Dear Mr Raab, This Case Illustrates Much Of What Is Wrong With Planning

Spare a thought for Dominic Raab, who was appointed minister for housing on 9 January 2018. (Is he also minister for planning as his predecessors were? Who knows?). Linklaters-trained lawyer, he may have thought that the EU was byzantine in its tiers of policy making but that is surely as nothing compared to the English planning system. 
I do hope that Mr Raab sits down to read Dove J’s judgment in Richborough Estates Limited (and 24 other co-claimants) v Secretary of State (12 January 2018). This is of course the challenge by various land promoters and house-builders to the written ministerial statement made on 12 December 2016 (without prior consultation) by Mr Raab’s predecessor but one, Gavin Barwell. I blogged about the WMS at the time (That Written Ministerial Statement, 29 December 2016). 
For me the case illustrates the unnecessary policy complexities arising from unclear statements, ad hoc glosses to previous policies and the unclear inter-relationship between the NPPF, PPG and written ministerial statements. It also evidences the obvious tension between on the one hand the Government’s desire to increase housing land supply by ensuring that failure by authorities to provide adequately has real consequences and on the other hand the Government’s desperation to retain public confidence in neighbourhood planning. If that wasn’t enough, you have within it the attempt by policy makers to take into account the implications of the Supreme Court’s ruling in Suffolk Coastal – that one should also definitely be on Mr Raab’s reading list. 
You will recall that, despite the policy in paragraph 49 of the NPPF that relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (triggering the presumption in favour of sustainable development in paragraph 14), the WMS provided that relevant policies for the supply of housing in a neighbourhood plan should not be deemed to be ‘out-of-date’ where the WMS is less than two years old or the neighbourhood plan has been part of the development plan for two years or less; the neighbourhood plan allocates sites for housing; and the local planning authority can demonstrate a three-year supply of deliverable housing sites.
Effectively the five year housing land supply target was being significantly watered down, to a three year target, where an up to date neighbourhood plan, allocating sites for housing (however few) was in place. The policies in that plan would still have full effect. Following the Supreme Court’s ruling in Suffolk Coastal, which clarified the operation of paragraphs 14 and 49, the Government changed its PPG but policies in neighbourhood plans which met the criteria in the WMS were still to be given ‘significant weight’ notwithstanding there not being a five years’ housing supply. 

Richborough and the other claimants sought to quash the WMS on various grounds. They argued:

– the WMS was inconsistent with paragraphs 14 and 49 of the NPPF and in having the effect of amending paragraph 49 without explicitly doing so represented an approach which was irrational and unlawful;

– the Government had made errors of fact in the research that was relied upon in formulating the policy;

– the WMS was invalid for uncertainty and confused given a lack of clarity as to how the three years’ supply was to be calculated;

– irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“;

– breach of legitimate expectation that there would be public consultation before planning policy for housing was changed by the WMS. 

Dove J found for the Government on all grounds. He found that the Government has a very wide discretion in the way that it brings forward planning policy:
“Provided […] that the policy produced does not frustrate the operation of planning legislation, or introduce matters which are not properly planning considerations at all, and is not irrational, the matters which the defendant regards as material or immaterial to the determination of the policy being issued is [sic] a matter entirely for the defendant“. 
The policy was capable of “sensible interpretation“: three years’ housing land supply was to be calculated using the same methodology as for calculating five years’ supply. 
The judge did not interpret the WMS, with the subsequent addition of the guidance in the PPG, as amending paragraph 49 or 14 of the NPPF, albeit that it did “change national policy in relation to housing applications in areas with a recently made [neighbourhood plan]“. I am still struggling with this one – undoubtedly the WMS has changed the application of the NPPF in areas with a neighbourhood plan that meets the NPPF criteria. Even if this is not unlawful, surely this approach to policy making is to be discouraged – the NPPF does not now mean what it says. 
The judge found that there was an adequate evidential basis for the WMS and errors of fact had not been made. The bar was low given that the WMS had only stated that ‘recent analysis suggests…“. 
As regards the suggestion of irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“, the judge noted that this “is not an objective which exists on its own and isolated from the other interests addressed by the Framework…Amongst the other concerns for which the Framework has specific policies is, of course, Neighbourhood Planning...”
The judge set out the circumstances in which a legitimate expectation to consultation arises and found that such an expectation did not arise because a limited number of other policy announcements in relation to housing and planning matters had not been preceded by consultation. I understand that the claimants are likely to seek permission to appeal on this last ground. 
So, there is disappointment for those of us who saw Gavin Barwell’s WMS as an inappropriate attempt to rewrite (without the consultation which would have been so helpful in arriving at a workable policy) a key protection that is within the NPPF against authorities that fail properly to plan for housing. The disappointment is reduced since the Suffolk Coastal ruling and the change to the PPG which followed (no doubt largely because the Government was faced with this litigation) where the Government sought to clarify that the WMS did not change the operation of paragraph 49, although “significant weight” should be given to the neighbourhood plan. 
But, stepping back, the planning system has become as tangled again as it was at the time of the great bonfire of the previous planning policy statements and circulars in 2012 – we are having to pick uncertainly through unclear passages in the NPPF, the PPG and the WMS, reliant on regular revelations from the courts as to what the documents actually mean; decision-makers are having to ascertain the relative weight to be applied to various, often inconsistent, policies at national, local and neighbourhood level, and in the meantime the Government apparently has carte blanche to change its policies without prior consultation (policies were meant to be just in the NPPF, guidance in the PPG if you remember…).
There is a heavy burden on the shoulders of those drafting the new NPPF, that’s for sure! And a massive and important job to do for our new housing minister.
Simon Ricketts, 12 January 2018
Personal views, et cetera

