The Bottom Line: Updates On CIL And Viability

“Out of the blue and into the black

You pay for this, but they give you that

And once you’re gone, you can’t come back

When you’re out of the blue and into the black.”

(Neil Young)

Two double act dates for the diary:

12 July (Bob Dylan and Neil Young, Hyde Park)

1 September (CIL amendment regulations due to come into force, RICS professional statement on financial viability in planning takes effect).

I was going to force myself to write a dull, worthy and academic blog post on one of these, but I know what you want so 1 September it is.

CIL

The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 were finally laid before Parliament on 4 June 2019. They will be debated in the House of Commons and, assuming they receive an affirmative resolution, will come into force on 1 September 2019.

There was an accompanying press release, Communities to benefit from new housing infrastructure rules, and, more informatively, a more detailed document, Government response to reforming developer contributions.

Further regulations will follow:

“The Government intends to lay the secondary legislation which will enable the delivery of starter homes later this year. Therefore, the Government also intends to introduce the regulations for the exemption of starter homes from the Levy later in the year.”

There has been some attempt at consolidation (although a single set of consolidating regulations really is overdue for those, particularly non-lawyers, without access to expensive online legal information subscription services):

“The Government recognises that unconsolidated regulations can be challenging to understand, and that this challenge can be particularly acute when calculating Levy liabilities. To increase usability the Government has consolidated all regulations relating to the calculation of Levy liabilities into a single schedule. The Government will consider fully consolidating the regulations when any further regulatory amendments are made.”

There will be some simplification in terms of access to information on indexation:

“The Regulations have instead been amended to improve the transparency around indexation, while retaining the existing approach by indexing the Levy to the Building Cost Information Service’s (BCIS) All-in Tender Prices Index. The Government has asked the Royal Institution of Chartered Surveyors to produce a bespoke index for the Levy, based on BCIS. This will be produced annually and be made publicly available. The index will not change through the year, as BCIS forecasts can at present. The Government will review guidance to improve clarity, including making clear that from 1 January each year, the latest index figure produced by the Institution should apply. The Government also proposes to retain the proposal for charging authorities to produce annual rate summaries, which will further improve transparency, in particular for smaller developers. The changes to regulations will address several issues raised during consultation regarding how the existing approach to indexation is implemented.”

There are also some other detailed fixes of previous glitches, but largely the Regulations are as foreshadowed in its Reforming developer contributions Technical consultation on draft regulations (December 2018) and before that in its document Government response to supporting housing delivery through developer contributions: A summary of consultation responses and the Government’s view on the way forward (October 2018) which was the subject of my 9 November 2018 blog post An Update On CIL: Reform Promised, Meanwhile Continuing & Increasingly Expensive Uncertainties.

It really is the Never Ending Tour.

Viability

The RICS published its professional statement on Financial viability in planning: conduct and reporting on 28 May 2019, which comprises fourteen mandatory requirements which chartered surveyors must observe when carrying out financial viability assessments in a planning context. It is all strong stuff, not just vague exhortations of good practice. Breaches will be a disciplinary matter for the RICS member and his or her firm: “Sections within professional statements that use the word ‘must’ set mandatory professional, behavioural, competence and/or technical requirements, from which members must not depart.”

The RICS covering statement says this:

“Dissatisfaction has been expressed among some stakeholders in the sector about the standards to which viability assessments are being produced. The concerns extend from public representatives, the development sector, community groups and decision makers all of whom rely on viability assessments in a key public interest area. Questions about objectivity, conflicts of interest, transparency and contingency fees among others have been raised about those working for both the private and public sectors. While not all viability assessments are undertaken by chartered surveyors, in response RICS has strengthened our advice on these areas, the professional conduct of chartered surveyors and regulated firms undertaking viability assessments and the essential information which should be reported so that informed decisions may be taken transparently.

We have also produced this professional statement in recognition of the Mr Justice Holgate’s comments in the Parkhurst Road case requesting professionals to contribute to a more efficient public administration of planning. His further comments on the technical aspects of viability will be addressed in the review of our guidance note which will go to consultation over summer 2019.”

I covered those comments from Holgate J in my 27 April 2018 blog post Pointers From Parkhurst.

These are the key requirements:

“The RICS member carrying out the FVA must be a suitably qualified practitioner.”

“The report must include a statement that, when carrying out FVAs and reviews, RICS members have acted:

• with objectivity

• impartially

• without interference and

• with reference to all appropriate available sources of information.
This applies both to those acting on behalf of applicants as well as those acting on behalf of the decision-makers.”

⁃“Terms of engagement must be set out clearly and should be included in all reports. The RICS professional statement Conflicts of interest (1st edition, 2017) applies, but with the additional requirement that RICS members acting on behalf of all those involved must confirm that no conflict or risk of conflict of interest exists (see Conflicts of interest paragraph 1.1). The professional statement allows ‘informed consent’ management, which, subject to the circumstances, can be both pragmatic and appropriate. This should take the form of a declaration statement.”

⁃“A statement must be provided confirming that, in preparing a report, no performance- related or contingent fees have been agreed.”

⁃“Transparency and fairness are key to the effective operation of the planning process. The PPG (paragraph 021, reference ID 10-021-20190509) states that:

‘Any viability assessment should be prepared on the basis that it will be made publicly available other than in exceptional circumstances.’

Although certain information may need to remain confidential, FVAs should in general be based around market- rather than client-specific information.

Where information may compromise delivery of the proposed application scheme
or infringe other statutory and regulatory requirements, these exceptions must be discussed and agreed with the LPA and documented early in the process. Commercially sensitive information can be presented in aggregate form following these discussions. Any sensitive personal information should not be made public.”

“Before accepting instructions, if RICS members are advising either the applicant or the LPA on a planning application and have previously provided advice, or where they are providing ongoing advice in area-wide FVAs to help formulate policy, this must be declared.”

“All inputs into an appraisal must be reasonably justified. Where a reviewer disagrees with a submitted report and/or with elements in it, differences must be clearly set out with supporting and reasonable justi cation. Where inputs are agreed, this must also be clearly stated. Where possible, practitioners should always try to resolve differences of opinion.”

“In the interest of transparency, when providing benchmark land value in accordance with the PPG for an FVA, RICS members must report the:

•current use value – CUV, referred to as EUV or first component in the PPG (see paragraph 015 reference ID: 10-015-20190509). This equivalent use of terms – i.e. that CUV and EUV are often interchangeable – is dealt with in paragraph 150.1 of IVS 104 Bases of Value (2017)

•premium – second component as set out in the PPG (see paragraph 016 reference ID: 10-016-20190509)

•market evidence as adjusted in accordance with the PPG (see PPG paragraph 016 reference ID: 10-016-20190509)

•all supporting considerations, assumptions and justi cations adopted including valuation reports, where available (see PPG paragraphs 014 reference ID: 10-014-20190509; 015 reference ID: 10-015-20190509; and 016 reference ID: 10- 016-20190509)

•alternative use value as appropriate (market value on the special assumption of a specified alternative use; see PPG paragraph 017 reference ID: 10-017-20190509). It will not be appropriate to report an alternative use value where it does not exist.
A statement must be included in the FVA or review of the applicant’s FVA or area-wide FVA that explains how market evidence and other supporting information has been analysed and, as appropriate, adjusted to reflect existing or emerging planning policy and other relevant considerations.

“During the viability process there must be a clear distinction between preparing and reviewing a viability report and subsequent negotiations.”

“All FVAs and subsequent reviews must provide a sensitivity analysis of the results and an accompanying explanation and interpretation of respective calculations on viability, having regard to risks and an appropriate return(s).”

“At all stages of the viability process, RICS members must advocate reasonable, transparent and appropriate engagement between the parties, having regard to the circumstances of each case. This must be agreed and documented between the parties.”

“For applicants, subsequent reviews and plan-making, FVAs must be accompanied by non-technical summaries of the report so that non-specialists can better understand them. The summary must include key gures and issues that support the conclusions drawn from the assessment and also be consistent with the PPG”

“Reports on behalf of both applicants and the authority must be formally signed off and dated by the individuals who have carried out the exercises. Their respective qualifications should also be included.”

“All contributions to reports relating to assessments of viability, on behalf of both the applicants and authorities, must comply with these mandatory requirements. Determining the competency of subcontractors is the responsibility of the RICS member or RICS-regulated firm.”

“RICS members must ensure that they have allowed adequate time to produce (and review) FVAs proportionate to the scale of the project, area-wide assessment and specific instruction. They must set out clear timeframes for completing work. If the timeframes need to be extended, the reasons must be clearly stated, both at the time and in the subsequent report.”

Well done technical author, Gerald Eve’s Robert Fourt, and his working group:

Jeremy Edge FRICS (Edge Planning)

Nigel Jones FRICS (Chesters Commercial)

Jacob Kut MRICS (Avison Young)

Simon Radford FRICS, Chair (Lothbury Investment Management)

Charles Solomon MRICS (GLA)
Peter Wyatt MRICS (Reading University)

(Albeit a very male group).

It may be that the stable door has already bolted but I do hope that the professional red lines in the statement give some reassurance that viability figures are not cooked up behind closed doors without appropriate professional discipline being applied, and strengthen surveyors’ position in discussions with their clients, whether from the private or public sectors.

The professional statement is separate from RICS guidance as to how to carry out financial viability appraisals in accordance with government policy, which is now very out of date. The professional statement says this:

“Since the publication of the NPPF 2018 and PPG 2018 (as updated in 2019) RICS has also been reviewing its 2012 guidance note to align it with the changed emphasis in current government policy; a second edition is forthcoming.”

The Government’s PPG guidance on viability was tweaked again on 9 May 2019. Having been through it and flagged changes from the previous 24 July 2018 version, I can’t really improve upon this summary, from the day it was published, by Matthew Spilsbury (Turley).

Hey hey, my my.

Simon Ricketts, 8 June 2019

Personal views, et cetera

Chickens**t EIA

An interesting example last week of the legal pitfalls should planning permission be granted on the basis of inadequate environmental impact assessment.

Interesting partly because although the messages read straight across to all EIA development, including the glitziest of urban development projects, the specific question arose in a very different context:

Did a local planning authority, when granting planning permission for an intensive poultry-rearing facility, fail to consider the likely effects of odour and dust arising from the disposal of manure?

The basis for the error was a misplaced assumption that certain effects would be controlled by other regulatory processes. That is an issue which potentially arises in various development contexts.

The case is R (Squire) v Shropshire Council (Court of Appeal, 24 May 2019), with Lindblom LJ giving the lead judgment.

For a summary of the case, apologies but I will plug again Town’s “free to subscribe” weekly updating service that covers all Planning Court cases and appeals from the Planning Court. The case is summarised by my colleague Paul Arnett in the latest update.

There is much in the judgment about the proper interpretation of environmental permits under the IPPC regime and the extent to which a local planning authority should impose conditions to control matters which may in theory be controlled by other legislation where the regulator under that legislation (in this case the Environment Agency) has indicated that in practice it would not enforce, but what was particularly interesting to me was Lindblom LJ’s conclusion that at first instance Deputy Judge Rhodri Price Lewis QC “was wrong to conclude that the EIA undertaken for the proposed development – in particular the assessment of the likely effects of odour and dust arising from the storage and spreading of manure – was adequate and lawful.”

