible, development in current and future medium and high flood risk areas considering all sources of flooding including areas at risk of surface water flooding. Avoiding flood risk through the sequential test is the most effective way of addressing flood risk because it places the least reliance on measures like flood defences, flood warnings and property level resilience features. Even where a flood risk assessment shows the development can be made safe throughout its lifetime without increasing risk elsewhere, the sequential test still needs to be satisfied. Application of the sequential approach in the plan-making and decision-making process will help to ensure that development is steered to the lowest risk areas, where it is compatible with sustainable development objectives to do so, and developers do not waste resources promoting proposals which would fail to satisfy the test. Other forms of flooding need to be treated consistently with river and tidal flooding in mapping probability and assessing vulnerability, so that the sequential approach can be applied across all areas of flood risk.

Paragraph: 023 Reference ID: 7-023-20220825

Revision date: 25 08 2022”

The Government had indicated in its 12 December 2024 response to the revised NPPF consultation process that it would “shortly be updating planning practice guidance to clarify the definition of reasonably available sites that should be considered as part of the sequential test”. We still wait for that updated guidance and in particular to see if it will address this particular difficulty over surface water flood risk. Paul’s blog post explains well the nonsense of, and work and cost involved in, carrying out a sequential test looking for sites at lower risk of surface water flooding.

Pending any amended guidance, there have at least recently been some pragmatic appeal decisions by inspectors, most recently:

Ham Road, Faversham, Kent (27 June 2025) This is summarised by Zack Simons KC in his 4 July 2025 blog post Floods, puddles and “strong” refusals (which also references two other recent decisions: Yatton (albeit that this is subject to legal challenge) and HMP Garth and Wymott, Lancashire. The Faversham inspector was faced with an appeal where no sequential test had been carried out despite the site being at risk of both flooding from the sea and by way of surface water. “The proposal includes changing the land levels, including raising them in some areas, with the result that all areas of proposed built development would be some 300mm above the design flood level, ie would not be at risk of flooding. This could be secured by conditions(s).”  

“The extent of pluvial flooding risk is relatively limited. It is from ponding on the site in existing depressions and similar factors. The depth of the flooding would be relatively shallow. There is no risk related to interrupting an off-site surface water flow path, or effects on other off-site properties. It is a fairly typical existing situation on an agricultural field. As part of the design detail for the proposal at reserved matters stages, the precise land levels, drainage solutions, and landscaping would all need to be considered. Given the limited nature of the existing and future surface water flood risk, designing out the flood risk could be comfortably accommodated as part of this natural detailed design process.

Overall, therefore, there is no real world harm from either the failure to undertake a sequential test for tidal flooding or the failure to properly undertake a sequential approach. This is because it has been satisfactorily demonstrated that mitigation measures can make the proposed development safe for its lifetime from tidal flooding. There are also reasons other than flooding that result, although likely only in part, in the land levels changing mitigation measures. There would also be no real world surface water flood risk to the finished and occupied development proposal.”

Nor was the failure to carry out the sequential test a “strong reason for refusal” such as to disapply the tilted balance in favour of granting permission (which applied due to the local authority’s poor housing land supply position).

Appeal allowed.

Sherwood Cross, Feniton (11 July 2025). Here, the site is “conducive to overland water flow in high rainfall events”. Water attenuation is proposed to the north of the site to protect the development site but also to provide overall betterment, the details of the proposed attenuation scheme to be the subject of a Grampian condition.

“The Sequential Test undertaken by the Appellant has not considered potential housing sites in the wider local authority area, as identified by the Council. That is on the basis of the Appellant’s claimed position that the proposal would uniquely include flood alleviation measures that would significantly lessen the flood risk off- site within that part of Feniton to the south of the site along Colestocks Road and further to the south, and that there are no other sites that could provide such benefits to Feniton. However, whilst the flood mitigation measures are an element of the proposal, as previously referred to, the northern attenuation areas have a dual function including to protect the proposed development from any flood risk.

The proposal is therefore fundamentally a housing scheme with attenuation measures necessary, in the absence of any other proposed mitigation, to protect it from flood risk, which would also take the opportunity to provide betterment to off- site flood risk. There is no substantive evidence to indicate that the various other potential sites for housing put forward by the Council would be unsuitable or not have a lower risk of flooding. As such, I have no substantive basis to find that there are no reasonably available sites appropriate for the proposed development in areas with a lower risk of flooding. The proposed development therefore fails the sequential test, in conflict with the Framework in this respect.”

However, the inspector goes on to conclude:

“I have also found that, in respect of flood risk, the proposal fails the sequential test and does not fully accord with policy EN22 of the Local Plan and F1 of the NP, having regard also to the absence of an agreed surface water outfall. However, I have also found that there would be likely betterment relating to off-site flood risk resulting from the proposals, in the context of the proposals making the development safe without increasing flood risk elsewhere. That would be subject to compliance with a Grampian condition to secure acceptable surface waterdrainage, which I have found would be appropriate in the circumstances of this case. Those factors therefore lessen the weight afforded to the above failures relating to the sequential test and development plan policy.”

Appeal allowed.

This pragmatism is all well and good but to assume pragmatism on the part of all decision-makers in the planning system is a mug’s game. Which is why we just need some clear guidance: of course if there is no certainty that any unacceptable risks arising cannot robustly be mitigated, surface water flood risk can and should be the basis for refusal of a planning application, but the sequential test should only be required in the case of sites at risk from flooding from rivers or the sea.

Oh and it’s still raining. Good.

Simon Ricketts, 19 July 2025

Personal views, et cetera

A Bluffer’s Guide To The English Devolution And Community Empowerment Bill

This weekend you will be worried that someone in the pub is going to say “hey, you’re a planner! … what’s the difference between a mayoral strategic authority, non-mayoral foundation strategic authority and single local authority foundation strategic authority; and between a CCA and a CA; and between the community right to bid and the community right to buy?”

You definitely need to be prepared and, rather than staying at home instead, there are probably three main options:

  1. You could read the 338 page Bill that was introduced into the House of Commons on 10 July 2025, perhaps alongside the 156 pages of explanatory notes and 237 pages of impact assessment.
  1. You could channel your inner Angela Rayner, by way of MHCLG’s 10 July 2025 press release or, for a deeper dive, a guidance document published by MHCLG, which serves to put the proposals within the Bill within a wider reform context.
  1. You could (and have indeed already started to) read this bluffer’s guide (this bluffer being me).

Confession: I have only scrolled through the material once so far just identifying what seemed to be most immediately relevant. There will be much that I have missed.

Much of the Bill serves to give effect to proposals within the English Devolution White Paper (16 December 2024) which I commented on from a planning perspective in my 18 January 2025 blog post Viva La Devolution although there is much more besides.

Anyway, here is some stuff that may be useful:

The Bill is really about four main things (quoting from MHCLG’s guidance document):

  • “Devolution: describing devolution structures, outlining and expanding powers for Mayors and authorities through the new Devolution Framework and explaining routes to devolution for places that don’t have it.”
  • Local government: ensuring the process for local government reorganisation supports the ambition in the White Paper, outlining changes to local authority governance, reforming accountability and introducing effective neighbourhood governance structures to amplify local voices.
  • Communities: giving more power to local communities to purchase assets of community value and …”
  • (the guidance document includes this under the “communities” heading but it is of wider relevance than that) abolishing upwards only rent review provisions in commercial leases.

Devolution

Devolution deals have to date been arrived at in ad hoc fashion. The Bill allows the government to roll out a standardised devolution framework. I summarised the different types of strategic authority in my January 2025 blog post, but MHCLH have now published this series of five “Devolution Framework Explainers” , on:

  • Established mayoral strategic authorities
  • Mayoral strategic authorities
  • Non-mayoral foundation strategic authorities
  • Single local authority foundation strategic authorities

In relation to roads, strategic authorities will be required to set up and coordinate a “key route network”, comprising the most important roads in their area, in respect of which they will have various powers of direction and the power to set traffic reduction targets – and will have the role of licensing bike and e-bike hire schemes.

In relation to planning, they will have equivalent powers to those of the London Mayor; in addition to SAs’ duty to prepare a spatial development strategy, the mayors of combined authorities and combined county authorities will have the power to direct refusal of planning applications of potential strategic importance (Regulations will need to set out what the thresholds will be) or to call them in for their own determination.  They will be able to prepare mayoral development orders, establish mayoral development corporations and, if there is an adopted SDS, levy Mayoral CIL. Mayoral SAs will also need to prepare a local growth plan.

Mayors will be able to appoint and renumerate “Commissioners” to lead on particular statutory “areas of competence”.

Mayors will be elected via the supplementary vote system, rather than “first past the post” (as was the system prior to May 2024). They will be able to be the police and crime commissioner for their SA area. They will not be able to moonlight as a member of Parliament.

What is all this likely to mean for particular areas? I’m glad you asked me that! MHCLG has also now published a series of 16 “Area Factsheets”, providing “information on areas benefitting from English devolution, including electoral terms, route to established status, police and fire functions, distinctive governance arrangements and local government reorganisation”, for:

  • Cambridgeshire and Peterborough
  • Devon and Torbay
  • East Midlands
  • Greater Lincolnshire
  • Greater London Authority
  • Greater Manchester
  • Hull and East Yorkshire
  • Lancashire
  • Liverpool City Region
  • North East
  • South Yorkshire
  • Tees Valley
  • West Midlands
  • West of England
  • West Yorkshire
  • York and North Yorkshire

Local government

This includes the power for the Secretary of State to direct two-tier councils to submit proposals as to how to become a single unitary tier and in some cases to direct particular unitaries to submit a proposal to merge with each other. The cabinet system will be compulsory for local authorities and there will be no new local authority mayors.