Brownfield Land Registers: A Bit Of Progress

I last blogged about the new brownfield land regime back in April 2017. Back then, the deadline of 31 December 2017 had been set for local planning authorities to publish their first registers. We were also waiting for the final set of regulations that would set out the procedure by which, if your land is listed in part 1 of the register, you can apply for “permission in principle” (if your land is in part 2 of the register it is automatic). 
This blog post takes a quick look at some of the registers that have been published to see the approaches that authorities are taking – after all, whilst authorities had the 31 December deadline for publishing their registers, there was no minimum number of sites to be included, whether on part 1 or part 2 and no procedure for appeal or independent scrutiny if a land owner considers that their land has been wrongly overlooked. 
In the longer term, I hope that something will be done about authorities that only pay lip service to the process, although it is difficult to see what, without a more prescriptive system, or other sticks and carrots being applied. DCLG’s planning update newsletter published on 21 December 2017 stated:
“DCLG will assess progress in January, and it will be important that published registers contain up-to- date information on brownfield land suitable for housing. 

In July we published planning guidance, a data standard, and a template , to support local planning authorities in preparing and publishing their registers, and to ensure registers are published in a consistent and open format which can be aggregated by users of the data.”
From a quick google, it seems to me that authorities have met the deadline. However:
– the sites included do not appear to go beyond sites which were already in play by virtue of either having permission, an allocation or having featured in the authority’s strategic housing land availability assessment
– sites have not yet been included in part 2

– whilst the government’s data standard and template have been followed, the supporting information is pretty sparse. 

These are three authorities that I chose to look at, by way of a random selection:
Elmbridge Borough Council’s register only contains sites that already have planning permission. 
Milton Keynes Council has decided not to include any sites on part 2 of its register. Its part 1 sites all come from its SHLAA as well as unimplemented planning permissions. 
The notes to Islington Council’s register set out uncertainties as to the required methodology:
“The Regulations and PPG are not clear about whether the 5 dwelling threshold for inclusion on the BLR refers to net or gross dwellings. Regulation 4 of the Regulations merely requires sites to be included if they have an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings. This suggests the threshold is a gross figure. 

However, Schedule 2 of the Regulations requires sites on the BLR to set out the minimum net number of dwellings which, in the authority’s opinion, the land is capable of supporting. 

This is an important distinction as there are several sites – all extant permissions – which are less than 0.25 hectares, and permit 5 or more dwellings gross but less than 5 dwellings net. Hence the decision to enter these sites onto the BLR hinges on whether we assume the 5 dwelling threshold is net or gross. 

Islington have assumed that the Regulations refer to the gross figure in terms of assessing capability under Regulation 4, although a site’s net figure is used for the ‘MinNetDwellings’ column. The council will monitor changes to guidance and other boroughs BLRs for best practice, and may revert to a net figure in future in terms of assessing sites against the Regulations.”

Islington identifies all of the sites on its register as in unknown ownership:
“The BLR identifies all sites as unknown ownership, which reflects the lack of access to up-to-date Land Registry records for these sites. Islington will aim to secure ownership data for sites on future iterations of the BLR.”
These approaches are not untypical and it is underwhelming. DCLG will need to turn the thumbscrews in time for the first annual update of the registers if this process is going to do anything other than round up the usual suspect sites. 
The formatting does at least allow for some useful data gathering, such as this map of London brownfield sites.

Barton Willmore have carried out some interesting analysis as to the numbers of homes identified by the Manchester authorities in their register. 