The “project description” part of the environmental statement explained what was proposed:

“In chapter 3, “Description of development”, in the “Project Description”, it explained that “[at] the end of each flock cycle, the buildings are cleaned out and the manure removed … and loaded directly in waiting vehicles, which are sheeted and the manure removed from the site for disposal as a sustainable fertiliser on agricultural land.”

The claimant, Ms Squire, was concerned that the 2,322 tonnes of manure to be produced annually would be disposed of by spreading it on farmland close to residential areas, including farmland not not owned by the prospective operator of the facility, Mr Bower. So how were the potential effects in terms of odour and dust, from these proposals, assessed in the environmental statement?

In its assessment of likely significant effects in the environment, the environmental statement relied significantly on an environmental permit that had been issued by the Environment Agency to Mr Bower to cover the activities proposed on his land.

“In chapter 9, “Environmental Management”, under the heading “Assessment”, it acknowledged (in paragraph 9.2) the requirement for “an IPPC permit … administered by the Environment Agency”. It said that “[the] permit must take into account the whole environmental performance of the plant, covering e.g. emissions to air, water and land, generation of waste …”, and also this:

“9.2 … As the proposed poultry unit will be controlled under the IPPC permitting regime, the likelihood of significant impact on the environment from the proposed development is negligible due to the strict regime of control.”

On “Odour Management”, it said that “[the] development [has] been assessed as part of the IPPC permit application and deemed acceptable subject to odour control conditions”, and that “[the] site is subject to the IPPC permit conditions which requires emissions from the activities shall be free from odour at levels likely to cause pollution outside the site” (paragraph 9.4). On “Dust”, it said that “[the] results of the DEFRA research project demonstrated that emissions from poultry units in terms of particulate matter reduced to background levels by 100m downwind of … even the highest emitting poultry houses” (paragraph 9.7). On “Manure Disposal”, it said (in paragraph 9.11):

“9.11 The proposed poultry units will operate on a floor litter basis and will generate poultry manure. The manure will be disposed of through use as a sustainable agricultural fertiliser. The [applicant’s] manure management plan is attached to this statement as Appendix 4.”

The “Summary” in paragraph 9.16 said this:

“9.16 The operation of the site is subject to the rigorous controls of the Environment Agency’s IPPC permitting regime. The site is required to operate to Best Available Techniques and the conditions of the permit require the site to be free from pollution.”

However, the Environment Agency’s response to consultation had made it clear that “[f]or the avoidance of doubt we we would not control any issues arising from activities outside of the permit installation boundary“.

Lindblom LJ noted the following in relation to the environmental statement:

⁃ it did not identify the third party land on which manure was going to be spread.

⁃ there was no meaningful assessment of the effects of odour and dust from the spreading of manure, either on Mr Bower’s land or on any other farmer’s. “It did not seek to anticipate the content of any future manure management plan, including the fields to which it would relate, or the arrangements that would be undertaken for the storage and spreading of manure. It did not attempt to predict and assess the polluting effects of those activities either on land owned by Mr Bower, or on other land to which the manure management plan would not relate. The Manure Management Report did not venture to assess the effects of the arrangements to which it referred. In short, there was no relevant assessment.”

⁃ “it cannot simply be inferred from the relevant parts of the environmental statement that its authors had concluded that the proposed storage and spreading of manure on farmland was not a potential source of pollution, including odour and dust, with significant effects on the environment, which ought to be addressed in determining the application for planning permission. Those who prepared the environmental statement – and Cymru ADAS Wales, who prepared the Manure Management Report in Appendix 4 – were of course entitled to assume that the Environment Agency would perform its regulatory functions as it should, and as far as they went (see my judgment in Preston New Road Action Group v Secretary of State for Communities and Local Government [2018] Env. L.R. 18, at paragraphs 89 to 93; the judgment of Glidewell L.J. in Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1995] Env. L.R. 37, at p.49; and the judgment of Gilbart J. in Frack Free Balcombe Residents’ Association v West Sussex County Council [2014] EWHC 4108 (Admin), at paragraph 100). The control that would be exerted by the Environment Agency through the environmental permit was clearly a factor they had in mind. However, they did not attempt to relate that control to the spreading of manure on land to which the permit and its conditions would not apply. Nor did they consider whether a gap would exist between the control under the permit and such control as could be exercised through restrictions and requirements imposed in the planning process. The Manure Management Report touched upon measures by which harmful effects on the environment might be reduced. But it did not consider what measures were likely to be applied on third party land, in what form such measures might be imposed as requirements attached to the planning permission – whether by conditions or by a planning obligation under section 106 of the Town and Country Planning Act 1990 – or how effective they were likely to be in reducing the effects of odour and dust.”

⁃ “the future manure management plan to which the planning officer referred in paragraph 6.7.5 of his report was not a substitute for the assessment lacking in the environmental statement. Not only was it yet to come into existence, but even when it did it was only going to relate to the storage and spreading of manure on Mr Bower’s own land, and not to the substantial quantities that were going to have to be disposed of elsewhere.”

The judge concluded:

“In my view, therefore, the environmental statement was deficient in its lack of a proper assessment of the environmental impacts of the storage and spreading of manure as an indirect effect of the proposed development. In this respect it was not compliant with the requirements of the EIA Directive and the EIA regulations.”

The judge then considered whether any advice in the report to committee satisfactorily addressed the inadequacies in the environmental statement. There was not. Nothing “went beyond generalities“.

He therefore allowed the appeal – the planning permission had been issued unlawfully.

Before deciding to quash the permission, Lindblom LJ then considered whether under section 31 (2A) of the Senior Courts Act 1981, the permission should not be quashed on the basis that it was highly likely that the council’s decision would have been substantially different had the legal error not occurred. Mr Bower sought to argue that the position had changed because, after the proceedings had been issued, he had entered into a section 106 unilateral undertaking so as to control the effects arising by way of a manure management plan. The judge did not consider that the undertaking saved the permission from being quashed:

“The planning obligation itself illustrates some of the uncertainties persisting at the time of the council’s decision. It does not, however, overcome the lack of a proper assessment of the environmental effects of odour and dust in the EIA. There is, in my view, no justification here for withholding an order to quash the planning permission, which will enable the council, when redetermining the application, to ensure that the requirements of the EIA Directive and the EIA regulations are properly complied with“.

The lesson is to make sure that any environmental statement properly assesses all direct and indirect environmental effects that are likely to arise from a development, without reaching unwarranted assumptions that effects will be limited, or that mitigation will be achieved, by way of separate regulatory processes. If the local planning authority considers that the assessment is inadequate it should require further environmental information to be provided (following the procedure set out in regulation 25 of the 2017 Environmental Impact Assessment Regulations). I am surprised that the court was even prepared to consider whether deficiencies were in practice remedied by any analysis in the committee report, and not surprised that the belated decision to enter into a section 106 unilateral undertaking did not save the day.

This is no Chicken Little message that the sky is falling, but Squire is certainly a reminder of the care that is needed, particularly in relation to environmental impact assessment, in order to avoid landing in the unpleasant stuff.

Simon Ricketts, 1 June 2019

Personal views, et cetera

Pace Making: Progress At PINS

The Planning Inspectorate has certainly been moving at pace to improve its inquiry appeal processes following Bridget Rosewell’s independent review of planning appeal inquiries, which I covered in detail in my 15 March 2019 blog post Accelerated Planning.

The move to a system of imposing inquiry dates has predictably created the greatest fuss, although is possibly the change that will have the most positive effect in terms of cutting out hiatuses caused by the inevitable sparring between parties as to counsel, team and venue availability. The Planning Inspectorate’s latest 3 May 2019 update addresses that issue head-on:

“The Planning Inspectorate is continuing to make good progress with taking forward the recommendations in the Independent Review of Planning Appeal Inquiriesand have now begun increasing the number of inquiry appeals being placed into this new way of working. There are clear benefits in progressing with implementing some of the recommendations and we thought it would be helpful to all concerned to explain our reasons.

To begin with, there can be little doubt that the principal thrust of the Review – to significantly shorten the time between receipt of an inquiry appeal and its final decision – is a significant improvement. To this end, we have been able to appoint more Inspector resource to inquiry appeals, than was envisaged in March when we announced the “pilot”, which has enabled us to bring most of these appeals into the process.

Some parties to the appeals have questioned why we have imposed inquiry dates when informing them of the ‘Start’ of the appeal and the name of the appointed Inspector. These letters are sent to the appeal parties as soon as possible after receipt of an inquiry appeal and have generally set the inquiry date to be between 13-16 weeks of the ‘Start’ date. This has been a significant innovation of the new process and provides the parties with clarity as to timescales from the outset.

To implement the recommendations of the Rosewell Review we must move away from our “bespoke” arrangements which gave specific provision for the parties to agree an inquiry date after an appeal had been submitted. Instead, now we are taking the lead in setting an inquiry date at the earliest opportunity, and this has led some parties to ask if there could be a degree of flexibility after the date had been fixed, or whether they could be given time to negotiate a new date.

We appreciate that this new procedure, for affected appeals, is very different to the way inquiry appeals were managed previously, and that some of the recommendations may be challenging, for everyone involved in the appeal. But it would be difficult to deny the significant advantages that an early inquiry date – and thus an early decision date – will bring to all concerned with the process. We will of course consider whether wholly exceptional circumstances are demonstrated by the parties to explain the unreasonableness of the inquiry date that has been set, but at the same time momentum must be maintained if the Review is to pay the dividends it promises.

The inquiry dates that are now being set give confidence to expect that those appeals will be decided in accordance with the timescales set out in Recommendation 21 of the Rosewell Report.”

Recommendation 21 was as follows:

“21.The Planning Inspectorate should adopt the following targets for the effective management of inquiry appeals from receipt to decision

(a) Inquiry appeals decided by the inspector
Receipt to decision – within 24 weeks – 90% of cases Receipt to decision – within 26 weeks – remaining 10% of cases

(b) Inquiry appeals decided by the Secretary of State
Receipt to submission of inspector’s report – within 30 weeks – 100% of cases”

If we can move to a situation where these targets are met, I will have a lot of happy clients. In recent years, the unpredictability has been difficult to explain.

In the current pilot cases, PINS is seeking for inquiries to commence within a 13 to 16 week window of the start date.

And what if your advocate or a particular witness is not available? First, we are going to need to factor that into our pre-inquiry preparations: Who is the sub? Has someone else, a good junior, been shadowing everything such that they can step in or assist with the briefing of someone else? Secondly, surely we need to move away from the cult of personality. I suspect the fact that the system is so unfathomable for many clients increases their sense that as long as they hang onto X, Y or Z QC and A, B or C expert witness they will get through it. All credit to X, Y and Z, and A, B and C, but there are plenty of good barristers and advocates, and of course expert witnesses, at all levels. I suspect there may be a problem with your case if only one advocate (and only one “independent” expert witness) is capable of winning it. Additional costs in double-handling or re-briefing should still be outweighed by the overall cost and time savings if we all get this right.