“The Bill will empower communities to have a voice in local decision by introducing a requirement on all local authorities in England to establish effective neighbourhood governance. The requirement for local authorities to have effective neighbourhood governance will empower ward councillors to take a greater leadership role in driving forward the priorities of their communities. This will help to move decision-making closer to residents, so decisions are made by people who understand local needs. Additionally, developing neighbourhood-based approaches will provide opportunities to organise public services to meet local needs better.” (from the explanatory notes, paragraph 98).

Assets of community value

The Localism Act 2011 introduced the “community right to bid” by way of the ”assets of community value” process (for a couple of examples of litigation in relation to assets of community value, see my 14 July 2018 blog post, 2 ACV Disputes). In that blog post I summarised the rather toothless nature of the current system as follows:

“The listing of land or buildings as an asset of community value has legal consequences but ones that will seldom be determinative as to an owner’s longterm plans. Whilst disposal of a freehold or long leasehold interest can’t take place without community groups being given an opportunity to bid, there is no obligation to accept any community bid that is made. The listing can be material in relation to the determination of an application for planning permission, but the weight to be attached to the ACV listing is a matter for the decision maker.”

The Bill proposes the strengthening of the system in several ways (again quoting from MHCLG’s guidance document):

  • “The community group and asset owner will either negotiate a price for the asset, or an independent valuer will set a price based on the market value. Under Community Right to Buy, the moratorium on the sale of the asset will be extended to 12 months, giving community groups more time to raise funding to meet the agreed purchase price. Asset owners will be able to ask the local authority to check that community groups are making sufficient progress on the sale 6 months into the moratorium.

The definition of an ACV will also be expanded to help protect a wider range of assets, including those that support the economy of a community and those that were historically of importance to the community. Community groups will be able to appeal the local authority’s decision on whether an asset is of community value and local authorities will be supported to deliver the powers with new guidance.”

(This will raise significant concerns with land owners I feel sure).

  • Although sports grounds can already fall within the ACV definition the Bill will introduce “a new type of ACV – the Sporting Asset of Community Value (SACV) and automatically designate all eligible sports grounds as such. As with the standard ACV regime, communities will have the first right of refusal when a ground is put up for sale. SACV status will also provide enhanced protections for sports grounds. For example, unlike the standard 5-year renewal period under the ACV system, sports grounds designated as SACV will retain this status indefinitely. Other facilities – such as car parks – that the ground depends on to function effectively – will also be eligible for SACV listing, preventing the ground from being undermined by the intentional removal of its supporting assets.”

Abolishing upwards only rent review provisions in commercial leases

This landlord and tenant law provision, well away from my wheelhouse, is a strange outlier within the Bill.  As per the MHCLG guidance:

“The Bill will ban UORR clauses in new commercial leases in England and Wales. Commercial leases include sectors such as high street businesses, offices and manufacturing. Some very limited areas such as agricultural leases will be exempt. The ban will also apply to renewal leases where the tenant has security of tenure under Part II the Landlord and Tenant Act 1954. The ban aims to make commercial leasing fairer for tenants, ensure high street rents are set more efficiently, and stimulate economic growth.

Following the ban, if a UORR clause is in a new or renewal commercial lease, the requirement for rent not to decrease will be unenforceable; the new rent will be determined by whatever methodology is specified in the lease, for example in line with changes to the retail price index. The new rent may be higher, lower or the same as the previous rent.”

Enjoy your drink. Enough of all these acronyms, it’s an IPA for me please, thank you.

Simon Ricketts, 11 July 2025

Personal views, et cetera

How Do You Solve A Problem Like…Speeding Up Planning Appeals Without Being Unfair Or Counter Productive?

One of Rodgers and Hammerstein’s best.

MHCLG and the Planning Inspectorate this week announced that they would be imposing additional discipline on the parties to planning appeals which proceed by way of written representations. Regulations are to be introduced, to come into effect by the end of 2025, which will (according to accompanying detailed guidance):

  • expand the use of the simplified written representations procedure currently used for householder and minor commercial appeals (“part 1 appeals”) so that it will also apply to appeals in relation to the refusal of planning permission or reserved matters, the imposition of conditions on approvals and the refusal of prior notification or prior approval.
  • retain the six months’ appeal time limit for these appeals and allow PINS to transfer an appeal to the traditional written representations process where the simplified process “is not best suited for handling the appeal”.
  • not permit any further documents to be submitted by an appellant with their appeal beyond a copy of their application, the local planning authority’s decision notice and “a brief statement responding to the LPA’s decision and why they disagree.”
  • not permit an appeal statement or any other comments to be submitted by the local planning authority other than a copy of the information that they considered when deciding the application. “If members overturn an officer recommendation at committee, it’s important that meeting minutes and refusal reasons are robust and fully address any issues. LPAs should update their notification templates to communicate that any comments made by interested parties at the application stage will be shared with the Planning Inspectorate in the event of a part 1 appeal and that they cannot comment on the appeal.”
  • not permit any comments by third parties (although representations made during the application process will be made available to PINS by the local planning authority).

The procedure will apply to appeals in relation to applications submitted after the new system comes into force.

If this results in a crisper appeal process, without any loss of quality, there is much to like here, although care will be needed:

  • This makes it all the more important that applications when submitted are “appeal ready”, particularly as there is always a risk that the local planning authority may not allow amendments or additions to the application documentation to be submitted during the application process.
  • Local planning authorities’ reasons for refusal will need to carefully considered – and the reasoning within officers’ reports.
  • Third parties will also need to be careful to make their views known at application stage, without the ability to supplement them subsequently.
  • It seems that scope will be lost for parties to narrow down the points at issue during the appeal process.
  • The Planning Inspectorate recently changed its guidance to require completed section 106 agreements and unilateral undertakings to be provided when the appeal is lodged. The expansion of the simplified written representations procedure will make it even more important that the completed document has been agreed with the local planning authority and is robust.
  • There is usually uncertainty, when an appeal is lodged, as to what procedure the Planning Inspectorate will adopt: inquiry, hearing or written representations. What where the appellant is seeking an inquiry or hearing but the Planning Inspectorate determines written representations to be appropriate? That is already procedurally problematic (for instance when an inquiry is sought and the appellant ends up with a hearing).

Of course, some muscularity is needed on the part of the Planning Inspectorate to ensure that appeal timescales continue to reduce. That has been a successful aspect of the reforms to inquiry procedure, for instance as to the setting of dates for inquiries where we no longer have such a merry dance driven by counsel availability. But there are dangers, as demonstrated by this week’s ruling by the High Court in Tiwana Construction Limited v Secretary of State (Eyre J, 24 June 2025).

This related to a hearing into an appeal against West Suffolk District Council’s proposed development of 10 self-build houses in Burwell. As a result of comments by the inspector at the hearing, the appellant decided to submit a section 106 agreement committing to the provision of three of the dwellings as affordable housing. The inspector gave a deadline for submission of a completed section 106 agreement, and then extended it, but due to complications it could not complete an agreement by the inspector’s extended deadline and instead submitted a completed section 106 unilateral undertaking together with a note from the appellant’s solicitors setting out why it should be taken into account and was satisfactory but that an agreement would take longer.

The judgment makes interesting reading, showing that by the deadline the inspector had already prepared a draft decision letter, with a draft conclusion that the appeal should be dismissed. The judgment is revealing as to the correspondence that then ensued within the Planning Inspectorate between the inspector and her professional lead. The inspector was minded not to take into account the unilateral undertaking because she had some concerns about the drafting and she had been told she would be receiving an agreement rather than an undertaking and that a further extension would be needed for completion of an agreement. The inspector gave a written statement to the court hearing: “The Professional Lead advised me that as I was already going to dismiss the appeal for other reasons and the Claimant had not met my deadline for the provision of a S106 agreement, I should side-step the issue of affordable housing in my Decision Letter because it was not a determining factor in my decision…”

The Planning Inspectorate refused the request for a further extension (“This extension for the agreement has been rejected by the inspector. The inspector gave a deadline and was accommodating by agreeing to an extension. The agreement was not submitted in accordance with that extended deadline, so she will make her decision accordingly“) and the inspector then duly dismissed the appeal.

The decision was quashed:

“The position can be stated shortly. The Inspector made a deliberate decision to side-step the question of affordable housing in the Decision Letter. She took, therefore, a deliberate decision not to explain either why she was not taking the proffered affordable housing into account as a positive factor in favour of the appeal nor why she had no regard to the Unilateral Undertaking. This was not the result of inadvertence or of reasons being expressed in a clumsy or abbreviated form. It was a choice deliberately made by the Inspector. It had the effect that the Claimant was not given even the briefest of explanations as to why the affordable housing, for which the Unilateral Undertaking made provision, had not been taken into account. There was a failure to provide the reasons for the decision on a contentious matter of importance.”

Furthermore, “provision of affordable housing was obviously a matter of weight in the planning balance in this case. It was, therefore, to be taken into account even though doing so might not have changed the ultimate outcome.”

“It is at least possible that if the Inspector had considered the Unilateral Undertaking and had taken account of that provision she would have increased the weight she attached to affordable housing as a positive factor in favour of the appeal. It cannot, therefore, be said that the outcome would necessarily have been the same and relief is not to be refused on that basis.“

I’m sure we all have these procedural dilemmas on appeals from time to time. Completing the section 106 agreement or unilateral undertaking may be taking more time than anticipated for reasons outside the parties’ control, or further evidence comes to light which the inspector is refusing to receive. How far do we push it? This judgment repays careful reading.

Until next week, So Long, Farewell…

Simon Ricketts, 28 June 2025

Personal views, et cetera

AI Will Add To, Rather Than Reduce, Planning Delays Unless We Do Something About It

There was that boosterish press statement from the prime minister, PM unveils AI breakthrough to slash planning delays and help build 1.5 million homes: 9 June 2025. I’ve read it a few times, along with, for instance, the more detailed MHCLG Digital blog post, Extract: Using AI to unlock historic planning data (12 June 2025).