Of course one of the benefits of finding your land within part 1 of the register is the idea that you will be able to apply for “permission in principle” as a supposedly quick route to planning approval. However this is only relevant if the site is very small, given that the cap is nine dwellings – and given that the minimum size for inclusion on the register is five dwellings this is all pretty niche. Be that as it may, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 was laid before Parliament on 21 December 2017 and will come into force on 1 June 2018. The order sets out the procedure for applying for PiPs. Lichfields’ 2 January 2018 blog post Take a chance on me: what we know about permission in principle on application is a good summary, also covering the fee rates for applications. 

On reading my April 2017 blog post again, I was surprisingly optimistic about the brownfield land registers. Nine months on, I suppose at least we now have the initial registers in place but surely now we need to see:
– greater engagement between land owners and LPAs so as to begin to use the process to unlock sites which are not already in play.

– consultation in relation to moving appropriate sites onto part 2 so that they secure automatic permission in principle (and without the nine units cap there is in relation to part 1, although they must be below the threshold for EIA).

– a real incentive for development of sites on the register, including supportive policies in the forthcoming revised NPPF. 

Simon Ricketts, 5 January 2018
Personal views, et cetera

Planning Law In 2018: This Is Not A Love Song

This is not a proper simonicity blog post but a quick review of the year that was 2017, followed by a comment-free look at 2018, which promises, conversely, to be the year of the review.
2017: review of the year

To use the popularity or otherwise of simonicity blog posts during the year as a proxy, these were some of the main issues that engaged us:
NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying? (1,588 views) (10 May 2017)
20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG (731 views) (20 August 2017)
Viability Assessment Is Not A Loophole, It’s A Noose (707 views) (4 November 2017)
Housing Needs: Assessed Or Assumed? (694 views) (20 September 2017)
Five Problems With Neighbourhood Plans (565 views) (19 February 2017)
Green Belt Policy: Will It Change?  (520 views) (11 November 2017)
Money For Nothing? CPO Compensation Reform, Land Value Capture (509 views) (20 May 2017)
Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?) (492 views) (8 July 2017)
Slow Train Coming: Strategic Rail Freight Interchanges In The South East (442 views) (6 May 2017)
The New EIA Regulations (357 views) (29 April 2017)
2018: year of the review?
The policy agenda for the coming year includes:
* the Government’s green paper on social housing, announced by Sajid Javid in September 2017, which he described as a “wide-ranging, top-to-bottom review of the issues facing the sector, […] the most substantial report of its kind for a generation“. 
 • recommendations from a review panel, chaired by Sir Oliver Letwin “to explain the significant gap between housing completions and the amount of land allocated or permissioned, and make recommendations for closing it”. An interim report is expected for the Government’s Spring statement in 2018 and full report by the time of the Autumn budget in 2018. 

 • the Labour party’s review of the planning system, “People and Planning”, announced by Roberta Blackman-Woods at its 2017 party conference.

 • Nick Raynsford’s review for the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.” A report is to be formally presented at all major party conferences in autumn 2018.

 • a revised version of the National Planning Policy Framework for consultation in the Spring of 2018 with a final version in the Summer.

 • a consultation process in Spring 2018 on detailed proposals to reform the Community Infrastructure Levy.

* further implementation of existing legislation as well as an amendment to the General Permitted Development Order to give deemed permission (subject to criteria and limitations yet to be spelt out) to the demolition of existing commercial buildings and their replacement with residential development.
Away from England:
* The Law Commission is consulting until 1 March 2018 on proposals to simplify and consolidate planning law in Wales at the request of the Welsh Government, which is drafting a planning code to consolidate existing planning legislation. 
* The Planning (Scotland) Bill was introduced into the Scottish Parliament on 4 December 2017, following an independent review of the system. As well as progress in 2018 on the Bill, which proposes wide-ranging changes to the planning process in Scotland, we can also expect an amended version of Scotland’s National Planning Framework.

All of this is going to take some unpacking.
Happy new year and thanks for continuing to read, comment, share and follow. Let’s continue to join the dots and call out the spin within this increasingly diffuse policy area. Not a love song – more of a wail…
Simon Ricketts, 30 December 2017
Personal views, et cetera

Town Centres First? Two Recent Decisions

I blogged in Sequential Test: Still Testing (23 September 2016) on the uncertainties of the “town centres first” sequential test in the NPPF and in particular how much flexibility needs to be shown by a prospective developer in looking for more central sites before being granted permission in an edge or out of town centre location. At the time I wrote, the most recent judgment was that of Ouseley J in the Aldergate case. I included in my blog post extensive quotes from the judgment where he set out his views on the flexibility required in determining whether a site would be suitable. 
The issue is seldom easy. If too little flexibility is required, it is too easy for the promoter of an out of centre scheme to demonstrate that the scheme can’t fit anywhere more central. On the other hand, if too much flexibility is required, economic activity, often generated by specific trading models or retailer requirements, that would not be likely to take place in a more central location can end up being unnecessarily stifled. And what does flexibility mean? How similar would the scheme on the town centre site need to be? What if the scheme could be split (“disaggregated”) onto more than one site? How immediately available does the town centre site need to be?