Of course, speedier inquiry dates represent only one aspect of the changes. The Planning Inspectorate’s Independent Review of Planning Appeal Inquiries – Action Plan (April 2019 update), a document which will be regularly updated, sets out comprehensively the other changes being introduced, many of them with immediate effect.

The biggest ones for people to be aware of at the moment include:

⁃ the firm advice that appellants need to be notifying the relevant local planning authority, copying in PINS, at least ten days before submitting an appeal where they consider that the appeal should be dealt with by way of inquiry. This is important because PINS then requests a view from the authority on whether an inquiry is appropriate, within one day of receiving the appeal (in the current interim stage of bringing in the reforms this is within three days). In turn PINS can then issue the start date for the appeal, from which procedural deadlines flow, within five working days of receipt of the appeal rather than the average of seven weeks taken in 2017/2018! After six months of monitoring whether appellants are routinely giving ten days’ advance notice, the Government may take steps to introduce legislation to make it mandatory, so I think we should all play nicely?

⁃ early case management engagement from the inspector, within seven weeks of the start date, which will increasingly be by way of a conference call between the inspector and the parties (informed by a pre-conference note and agenda), followed by the inspector issuing “clear directions to the parties about the final stages of preparation and how evidence will be examined” no later than eight weeks after the start date.

⁃ the inspector’s directions to include identifying the “key matters in contention, where cross-examination of witnesses is required“, and decisions as to whether a topic by topic approach to the calling of evidence is required. We can expect a range of issues to be dealt with by way of roundtable sessions, without cross-examination.

⁃ encouragement for potential rule 6 parties to be identified at an earlier stage.

⁃ consultation is taking place so as to achieve improved and timely statements of common ground so that they can properly inform preparation of proofs of evidence.

⁃ greater focus on deadlines and indeed “MHCLG will look at the policy for the award of costs to see whether it can be extended to include a fine type of award, such as when evidence is not submitted on time“.

Christopher Young QC wrote an interesting post on LinkedIn this week, setting out his, favourable, experiences of and reactions to what he believes to have been the first Rosewell pilot case, an appeal by Bloor Homes in Penkridge, South Staffordshire. There is nothing unusual about the 3 May 2019 decision letter but the inspector had provided a pre-inquiry note indicating that issues relating to landscape impact and loss of agricultural land should be dealt with by roundtable session, and indicating that she would “prepare an agenda for those sessions based on the submitted proofs of evidence, focusing on the areas where there is disagreement“.

I’m not sure whether this was a formal PINS Rosewell pilot, as the pre-inquiry note predated the publication of the final report and the PINS announcement as to its pilot, but clearly this is a sign of things to come. As Chris notes, roundtable sessions will inevitably become more common. Chris’ inquiry was programmed for four days but only took two and a half days (with the final half day being taken up by closing submissions) – an indication perhaps of how a more directed approach by an inspector can cut timescales and therefore cost.

Incidentally, this is not meant as any reflection on Chris, who is one of the absolute best at nailing points comprehensively whilst quickly, but…

Do advocates’ closing submissions need to be quite so long? If the inspector were to impose a sensible word limit, would that not serve to reduce the current arms race? I was at an inquiry a few years ago when our counsel prepared 70 pages of closing submissions, which he then read out, in full. Very different from my memories of the late Roy Vandermeer QC, who famously regularly made his closing submissions without notes (after a long housing inquiry, as a pupil barrister I once had the impossible task of constructing a note of his submissions to provide them afterwards to the inspector. I looked at my scribble and despaired). I know it is the opportunity to encapsulate the party’s final position on all of the relevant issues and to make sure the inspector has one final chance to indicate if anything is not clear, but surely a little nudge from the inspector sometimes would not go amiss? The closing submissions process also places an enormous burden on the advocate, usually entailing lengthy overnight work which is not usually even separately charged!

For a broader summary of the current appeals system, I also recommend the 22 March 2019 House of Commons briefing paper Planning appeals in England.

There is also now a PINS video explaining how to take part in a planning inquiry (23 May 2019).

And that is this week’s news. Oh and our Prime Minister, for whom the housing crisis was apparently the “number one domestic priority” resigned.

Simon Ricketts, 25 May 2019

Personal views, et cetera

Slow Claim Coming: Limiting JRs

“To live outside the law, you must be honest”

(Bob Dylan)

This blog post covers:

⁃ the principles to be applied in relation to bringing a late claim for judicial review

⁃ the Environmental Audit Committee’s scrutiny of the enforcement and JR aspects of the draft Environment (Principles and Governance) Bill

⁃ The Supreme Court’s ruling on legislative provisions that seek to exclude the right to legal challenge.

Exciting, not?

Late JR claims

My 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review? looked at the whole question of JR time limits and referred to the High Court’s ruling in the Thornton Manor case, where the court allowed a claimant to bring a claim for judicial review more than five and a half years after the decision complained of.

That ruling has now been upheld in R (Thornton Hall Hotel Limited) v Wirral MBC (Court of Appeal, 30 April 2019).

Do read my previous blog post, or more reliably the judgment itself, for an account of the exceptional facts with which the court was faced. In deciding whether the judge was wrong to extend time for the claim to be brought, the Court of Appeal helpfully set out the principles to be applied:

“(1) When a grant of planning permission is challenged by a claim for judicial review, the importance of the claimant acting promptly is accentuated. The claimant must proceed with the “greatest possible celerity” – because a landowner is entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest.”

“(2)  When faced with an application to extend time for the bringing of a claim, the court will seek to strike a fair balance between the interests of the developer and the public interest (see Sales L.J. in Gerber, at paragraph 46). Where third parties have had a fair opportunity to become aware of, and object to, a proposed development – as would have been so through the procedure for notification under the Town and Country Planning (General Development Management Procedure) Order 2010 (“the 2010 Order”) – objectors aggrieved by the grant of planning permission may reasonably be expected to move swiftly to challenge its lawfulness before the court. Landowners may be expected to be reasonably alert to proposals for development in the locality that may affect them. When “proper notice” of an application for planning permission has been given, extending time for a legal challenge to be brought “simply because an objector did not notice what was happening” would not be appropriate. To extend time in such a case “so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming …” (see Sales L.J. in Gerber, at paragraph 49). When planning permission has been granted, prompt legal action will be required if its lawfulness is to be challenged, “unless very special reasons can be shown ...””

“(3)  Developers are generally entitled to rely on a grant of planning permission as valid and lawful unless a court has decided otherwise (see Sales L.J. in Gerber, at paragraph 55). A developer is not generally required “to monitor the lawfulness of the steps taken by a local planning authority at each stage of its consideration of a planning application””.

“(4)  What is required to satisfy the requirement of promptness “will vary from case to case”, and “depends on all the relevant circumstances”. If there is a “strong case for saying that the permission was ultra vires”, the court “might in the circumstances be willing to grant permission to proceed”, but “given the delay, it requires a much clearer-cut case than would otherwise have been necessary” (see Keene L.J. in Finn-Kelcey, at paragraphs 25 to 29).”

“(5)  The court will not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received.”

“(6)  Once the court has decided that an extension of time for issuing a claim is justified and has granted it, the question cannot be re-opened when the claim itself is heard.”

“(7)  The court’s discretion under section 31(6)(b) requires an assessment of all relevant considerations, including the extent of hardship or prejudice likely to be suffered by the landowner or developer if relief is granted, compared with the hardship or prejudice to the claimant if relief is refused, and the extent of detriment to good administration if relief is granted, compared with the detriment to good administration resulting from letting a public wrong go unremedied if relief is refused…8)  It being a matter of judicial discretion, this court will not interfere with the first instance judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment

“(8)  It being a matter of judicial discretion, this court will not interfere with the first instance judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment”

Applying these principles:

“The extension of time sought in this case – an extension of more than five years from the date of the challenged decision – is, to use the judge’s word, “extreme”. That is undeniable. As the authorities show, it would only be in the most unusual circumstances that such an extension would ever be granted (see, for example, Schiemann L.J. in Corbett, at paragraph 14; and Hobhouse L.J. in ex p. Oxby, at pp.294 to 296 and 302 to 303). It is, in our view, very important to emphasise this. One cannot say, however, that the court’s power to extend time is automatically extinguished after any given period has elapsed. We are concerned here with a judicial discretion, not a fixed statutory limitation. A clear theme in the relevant case law, as one would expect, is that in every case where delay has occurred the court must look closely at all the relevant facts in the round. The facts will vary widely from case to case. In Corbett a total delay of six years was not in itself fatal to the granting of relief, but it was held that there was no longer a need to quash the planning permissions because they had in the meantime been modified by an order under section 100 of the 1990 Act, made by the Secretary of State, and a quashing order would deny the landowners the compensation due to them for the modification. In ex p. Oxby this court granted relief after a delay of about two years, during which the existence and facts of the unlawfulness infecting the local planning authority’s decision emerged. Generally, of course, very late challenges will not be entertained. However, as Sales L.J. said in Gerber (at paragraph 49), in a particular case there may be “special reasons” to justify the extension sought. To say, as this court did in Connors (at paragraph 87), that an exercise of judicial discretion to allow “very late challenges” to proceed in planning cases will “rarely be appropriate” implies that sometimes it may be appropriate – and necessary in the interests of justice.

There can be no doubt that the circumstances of this case, viewed as a whole, are extremely unusual. Indeed, we would go further. They are unique. The question for us, however, is whether, in combination, they can properly be said to amount to an exceptional case for extending time to allow the challenge to be brought before the court. In our view, in agreement with the judge, they clearly can.”

Factors in this case:

“The first point to be made, and a crucial one, is that the scope of the proceedings in this case is not the usual scope of a claim for judicial review in the planning context. As Mr Alan Evans for the council accepted, and as the judge recognised, it is beyond dispute that the planning permission under challenge ought not to have been issued without its conditions. It was issued in that form without lawful authority.

“This is not a case […] in which the practical effect of the unlawfulness was immediate upon the grant of planning permission.”

“We accept, as all three parties submit, that the council acted unlawfully in concealing its error. It initially attempted to put matters right by generating a fictitious decision notice and manipulating the planning register. Whether its intention was to reverse its error or to obscure it, the effect of the action it took was only to disguise what it had in fact done. It has not, however, resisted the claim. It could, of course, have done a good deal more than it has. It might, for example, have made use of its statutory power of revocation under section 97 of the 1990 Act, or its power to make a discontinuance order under section 102 – though this could have given rise to a claim for compensation by Thornton Holdings. It might have been able to deploy its powers of enforcement at an appropriate stage. It might have brought the matter before the court itself by a timely claim for judicial review issued in the name of a councillor – as was done, for example, in ex p. Oxby. It did none of those things, and even now it shows no such inclination. However, it now acknowledges that the decision notice it issued on 20 December 2011 was, and remains, clearly invalid. Far from resisting the challenge, or adopting a neutral stance, it has actively supported the claim, urged the judge to quash the planning permission, and has appeared in this court to resist the appeal. That is another highly abnormal feature of these proceedings.”