The “Extract” tool is targeted to be available for local authorities by next Spring to enable the easier digitisation of old planning documents and maps. Useful as it may be (“revolutionary”! “breakthrough”! “cutting-edge technology”!):

  • to talk this up as the way to “slash planning delays and help build 1.5 million homes” is, shall we say, pushing it; and
  • for the avoidance of doubt it should not be at the expense of us all being able to interrogate copies of the original documentation (memories of the transfer of authorities’ planning records to microfiche files – many an unhappy hour spent at those dreaded microfiche machines -and of whole swathes of planning records that have mysteriously disappeared as a result of, for instance, past waves of local government reorganisation).

In my 20 October 2024 blog post, Together In Electric Dreams I referred to some of the other technical advances which may help, and of course the legislation now enacted via the Levelling-up and Regeneration Act 2023 to set common data standards. The submission deadline has also just closed for MHCLG’s Geovation PropTech Innovation Challenge, where up to 12 companies will share in £1.2 million to develop solutions “to accelerate the delivery of 1.5 million homes in England through scalable PropTech solutions, and make a measurable impact on the yearly target of 300,000 new homes”.

However, are we sufficiently focused on the risks that AI ends up adding to, rather than, reducing planning delays, in particular though enabling submission by applicants and objectors alike of over-long and sometimes inaccurate material?

Lawyers will be well aware of the salutary case of R (Ayinde) v London Borough of Haringey (Dame Victoria Sharp and Johnson J, 6 June 2025), where a junior barrister, Sarah Foley, prepared grounds for judicial review which cited five cases which do not exist. Her evidence to the court was that “when she drafted the grounds she “may also have carried out searches on Google or Safari” and that she may have taken account of artificial intelligence generated summaries of the results (without realising what they were)”. The barrister was instructed by the Haringey Law Centre, whose solicitor and chief executive, Victor Amadigwe, gave evidence that: “Haringey Law Centre relies heavily on the expertise of specialist counsel. It has not been its practice to verify the accuracy of case citations or to check the genuineness of authorities relied on by counsel. It had not occurred to either Ms Hussain or Mr Amadigwe that counsel would rely on authorities that do not exist. When Haringey Council raised concerns about the five authorities, Ms Hussain and Mr Amadigwe wrote to Ms Forey and asked her to provide copies of the cases. Ms Forey did not do so, but she did provide the wording for the email that Ms Hussain sent on 5 March 2025. In the light of that wording, Ms Hussain and Mr Amadigwe did not appreciate that the five cases that had been cited were fake – they wrongly thought that there were minor errors in the citations which would be corrected before the court. Ms Hussain denies that Ms Forey told her that she had been unable to find the cases. It was only at the hearing before Ritchie J that they realised that the authorities did not exist. Mr Amadigwe has now given instructions to all his colleagues within Haringey Law Centre that all citations referred to by any counsel must be checked.”

The court decided not to instigate contempt proceedings against those involved but set out matters which required further consideration by the lawyers’ respective regulatory bodies.

The court’s judgment has these important passages on the use of artificial intelligence in court proceedings:

“4. Artificial intelligence is a powerful technology. It can be a useful tool in litigation, both civil and criminal. It is used for example to assist in the management of large disclosure exercises in the Business and Property Courts. A recent report into disclosure in cases of fraud before the criminal courts has recommended the creation of a cross-agency protocol covering the ethical and appropriate use of artificial intelligence in the analysis and disclosure of investigative material. Artificial intelligence is likely to have a continuing and important role in the conduct of litigation in the future.

5. This comes with an important proviso however. Artificial intelligence is a tool that carries with it risks as well as opportunities. Its use must take place therefore with an appropriate degree of oversight, and within a regulatory framework that ensures compliance with well-established professional and ethical standards if public confidence in the administration of justice is to be maintained. As Dias J said when referring the case of Al-Haroun to this court, the administration of justice depends upon the court being able to rely without question on the integrity of those who appear before it and on their professionalism in only making submissions which can properly be supported.

6. In the context of legal research, the risks of using artificial intelligence are now well known. Freely available generative artificial intelligence tools, trained on a large language model such as ChatGPT are not capable of conducting reliable legal research. Such tools can produce apparently coherent and plausible responses to prompts, but those coherent and plausible responses may turn out to be entirely incorrect. The responses may make confident assertions that are simply untrue. They may cite sources that do not exist. They may purport to quote passages from a genuine source that do not appear in that source.

7. Those who use artificial intelligence to conduct legal research notwithstanding these risks have a professional duty therefore to check the accuracy of such research by reference to authoritative sources, before using it in the course of their professional work (to advise clients or before a court, for example). Authoritative sources include the Government’s database of legislation, the National Archives database of court judgments, the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales and the databases of reputable legal publishers.

8. This duty rests on lawyers who use artificial intelligence to conduct research themselves or rely on the work of others who have done so. This is no different from the responsibility of a lawyer who relies on the work of a trainee solicitor or a pupil barrister for example, or on information obtained from an internet search.

9. We would go further however. There are serious implications for the administration of justice and public confidence in the justice system if artificial intelligence is misused. In those circumstances, practical and effective measures must now be taken by those within the legal profession with individual leadership responsibilities (such as heads of chambers and managing partners) and by those with the responsibility for regulating the provision of legal services. Those measures must ensure that every individual currently providing legal services within this jurisdiction (whenever and wherever they were qualified to do so) understands and complies with their professional and ethical obligations and their duties to the court if using artificial intelligence. For the future, in Hamid hearings such as these, the profession can expect the court to inquire whether those leadership responsibilities have been fulfilled.”

The internet is becoming increasingly unreliable – and the introduction of Google AI at the top of any set of search results, certainly doesn’t help

Surely, much of this advice is equally relevant to the planning system. As referred to in my  20 October 2024 blog post we have the Planning Inspectorate’s guidance on the use of artificial intelligence in casework evidence. How is this being policed in practice? And what of submissions made by applicants and objectors at application stage? I was pleased to see this piece: Local authorities need to ‘get wise’ to residents using AI to object to planning applications, warns GLA digital lead (Planning Resource, 12 June 2025 – behind paywall):

“The GLA’s head of change and delivery Peter Kemp told Planning’s Planning Summit yesterday (Wednesday 11 June) that “part of really successfully planning towns and cities is having the confidence of our residents”.

While digital planning brings a variety of “really exciting and positive” benefits , unless authorities start to think about the risks of AI they are “going to lose the confidence of their residents”.

One example of this is “how many people are using AI to produce objection letters to planning applications and misquoting case law as a result”, said Kemp.

“As local authorities, we need to get really wise to this and we need to start thinking about the impact of that in how we operate and how we build the confidence of junior officers to really operate in that space as well”, he added.

Kemp also noted that as a result of digital planning, the role of monitoring officers across London over the last five years “has fundamentally changed”.

Historically, monitoring officers would be responsible for manually supplying data on thousands of applications a year, but “now that stuff happens automatically, so their role has changed to check the quality of the data”, he said.”

I wonder how many authorities have followed the approach of North Norfolk Council which now has specific reference to the use of artificial intelligence in its local validation list?

The reality is surely that we are all collectively sleepwalking.

Worryingly, there is a cottage industry in online firms offering AI platforms to generate planning objections:

Or people can obviously use the tools themselves, generating lengthy, superficially well-written prose, with numerous legal, policy and/or factual references to be verified. This ultimately helps no-one, least of all those putting their trust in these tools.

And the issue is not just with text but of course images too – see Iceni’s Rebecca Davy’s 10 June 2025 blog post AI tools are reshaping how we read the past – how can heritage consultants help to keep the records straight?

Rather than relying on authorities individually to set out guidance for anyone submitting documents for reliance in the operation of the planning system, wouldn’t it be better for firm guidance to be set down centrally by MHCLG, using as a basis the Planning Inspectorate’s current guidance?

  • When should use of AI be declared in relation to any submitted material?
  • What is and isn’t AI for these purposes? (Predictive text,  proof reading and document transcription tools? More traditional web searches?)
  • What is the responsibility of person submitting the material to check the accuracy of the material, including underlying sources relied upon, and what should be the potential consequences if this is not done?
  • In any event, as I have been saying for so long, why do we not have indicative word and file size limits for different categories of material? Nearly every document submitted by anyone is simply too long and AI will exacerbate the issue. Now is the opportunity!

NB as always, in preparing this post I have had to avoid, for instance, WordPress’s “writing assistance” tool and, in uploading the images, the opportunity offered by Microsoft to “create an image using AI“. I get it why tools like this are increasingly popular but, without guardrails as to their use in connection with every element of the planning system, one thing is for sure: our jobs are going to become harder, not easier.

Simon Ricketts, 22 June 2025

Personal views, et cetera

Why Does Negotiating Section 106 Agreements Have To Be Such A Drag?

The HBF’s May 2025 research piece What is the timeframe for local authorities to agree community investment? shows what a huge drag on planning permission timescales is represented by the process of negotiating a section 106 agreement (which of course needs to have been completed before planning permission can be issued).

Read this:

“To better understand the current state of S106 agreement timelines, the Home Builders Federation (HBF) submitted a Freedom of Information (FOI) request to local planning authorities across England. These results are based on the data from more than 2,500 S106 agreements across over 50 local authorities.

The FOI exercise found that the average S106 approval timeline was:

2022/23: 425 days

2023/24: 459 days

2024/25: 515 days

In just two years, the average time required to finalise an S106 agreement has increased by 90 days – a 20% increase.

The responses also highlight the extremities that developers in some local authorities are facing. The maximum recorded timescale was 2,679 days, or more than seven years, for a single S106 agreement to complete the agreement process. The shortest average timescale reported by any of the respondent councils was 192 days.

Additionally, 35% of all S106 agreements took longer than 12 months to finalise. Across all responses, 76% of local authorities reported average timelines that exceeded a year, and over a third of councils had an average timeframe of over 500 days.

In 2024/25, 45% of LPAs had agreements finalised that had taken over 1,000 days to complete.”