The issue has come to the fore again in two recent planning appeals. 

Kingswood, Hull
By his decision letter dated 20 December 2017 inspector Robert Mellor dismissed an appeal in relation to a proposed retail development on an edge of centre site in Kingswood, Hull. He found that the proposal failed both the sequential and impact tests in the development plan (which had been adopted during the course of the inquiry) and in the NPPF, supplemented by the PPG. He also found that the proposed development would be inconsistent with the site’s allocation for employment and community uses in a 2016 area action plan. The decision letter is interesting for the analysis that the inspector gives to each of these issues but in this blog post I want to continue to focus on the question of how the sequential test is to be applied. 
The inspector was faced with an outline proposal for the erection of class A1 and class A3/A5 units totalling 11,148 sq m together with associated works on a greenfield site. The site would allow for large retail units and there was to be provision for “ample surface car parking which is likely to be free to use and which would take up a large proportion of the site“. There were two candidate alternative sites to be considered in Hull city centre, namely the Albion Square and Myton Street sites.  
First the inspector considered what flexibility was required: “there is dispute as to how alike the sites and schemes need to be for the in-centre site or sites to be considered suitable. In particular there is dispute as to the interpretation of the Framework phrase: ‘demonstrate flexibility on issues such as format and scale’, as that wording does not itself explain what degree of flexibility is appropriate.”
The appellants argued for “the use of wording which would require the development to be implemented only on one site and which would require the development, in that and other regards, to be ‘closely similar’ to the appeal proposal. In effect this could mean seeking to insert a retail park style of development with on- site parking and a main road frontage into only one city centre site.”
The inspector did not consider “that the term ‘closely similar’ provides a useful and readily applicable definition of the limits of flexibility that is capable of wider application. In particular it is difficult to distinguish its meaning from the term ‘not precisely similar’ which is the approach that the PPG expressly seeks to exclude. Moreover the strict application of such a term as ‘closely similar’ would risk making the sequential approach unworkable for the same reasons as set out in the Tesco v Dundee case.”

He noted that the scheme was speculative without identified occupiers. “Thus the question of an individual retailer or corporate personality does not arise.” He noted that “whilst the appeal scheme is for a single terraced building, the Appellants’ witnesses did not object to the subdivision of the development into separate buildings and there is no obvious reason why those would not be suitable for the intended occupiers“. He noted that the appellants maintained that a 10% overall reduction in floorspace would provide adequate flexibility but did not justify that figure and he assumed that it could be achieved in various ways, whether by for instance removing at least one unit or generally reducing their size. He noted that flexibility by way of form or format could include “whether the proposal can be provided in one or more buildings: whether space is on one or more levels; how individual units are laid out; and how and where parking and servicing provision is made.”
The inspector then turned to the two potentially sequentially preferable sites.

He concluded that the Albion Square site “would have the capacity to accommodate all, or most, of the retail floorspace and food and beverage units sought in the appeal proposal together with on-site parking. However this would be likely to require some revisions to the layout in order to create all the large retail units on 2 levels which the appeal scheme proposes and to optimise the scheme’s attractiveness to potential occupiers. That in turn could affect how and where the residential and ice arena elements of the Council’s most recent proposals are accommodated and how much car parking could be provided. However a city centre site would be attractive to retail occupiers seeking a range of unit sizes. Some flexibility should be expected in unit scale and format. A 929sqm minimum size for all units would not be necessary on a city centre site. The Appellants had previously been satisfied with a smaller minimum unit size at Kingswood.”

He concluded that the Myton Street site was “not of sufficient size to provide all of the floorspace in the appeal scheme together with full on-site surface parking. It could provide much of the floorspace if reliance were to be placed on use of the adjacent multi-storey car park. However it would then be less attractive to retailers than the Albion Square site due to its weaker pedestrian links to the rest of the Primary Shopping Area.”
The inspector then went on to consider whether the floorspace in the appeal scheme should be disaggregated for the purposes of determining whether it could be accommodated more centrally. He concluded yes:
“In this case there is no particular evidence that it would be commercially or functionally necessary to accommodate a variety of individual and as yet unidentified comparison goods retailers either in only one building or on only one site in the City Centre. I therefore conclude that in addition to the option to accommodate all of the appeal proposal on the Albion Square site, they could all be readily accommodated in the city centre, and at the same unit size, if the development were to be sub-divided with approximately half of the floorspace at The Albion Square site and half at the Myton Street site. In that event there would also be the possibility of more generous surface parking provision at Myton Street if that was considered necessary to make that scheme more attractive to some types of retailer.”
Then the inspector considered whether the alternative sites could be said to be available:
“I consider it would be unreasonable to exclude sites as non-available where there is a reasonable prospect that they will be both vacant and in single ownership within a matter of months.”
He accordingly concluded that the scheme had failed the sequential test. 