“It is also, we think, a factor of considerable weight in this case that Thornton Holdings were well aware from the outset that the planning permission had been wrongly issued, and knew precisely what the council’s error had been.”

“In the circumstances, contrary to the argument presented to us by Mr Christopher Lockhart- Mummery Q.C. for Thornton Holdings, we cannot accept that they have suffered any material hardship or prejudice as a result of the delay in the claim being issued. Indeed, if anything, the delay worked in their favour, in the sense that it enabled them to take advantage of an unrestricted grant of planning permission that they knew the council had never resolved to grant. That too is a most unusual feature of this case, in sharp distinction to others – such as Finn-Kelcey, Gerber and Connors – where the court has rejected lengthy extensions of time. The reality is that, from December 2011 until the judge’s order, Thornton Holdings had the benefit of a more generous grant of planning permission than would have been so if the council had not mistakenly issued the decision notice it did. If at any stage they were concerned about the risk of the council’s error being discovered and a claim for judicial review being made, they decided to operate in the knowledge of that risk, and in spite of it.”

The late claim was allowed. But the court has set out its reasoning carefully, such that I cannot see that the ruling will in any way open the floodgates to a greater risk of late, unexpected, challenges.

OEP JRs

My 22 December 2018 blog post The Office For Environmental Protection covered DEFRA’s draft Environment (Principles and Governance Bill) and in particular the proposal in the draft Bill that the Office for Environmental Protection once established could bring judicial reviews in its own right, outside usual judicial review timescales.

The House of Commons Environmental Audit Committee has now published its report on its pre-legislative scrutiny of the draft Bill (25 April 2019). On the proposed judicial review procedure there is this passage in relation to the OEP’s proposed enforcement powers, including potential to seek judicial review:

“The UK Environmental Law Association (UKELA) told us the proposed notice procedures are very slow, with two-month time periods for response. It said that if a breach is serious or ongoing, this could be too long a delay before court action can be taken by the OEP. Tim Buley agreed that since the time limit for judicial review is very strict, “three months ordinarily, six weeks in some environmental contexts”, it would not be appropriate to have it at the end of the process while the OEP has been conducting its investigation and the harm may have already happened. UKELA supported the OEP having a power to make an emergency application for judicial review and Tim Buley said the OEP should have the ability to bring a judicial review at the start of the process. Professor Macrory outlined that it would be helpful for the OEP to have an additional power to be able to intervene in environmental judicial reviews undertaken by other parties. He said that the Equality and Human Rights Commission (EHRC) which has such powers under Equality Act 2006, has made very effective use of them.”

The Committee recommended as follows:

“We recommend that:

•The Bill should allow the Office for Environmental Protection to bring a judicial review at the start of the process in rare cases where a delay could cause further environmental harm.

•The Bill should specify that the Office for Environmental Protection bringing enforcement proceedings does not prevent others who wish to bring a judicial review.

•The Office for Environmental Protection should be given the power to act as an intervener in environmental judicial reviews undertaken by other parties.

•Clauses 22 and 23 should be amended to include an obligation on the Office for Environmental Protection to act on responses to information or decision notices, or to explain to the complainant why no further action has been taken. This would provide a ratcheting approach to enforcement.

Overall, the enforcement procedure lacks imagination and the Government must consider alternative mechanisms. We have heard compelling evidence that there should be an expanded role for the First-tier Tribunal. This would help to resolve more cases before the need to apply for judicial review.

We recommend the Government looks further into a bespoke enforcement procedure and an expansion of the role and remit of the General Regulatory Chamber in the First-tier Tribunal. For example, where the Office for Environmental Protection is able to issue notices (at first advisory, then latterly binding) with a range of compliance recommendations, to which the public authority must then comply, or set out proportionate reasons why not. The Office for Environmental Protection would then be able to challenge a decision not to comply with the notice at the tribunal. The tribunal would undertake a substantive review of the authority’s decision not to comply with the notice. Any failure to comply with a decision should amount to contempt and be referable to the Upper Tribunal. Section 202 of the Data Protection Act 2018 provides a useful guide as to how this could be achieved in the legislation.”

Ouster clauses

Finally, superficially away from planning law but very relevant to bear in mind for any future re-framing of the system, the Supreme Court handed down judgment last week in R (Privacy International) v Investigatory Powers Tribunal (Supreme Court, 15 May 2019), a significant public law case as the legal effectiveness (or not) of “ouster” clauses in legislation, which seek to limit or remove rights to challenge in the courts matters carried out pursuant to the particular legislation. The strict six week time limit in judicial review in relation to decisions made pursuant to town and country planning legislation is of course a limitation. Such limitations have been held to be reasonable and permissible, as opposed to outright exclusions – held not to be legally effective by a 3 – 2 majority in the House of Lords in the 1968 Anisminic v Foreign Compensation Commission case.

The Privacy International case concerned the legal effectiveness or not of Parliament’s attempt in legislation to prevent legal challenges to decisions of the tribunal which hears complaints about, amongst other matters, general warrants granted to government agencies to intercept electronic communications.

“The Investigatory Powers Tribunal (“IPT”) is a special tribunal established under the Regulation of Investigatory Powers Act 2000 (“RIPA”) with jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (“the intelligence services”). Section 67(8) provides:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.””

“There is an obvious parallel with the “ouster clause” considered by the House of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (“Anisminic”). Section 4(4) of the Foreign Compensation Act 1950 provided:

“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.””

In the course of lengthy discussion in the judgments as to the extent of the courts’ power to override legislative limitations as to legal challenge, the planning system gets a quick specific mention:

“...the courts have not adopted a uniform approach, but have felt free to adapt or limit the scope and form of judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law, and to find an appropriate balance between the two. Even if this was not always the way in which the decisions were justified at the time, it may be seen as providing a sounder conceptual basis. Thus in the planning cases, it having been accepted that the statutory grounds cover all the traditional ground of judicial review, there is no difficulty in holding that the six-week time-limit provides a proportionate balance between effective judicial review, and the need for certainty to enable such decisions to be acted on with confidence.”

The Supreme Court held by a 4 – 3 majority that the absolute prohibition on legal challenge in the Regulation of Investigatory Powers Act was not legally effective.

No doubt a blow to any future governments looking to sidestep the undoubted inconvenience to their activities that judicial review represents. But fundamentally important for all of us who worry how tempting it would be for the courts’ role as a check on the unjustified use of state power, to be neutralised in various areas of legislation.

Interesting to see that the Policy Exchange think tank, with its free market views on the planning system, popped up to denigrate the Supreme Court for allowing the appeal:

“Professor Richard Ekins, head of thinktank Policy Exchange’s Judicial Power Project, said the ruling ‘undermines the rule of law and violates the sovereignty of parliament’.  He said: ‘A majority of the court has chosen to misinterpret an ouster clause – the statutory provision which expressly limits the High Court’s jurisdiction to review decisions of the Investigatory Powers Tribunal. Parliament chose to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services. It is not the Supreme Court’s place to unravel this choice.'” (Law Society Gazette, 15 May 2019).

You don’t need a weatherman to know which way the wind blows.

Simon Ricketts, 18 May 2019

Personal views, et cetera

Pic courtesy Bob Dylan

Far Far Away: Slade Green SRFI

Two years after my 6 May 2017 blog post Slow Train Coming: Strategic Rail Freight Interchanges In The South East, progress remains slow.

I referred in my blog post to the ongoing saga of the Howbury Park (now known as Slade Green), strategic rail freight interchange scheme promoted initially by Prologis (who obtained a, now time expired, permission on appeal in 2007) and now by Roxhill.

The site straddles the boundaries of the London Borough of Bexley and Dartford Borough Council. (The effective boundary is the River Cray, with the elements of the scheme within Dartford’s administrative boundaries being an access road and bridge over the river). At the time of my blog post, Dartford had resolved to refused planning permission. Bexley had resolved to grant planning permission but the Mayor of London was considering whether to intervene.

The Mayor on 17 July 2017 directed Bexley to refuse the application, on this ground:

“The proposal is inappropriate development in the Green Belt and very special circumstances have not been demonstrated which would clearly outweigh the harm to the Green Belt by reason of inappropriateness, and any other harm. The development is therefore contrary to Policy 7.16 of the adopted London Plan 2016 and the National Planning Policy Framework 2012.”

Dartford’s reasons for refusal additionally related to the likely effects of additional traffic on air quality and congestion detrimental to the quality of life of the community in Deptford.

Roxhill appealed. The appeals were recovered for the Secretary of State’s own determination on 7 November 2017 for the reason that they related to proposals for significant development in the Green Belt. An inquiry was held over 18 days between June and September 2018.

The Secretary of State issued his decision letter on 7 May 2019. He dismissed the appeals. He found that the scheme was not in accordance with the relevant development plans. “He has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

25.In this case the Secretary of State considers that the harm to the Green Belt from inappropriate development carries substantial weight against the scheme and the effect on the character and appearance of the local area carries significant weight along with the adequacy of the proposed rail link and the effect on existing/future passenger rail services. Significant weight is also given to the effect on the convenience of highway users.

26.The Secretary of State considers that the provision of social economic benefits of the scheme has overall limited weight and the resulting net biodiversity gain has moderate weight.

27.The Secretary of State considers that the benefits of the scheme do not outweigh the harm to the Green Belt by reason of inappropriateness and any other harm, and so very special circumstances do not exist. He considers that the adverse impacts of the proposal significantly and demonstrably outweigh the benefits. Overall, he considers that there are no material considerations which indicate that the proposal should be determined other than in accordance with the development plan.

28.The Secretary of State therefore concludes that the appeal is dismissed, and planning permission is refused.”

In terms of the availability of alternative sites:

“18.The Secretary of State agrees with the Inspector that in the 2007 decision it was identified that there was no alternative development site, a finding which attracted considerable weight in favour of that scheme (IR4.2). However, since 2007 the London Gateway, a brownfield site not located in the Green Belt, has been developed. For the reasons given in IR15.8.18 to 15.8.24, the Secretary of State agrees with the Inspector’s conclusions that the London Gateway site has the potential to provide an alternative development option for the provision of a SRFI to serve the same part of London and the South East as the appeals proposal (IR15.8.26)”

The Inspector’s conclusions, set out in section 15 of his report, are also worth delving into.

His findings ahead of his overall conclusions relied upon by the Secretary of State included the following:

“The proposal would have a substantial adverse effect on the openness of the Green Belt and the introduction of this massive development beyond the built limits of Slade Green would constitute urban sprawl.”