The document doesn’t specify the scale threshold of applications considered (I’m assuming by the number of agreements that this is in relation to developments of any scale, not just complex schemes where we know that specific issues requiring bespoke solutions and substantive negotiations may required to unlock solutions). Nor does the document specify when these time periods are measured from:  validation of the application, instruction of the LPA’s solicitor or the resolution to grant. Whatever, the statistics are appalling as is the relentlessly worsening trend.

The work is of a piece with the equally depressing Richborough/LPDF research carried out by Lichfields, How long is a piece of string? (16 May 2025). The average determination period for outline planning applications for 10 dwellings or more was 284 days in 2014. In 2024 it was 783 days. Given improvements in the performance of the Planning Inspectorate in relation to planning appeals (particularly appeals determined by way of public inquiry), it is now substantially quicker to secure a decision by way of appeal than by waiting for a final decision from the local planning authority.

This reflects our own anecdotal experience; we are seeing far more appeals on the basis of non-determination within the statutory period, and (tying back into that HBF work) one factor for clients is that with an appeal there is an external discipline upon the parties to agree and complete the section 106 agreement or unilateral undertaking within a specific, externally set, timescale.

Stepping back, this is all crazy and contrary to the efficient operation of the public sector. It’s equivalent to the use of A&E departments by those who find it faster, easier or more effective than going to their GP. Something is massively wrong with the operation of the planning system and it’s nothing that the Planning and Infrastructure Bill or indeed in the government’s December 2024 changes to the NPPF will fix. MHCLG’s proposed alterations to the system in relation to “minor” and “medium” residential development (summarised in my 31 May 2025 blog post Small Changes). Indeed I referenced in that post what was said in relation to section 106 agreements for “medium” residential development (less than 50 dwellings – although why stop at that size cap?):

“We … welcome views and evidence on:

1. the specific barriers facing SMEs in agreeing s.106 obligations – including availability of willing and suitable Registered Providers

2. what role national government should play in improving the process – including the merits of a standardised s.106 template for medium sites

3. how the rules relating to suitable off-site provision and/or appropriate financial payment on sites below the medium site threshold might be reformed to more effectively support affordable housing delivery, where there is sufficient evidence that onsite delivery will not take place within a suitable timeframe and noting the government’s views that commuted sums should be a last resort given they push affordable housing delivery timescales into the future.”

The lack of a standardised template is one issue. We end up having frustrating arguments over what should be uncontentious and standard wording, for instance to protect mortgagees in a way which is institutionally acceptable, or simply over our attempts to make a particular LPA’s “standard” drafting operate as the parties intend. The failure of the Law Society to update its June 2010 template (which never really achieved sufficient support and was not well used) is disappointing. Without drama we need a national template on the MHCLG website asap for smaller schemes, expressly supported by local government, the development industry and professional bodies (including those representing banks), with specific guidance as to the circumstances in which there can be departures.

But the problems go much wider than that:

Many LPA legal teams are woefully under-resourced, without a lawyer with the necessary experience, project management focus or internal clout to do more than act as a post-box with those instructing them, adding pressure and unfair responsibility on planning case officers or allowing other internal or external consultees to drive their particular agendas. There is often a reluctance on the part of the in-house legal team to outsource to an external law firm (even though the applicant pays and is usually eager to pay more if that results in faster delivery of the completed agreement) because of internal pressures not to de-skill further the in-house team or lose the ability to recoup costs.

I suspect that LPA lawyers (some of whom are true unsung heroes) would equally point the finger at some applicants’ solicitors – and indeed some applicants – who may be unprepared to back down from unreasonable negotiating positions or may introduce new points post committee resolution – or who may start ghosting them when something commercially is happening in the background.

Negotiations often start way too late. The government’s planning practice guidance on planning obligations  (1 September 2019) says this:

“When should discussions on planning obligations take place?

Discussions about planning obligations should take place as early as possible in the planning process. Plans should set out policies for the contributions expected from development to enable fair and open testing of the policies at examination. Local communities, landowners, developers, local (and national where appropriate) infrastructure and affordable housing providers and operators should be involved in the setting of policies for the contributions expected from development. Pre-application discussions can prevent delays in finalising those planning applications which are granted subject to the completion of planning obligation agreements.”

So often though, this isn’t happening.

There also no easy answer if negotiations genuinely hit a brick wall – for instance as to whether a particular contribution is justified or as to the precise drafting of a particular clause. Section 158 of Housing and Planning Act 2016 specifically inserted section 106ZA and Schedule 9A (“resolution of disputes about planning obligations”) into the 1990 Act, to provide for a system where an independent expert could be called upon where there are sticking points in section 106 negotiations, but it was never brought into force. It’s sitting there just waiting to be fleshed out by an SI and switched on! Whether the third party were to make a binding determination or, more practically, gave non-binding guidance that would still carry some weight if an appeal were subsequently required, in my view this needs to be dusted off!

Section 106 agreements are also of course lumbering beasts of burden, the legal mechanism for delivering so many strands of public policy – affordable housing, affordable workspace, carbon reduction measures, social infrastructure (eg education, health), transport infrastructure, local employment and training,  affordable workspace, air quality, the complexities of viability review processes. What can we deal with by way of other mechanisms (eg conditions), or standardise? What should be left to other legislation? The financial weight of the obligations in a section 106 agreement in relation to any large scheme is huge – in some ways, it is no surprise that the agreement may take as long or longer to negotiate than it took for the application to get from validation to committee resolution, but what can we simplify, speed up, twin-track?

The Planning Inspectorate also has its Planning obligations: good practice advice  (updated 5 February 2025), which is more specific than the government’s planning practice guidance and has its more prescriptive timing requirements (completed planning obligation at the time the written representations appeal is lodged is a tough one…). This is the sort of thing (with suitable adjustments) we need for the application stage, with real consequences for those who do not follow it.

Going back to the HBF work, several suggestions for improvements were made, various of them overlapping with what I have been saying:

  • “Increase resourcing for planning departments: Local planning authorities are currently under significant resource constraints, which affect their capacity to process planning obligations in a timely manner. To alleviate these challenges, government should allocate targeted funding to increase staffing levels within planning departments. By investing in dedicated S106 teams and offering professional development opportunities, councils can improve both the speed and quality of agreement processes.
  • Develop national standard templates and best practices: A lack of standardisation in the drafting of S106 agreements often leads to protracted negotiations and inconsistencies across councils. The government, in collaboration with planning authorities and the development sector, should produce standardised procedural guidelines and clauses to minimise the need to draft agreements from scratch. In lieu of official standardisation, there could be clearer guidance and expectations on good practice.
  • Encourage a more flexible use of cascade agreements where necessary to ensure homes can be built and give reassurance to the developer that if an RP cannot be found, that the Affordable Homes can be changed to an alternative tenure or as last resort, a payment made to the LPA in lieu of the Affordable Housing.
  • Introduce statutory timelines for S106 agreements: Consideration should be given to implementing statutory or guideline-based timescales into the application and pre-application process for handling Section 106 negotiations and the drafting and signing of agreements.
  • Monitor, benchmark, and report performance: Introducing monitoring and reporting of S106 performance metrics could drive improvements. Local authorities should publish data on average timescales, agreement outcomes, and compliance rates as part of the general reporting on S106 agreements through Infrastructure Funding Statements. This information could be used to benchmark performance across regions, highlight best practices, and identify areas needing intervention. Increased transparency can also build trust among stakeholders and help developers better plan and budget projects.”

I’m sure this can be cracked, easily. Look what Bridget Rosewell’s recommendations on the planning appeal process achieved. If in a couple of years colleagues are still spending much of their time chasing for progress on draft agreements and having to explain to frustrated clients why there is no progress, I’ll be pointing you back to this blog post.

I know most of us have all grown up with this section 106 run-around – indeed some of us are in fact part of Generation Section 52 – hard-copy travelling drafts sent by post, marked up in a sequential series of colours, by pen – yes it was, despite all that, a faster process than present – but, in the words of the Blow Monkeys from that period:  it doesn’t have to be this way.

Simon Ricketts, 14 June 2025

Personal views, et cetera

Not Sure Why The Media Was So Focused On Musk v Trump This Week Given What Has Been Happening In Sussex

The gloves are off in Haywards Heath.

Let’s start with a 2 June 2025 press statement: Mid Sussex District Council to Challenge Secretary of State:

“Mid Sussex District Council has launched a legal challenge against the Secretary of State for Housing, Communities and Local Government after being advised by the Planning Inspectorate that it is considering failing the area’s District Plan. 

After examination of the Plan in November, the Council has waited five months to hear from the Inspector.

The Inspector’s findings are that the Council has failed in its Duty to Cooperate with neighbouring Councils, simply because it did not say specifically which neighbouring Councils would benefit from the 1,000 additional houses Mid Sussex will build to help them meet their housing needs.

The Council considers this to be an extraordinary response to a technical matter that could easily be remedied another way.

Mid Sussex is the only council in West Sussex to meet its housing targets, whilst also agreeing to build extra houses to help its neighbours, Horsham and Crawley.

The Council has also delivered an unprecedented number of new houses in recent years – over 1,000 per year.

The effect of the Inspector’s findings could be to leave Mid Sussex unprotected from speculative development. This is because, if the Council followed the Inspector’s findings, it would need to start its plan making from scratch. This would take at least 30 months and over £1m. Mid Sussex is due to be dissolved, under the Government’s plans for reorganisation, in 2028.

It is for these reasons that the Council feels it must legally challenge the Inspector’s views.”

Bring on strategic planning! Bring on simpler local plan processes!

By her letter dated 4 April 2025 the inspector examining the Mid-Sussex District Plan, Louise Nurser, concluded that the council had not met the duty to co-operate – fatal to the progression of the plan.

78. In sum, MSDC is surrounded by local authorities who either have an undefined or defined quantum of unmet housing needs and these needs are significant.

79. Crawley, [Brighton and Hove] and other neighbouring authorities have long acknowledged significant and extensive unmet housing needs. Indeed, these were recognised by the previous Inspector. Moreover, other neighbouring local authorities such as Horsham have grappled with issues of water neutrality and potential impacts on their ability to meet their own and other’s needs.