Tollgate, Colchester
The appellant’s submissions in Hull that development on a town centre on town centre site would have to be “closely similar” in order to be sequentially preferable were based on the conclusions of an inspector in relation to a partly edge of centre retail scheme at Tollgate, Colchester, accepted in a decision letter from the Secretary of State dated 4 August 2017. The inspector put it like this: 
“The sequential test therefore means that whilst a sequentially preferable site need not be capable of accommodating exactly the same as what is proposed, it must be capable of accommodating development which is closely similar to what is proposed“. 
(This conclusion was perhaps strange given that it followed an earlier passage:
“In this case there is no evidence that the proposed format is necessary or fundamental to the proposal. Whilst the proposal is in outline, not a single retailer has been identified, and the size and location of units within the site has not been established and there is no defined timescale or phasing. It is difficult to conceive of a more open ended proposal. The parameters established by plans show a greater level of gross floor space than permission has been sought for. Most importantly the Appellants have themselves disaggregated within the appeal site with three distinct zones. DZ1 and DZ3 are some distance apart. In these circumstances disaggregation within the sequential test would be justified.”)
The inspector found that the town centre sites put forward by the council and objectors were not suitable or available. The appeal was allowed. 

But surely, as the inspector identified in Hull, a test of “closely similar” would risk making the sequential test unworkable? The main objectors to the Tollgate appeal challenged the Secretary of State’s decision to allow the appeal. Permission was first refused on the papers by Lang J, who commented that “closely similar” was a fair summary of Ouseley J’s guidance in the Aldergate case. The objectors then renewed their challenge at a hearing on 19 December 2017 before none other than Ouseley J. Whilst Ouseley J also refused permission, his reasoning should be noted by anyone dealing with the sequential approach. His judgment was ex tempore and there is not yet an official transcript but, according to colleagues’ notes, his comments during the course of the hearing included the following:
* “If I had meant ‘closely similar’ I would have said ‘closely similar’.”
* If the developer has committed to no specific details in its scheme, then the sequential test should not require the sequential sites to meet a test which the application scheme itself could not pass.

* With reference to his statement in Aldergate, Ouseley said: judges may use particular language, but this language is not a substitute for the policy itself. Instead, the language is applying the policy in a particular context. There is a danger that people think that judges are providing a substitute for policy.

* The words of NPPF 24 are simple and meant for application in a wide range of circumstances.

* “In Aldergate, I had in mind something broader than ‘closely similar’.”

Conclusions

I draw a few conclusions from this tangle:
– There are real conceptual difficulties in being too specific about the necessary elements of a scheme which is speculative without, for instance, retailers on board with specific requirements.
– Without a requirement to show ‘need’, the only constraint on the scale of an out of centre or edge of centre scheme is the risk of being refused permission on the basis that there would be an unacceptable impact to nearby centres – aside from that, the bigger the scheme, the less likely there are to be sequentially preferable sites if there is not allowed to be a significant degree of flexibility.

– There are dangers in rigidly applying case law or previous appeal decisions across the board. Each case turns on its circumstances. Equally there are dangers in relying on paraphrasing by courts or inspectors of what policies say – go back to the wording of the policy itself. 

– In particular, take care over relying on the Colchester decision. 

– The guidance could be clearer (indeed it used to be!)

Simon Ricketts, 22 December 2017

Personal views, et cetera

(Town acted for separate groups of town centre investors in relation to the Hull and Colchester appeals. Thank you to Town colleague Ricky Gama in particular for his work on those cases and for his notes quoted above). 

How Much Weight Does The Draft London Plan Have In Decision-Making?

There’s a facetious answer, a political answer, a legal answer and a practical answer. 
The facetious answer? 

2 kg. (It’s a whopper). 