“[G]iven the requirement of the NPSNN [National Policy Statement on National Networks] that ‘as a minimum, a SRFI should be capable of handling 4 trains per day’, it follows that in order for the proposed rail link to be considered ‘adequate’, it would be necessary for it to be capable of accommodating 4 trains/day as a minimum…Based on the evidence presented, in my judgement, the number of trains that could be pathed to/from the appeals site, having regard to the current timetable, would be likely to fall well short of 4 per day (each way)”

“Unlike the circumstances in 2007, there is no longer a formally identified requirement for 3 or 4 SRFIs around London [4.2, 7.2.6, 8.5.1, 11.2.12, 11.2.14.f.]. The Government approach set out in the NPSNN is to support the realisation of the forecast growth by encouraging the development of an expanded network of large SRFIs across the regions [11.2.9]. Furthermore, ‘…SRFI capacity needs to be provided at a wide range of locations…There is a particular challenge in expanding rail freight interchanges serving London and the South East’. ”

“Overall, I am content that there is a need and market for SRFIs to serve London and the South East [11.2.2-3]. I turn then to consider the extent to which the appeals scheme would be likely to meet the requirements of SRFIs set out in the NPSNN. ”

However, “the appeals scheme would not be well qualified to meet the identified need for SRFIs to serve London and the South East”

“[T]he appellant’s ‘very special circumstances case’ included the assertion that ‘no alternative development options exist for SRFIs to serve this part of London and the South East…this represents a material consideration of very considerable weight’ ”

“London Gateway, a brownfield site, has the potential to provide an alternative development option for the provision of a SRFI to serve the same part of London and the South East as the appeals proposal. Under these circumstances, even if the appeals scheme was also well qualified to meet that need, in my view, the weight attributable to this would be limited.”

Finally, the inspector also had significant concerns in relation to the traffic modelling that had been relied upon by the local authorities, including Transport for London and concluded that “the residual cumulative impact of the development on the local road network would be severe, with particular reference to congestion.”

How uncertain, expensive and slow this process is. And how valuable it would be have been to have kept the 2007 Howbury Park permission alive.

Simon Ricketts, 11 May 2019

Personal views, et cetera

Lessons From The Heathrow Cases

In my 15 October 2016 blog post Airports & Courts I made the obvious prediction that publication by the Secretary of State for Transport of the Airports National Policy Statement (“ANPS”) would inevitably lead to litigation. The ANPS is important because under the Planning Act 2008 it sets the policy basis for a third runway at Heathrow to the north west of the current runways (the “NWR Scheme”).

It was always going to be important for the High Court to be able to rise to the (in a non-legal sense) administrative challenge of disposing of claims efficiently and fairly. The purpose of this blog post is to look at how that was achieved (no easy feat) and what we can learn more generally from the court’s approach to the litigation

The ANPS was designated on 26 June 2018 and five claims were brought seeking to challenge that decision:

⁃ A litigant in person, Neil Spurrier (a solicitor who is a member of the Teddington Action Group)

⁃ A group comprising the London Borough of Richmond-upon-Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham, Greenpeace and the Mayor of London

⁃ Friends of the Earth

⁃ Plan B Earth

⁃ Heathrow Hub Limited and Runway Innovations Limited [unlike the other claimants above, these claimants argue for an extension of the current northern runway so that it can effectively operate as two separate runways. This scheme was known as the Extended Northern Runway Scheme (“the ENR Scheme”)]

Arora Holdings Limited joined as an interested party to each set of proceedings in pursuance of their case for a consolidated terminal facility to the west of the airport.

The Speaker for the House of Commons intervened in the Heathrow Hub Limited claim to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence.

The first four claims raised 22 separate grounds of challenge. The fifth claim raised a further five grounds of challenge.

As Planning Liaison Judge, ie effectively lead judge within the Planning Court, Holgate J in my view has played an extremely effective role. Following a directions hearing, ahead of a subsequent pre-trial review three months later, he laid down a comprehensive set of directions on 4 October 2018 which provided for:

⁃ the first four claims to be heard at a single rolled up hearing, followed by the fifth claim

⁃ the cases to be heard by a Divisional Court (ie two or more judges, normally a High Court Judge and a Lord Justice of Appeal. In the event, the four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.)

⁃ video link to a second court room and (paid for jointly by the parties in agreed proportions) live searchable transcripts of each day’s proceedings

⁃ procedure to be followed in relation to expert evidence sought to be submitted in support of the first claim

⁃ statements of common ground

⁃ amended grounds of claim, with strict page limits and against the background of a request from the judge to “review the extent to which they consider that any legal grounds of challenge previously relied upon remain properly arguable in the light of the Acknowledgments of Service“, and with specific claimants leading on individual issues

⁃ bundles and skeleton arguments complying with strict page limits and other requirements

⁃ payment of security for costs by Heathrow Hub Limited in the sum of £250,000

⁃ cost capping in the other claims on Aarhus Convention principles

The main proceedings were heard over seven days in March, with the Heathrow Hub proceedings then taking a further three days (followed by written submissions). As directed by Holgate J, hearing transcripts were made publicly available.

Less than six weeks after close of the Heathrow Hub hearing, judgment was handed on 1 May 2019 in both case:

R (Spurrier & others) v Secretary of State (Divisional Court, 1 May 2019)

R (Heathrow Hub Limited & Runway Innovations Limited) v Secretary of State (Divisional Court, 1 May 2019)

The transcript of the first judgment runs to 184 pages and the transcript of the second judgment runs to 72 pages.

I am not going to summarise the judgments in this blog post but happily there is no need as the court at the same time issued a summary, which serves as a helpful précis of the claims and the court’s reasoning for rejecting each of them.

The Divisional Court found that all but six grounds were unarguable (the six being two Habitats Directive grounds from the first case, two SEA grounds from the first case and two from the second case (legitimate expectation and anti-competition). “All the other grounds were not considered not to have been arguable: the claimants may apply for permission to appeal against the Divisional Court’s decision concerning those grounds to the Court of Appeal within 7 days. The remaining six grounds were ultimately dismissed. The claimants may apply to the Divisional Court for permission to appeal within 7 days. If the Divisional Court refuses permission to appeal to the Court of Appeal, the claimants may re-apply directly to the Court of Appeal.”

The Secretary of State for Transport gave a written statement in the House of Commons on the same day, welcoming the judgments.

The two judgments will be essential reading in due course for all involved in similar challenges; the 29 grounds, and various additional preliminary points, cover a wide range of issues frequently raised in these sorts of cases and each is carefully dealt with, with some useful textbook style analysis.

In the Spurrier judgment:

– the scope for challenge of an NPS (paras 86 to 90)

⁃ relationship between the NPS and DCO process (paras 91 to 112)

⁃ extent of duty to give reasons for the policy set out in the NPS (paras 113 to 123)

⁃ consultation requirements in relation to preparation of an NPS (paras 124 to 140)

⁃ standard of review in relation to each of the grounds of challenge (paras 141 to 184)

⁃ the limited circumstances in which expert evidence is admissible in judicial review (paras 174 to 179)

⁃ whether updated information should have been taken into account (paras 201 to 209)

⁃ whether mode share targets were taken into account that were not realistically capable of being delivered (paras 210 to 219)

⁃ the relevance of the Air Quality Directive for the Secretary of State’s decision making (paras 220 to 285)

⁃ compliance with the Habitats Directive (paras 286 to 373)

⁃ compliance with the Strategic Environmental Assessment Directive (paras 374 to 502)

⁃ whether consultation was carried out with an open mind (paras 503 to 552)

⁃ whether the decision to designate the ANPS was tainted by bias (paras 553 to 557)

⁃ the relevance of the Government’s commitments to combat climate change (paras 558 to 660)

⁃ whether there was a breach of the European Convention on Human Rights (paras 661 to 665)

In the Heathrow Hub judgment:

⁃ legitimate expectation (paras 113 to 138)

⁃ use of Parliamentary material in the context of Article 9 of the Bill of Rights (paras 139 to 152)

⁃ competition law (paras 157 to 209).

As we wait to see whether any of these claims go further, I note that Arora has commenced pre application consultation ahead of submitting a draft DCO for a “consolidated terminal facility to the west of the airport, which we are calling Heathrow West, related infrastructure and changes to the nearby road and river network.” Now that is going to be another interesting story in due course. I’m not sure we have previously seen duelling DCOs…

Simon Ricketts, 4 May 2019

Personal views, et cetera

POCA Face

If you are in a position where you may be criminally liable for breach of planning control (whether justified or not – I’ve heard all the stories), you really need to be aware of the implications of the Proceeds of Crime Act 2002 and its potential influence on the approach taken by local planning authority enforcement teams. This post only gives a general overview as in my day job I do not generally act on criminal planning law matters so please take appropriate advice. The focus of this post is more on that “potential influence” issue: the raised stakes now in seeking to negotiate a practical solution to avoid enforcement and/or prosecution.

The Act provides that if the Crown Court convicts a defendant, the Crown Court (if requested by the prosecutor or if it considers it appropriate):

1. must decide whether the defendant has a criminal lifestyle;

2. if it decides that he has a criminal lifestyle, must decide whether he has benefited from his general criminal conduct;

3. if it decides that he does not have a criminal lifestyle, must decide whether he has benefited from his particular criminal conduct.

If the defendant has benefited from his general or particular criminal conduct, the court arrives at a figure as to the extent of that benefit and how much of that is “available” – determined by considering “all the free property” held by the defendant deducted only by any fines due and any preferential debts within the meaning of the Insolvency Act 1986. That amount is then payable, with the time for payment only generally being capable of extension to six months. Failure to pay is likely to result in imprisonment.

Enforcement teams within local planning authorities are well aware of the potential for POCA confiscation orders and indeed authorities are incentivised to seek them. This is not just because of their deterrent effect as regards other potential miscreants but more directly because the authority is likely to receive 37.5% of the receipts (which can then be used by the authority on a non-hypothecated basis). This is because the Home Office’s Asset Recovery Incentivisation Scheme splits the proceeds from confiscation orders as follows:

– Home Office 50%

– Prosecuting authority 18.75%

– Investigating authority 18.75%

– HM Court Service 12.5%

The local planning authority will generally be both prosecuting and investigating authority.

The case that really opened people’s eyes to the potential financial scale of confiscation orders arising from breaches of planning control was R v Del Basso (Court of Appeal, 19 May 2010). Failures to comply with a enforcement notice relating to an unauthorised parking business led to a confiscation order of £760,000.

There have been various orders made for higher amounts – big money whether you are the defendant or the cash-strapped local planning authority.

Of course, the potential for a POCA confiscation order should not taken into account by an authority in deciding whether to enforce against a potential breach of planning control, whether to prosecute and/or in determining its approach to negotiations which might potentially resolve the underlying concerns. However, in the recent cases the Court of Appeal has expressed concern at particular authorities’ behaviour.

R v The Knightland Foundation (Court of Appeal, 26 July 2018) concerned the failure to comply with an enforcement notice served by the London Borough of Islington, relating to the unauthorised use as 18 self-contained dwellings of a development which had planning permission for HMO use. An appeal against the enforcement notice had been dismissed but the owners submitted a fresh application for planning permission for change of use of the building to a hotel.

“In September 2017, a planning officer, Mr Shaxted, indicated to the respondents that the principle of an 18 room hotel seemed acceptable to him. Email traffic between the enforcement officers and members of the Planning Team that month revealed that the Enforcement Team were determined to press ahead with the prosecution and to apply for a confiscation order under the Proceeds of Crime Act 2002 (“POCA”), whatever the result of the 2016 planning application.”