80. The review of the adopted Plan envisaged under Policy DP5 was to ensure that additional sites could come forward in sufficient time to contribute to the sub-region’s unmet housing need. This process was to be planned effectively and strategically. Clearly, it would have been an easier task for the Council if one of the wider sub-regional organisations actively took the lead in addressing unmet needs. However, this was not the case during the preparation of the plan.

81. Nonetheless, your officers will have been aware of this considerable unmet need and the Council’s legal obligations, well before the significant milestones in the preparation of the Plan. Consequently, in practical terms the lack of active engagement by the two sub-regional groups has meant that in practice, MSDC needed to co-operate with its neighbours directly to ensure that it addressed its legal obligations in relation to the DtC. These obligations are not discretionary.

82. The Council has an obligation to maximise the effectiveness of plan preparation in a wider sub region where there are significant unmet needs. It has not provided the evidence to demonstrate that it has engaged constructively, in an active and on-going way to do so.

83. In considering this obligation, I am aware that Mid Sussex has its own constraints, such as the North Downs National Landscape, the setting of the South Downs National Park and the limitations to development relating to the Ashdown Forest SPA/SAC and that the water neutrality issue affects a relatively small strip of land on the western edge of Mid Sussex. Nevertheless, the presence of constraints does not obviate the necessity for MSDC to explore the possibilities of doing more to help address the unmet needs of the wider sub- region. The failure here is that the Council has not adequately considered the requests of its neighbours – namely Crawley, Horsham and Brighton and Hove, in a constructive, active and ongoing way.  The Council has, consequently, not maximised the effectiveness of plan preparation

This might be seen as harsh given that, for instance, the adjoining authorities had not in fact objected to the position taken by Mid-Sussex.

And, incidentally, bring on a solution to that water neutrality issue! See my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – it’s been almost four years!!

MSDC sent a letter of complaint to the Planning Inspectorate dated 17 April 2025 alleging that decisions by the inspector had been fettered by pre-determined views; alleging that she had not behaved at the examination with courtesy, patience and understanding (e.g. “the Inspector frequently cut-off participants mid-sentence, displayed negative body language when listening to responses, and at one point admitted she had “switched off” whilst the Council’s Counsel was responding to a question. The Inspector made remarks such as being tetchy because she “needs some food” and that she is “not a morning person”” – there is in fact a 22 page appendix to the letter setting out extracts from the inspector’s interactions at the examination, cross-referenced to a YouTube video), and alleging that she had delayed unreasonably in reaching a decision about the plan following the conclusion of the stage 1 hearing sessions. At the same time, MSDC sent a pre-action protocol letter to the Government Legal Department (“The purpose of this letter is to seek to avoid the unnecessary expense and delay to which such action would give rise by asking the Secretary of State (a) to agree that the Inspector’s reasoning is legally erroneous, (b) to remove her from the role of examining the Plan and (c) to appoint a new Inspector to re-start the examination of the Plan in her stead.”). The letter included a request for all communications between the inspector/PINS and the Secretary of State/MHCLG in relation to drafts of the inspector’s 4 April 2025 letter.

The Planning Inspectorate  (via its local plans professional lead Simon Berkeley) and the Government Legal Department separately responded to the correspondence on 15 May 2025 but what is perhaps most interesting for those of us who like to see what goes on behind the curtain in these situations is to see the detailed file of correspondence that was released in response to the information request: have a look at the scrutiny given to some draft inspectors’ letters and the editing process that took place (which, subject of additional complaint by MSDC, includes input from Simon Berkeley).

MSDC has now separately responded to the Government Legal Department and to the Planning Inspectorate in letters dated 2 June 2025.

From the letter to the Government Legal Department:

“For the reasons set out above, the Council remains of the view that the Inspector’s reasoning is legally flawed, and that if it requests her to issue a final report which (as she has said is likely to be the case) is similarly reasoned, it would have good grounds for seeking judicial review.  However, it is possible to avoid that, and to the keep the Plan “on track” so as to help the Government meet its commitments.  Consequently, in order to inform its decision on how it should respond to the Inspector’s letter, the Council seeks your response within 14 days.”

From the letter to Simon Berkeley at the Planning Inspectorate:

“Given the multiple concerns the Council has regarding how our complaint has been addressed, we request that it is provided to an alternative, suitably qualified individual within the Planning Inspectorate, who should be tasked with undertaking a full, independent review of our original complaint.”

“The correspondence provided to us, extracts of which is included at Appendix A, demonstrates that you took a leading role in the quality assurance of the Inspector’s letter. You provided over 40 comments on a draft of the letter as well as making substantial textual amendments. In addition, you supported the Inspector in the conclusions that she was drawing; namely that the Council had failed the DtC. In your email dated 17 February 2025 to the Inspector you say: “I think you’re right to follow the path you have – from what you’ve said, it does appear to me that they have failed the DtC.” and that “it’s [the letter] all about remaining as safe as possible from challenge”.

Given your involvement in the quality assurance of the Inspector’s letter, the Council is at a loss to understand how it could be deemed appropriate for you to respond to our complaint.”

“…the language and tone used by the Inspector did not, in our opinion, create ease at the hearings or bring levity to the proceedings. Indeed, her behaviour had the contrary impact. Following the comments around who should read the Council’s opening statement and the Inspector’s reference in her opening comments to the need for ‘legal eagles’ to remember that they were “mere mortals”, our own Counsel, and Counsel instructed by other parties were reluctant to take the lead making representations on behalf of their clients because of the Inspector’s evident hostility to barristers.”

[NB (and, gulp, this is really going to kick things off) I endorse that “mere mortals” comment and indeed the recommendation in the Strategic Planning Group’s May 2025 report on planning positively for the future, that for examination processes for the new spatial development plans “Whilst from time-to-time participants may choose to have legal representation, the clear expectation should be that those attending will be giving their views directly and not via advocates.”]

Not to personalise this post too much but others in Sussex may remember the same inspector concluding in 2020 that the Wealden local plan be withdrawn due to failure of the duty to cooperate, together with other soundness issues. The authority is only back at regulation 18 draft stage with its revised plan.

Is PINS or the Government Legal Department going to yield in response to all of this? We shall see. Of course, in local plan making everything connects. Adjoining authority Horsham District Council, with its unmet housing needs partly down to its long-standing water neutrality issue, has been the recipient of a preliminary findings letter dated 22 April 2025 from its local plan inspector Luke Fleming, also concluding that there had been a failure of the duty to cooperate as well as issue over soundness:

“In my assessment, at the very least, for engagement to be constructive, active and ongoing between February 2024 and July 2024 on the strategic matters of housing and water supply, the ability to deliver any water neutral development without needing to rely on [the Sussex North Offsetting Water Scheme] or a strategic resolution to water neutrality should have been considered in some detail by all the relevant [North West Sussex Housing Market Area] local authorities before the Plan was submitted.”

“93. The Council’s affected by water neutrality should be commended for their efforts in trying to develop a local authority led water supply offsetting scheme. However, this has clearly proved more challenging and resource demanding than originally anticipated.

94. It is also my view, that the supply of water as a constraint to much needed new homes for people to live in the area, should have been addressed by bodies other than the Council long before now, especially given CC08 was issued in 2021.  Because, it hasn’t, the circumstances upon which the Council has had to prepare the Plan have been extremely challenging, with significant Council time and resources needing to be directed at assessing and understanding issues associated with the supply of water to new homes.  This is not usually an issue that local plan’s need to be concerned with in any extensive detail given the responsibilities of statutory water undertakers.

95. However, even so, under the circumstances I have outlined above, I can only recommend that the Council withdraw the Plan under S22 of the PCPA and focus its resources on rapidly preparing a new Local Plan.  In doing so the Council could utilise much of the good and comprehensive work already undertaken before components of the evidence base become out of date.”

[Not a letter that appears to have been subject to quality assurance, if the misuse of apostrophes in paragraphs 93 and 94 is anything to go by].

Horsham District Council has responded, complaining that “it has been treated unfairly with regards [sic] the approach taken to examining its Local Plan due to delays, poor communication and lack of transparency”, alongside publishing an inevitable press statement, Council rejects Inspector’s flawed assessment of Local Plan  (22 April 2025).

Look, I’m a mere mortal, but whatever the rights and wrongs of these specific situations, partly exacerbated by continued failures to resolve the water neutrality issue in northern Sussex: can anyone defend such a slow, uncertain, unstrategic and bureaucratic system?

Simon Ricketts, 7 June 2025

Personal views, et cetera

Small Changes

I’ve mainly called this blog post “small changes” because that is the name of a beautiful, calming and rather lush album by Michael Kiwanuka released last year. Perhaps your social media timeline needs that sort of cleanse? Mine does regularly.

But I was also thinking of that old David Brailsford British Cycling philosophy about marginal gains (“The whole principle came from the idea that if you broke down everything you could think of that goes into riding a bike, and then improved it by 1%, you will get a significant increase when you put them all together”) and of the successive incremental changes that the government has been making to the planning system, most recently those measures flagged in the 28 May 2025 MHCLG press release as Government backs SME builders to get Britain building, measures which were the subject of three consultation documents published that day:

All of this follows last Sunday’s Speeding Up Build Out consultation (consultation closing 7 July 2025), which I summarised that day in my blog post Now Build.

It is an interesting, maybe theoretical, question as to whether system changes are better announced and delivered in one go (soaking up all the political heat at once) or in the current lapping waves. It is also interesting to see the political heat rising from different quarters in relation to different elements.

Concern has been expressed from environmental interest groups and a number of firms providing ecological services, as to Part 3 of the Planning and Infrastructure Bill (nature recovery – see my 11 May 2025 blog post Nature Recovery Position where I tentatively suggest a middle ground).