The political answer?
I’ve heard Deputy Mayor Jules Pipe confirm at a London First event that the Mayor will immediately take it into account. The Mayor’s website says:
“The current 2016 consolidation Plan is still the adopted Development Plan. However the Draft London Plan is a material consideration in planning decisions.  It gains more weight as it moves through the process to adoption, however the weight given to it is a matter for the decision maker.”
The legal answer?
It’s not totally totally up to the decision maker. That statement suggests that the Mayor or the boroughs could give controversial new policies in the plan (for instance increased restrictions in relation to student housing schemes) significant weight even at this stage, before the outcome of the consultation process which runs to 2 March 2018 or before the inspector has reported following the examination in public anticipated for Autumn 2018. That is not quite right. 
In my view, paragraph 216 of the NPPF undoubtedly applies to the London Plan as a statutory development plan:

 “From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:

•the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);

•the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and

•the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).”

The application of paragraph 216 was closely examined by the High Court in Woodcock Holdings Limited v Secretary of State (Holgate J, 1 May 2015). A decision by the Secretary of State to dismiss (against his inspector’s recommendations) an appeal for 120 homes and related development in West Sussex was quashed. One of the grounds relied upon by the court was that the Secretary of State, in deciding to place significant weight on an emerging neighbourhood plan which had not undergone examination had not considered the second and third criteria within paragraph 216:
“In my judgment, the policy in paragraph 216 of the NPPF should be read as a whole. It is not a policy which simply makes the trite point that decision-makers may give weight to relevant policies in emerging plans. Rather it is a policy that they may do so “according to” the three criteria or factors which follow. The policy clearly stipulates that the three criteria are relevant in each case. Of course, when dealing with a particular planning proposal it may be the case that the relevant policies in a draft plan have not attracted any objections and so it would not be necessary to consider the second criterion beyond that initial stage. But plainly the second criterion is material in each case in order to ascertain whether a relevant draft policy has attracted any objections and if so, their nature, before going on to make an assessment of the significance of any such objections.”
(As an aside, following the quashing the Secretary of State redetermined the appeal, dismissing it again. That second decision was again challenged and the Secretary of State consented to judgment. Lo and behold, third time round the Secretary of State has now finally allowed the appeal in a decision letter dated 7 December 2017. Never give up!)
Applying Woodcock, I do not see how a decision maker can apply significant weight to the draft London Plan’s policies before knowing what objections have been made to them. It is presently a wish list (although of course, unlike with for instance local plans, the Mayor can reject the recommendations of the inspector who examines the plan, meaning that if he is sufficiently determined, those wishes are likely to be granted). 
The practical answer?

Aside from being able to reject the plan examiner’s recommendations, the Mayor holds another trump card: time. Given the current delays on the part of the Planning Inspectorate, if he directs refusal of a scheme that is referable to him, on the basis of inconsistency with the draft plan, by the time any appeal is heard the plan is likely to have at least reached the examination stage. 
The Planning Inspectorate’s most recently published stats make depressing reading:

You can add to that the further delays that often happen with appeals recovered for the Secretary of State’s own determination. 
When it comes to challenging decision makers’ reliance on emerging draft policies, justice delayed is justice denied. 
Notwithstanding the likely timing difficulty facing anyone seeking to challenge formally the Mayor’s approach, we should surely not accept assertions that the emerging London Plan should be accorded significant weight in decision making, particularly when inconsistent with the current statutory development plan (namely the current London Plan, any adopted borough plan and any made neighbourhood plan). Otherwise, will people feel that it is worthwhile investing time and resources in the examination process? What will be the point of the examination?
Simon Ricketts, 15 December 2017
Personal views, et cetera
 

The Age Of Reasons

Two recent cases have considered the extent to which decision-makers in relation to planning matters are under a duty to give reasons for their decisions. This has never been an easy question and the answer has practical consequences because:
 – for decision-makers, articulating reasons is time consuming and sometimes not to easy to get right

– for those benefiting from a decision, there is the risk that the decision is opened up for legal challenge if those reasons appear to be flawed

– for those objecting to a decision, without reasons being given to explain how it was reached, legal challenge, or even proper scrutiny, is made much more difficult. 

There is also often a dilemma on the part of decision-makers because if reasons are volunteered, even if not required, they need to be rational and can render a decision susceptible to challenge, which would not have been if no reasons were given. 
Dover
Lord Carnwath’s Supreme Court’s judgment in Dover District Council v CPRE Kent (6 December 2017) dismissed an appeal from the Court of Appeal ruling that I blogged on last September in Avoiding Dover-type reasons JRs where a planning permission for a major development proposal had been quashed that had been resolved by councillors to be approved against the recommendation of their officers, who wished substantially to reduce its scale due to perceived effects on an Area of Outstanding Natural Beauty and an ancient monument. In granting permission to appeal, the Supreme Court had indicated that it “would wish to consider generally the sources, nature and extent of a local planning authority’s duty to give reasons for the grant of planning permission“.