“We do not have any material from the legal department or from the person who took the decision to prosecute but we do know that their decision was based on a report from Mr Kettani and Mr Jarrett. The judge found that report to be flawed and that the decision to prosecute and to continue the prosecution based on it had an improper motive namely the financial advantage to the applicant of a POCA order. Those who advised the person who took the decision to prosecute failed to take into account a relevant factor, namely, the possibility that the respondents’ position could be regularised and allowed an irrelevant factor, namely, the possibility of their obtaining a POCA order to the authority’s financial advantage, to carry significant weight. On the judge’s findings, having taken the decision to prosecute, officers of the same authority then attempted, improperly, to influence the determination of the planning application so that it would not impact adversely upon the prosecution and/or the prospects of their obtaining a POCA order. In their eyes the grant of planning permission was intrinsically linked to the prosecution and possible penalty. The judge agreed and so do we. Had planning permission been granted and the respondents’ position regularised, this could have been a significant factor in mitigation and any attempt by the respondents to persuade the court that it would not be proportionate to make a sizeable POCA order.”

Specialist planning enforcement lawyers Ivy Legal have written an interesting commentary on the judgment, querying the basis for the court’s conclusions and seeking to limit its implications for other cases.

However, by coincidence the judgment was in fact handed down at precisely the wrong moment for another local planning authority, Wokingham Borough Council, between the Crown Court hearing and handing down of judgment following an application to stay a set of criminal proceedings (within which a POCA confiscation order was contemplated) for abuse of process. These proceedings concerned non-compliance with an enforcement notice relating to unauthorised uses at the Hare Hatch Sheeplands garden centre in Berkshire.

In that case the defendants had been persuaded to withdraw an appeal against the enforcement order in order to submit an application for a certificate of lawfulness to seek to resolve the issues but then the authority determined that it could not lawfully issue the certificate and continued with its enforcement steps. The Crown Court judge set aside the proceedings for a number of reasons.

[One] “very significant area of her concern was fact that the possibility of an order being made under POCA was one of the principal factors in the decision to prosecute. She accepted that by the conclusion of the High Court proceedings a considerable amount of public money had been expended on the case and expressed sympathy for hard-pressed local authorities facing competing claims on ever-decreasing resources. WBC had the duty to police planning controls and do so in the public interest.

If the prosecution resulted in a conviction and a POCA order made, WBC would have received 37½% of the fruits of the order. In the judge’s view, this lent support to the defence submission that WBC was seeking to prosecute the Respondents to claw back public money already expended on the case. She observed that the POCA provisions apply only after conviction, and she stated that the possibility of an order should never form any part of the prosecutorial decision-making process, particularly where the prosecutor and the beneficiary are one and the same. To take into account the possibility of a financial benefit, in her view, ran contrary to an objective analysis of the merits of the case as required under the Code for Crown Prosecutors.”

The authority appealed but the Court of Appeal, in Wokingham Borough Council v Scott (Court of Appeal, 17 January 2019), upheld the judge’s ruling:

“We shall begin with what we consider to be one of the most important issues raised again in this application and addressed in Knightland, namely the role played by a POCA order in the decision to prosecute in the criminal courts.

It may come as a surprise to some that there are prosecuting authorities who may benefit financially from their decision to prosecute. It certainly came as a surprise to the members of the court in Knightland that a body given the power to prosecute should consider the possible financial advantage to itself as a relevant factor in the decision to prosecute. As the court held in Knightland, this flies in the face of the clear provisions of the Code for Crown Prosecutors, accepted by all prosecuting authorities as the applicable Code, that a prosecutor must be independent, fair and objective.

We endorse and repeat the observations of the court in Knightland. The decision to prosecute is a serious step and one that must be taken with the utmost care. We understand the argument that the making of a POCA order on conviction may act as a deterrent to offending and has the effect of extracting ill-gotten gains from offenders. This was no doubt Parliament’s intent in enacting the POCA. But where there is a potential conflict of interest, namely a financial interest in the outcome of the prosecution set against the objectivity required of a prosecutor, the prosecutor must be scrupulous in avoiding any perception of bias. The possibility of a POCA order being made in the prosecutor’s favour should play no part in the determination of the evidential and public interest test within the Code for Crown Prosecutors. We hope that this message will be relayed to all those making charging recommendations and decisions as soon as possible.

On the facts of this case, given we have heard nothing to justify the decision to prosecute at least ten of the Respondents after the injunctive relief was granted and Mr Scott was made subject to a suspended sentence of imprisonment, it raises the distinct possibility that making of a POCA order in WBC’s favour was one of the grounds for the decision to prosecute them. If it was, it should not have been.”

“We also have concerns about the approach taken by WBC to selecting those to be prosecuted. The Code for Crown Prosecutors also provides that prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction of each suspect on each charge and that in every case there is a public interest in prosecuting.”

“Finally, we add two things. First, the self-contained code in Part VII of the Town and Country Planning Act 1990 confers on local planning authorities a wide range of powers for the enforcement of planning control. It is left to their judgment which power or powers it is appropriate to use in the particular circumstances of the case in hand. It should go without saying that in deciding which power or powers will best deal with a particular breach of planning control, having regard to the public interest, an authority should always act with fairness and realism.

Secondly, nothing we have said in this judgment should be seen as casting doubt on the value of informal discussions between officers of a local planning authority and an applicant for planning permission or a landowner who appears to be responsible for a breach of planning control. This judgment and Her Honour Judge Morris’s ruling were based entirely on the particular facts of this case. It is trite that discussions between planning officers and an applicant or landowner do not ultimately bind a local planning authority to a particular position or a particular course of action, in breach of the principles set out in Reprotech (see the speech of Lord Hoffmann, at paragraphs 27 to 38). But such discussions have, and will always have, an important role to play in the planning system – so long as they are conducted in good faith and with good sense on either side.”

For an authoritative account of the case, do read the article by Scott Stemp (the barrister who acted for the successful respondents) POCA and improper planning prosecutions (9 March 2019).

No doubt POCA will continue to be highly relevant to authorities seeking to make ends meet. In researching this post I came across a flyer for a local authority training course asserting that receipts from confiscation orders can go a long way to funding the planning enforcement team within an authority. But these cases do sound a note of caution. Notwithstanding the Home Office’s “incentivisation“, the point of these orders should surely be to influence the behaviour of offenders and potential offenders, not the behaviour of local planning authorities!

Simon Ricketts, 27 April 2019

Personal views, et cetera

A Reasonable Prospect of Planning Permission: The Right To Possession Under Ground (f)

Even when it’s your day job in our planning world of imprecisely worded policies and the uncertainties of local and national politics, it can be hard enough to answer the question as to whether a proposed development project has a reasonable prospect of planning permission. But what if you are a county court judge? And when the law throws in some hypothetical assumptions?

One of the grounds under section 30(1) of the Landlord and Tenant Act 1954 which a landlord can rely on in opposing the grant to of a new tenancy to an existing business tenant is on the ground that “on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding.”

The courts have held that the landlord must show that (1) it has the intention to demolish or reconstruct at least a substantial part of the premises and (2) there is a reasonable prospect of being able to bring about that intention.

That “reasonable prospect” second limb of the test was the subject of Warwickshire Aviation Limited and others v Littler Investments Limited (Birss J, 25 March 2019) and I will deal with that in a moment.

However, first to note that the Supreme Court late last year caused a minor earthquake in terms of how the first limb is to be interpreted, namely whether the landlord has a sufficient “intention“.

For a long time now it has been the practice of some landlords to come up with demolition or redevelopment schemes just to satisfy the test, schemes which they are prepared to undertake to the court that they will carry out (an undertaking which they will not need to give if, as has been usual, in the face of an evidenced intention the tenant resigns itself to defeat and cuts a deal – in which case the scheme can be abandoned).

As a result of S Franses Limited v The Cavendish Hotel (London) Limited (Supreme Court, 5 December 2018), that practice has been rendered much more difficult.

The case concerned a textiles dealership and consultancy in Jermyn Street, Mayfair, comprising the ground floor and basement of what is otherwise the Cavendish Hotel. It was refused a new tenancy on the basis that its landlord “intended” to carry out an absurd set of works, arrived at because of the difficulties in obtaining planning permission for earlier proposals to create new retail units. The landlord ended up proposing a set of works that did not require planning permission. First, the proposed “internal wall dividing the two proposed retail units stopped two metres short of the shopfront at ground floor level; and there was no external door to one of the units, so that it could be accessed only through the other. Secondly, the new scheme added more extensive internal works, many of which were objectively useless. They included the artificial lowering of part of the basement floor slab, in a way which would achieve nothing other than the creation of an impractical stepped floor in one of the units; the repositioning of smoke vents for no reason; and the demolition of an internal wall at ground floor level followed by its immediate replacement with a similar wall in the same place. The cost of the scheme was estimated by the landlord at £776,707 excluding VAT, in addition to statutory compensation of £324,000 payable to the tenant.

It is common ground that the proposed works had no practical utility. This was because, although the works themselves required no planning permission, it would be impossible to make any use of them at all without planning permission for change of use, which the landlord did not intend to seek. Planning permission would have been required because the scheme involved combining premises permitted for hotel use with premises permitted for sui generis use. In addition, one of the retail units was unusable without an entrance from the street. In accordance with a common practice in this field, the landlord supported its evidence of intention with a written undertaking to the court to carry out the works if a new tenancy was refused. The sole purpose of the works was to obtain vacant possession. The landlord’s evidence was that it was prepared to run the risk that the premises occupied by the tenant would be rendered unusable “in order to secure its objective of undertaking [the third scheme] and thereby remove the claimant from the premises.” The landlord submitted that “the works are thoroughly intended because they are a way of obtaining possession. That is all there is to it.” As the landlord’s principal witness put it, the third scheme was “designed purely for the purpose of satisfying ground (f).”

The landlord argued that its motives were irrelevant – all that mattered was its intention to carry out the works. However, the Supreme Court disagreed.

Lord Sumption: “the landlord’s intention to demolish or reconstruct the premises must exist independently of the tenant’s statutory claim to a new tenancy, so that the tenant’s right of occupation under a new lease would serve to obstruct it. The landlord’s intention to carry out the works cannot therefore be conditional on whether the tenant chooses to assert his claim to a new tenancy and to persist in that claim. The acid test is whether the landlord would intend to do the same works if the tenant left voluntarily.”

In consequence in future cases there will surely be a greater need for expert evidence in county court proceedings as to why a particular scheme of works has some commercial utility to the landlord other than just as a basis for a ground (f) opposition to a new tenancy.

Back to the second limb and the Warwickshire Aviation case. The case had started in the county court, with seven separate aviation-related tenants of premises at Wellesbourne Mountford Airfield all faced with ground (f) opposition by their landlord to the grant of new tenancies on the basis that it intended to demolish their premises. There was a trial of the preliminary issue as to whether ground (f) had been made out. Planning permission for demolition would be required because permitted development rights had been taken away by way of an Article 4 direction. The landlord wished to bring to an end any aviation use on the airfield and instead to promote the site for residential development. The central issue at the four day trial was whether, against the planning policy background, there was a reasonable prospect that the local planning authority would grant planning permission for demolition, in the face of policies which included support for “enhancement of the established flying functions and aviation related facilities” at the airfield. Planning consultants gave expert evidence for the two sides, with very different conclusions.