The Speeding Up Build Out announcement then led to an outcry from many in the development world – how dare the government threaten developers with being blacklisted, fined or having land compulsorily acquired if they delayed unreasonably in building out planning permissions etc etc? I explain in my 25 May 2025 Now Build piece why I don’t think that should be a real concern and why, if only for pragmatic political reasons, the government has to have basic protections along these lines in place. But that was based on me focusing on the working paper and consultation document, not on the government’s PR spin, which I think was unnecessarily overblown, particularly:

  • That tweet from the prime minister (NB what is the government doing still being on X in any event? Full marks to Matthew Pennycook and others for using Bluesky).

All that developer-demonisation (“Developers who repeatedly fail to build out or use planning permissions to trade land speculatively could face new ‘Delayed Homes Penalty’ or be locked out of future permissions by councils”), whereas I’m not sure anyone would disagree with what is actually said in the working paper itself:

“The Competition and Markets Authority (CMA) and others have concluded that most homes in England are not built as fast as they can be constructed, once permission is granted, but only as fast as the developer expects to sell them at local second-hand market prices. This leads to a build out rate for large sites which can take decades to complete. While it is commercially rational for developers to operate in this way, the systemic impact is a lower level of housebuilding than we need. The government is therefore committed to taking firm action to ensure housebuilding rates increase to a level that makes housing more affordable for working people.  

In the public debate on housebuilding rates, 3 related concepts are often confused.

a. Land banks are, for the most part, a normal part of the development system. Developers hold a pipeline of sites at all stages of the planning process, to avoid stop/starts between schemes. In its 2024 study, the CMA found no evidence of current land banks systemically distorting competition between housebuilders. We do, however, have concerns that certain types of contracts over land prior to its entry into the planning system (which can be part of ‘strategic’ land banks) can be a barrier to entry for SME developers. We are therefore legislating to make Contractual Control Agreements (‘option agreements’) more transparent, to help diversify the industry and reduce barriers to entry for SME builders. 

b. Delayed or stuck sites are those at all stages of the planning and building process (including with full planning permission) that are delayed, not building out, or only building out very slowly due to a problem that the developer or landowner is struggling to resolve themselves. Often this is due to the discharge of a planning condition, an issue raised by a statutory consultee, a newly discovered site issue, or the developer running into financial difficulties. We have created the New Homes Accelerator to tackle this sort of blockage … and get stuck sites moving. In wider cases, sites may be stuck in negotiations over suitable S106 contributions, sometimes because the promoter has overpaid for the land not fully factoring in the policy requirements set out in planning policy. In this paper we consider further reforms to the Compulsory Purchase Order (CPO) process, relevant to stalled sites. 

c. Slow build out is where sites have full planning permission, are being built, but the pace of building is slower than it could be under different development models and incentives. Multiple market studies have found that most large housing sites are built at the pace the homes can be sold at current second-hand market prices, rather than the pace at which they could be constructed if pre-sold (i.e. to an institutional landlord). The rate of building consistent with selling at local second-hand market prices is known within the industry as the ‘absorption rate’. The Letwin Review concluded that local absorption rates were a “binding constraint” on build out rates. The CMA observed, that “the private market will not, on its own initiative, produce sufficient housing to meet overall housing need, even if it is highly competitive”.

So that was the furore earlier this week. And then when Wednesday’s announcements were made, environmentalists focused on the potential rolling back of the statutory BNG regime from smaller projects and opposition politicians turned on the (not new, but in my view improved) proposals to ensure that more applications are determined through use of planning officers’ delegated powers rather than Planning Committee.

You can’t please all the people all the time…

What is the thrust of the latest changes?

The starting point is to change the current categorisation of planning applications for residential development from those for “minor” development” and those for “major” development, so as to introduce a “medium” development category.

The categories would be:

  • Minor Residential Development – fewer than 10 homes /up to 0.5 ha (and within that a sub-category of 1b. Very small sites – under 0.1ha)
  • Medium Residential Development – between 10-49 homes/up to 1.0 ha
  • Major Residential Development – 50+ homes / 1+ hectare

In due course, consideration would be given to appropriate categories for non-residential development.

The following would apply to each category:

Minor

  • streamlining requirements on Biodiversity Net Gain (BNG) including the option of a full exemption
  • retaining the position that affordable housing contributions are not required on minor development
  • retaining the position that sites of fewer than 10 units are exempt from paying the proposed Building Safety Levy (BSL)
  • retaining the shorter statutory timeframe for determining minor development at 8 weeks “however we will take steps to improve and monitor performance so SMEs can expect a better service”
  • reducing validation requirements “through setting clearer expectations in national policy on what is reasonable, which could form part of the forthcoming consultation on national policies for development management”
  • requiring that all schemes of this size are delegated to officers and not put to planning committees as part of the National Scheme of Delegation.
  • reviewing requirements for schemes of this size for consultation with statutory consultees “instead making use of proportionate guidance on relevant areas. This forms part of our review of statutory consultees”

On the “very small sites” sub-category:

“The government will consult on a new rules-based approach to planning policy later this year through a set of national policies for development management. This will include setting out how the government intends to take forward relevant aspects of the proposals contained in the previous ‘Brownfield Passport’ working paper.”

“The government is therefore proposing to further support the delivery of very small sites through:

  • providing template design codes that can be used locally for different site size threshold and typologies – which will take a rules-based approach to design to help identify opportunities and enable faster application processes
  • using digital tools to support site finding and checking compliance of design requirements on specific sites.”

Medium

  • simplifying BNG requirements “reducing administrative and financial burdens for SME developers and making it easier for them to deliver BNG to help restore nature on medium sites by consulting on applying a revised simplified metric for medium sites. Further details are set out Defra’s consultation on potential BNG changes offering stakeholders the opportunity to give their views on this issue.”
  • exploring exempting these sites from the proposed Building Safety Levy “we intend to lay regulations for the Building Safety Levy in Parliament this year (as set out in our response to our technical consultation) and the Levy will come into effect in Autumn 2026. As part of this working paper, we are keen to explore whether, if introduced, medium sites should also be exempt from paying the Levy”
  • exempting from build out transparency proposals
  • maintaining a 13-week statutory time period for determination “in line with major development – but specifically tracking performance of these types of developments directly so SMEs can expect a better service”
  • including the delegation of some of these developments to officers as part of the National Scheme of Delegation
  • ensuring referrals to statutory consultees are proportionate “and rely on general guidance which is readily available on-line wherever possible. This forms part of our review of statutory consultees”.
  • uplifting the Permission in Principle threshold “allowing a landowner or developer to test for the principle of development for medium residential development on a particular site without the burden of preparing an application for planning permission. We recognise take up of Permission in Principle by application for minor residential development has been relatively limited since its introduction in 2017, and we would therefore like to gauge the appetite for this reform before exploring further”
  • minimising validation and statutory information requirements “through setting clearer expectations in national policy which could form part of the forthcoming consultation on national policies for development management”

There is also an important reference to streamlining section 106 agreement negotiations:

“We … welcome views and evidence on:

1. the specific barriers facing SMEs in agreeing s.106 obligations – including availability of willing and suitable Registered Providers

2. what role national government should play in improving the process – including the merits of a standardised s.106 template for medium sites

3. how the rules relating to suitable off-site provision and/or appropriate financial payment on sites below the medium site threshold might be reformed to more effectively support affordable housing delivery, where there is sufficient evidence that onsite delivery will not take place within a suitable timeframe and noting the government’s views that commuted sums should be a last resort given they push affordable housing delivery timescales into the future.”

(I will be doing a separate blog post on that one).

Major

“This working paper primarily considers targeted changes and easements to sites below 50 homes. Sites above 50 will benefit from overall government reforms to the planning system – including those set out in the revised National Planning Policy Framework published in December, the Planning and Infrastructure Bill, and future reforms to statutory consultees and through emerging national policies for development management.

Nevertheless – the government is interested in views in response to this working paper on:

  • applying a threshold for mixed tenure requirements on larger sites – as set out in the government’s working paper on speeding up build out, we are considering a range of options to set a threshold whereby mixed tenure development should apply – including at 500 units. We welcome further views on the right threshold – and on whether and how there should be some discretion for Local Planning Authorities – ahead of consulting on the policy as part of a consultation on national policies for development management and a revised National Planning Policy Framework later this year.”

Turning to the paper on reforming planning committees, thankfully the thinking has moved away from taking into account whether or not a proposal is in compliance with the development plan (which would have led to endless arguments and disputes). Instead, the proposal is that a scheme of delegation would be introduced which would have two tiers:

“Tier A which would include types of applications which must be delegated to officers in all cases; and

Tier B which would include types of applications which must be delegated to officers unless the Chief Planner and Chair of Committee agree it should go to Committee based on a gateway test.”

“We propose the following types of applications would be in Tier A. This is in recognition that they are either about technical matters beyond the principle of the development or about minor developments which are best handled by professional planning officers:

  • applications for planning permission for:
    • Householder development
    • Minor commercial development
    • Minor residential development
  • applications for reserved matter approvals
  • applications for s96A non-material amendments to planning permissions
  • applications for the approval of conditions
  • applications for approval of the BNG Plan
  • applications for approval of prior approval (for permitted development rights)
  • applications for Lawful Development Certificates
  • applications for a Certificate of Appropriate Alternative Development”

Note: “we are keen for views whether there are certain circumstances where medium residential developments could be included in Tier A. For instance, given the scale and nature of residential development in large conurbations such as London, we could specify medium residential development in these conurbations should be included in Tier A (as well as minor residential development), while in other areas, only minor residential development would fall within Tier A.”

Tier B:

There is also a proposal to limit the number of members of a planning committee to 11 and to introduce a national training certification scheme for planning committee members.

I will do a separate blog post on the BNG changes at some point but in the meantime Annex A to the DEFRA consultation paper is a good summary of the various proposals.