In a nutshell, the main implication of the case is that even where there is no statutory requirement to give reasons for granting planning permission, it is now prudent to assume that reasons should always be given by a local planning authority, and particular care is needed where the decision is not fully in accordance with the reasoned recommendations made to the authority by its planning officers. 
The judgment itself starts:
“1. When a local planning authority against the advice of its own professional advisers grants permission for a controversial development, what legal duty, if any, does it have to state the reasons for its decision, and in how much detail? Is such a duty to be found in statutory sources, European or domestic, or in the common law? And what are the legal consequences of a breach of the duty? “
The judgment does not confine itself to that question but ranges widely over various decision-making procedures:
“23. The statutory rules relating to the giving of reasons are all to be found in subordinate legislation. It is hard to detect a coherent approach in their development. 

The main categories are: 

i) Secretary of State decisions (including those delegated to inspectors) – 

a)  following an inquiry or hearing; 


b)  on written representations. 


ii)  Decisions by local planning authorities – 

a)  Refusing planning permission or imposing conditions; 


b)  Granting permission; 


c)  Officer decisions under delegated powers. 

iii)  Decisions (at any level) on applications for EIA development.”

Working through these one by one:

In relation to appeals determined by inquiry or hearing, there is a specific statutory duty upon the Secretary of State and his inspectors to give reasons for their decisions. 
There is no corresponding rule in relation to written representations appeals, although it is the practice for a fully reasoned decision to be given, giving rise in practice to an enforceable duty. 
When a local planning authority refuses planning permission there is a statutory requirement that the authority must in their decision notice state “clearly and precisely their full reasons”. 
Aside from a blip between 2003 and 2013 (when there was legislation requiring authorities to include on their decision notice “a summary of their reasons for the grant of permission” and “a summary of the policies and proposals in the development plan which are relevant to the decision“), there is no statutory requirement for local planning authorities to give their reasons for granting planning permission, save that:
– since 2014, in the case of officers’ delegated decisions there has been a duty by virtue of the Openness of Government Bodies Regulations 2014

– in relation to EIA development, decision-makers must not grant planning permission “unless they have first taken the environmental information into consideration” and “they shall state in their decision that they have done so“. 

As for the necessary standard of reasons, Lord Carnwath sets out the famous passage of Lord Brown in South Buckinghamshire District Council v Porter (2004):
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” 
Lord Carnwath explains that even where there is no statutory duty to give reasons, in the interests of transparency (and with reference to, for instance, the requirements of the Aarhus Convention) a common law duty arises upon local planning authorities to give reasons (to that exacting standard) where the circumstances justify it. What circumstances? That is where the judgment is more problematic. The court approves the approach taken by the Court of Appeal earlier this year in Oakley v South Cambridgeshire District Council (15 February 2017) where it held that a duty did arise in the particular circumstances of that case: where the development would have a “significant and lasting impact on the local community”, and involved a substantial departure from Green Belt and development plan policies, and where the committee had disagreed with its officers’ recommendations. 
I don’t find the following passage in Lord Carnwath’s judgment helpful in drawing any practical dividing line between situations where reasons will or will not need to be given for departing from officers’ recommendations, which leads me to the conclusion that the only safe assumption is that they will now always need to be given (to the South Bucks v Porter standard):
“As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF – para 22 above). Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out (para 45 above), they are likely to have lasting relevance for the application of policy in future cases.”
The judgment certainly reinforces the care that needs to be taken by an authority where a decision is taken to grant planning permission against officers’ recommendations, if judicial review is to be avoided. It also risks delaying the taking of such decisions, referring to the “important legal principle that a decision-maker must not only ask himself the right question, but “take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B). That obligation, which applies to a planning committee as much as to the Secretary of State, includes the need to allow the time reasonably necessary, not only to obtain the relevant information, but also to understand and take it properly into account.”

If members are now going to depart from officers in resolving to grant permission, or in their reasons for doing so, in most cases it may now be prudent for the application to return to a subsequent committee meeting for reasons to be properly formulated. 
Save
The Dover judgment confines itself to decisions as to whether to approve or refuse planning applications but of course there are many other important decisions within the development management process. Lang J’s judgment in Save Britain’s Heritage v Secretary of State (29 November 2017) concerned a challenge by Save Britain’s Heritage to the decision by the Secretary of State not to call in for his own determination the Paddington Cube application, which had been resolved to be approved by Westminster City Council.
She sets out the statutory position as follows:
“19. There is no statutory duty to give reasons for not calling in an application. However, the Town and Country Planning (Development Management Procedure)(England) Order 2015 envisages that reasons may be given when the minister decides to call in an application. By article 17, if an application is called in, the local planning authority is required to serve on the applicant a notice “setting out the terms of the direction and any reasons given by the Secretary of State for issuing it“.