One complication was the necessary hypothetical assumption that at the time of the notional planning application for demolition the tenants would have vacated and the current aviation related uses would have ceased. Given the landlord’s objectives, the county court judge found “there appears on legitimate and substantial economic/commercial grounds to be no realistic prospect, if consent for demolition was refused, of the Defendant re-instating aviation related use of the buildings. That would be a material consideration for the decision maker to have regard to” in the light of the relevant policies and therefore he concluded that there was a reasonable prospect that planning permission would be granted.

On appeal from the Birmingham County Court to the High Court, the tenants argued that “in planning terms the landlord’s future intentions are irrelevant and do not amount to a “material consideration” within s70(2) of the TCPA and s38(2) of the PACP. They argue while the land owner may well have sound commercial reasons for wanting to increase the profitability of its landholding and prevent further aviation use, those are quintessentially private rather than public interests.”

The judge on appeal rejected the argument. The relevant policy “rather than requiring developers to retain and support existing aviation related facilities at the airfield regardless of the circumstances, only states that developers are expected to contribute to the achievement of that objective “where it is appropriate and reasonable for them to do so”. As Littler submits, those words are wide enough to allow a developer to tell the decision maker that it does not intend to return the buildings to their previous aviation related uses for commercial reasons. The decision maker will assess if that stance is appropriate and reasonable in the circumstances. If the reasons are found to be genuine (as here), in that case it would be open to the decision maker to accept the stance of the developer. The result could well be that it would not be appropriate and reasonable to expect the developer to contribute to the achievement of the objective of retaining aviation related uses at Wellesbourne in that instance. Therefore the judge was entitled to approach the matter in the way he did.

Contrary to the […] appellants’ submission, this does not mean that the entire planning system can be subverted or frustrated because a landowner would always be able to succeed in obtaining planning permission for demolition or change of use simply by asserting an intention not to continue its existing use. That submission ignores the discretion in the relevant planning policy, ignores the fact that there were a range of other uses available not requiring planning permission (this is addressed in Ground C below) and ignores the fact that the judge specifically considered whether the reasons given by Littler were substantial and genuine.”

The appeal judge agreed with the county court judge that policies in a recently adopted neighbourhood plan did not make a significant difference to the issues.

Finally the appeal judge rejected the submission that the judge at first instance had applied too stringent a test in assessing the likelihood of aviation related uses resuming if permission for demolition were to be refused.

Regardless of what the correct answer actually was on the evidence, one can see the difficulties inherent in determining the hypothetical question on which the case turned. I’m no landlord and tenant lawyer but isn’t “reasonable prospect” just setting the bar too low? Of course the landlord is going to be dead-set against a continuation of the relevant use – that’s why it has gone to the expense of opposing a new tenancy. If that is relevant, doesn’t that leave the landlord holding all the cards? Or is the reality that business tenants have to accept that their right to a new tenancy will always be precarious? Another issue for the Supreme Court one day perhaps?

Landlord and tenant lawyers, you are welcome to set me straight on any of this.

Simon Ricketts, 20 April 2019

Personal views, et cetera

Calculating Education Contributions

“We class schools, you see, into four grades: Leading School, First-rate School, Good School, and School. Frankly,” said Mr Levy, “School is pretty bad…”

(Evelyn Waugh, Decline and Fall)

The government has been fine-tuning its guidance as to the extent to which developers in England should be required to fund education provision.

Serendipitously for this blog post, the High Court last month handed down judgment in Thompson v Conwy County Borough Council (Dove J, 26 March 2019). Not only does the case provide an introduction to some of the existing uncertainties, but, as is clear from Dove J’s introduction, there is a link to one of the greatest comic literary depictions of a private school:

“The site in question in relation to these proceedings is the Fair View Inn in Llanddulas. It appears that Evelyn Waugh was at one time a patron of the Fair View Inn when he taught at a nearby preparatory school. The Fair View Inn features as “Mrs Robert’s Pub” both in his diaries and also in his first novel, Decline and Fall.”

Remember that section in Decline and Fall, where Paul Pennyfeather gets sent to Llanabba Castle School in north Wales to teach subjects he knows nothing about, and his trips to Mrs Roberts’ pub with Captain Grimes? (If not, do put this blog post down and pick up D&F – much more entertaining).

One of the grounds of challenge to the grant of planning permission for residential development on the site of the Inn was that the planning committee, in approving the proposal on the basis of a commuted sum towards education provision, “were misled by inaccurate information being provided in relation to education school capacity.” It was submitted by the claimant (a representative of the campaign group Passionate about Llanddulas) that “although members were advised that the commuted sum would be used to improve existing school facilities in the near future, including the construction of a new school, the position […] is significantly different. [The claimant] contends that the position in truth is that the school in Llanddulas will remain over capacity on the basis that there is no guarantee at present that any new school would be secured through the provision of a commuted sum for education“.

The local school is indeed already oversubscribed. The education officer sought a financial contribution of £17,009, towards the costs of a new school in due course, based on approximately two additional nursery and primary pupils being added to the local school population. An internal email from the education officer was disclosed: “… we will be building a new school there in less than 5 years and the money will come in handy!”

The claimant sought to rely on correspondence from the same officer that post-dated the permission and which set out the steps that would need to be taken to secure Welsh Government funding for a new school, the outcome of which was uncertain notwithstanding confidence expressed by the officer.

Dove J unsurprisingly took the position that “the question of whether or not officers misled members should be considered on the basis of the material as known to the officers at the time of the Committee report, rather than taking account of matters that arose or came to light after the decision was reached.”

But in any event he held that what was later set out by the officer in correspondence was “not in substance different from the succinct email he sent to Ms Roberts earlier in the year, namely that the Education Section of the Defendant has it in mind to use the commuted sum towards the redevelopment of the school in Llanddulas within five years. In my view it would subject the advice that the members were given to an illegitimate and overly forensic scrutiny to suggest that it was necessary also to spell out the further statutory and administrative processes which would be required before the new school would be open for use. The issue about which members were being advised was the question of whether or not there was a legitimate objective for the commuted sum in respect of education. The advice which the members were provided with accurately reflected the view of the Education Section given by Mr Jones and did not in my judgment mislead them. I am therefore satisfied on the basis of the information which has become available since the grant of permission that the members were not misled. Thus, even were account taken of material provided after the decision the position remains the same.”

No point appears to have been expressly taken as to whether the contribution failed the regulation 122(2) test within the CIL Regulations:

“A planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—

(a) necessary to make the development acceptable in planning terms;

(b) directly related to the development; and

(c) irly and reasonably related in scale and kind to the development.”

Nor whether it offended the (soon to be abolished) pooling restriction in regulation 123.

Whilst the permission thereby survived the campaign group’s legal challenge, when you step back for a moment, the basis for requirements for contributions towards education provision, and the expensive uncertainty which developers and residents in new developments are expected to put up with, is faintly bizarre. New homes may contain children. Those children would need schooling somewhere regardless of the particular development. And yet, an application for planning permission for residential development is an opportunity that the Government pretty much requires local authorities to take in order to reduce the financial burden on the state and on direct taxation to secure financial contributions towards new and expanded schools. That cost reduces the financial viability of schemes, thereby reducing the amount affordable housing that the developer can subsidise (I’ve commented before on that logical disconnect conveniently ignored by successive Governments looking to minimise headline tax rates – so building market housing increases the amount of subsidised affordable housing that needs to be provided does it?). And, as in that Llanddulas example, where development proceeds on the basis of a financial contribution to something somewhere in the future, the developer and those who end up living in the development are at the whim of demographics and the education department’s forward planning and funds-securing nous as to whether, and where, necessary school places will become available. Rarely is the lack of available school places a reason to refuse planning permission.

But this is the policy environment.

Relevant passages in the Government’s Planning Practice Guidance were amended on 15 March 2019:

“What funding is available for education?

Government provides funding to local authorities for the provision of new school places, based on forecast shortfalls in school capacity. There is also a central programme for the delivery of new free schools.

Funding is reduced however to take account of developer contributions, to avoid double funding of new school places. Government funding and delivery programmes do not replace the requirement for developer contributions in principle.

Plan makers and local authorities for education should therefore agree the most appropriate developer funding mechanisms for education, assessing the extent to which developments should be required to mitigate their direct impacts.

Paragraph: 007 Reference ID: 23b-007-20190315

Revision date: 15 03 2019

What contributions are required towards education?

Plans should support the efficient and timely creation, expansion and alteration of high-quality schools. Plans should set out the contributions expected from development. This should include contributions needed for education, based on known pupil yields from all homes where children live, along with other types of infrastructure including affordable housing.

Plan makers and decision makers should consider existing or planned/committed school capacity and whether it is sufficient to accommodate proposed development within the relevant school place planning areas. Developer contributions towards additional capacity may be required and if so this requirement should be set out in the plan. Requirements should include all school phases age 0-19 years, special educational needs (which could involve greater travel distances), and both temporary and permanent needs where relevant (such as school transport costs and temporary school provision before a permanent new school opens).

Plan makers should also consider whether pupils from planned development are likely to attend schools outside of the plan area and whether developer contributions may be required to expand schools outside of the area.


When local authorities forward-fund school places in advance of developer contributions being received, those contributions remain necessary as mitigation for the development.

Paragraph: 008 Reference ID: 23b-008-20190315

Revision date: 15 03 2019“

The Department for Education published some detailed guidance for local authorities on 11 April 2019 to help them in securing developer contributions for education and on the approach to education provision in garden communities.

The guidance purports not to “advise the construction/development industry on its duties or responsibilities in paying for infrastructure” or to replace or override “policy/guidance produced by other government departments“. However, if you are negotiating section 106 agreement obligations, it is essential reading.

Securing developer contributions for education sets out the following principles:

” • Housing development should mitigate its impact on community infrastructure, including schools;

• Pupil yield factors should be based on up-to-date evidence from recent housing developments;

• Developer contributions towards new school places should provide both funding for construction and land where applicable, subject to viability assessment when strategic plans are prepared and using up-to-date cost information;

• The early delivery of new schools within strategic developments should be supported where it would not undermine the viability of the school, or of existing schools in the area.”

Planning obligations should “allow enough time for developer contributions to be spent (often this is 10 years, or no time limit is specified“. But personally, I would push against such long timescales save where specifically justified!

In terms of the inter-relationship between government and developer funding:

“5. Central government basic need grant, the DfE free schools programme and other capital funding do not negate housing developers’ responsibility to mitigate the impact of their development on education. When the DfE free schools programme is delivering a new school for a development, we expect the developer to make an appropriate contribution to the cost of the project, allowing DfE to secure the school site on a peppercorn basis and make use of developer contributions towards construction. National Planning Practice Guidance explains how local planning authorities should account for development viability when planning for the provision of infrastructure.2 There should be an initial assumption that both land and funding for construction will be provided for new schools planned within housing developments

6. While basic need funding can be used for new school places that are required due to housing development, we would expect this to be the minimum amount necessary to maintain development viability, having taken into account all infrastructure requirements Where you have a reasonable expectation of developer funding being received for certain school places,3 and you have declared this in your SCAP return (or plan to do so), then basic need funding should not be considered available for those school places other than as forward funding to be reimbursed by developer contributions later.