I think that’s enough for now…

Simon Ricketts, 31 May 2025

Personal views, et cetera

“Small changes
Solve the problems
We were revolving in your eyes
Wait for me
All this time, we
Knew there was something in the air“

(c) M Kiwanuka

Extract from album sleeve

Now Build

Another MHCLG planning reform working paper this fine Sunday morning (25 May 2025), Speeding Up Build Out together with accompanying technical consultation (deadline for responses: 7 July 2025).

After the various policy changes and measures in the Planning and Infrastructure Bill aimed at seeking to encourage local planning authorities to plan for more homes and to encourage decision makers (whether local planning authorities or planning inspectors) to grant planning permission for more homes, this paper turns the spotlight onto developers.

“We know that slow build out is of great frustration to many local planning authorities and communities that rightly expect homes, infrastructure and services that have been promised as part of a planning approval to be delivered as quickly as possible. We also know that developers are responsive to commercial incentives and build out homes at a rate that is beneficial to their business and reflective of the wider economic environment. 

This paper therefore invites views on options the government could pursue to ensure the right incentives exist in the housing market, and local planning authorities have the tools they need, to encourage homes to be built out more quickly. In addition to the transparency and accountability measures set out in the technical consultation, this includes incentivising and supporting models of development that build out faster, such as partnership models, greater affordable housing, public sector master-planned sites, and smaller sites. We also invite views on giving local authorities the ability – as a last resort – to charge developers a new ‘Delayed Homes Penalty’ when they fall materially behind pre-agreed build out schedules.”

The paper unpacks the issues; land banks (to the limited extent that option agreements may be a barrier to entry for SME developers); delayed or stuck sites (to which the New Homes Accelerator initiative is aimed, as well as further potential reforms to the CPO process) and slow build out. The paper focuses on how to:

“a) overcome absorption constraints to get more homes built more quickly

b) continue to strengthen the local authority toolkit to unblock stalled and stuck sites.”

The government intends to bring into force various provisions contained in the Levelling-up and Regeneration Act 2023, namely:

  • The requirement to submit a build out statement (in LURA a “development progress report” –  section 90B Town and Country Planning Act 1990 as introduced by section 1154 of LURA) with prescribed categories of planning applications
  • To notify LPAs before development is commenced through a commencement notice (section 93G of the TCPA as introduced by section 111 of LURA)
  • To report annually to LPAs on housing delivery via a development progress report (see above)
  • To give LPAs the power to decline to determine planning applications made by persons who applied for, or who are connected to, an earlier planning permission for the development of land in the LPA’s area which has not been built out at a reasonable rate (section 70D of the TCPA as introduced by section 113 of LURA)
  • To simplify the process for LPAs to issue completion notices “to require developers to complete their development within a certain period of time if the LPA considers it will not be completed in a reasonable time, otherwise the planning permission will cease – a form of “use it or lose it”.” (section 93H of the TCPA as introduced by section 112 of LURA).

The government is consulting on introducing in policy a “site size threshold above which sites must deliver on a mixed tenure basis”.

On CPO, the government intends to bring forward secondary legislation later this year to implement provisions in LURA “to allow the conditional confirmation of CPOs. This will allow the compelling case for use of CPOs to be established earlier in the land assembly process on sites where alternative proposals have been put forward by landowners.“

“The conditional confirmation of CPOs could be used to ensure landowners progress their alternative proposals within certain timescales, which would be made clear when an individual CPO is conditionally confirmed. Where they fail to do so, CPO powers could then be switched on. We believe the conditional confirmation power will de-risk use of CPOs on stalled sites because the existence of alternative proposals will no longer carry the same weight in the decision-making process.”

So far, the above proposals go no further legislatively than was proposed by the previous government.

However, the government has announced in today’s documents that it is “exploring the possibility of introducing a new tool for local authorities: the “Delayed Homes Penalty”. This would effectively be a last resort measure, which we hope not to have to implement, but may be needed if industry does not sufficiently adapt and fulfil their commitment to deliver homes more quickly. 

The Delayed Homes Penalty would be available to local authorities for development which falls materially behind pre-agreed build out schedules, as set out through the transparency measures. While subject to further work, including drawing on responses to this working paper, we are considering the following framework for the Delayed Homes Penalty.

a. The Penalty would apply only to sites over a threshold size and only where there is evidence of a developer falling substantially behind a build out schedule, pre-agreed with the LPA. 

b. Agreement and monitoring of build out rates would be aligned to the new transparency measures, which will require developers to pre-agree a build out schedule with the local planning authority before consent, provide a commencement notice before the development begins and then annual development progress reports.

c. If a site falls substantially behind the pre-agreed build out schedule in a given year (to 90% or less of the agreed delivery), then the developer would be required to justify the slower build out rate to the planning authority. If this cannot be shown to have been caused by an external factor – such as unusually severe weather, or an unexpected site issues – the developer could become liable for the Delayed Homes Penalty.

d. The relevant external factors would be nationally set out in guidance and could be informed by those already used in contracts between Homes England and developers under the ‘build lease’ model. 

e. If the Delayed Homes Penalty were applied, the relevant party (developer or landowner) would be charged for each home behind the pre-agreed build out schedule. Penalties could be based on a percentage of the house price, or via reference to local Council Tax rates, given the loss of income that a local authority incurs when homes are not built and occupied at the expected rate (although this would not be applied via the Council Tax system itself). 

It would be important in the introduction of any Delayed Homes Penalty that industry was confident in when and how this would be applied, to ensure that they did not disincentivise land being brought forward for development. We therefore intend to use all views expressed in response to this working paper to inform further policy development, and if the government decided to take this proposal forward, we would propose to undertake further consultation.”  

In my personal view, none of this should be regarded as controversial by the private sector. The quid pro quo for the policies and initiatives introduced to seek to ease the allocation of land for housing, and the approval of development proposals, has to be a recognition on the part of those who promote development or seek planning permission that this is not a one-way street and that participation in the system brings with it certain responsibilities. Of course, we do need to make sure that measures of last resort (compulsory purchase of stalled sites, penalties) do not unnecessarily spook funders and investors so as to ensure that the measures are not counter-productive – which will need for there to be appropriate protections in the legislation and clear communication from ministers as to the limited circumstances in which the government envisages that these sticks should actually be applied.

It was disappointing to read, in the BBC’s online coverage this morning, New rules may take unfinished housing sites off developers (in itself a bit of a tabloid-style headline – not a new rule, just the previous government’s legislation being brought into force), the quoted response from Conservative shadow Secretary of State Kevin Hollinrake. Being charitable, perhaps he hadn’t had time to be briefed or understand the policy context or indeed read his previous government’s legislation) but what about this for dogwhistle politics (and nothing on what is actually proposed)?

“Shadow housing secretary Kevin Hollinrake claimed that “many hardworking Brits will be shut out of the housing market forever” as “Labour’s open door border policy” meant “many of these houses will end up going to migrants”.

He added: “In the same week that Angela Rayner has been caught red-handed plotting to raise everyone’s taxes, it’s clear she doesn’t have the interests of working people at heart.”

(This in a week where net migration was reported to have halved in 2024).

What planning reform needs so desperately is cross-party consensus. This week’s 50 Shades of Planning Shades of Planning podcast episode , Sam Stafford’s recent 45 minutes long interview one-on-one with Lord Michael Gove is a must-listen – not just for Gove’s honest and detailed reflection on what went wrong under his tenure but also for his fair assessment as to the current government’s direction of travel in terms of planning reform. Does every policy proposal really have to be a pawn in a now multi player chess game?

I hope that there is wide engagement with the government’s technical consultation, particularly: “Are there wider options you think worth worthy of consideration that could help speed up build out of housing?”

Until this morning’s announcement I was going to focus on various discussions I had in Leeds this week, which were exactly on the theme as to the nature of some of those “wider options”. Sam Stafford (now as of this week the new LPDF chief executive – congratulations) has been calling for a development management “snagging list”. There are so many incremental improvements to be made – now is the opportunity with that 7 July 2025 response deadline – and wouldn’t it be good if there were as much private/public sector consensus as possible in coming up with that list. Watch this space for some of the items on mine…

Simon Ricketts, 25 May 2025

Personal views, et cetera

The Perfect KISS

I’m preparing to speak at a couple of events at UKREiif this week, I’m trying to finish reading a book,  I’m pleased that the Strategic Planning Group’s report Planning Positively for the Future has now been published (16 May 2025) and I’ve been dipping into the Mayor of London’s Towards a New London Plan consultation document (9 May 2025)

And the over-arching theme for me is Keep It Simple, Stupid.

The book is Abundance: How We Build A Better Future by Ezra Klein and Derek Thompson. A few people have mentioned it but what caused me finally to reach for my wallet was when Strategic Land Group’s Paul Smith recommended it on a 50 Shades of Planning podcast – he’s a good reader is Paul.

You might get the basic ideas from this Guardian review from which I quote the following passages:

Abundance for all of us, via an entirely possible techno-optimistic “future is behind schedule – and Abundance holds late 20th‑century liberalism responsible. (Klein and Thompson critique the right, too – they are themselves liberals – but this book speaks only to their co-partisans, with the downside of artificially telling just half the story). Liberals, Klein and Thompson say, nobly fought to redistribute what we have to those without, while losing sight of the goal of creating more to redistribute in the first place. Meanwhile, they sought to protect the public from the unchecked consequences of growth: the bulldozers of urban renewal and the pollution of industrialisation. They succeeded, but left the state too constrained to solve the challenges of today.”

“For example, they tell how California began studying high-speed rail, a clean and congestion-free alternative to cars and planes, more than 40 years ago. It took a decade for planning to begin in earnest; another decade-and-a-half to get funded; 16 years after that, it still doesn’t exist. High-speed rail has been swallowed by procedures erected to prevent every conceivable harm to every conceivable stakeholder. The environmental reviews needed just to describe the project’s impacts began in 2012; they still aren’t done. All the while, costs keep increasing.”

“In everything from planning regimes that block badly needed housing and solar farms, to the ossified processes for writing federal regulations and hiring civil servants, they see systems attuned to the harms of action and not its benefits, and convincingly argue that the rewards of reform are immense.”

“Klein and Thompson’s story of sclerosis is of a “system so consumed trying to balance its manifold interests that it can no longer perceive what is in the public’s interest.”

The sorry story of the Californian High Speed Rail project reads across precisely to HS2 and the book’s description of the sometimes-unintended sometimes-intended obstacles to housing development and green energy projects in many US states are only too familiar here.

The book makes a telling point about how “a complex society begins to reward those who can best navigate complexity”. Doesn’t that apply to many of us at UKREiif – not really a conference about how to build, but rather a conference about navigating the regulatory and other complexities to be sorted before anyone gets near an actual construction contract?

And, uncomfortable for me and other lawyers (already well rewarded for navigating complexity), there’s much in addition about the dead hand of “adversarial legalism”.

The KISS mantra was certainly front of mind for me when I was participating as the only lawyer member of the Strategic Planning Group. In designing for the reintroduction of strategic planning, via spatial development strategies, how to reduce the scope for mission creep in the documents, how to reduce ambiguity, duplication and delay, and how to arrive at a proportionate evidence base and examination process. Developing the 17 recommendations in the report was a superb, thoughtful but practical project, by way of six half day workshops and much work by chair Catriona Riddell and by the Prior + Partners team between the sessions and in writing it all up. Do let us know what you think.

I hope that once the National Development Management Strategies take shape we have a much more logical and non-duplicative cascade of NDMPs, SDSs, local plans and neighbourhood plans with as little duplication,  gold plating and unnecessary text as possible – and that one day soon the whole cascade will be available at the click of a button in relation to any site. Will we get there or, as a “complex society”, is simplicity beyond us?

The London Plan is of course an awkward example of a spatial development strategy. This is not what the new breed of SDSs should look and feel like at all. Indeed, my personal vision is that the key diagram for an SDS should tell the main story, as to broad locations for strategic growth,  infrastructure and the scale of housing development required in local plan areas. With previous iterations of the London Plan being so all-encompassing, is it really possible for the next version to be radically stripped back? I doubt it. But if it is not to be, could we at least avoid London Plan policies being duplicated (often in slightly different terms) and gold-plated in boroughs’ local plans? If a trade-off for the scale of the London Plan were to be much shorter borough plans that would be something. It will also be interesting to see what the new regime of NDMPs will mean for the London Plan.

Maybe see you in Leeds, KISS KISS.

Simon Ricketts, 18 May 2025

Personal views, et cetera

Nature Recovery Position

Part 3 of the Planning and Infrastructure Bill is possibly facing the most criticism. Do its provisions with regard to the preparation of environmental delivery plans, enabling a nature restoration levy to be set which is to be paid by developers in lieu of some of the site-specific assessment and mitigation measures they currently have to carry out, go too far and amount to a regression in environmental protection?  

First, as a way into the issues, I do recommend my colleague Susannah Herbert’s summary and initial critique of the provisions published the week that the Bill was introduced into Parliament:  PI Bill Guest Post – Some Early Thoughts On The Bill’s Nature Recovery Provisions (13 March 2025)

The government has published a fact sheet.  It summarises the five key phases of the nature recovery fund as follows:

  1. Framing the EDP – EDPs will define the environmental impacts they cover, such as nutrient pollution or the impact development might have on a protected species. EDPs will be spatially specific with clear maps setting out where development is covered by an EDP and what scale of development the EDP can support.
  2. Designing the measures – EDPs will set out the suite of conservation measures that will be deployed to more than address the impact of development across a given area. For example, an EDP covering nutrient pollution will set out how the combined effect of the conservation measures will go beyond the current expectations of nutrient neutrality and lead to an improvement in water quality.
  3. Setting the levy rate – A simple charging schedule, sufficient to cover the costs of the conservation measures, will be payable by developers to meet the relevant legal obligation associated with the impacts addressed by the EDP.
  4. Consultation and approval – in developing an EDP, Natural England will benefit from views captured through consultation before the EDP is submitted to the Secretary of State for approval. When considering the EDP, the Secretary of State will be bound by a new legal test to ensure that the conservation measures outweigh the negative effect of development.
  5. Delivering on the EDP – once the EDP is in place, Natural England will the necessary powers to use funds collected to implement the conservation measures. They will then monitor the impact of the measures to ensure they are working as expected and make any amendments to the EDP that may be necessary.

The Bill is currently at Committee stage. Marian Spain, chief executive of Natural England, gave evidence on 24 April 2025, supportive of the proposals in the Bill. However, there are many who are expressing concern.

Instructed by NatureSpace Partnership, which delivers strategic licensing in relation to great crested newts and other species, David Elvin KC has provided a masterly and detailed (45 page) opinion dated 23 April 2025. He concludes that the proposals as they currently stand would amount to a weakening or reduction in current levels of environmental protection: the proposed test of “overall improvement” in environmental protection is “lax” and “generalised”.

The Office for Environmental Protection’s advice to the government on the Bill  (2 May 2025) echoes this concern: The OEP is “concerned by several aspects of the bill which undermine its potential to deliver intended win-win outcomes. We recognise that the EDP system is intended to be a different approach, not a direct comparator to existing environmental law. There are, though, fewer protections for nature written into the bill than there are under that existing law. Creating new flexibility without sufficient legal safeguards could see environmental outcomes lessened over time. And aiming to improve environmental outcomes overall, whilst laudable, is not the same as maintaining in law high levels of protection for specific habitats and species.

In our considered view, the bill would have the effect of reducing the level of environmental protection provided for by existing environmental law. As drafted, the provisions are a regression. This is particularly so for England’s most important wildlife – those habitats and species protected under the Habitats Regulations.

We summarise two particular concerns below, and provide further detail on these matters and other aspects of the bill in the annex to this letter.

A principal area of concern lies with the framing of the bill’s ‘overall improvement test’ for adopting EDPs. This test rests on a balancing exercise to decide whether negative environmental effects of development are likely to be outweighed by conservation measures taken under an EDP. As drafted at the moment, that exercise would allow considerably more subjectivity and uncertainty in decision-making than under existing environmental law. We advise that the overall improvement test should be strengthened to address this.

The bill as drafted also allows for conservation measures to be located away from the protected sites affected by development. Currently, this is only permissible in limited circumstances and where the overall coherence of the protected site network is maintained. Such safeguards are absent from the bill. Undermining the network of protected sites could affect the Government’s ability to meet its legally binding biodiversity targets and ‘30 by 30’ objectives. We advise that the lack of safeguards for the overall sites network is rectified, given the role they play in efforts to meet statutory nature targets.”

The OEP sets out, in an Annex to the letter, various detailed recommended changes to what is proposed.

More recently, the government has now published its impact assessment  in relation to the Bill (6 May 2025).  Section 7.2 is relevant for our purposes (NPSV = “Net Present Social Value (NPSV) in 2025 prices with 2026 base year across the 10-year appraisal period 2026-35”), EANDCB = “Equivalent Annual Net Direct Cost to Business” and EANDCH = “Equivalent Annual Net Direct Cost to Households”):

Incidentally, some groups and media pieces (eg UK government admits almost no evidence nature protections block development (The Guardian, 7 May 2025)) have misconstrued that reference to “limited data availability”. I agree that the statement is somewhat of a cop-out (and the range given absurdly wide) but the footnote makes it clear that the figure is expected to be a significant underestimate. For the real effects arising from nutrient neutrality alone see eg the work by the HBF and as for water neutrality see the recent failure at examination for instance of the Horsham local plan and many individual stalled schemes.

Is there a middle ground here? Should EDPs and the nature restoration funds, rather than ambitiously seeking to remove the need for developers to assess and address the specific effects likely to arise as a consequence of the species and habitats on their development sites themselves, in fact focus on those off-site issues which have indeed been causing so much delay and uncertainty: nutrient neutrality, water neutrality and issues relating to recreational pressure?  After all it is these aspects which the impact assessment focuses on:

“The Nature Restoration Fund is expected to deliver benefits to areas where particular environmental obligations apply, for example, nutrient neutrality catchment areas. While some urban areas are in nutrient neutrality catchments (Southampton, Portsmouth, Norwich and Middlesborough), the majority of land area covered by nutrient neutrality catchments is rural. In some cases entire LPA areas are within nutrient neutrality catchments, where obligations limit ability to deliver those LPAs’ housing targets. The largest nutrient neutrality catchments (by hectare) are Solent, River Eden Special Area of Conservation (SAC), Somerset Levels & Moors Ramsar. The location of the interventions secured under the NRF will be determined by the scale of the delivery plan area.” (Paragraph 69)

I can see that in some circumstances nature recovery objectives can be secured more efficiently and effectively on a coordinated basis. The impact assessment says this:

“…the Nature Restoration Fund measures aim to improve environmental outcomes by requiring developers to contribute towards nature recovery. By shifting to a strategic approach to addressing environmental obligations, coordinated by a single delivery body, action will be more efficient and effective – achieving more with the same cost to developers. It is therefore expected that these measures will contribute to meeting the Government’s wider environmental targets and help secure the benefits derived from biodiversity and ecosystem services more effectively. For example: wetlands can effectively regulate flow of water which enhances resilience to flooding; forests, oceans and healthy soils sequester carbon, reducing greenhouse gases in the atmosphere; peatlands act as carbon stores; restored vegetation stabilises soils reducing erosion and improving water quality; and natural landscapes offer spaces for outdoor recreational activities like hiking and birdwatching. These activities promote physical and mental well-being and provide benefits through tourism-related revenue. This policy is also designed to speed up the delivery of net zero infrastructure (alongside other development), and in doing so support decarbonisation.” (paragraph 77)

But should any of this replace on-site assessment and on-site mitigation, save where it can be shown that off-site mitigation will in fact be as effective? And wouldn’t this also be fairer, rather than, presumably, some developers having to over-pay to compensate for others seeking to develop more ecologically sensitive sites?

Simon Ricketts, 11 May 2025

Personal views, et cetera