7. There are other options besides basic need grant for forward-funding school places, including the use of local authority borrowing powers where necessary. Where developer contributions have been secured through a planning obligation, you can recoup the borrowing costs from developer contributions later, provided these costs have been incurred as a result of housing growth. Local authorities can bid for funding under government grant programmes such as the Housing Infrastructure Fund (HIF) as they become available, while developers delivering schools directly as an ‘in kind’ contribution may be eligible for loan funding from DfE or Homes England, allowing a new school to be delivered at an earlier stage in the development than would have been possible otherwise.”

“Pupil yield factors should be based on up-to-date evidence from recent local housing developments“. DfE is working on a detailed methodology.

All new primary schools are now expected to include a nursery. There must be sufficient primary and secondary education up to the age of 19 as well as special educational needs and disabilities (SEN) provision.

The assumed cost of mainstream school places should be based on national average costs published by the DfE, adjusted to reflect regional costs differences. The cost of early years provision should be assumed as the same as primary provision. Contributions to special school provision should be set at four times the cost of a mainstream school place.

All temporary and permanent education needs should be properly addressed, including school transport costs and temporary school provision. Where appropriate, both a preferred and “contingency” school expansion project should be identified in a section 106 planning obligation.

“23. You may wish to safeguard additional land when new schools within development sites are being planned, to allow for anticipated future expansion or the reconfiguration of schools to create a single site. ‘Future-proofing’ can sometimes be achieved informally through a site layout that places open space adjacent to a school site. Where justified by forecast need for school places, additional land can be designated specifically for education use and made available for purchase by the local authority within an agreed timescale, after which the land may be developed for other uses.

24. While developers can only be expected to provide free land to meet the education need from their development, the allocation of additional land should also preclude alternative uses, enabling you to acquire the site at an appropriate cost. Land equalisation approaches can be used in multi-phase developments to ensure the development ‘hosting’ a new school (and any additional safeguarded land) is not disadvantaged. Nevertheless, the market price for the land will depend on its permissible uses. Land allocated for educational use in a local plan would usually have no prospect of achieving planning permission for any other uses. Independent land valuation may be required to establish an acquisition cost. National Planning Practice Guidance provides advice on land valuation for the purposes of viability assessment.”

(There are elements of paragraphs 23 and 24 with which I would take issue or which may be too generally expressed. For example, if the reservation of additional land for a school (or for further forms of entry to an existing school) and the need for those additional school places is not generated by the development within which the land is situated, why should that land not be acquired at the development value it would otherwise have enjoyed?).

The guidance annexes advice on compliance with state aid and public procurement legislation.

There is specific guidance on strategic developments and new settlements (with more detailed separate guidance on garden communities), including on multiple phase school provision, the timing of provision and use of viability review mechanisms where the initial education contribution has been reduced on viability grounds.

Whether your education contribution is in the low tens of thousands of pounds as per the Llanddulas case or in the low tens of millions of pounds, as may be the case with a new settlement, arriving at efficient, practical solutions is key. Travelling optimistically, let us hope that the new guidance will assist in arriving at those solutions, rather than encouraging authorities to add to the current list of requests.

Simon Ricketts, 13 April 2019

Personal views, et cetera

Beauty

How can the planning system seek to achieve “beautiful” buildings and places?

What is beauty? How do you arrive at objectivity in matters largely of subjective judgment? Is the customer always right (and who is the customer)?

These thoughts were prompted this week by a few things:

⁃ The resolution of the Corporation of London’s Planning and Transportation Committee on 2 April 2019 to grant planning permission for the Tulip following officers’ recommendations. The application will now be referred to the Mayor who will need to decide whether to intervene (whether by call in or by directing refusal). His stage 1 report dated 14 January 2019 set out his initial concerns.

⁃Obituaries of Bill Heine, responsible for the Headington shark. Is there any inspector’s decision letter with a better passage than this (when allowing an appeal against an enforcement notice)?

“It is not in dispute that this is a large and prominent feature. That was the intention, but the intention of the appellant and the artist is not an issue as far as planning permission is concerned. The case should be decided on its planning merits, not by resorting to “utilitarianism”, in the sense of the greatest good to the greatest number. And it is necessary to consider the relationship between the shark and its setting…. In this case it is not in dispute that the shark is not in harmony with its surroundings, but then it is not intended to be in harmony with them. The basic facts are there for almost all to see. Into this archetypal urban setting crashes (almost literally) the shark. The contrast is deliberate … and, in this sense, the work is quite specific to its setting. As a “work of art” the sculpture (“Untitled 1986”) would be “read” quite differently in, say, an art gallery or on another site. An incongruous object can become accepted as a landmark after a time, becoming well known, even well loved in the process. Something of this sort seems to have happened, for many people, to the so-called “Oxford shark”. The Council is understandably concerned about precedent here. The first concern is simple: proliferation with sharks (and Heaven knows what else) crashing through roofs all over the City. This fear is exaggerated. In the five years since the shark was erected, no other examples have occurred. Only very recently has there been a proposal for twin baby sharks in the Iffley Road. But any system of control must make some small place for the dynamic, the unexpected, the downright quirky. I therefore recommend that the Headington shark be allowed to remain.”

⁃ a nagging awareness that I probably need to cover the Government’s “Building Better, Building Beautiful” initiative in one of these blog posts.

Section 12 of the July 2018 NPPF sought to give more weight, in plan making and decision taking, to design considerations – see MHCLG’s press release Government’s new planning rulebook to deliver more quality, well-designed homes (24 July 2018) and there is more detailed guidance in the PPG. The press release, as with so many Government announcements, focused on the relevance of the policy changes to the construction of new homes.

Is poor design one reason why new development is often not accepted by communities? That’s the thesis leading to James Brokenshire’s announcement on 3 November 2018 of the Building Better Building Beautiful Commission, chaired by Professor Sir Roger Scruton.

The Commission has three aims:

1. To promote better design and style of homes, villages, towns and high streets, to reflect what communities want, building on the knowledge and tradition of what they know works for their area.

2. To explore how new settlements can be developed with greater community consent.

3. To make the planning system work in support of better design and style, not against it.

The commission has five commissioners:

• Sir Roger Scruton (Chair)

• Gail Mayhew

• Mary Parsons

• Nicholas Boys Smith

• Kim Wilkie

It also has an impressive list of “specialist advisors”:

• Stephen Stone, Executive Chairman of Crest Nicholson

• Sunand Prasad, Senior Partner and co-founder of Penoyre & Prasad and past President of the RIBA

• Ben Bolgar, Senior Director of Prince’s Foundation

• Dame Fiona Reynolds DBE, Master of Emmanuel College, Cambridge

• Adrian Penfold OBE, Advisor in Planning and Public Affairs

• Peter Studdert, Chair of Quality Review Panels for the LLDC and LB of Haringey

• Patrick James, Founding Director of The Landscape Agency

• Paul Monaghan, Director of AHMM and Design Council Trustee

• Yolande Barnes, Professor of Real Estate at UCL

The deadline for the Commission’s call for evidence is 31 May 2019.

This “Building Beautiful” initiative, ironically as with the resi PD rights initiative where there no controls over matters of aesthetics and design, has its roots in think tank the Policy Exchange. The Policy Exchange published Building More, Building Beautiful: How design and style can unlock the housing crisis by Jack Airey, Sir Roger Scruton and Sir Robin Wales, and with a foreword by James Brokenshire, in July 2018. It published a collection of essays on the design, style and economics of the built environment Building Beautiful in January 2019.

Stating the position neutrally, it is right to record that the initiative, and Scruton, have their detractors, such as Robert Bevan in the London Evening Standard – I wouldn’t build my dream home in joyless, moralistic Scrutopia (25 January 2019):

“The beauty commission has emerged from a report called Building More, Building Beautiful, by Policy Exchange, a Right-of-centre think tank. One of its three authors was Scruton himself. From its cover onwards — a drawing of Georgian houses that gets the historical details all wrong — it has been many decades since a more ludicrous or ignorant report on architecture was published.”

What on earth is going to come from this process?

The visual appearance of new homes is a curious thing. Largely a private sector product with paying consumers, why are we the public often not satisfied with what the market produces, even when the direct customers appear to be?

I won’t reveal the house builder, but there was a piece this week on the BBC website about a couple who had bought their “dream home” but were dissatisfied with a number of defects in its construction. I looked at the photo below with its wrong proportions, verge/garden, largely blank side flank and clay coloured rendering, and initially wondered how a such an ugly, presumably not cheap, house could be anyone’s dream. But beauty is in the eye of the beholder – it’s a new detached home with garden, and home ownership has been promoted by successive governments as to what we should aspire.

(Photo: BBC)

The aesthetic appearance of a new car is probably the only element of its design or function that is not subject to prescriptive regulation and requirements for testing. But it is plainly critical for car makers to invest in the visual appearance of the product, so as to attract the consumer for whom the car will be an extension of the personality that he or or she wishes to express, emphasising qualities such as speed or ruggedness, elegance or urban quirkiness.

So why is the new housing market apparently so different? Is there a lack of choice such that we’re still at Model T Ford “any style as long as it looks like a child’s drawing of a detached house and garden“? Or is it the case, more likely, that the products that we see are those that have been proven to sell? In which case, aren’t there dangers in trying to funnel house builders towards a different approach?

If different products would make it more likely for permission to be obtained and for homes to be built and sold, why hasn’t this been achieved by operation of the market? What is the overlap with the Letwin “delivery” initiative (see my 3 November 2018 blog post Oliver’s Twist: Letwin’s Proposals For Large Housing Sites)?

It is all very well for the Commission’s first aim to refer to local styles of building but where is the architectural integrity in adopting a particular local building style as pastiche simply to gain community buy-in? Surely beauty simply comes from producing well-proportioned good quality buildings with a form that reflects their function (can we ban fake chimneys?) and with as much attention paid to space and landscape as built form? Do we really need the Scuton Commission or indeed any more prescriptive planning policies? Simply assess schemes against those principles, at outline and reserved matters stages, and make sure that there is no room for post-permission dumbing down. And ensure that there is a properly functioning, competitive house building market. Start with getting the market right, not the detailed design requirements (only local stone here, even though it has to be shipped in from abroad).

After all, whilst planners love to arrive at quasi-objective ways of assessing largely subjective matters (needs must, I suppose) and the tools for doing that are getting ever better (for instance, primarily in an urban context, vu.city and Cityscape Digital), save where particularly justified surely we should restrict the role of the state in telling us what we are going to find beautiful? Heritage decisions based on assessment of architectural quality are difficult. Decisions in relation to NPPF paragraph 79(e) (the green light for proposed isolated homes in the countryside where the design is of “exceptional quality” in that it is “truly outstanding or innovative, reflecting the highest standards in architecture..”) are difficult. It is quite something to appoint a planning committee or inspector as cultural arbiter on our behalf and to expect their decisions not to be underpinned, consciously or unconsciously, by political or social priorities and assumptions.

I still like that shark. Jury out on Tulip.

Simon Ricketts, 6 April 2019

Personal views, et cetera