Save relied on two grounds for their challenge:

“Ground 1. The Claimant submitted that the Defendant’s decision was unlawful because he failed to give reasons for not calling in the applications, in breach of the Claimant’s legitimate expectation that reasons would be given. The legitimate expectation arose from a change in practice, announced in a Green Paper and in Parliament in December 2001. Thereafter, ministers began to give reasons for not calling in planning applications, when previously they had not done so.”

“Ground 2. Alternatively, the Claimant submitted that the court should find that there was a general common law duty to give reasons under section 77(1) TCPA 1990”
Lang J reaches the conclusion that where there is no statutory duty, government practice can change: there was previously a government policy to give reasons but “…in February 2014, in the course of preparation for the High Court case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin), a departmental decision was made to cease the practice of giving reasons.” Accordingly she could not “accept Mr Harwood QC’s submission that the practice of giving reasons remains in force because it has not been formally and publicly revoked by a ministerial statement or published policy document. It is a fundamental principle of public law that public bodies cannot lawfully fetter the future exercise of their discretion under statutory powers, by adopting policies which cannot be changed.”
The 2014 case was of course the challenge to the decision not to call in the Elizabeth House redevelopment application that had been resolved to be approved by the London Borough of Lambeth. In setting out his reasons for not intervening (even though there was no statutory requirement to give reasons), the then Secretary of State made a number of errors and the challenge only narrowly failed on the strange basis that the reasoning was so bad that it should not be taken as a formal attempt to give reasons, for which there was no statutory requirement:
“Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.” (Collins J)
It is interesting to consider Collins J’s comment in that final sentence, and Lang J’s reasoning, in the light now of Lord Carnwath’s judgment. Lang J distinguished decisions in relations to planning applications from decisions not to call in applications in the following way:
“I accept the submissions of the Defendant and the Second Interested Party that Oakley is distinguishable since a call-in decision is a very different type of decision to a decision by a local planning authority to grant planning permission. A call-in decision is in essence a procedural decision by the Secretary of State on whether to intervene in the planning process; it does not result in the grant of any substantive rights.”
Wouldn’t it be clearer if we had a comprehensive statutory framework that dealt with these basic questions?

Simon Ricketts, 9 December 2017
Personal views, et cetera

What’s For The Plan, What’s Supplementary?

A blog post in two halves:

– the increasing risk that SPDs (supplementary planning documents) and other policy documents will be struck down by the court if their policies should in fact be in a local plan or other DPD (development plan document)

– in the wake of the draft London Plan, a reminder that it should only contain “strategic” policies, as well as another look at the affordable housing and viability SPG (supplementary planning guidance), now subject to a judicial review. 

Bottom drawer plans

It is tempting for local planning authorities to fill policy gaps or update their policies by way of an SPD given that there is only a consultation requirement and no independent examination, or indeed by more informal plans. But care is needed. There are stringent rules as to what is appropriate for inclusion in an SPD or other policy document and what needs to be in a DPD. 

There have been two examples this year of policies having been quashed by the High Court on this basis. 
On 23 November 2017 in William Davis Limited & Others v Charnwood Borough Council Gilbart J quashed a policy in Charnwood’s Housing SPD which specified the required size mix for market and affordable homes. 
On 20 March 2017 in R (Skipton Properties Limited) v Craven District Council Jay J quashed Craven’s entire Negotiating Affordable Housing Contributions 2016 interim policy document. 

The issues turn on interpreting the Town and Country Planning (Local Planning) (England) Regulations 2012 about which Jay J says:
“Frankly, those responsible for these regulations should consider redrafting them”. 

Gilbart J agrees “with Jay J that the drafting of these Regulations is very poor and can lead to confusion, or to lengthy arguments on interpretation with not much regard being had to the realities of development control“. 

You’ve been warned. 
Regulations 5 and 6 read as follows:
 “5. (1) For the purposes of section 17(7)(za)(1) of the Act the documents which are to be prepared as local development documents are—



(a) any document prepared by a local planning authority individually or in cooperation with one or more other local planning authorities, which contains statements regarding one or more of the following -



(i) the development and use of land which the local planning authority wish to encourage during any specified period;



(ii) the allocation of sites for a particular type of development or use;



(iii) any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land mentioned in paragraph (i); and



(iv) development management and site allocation policies, which are intended to guide the determination of applications for planning permission;

(b) ………………………………………………………………



(2) For the purposes of section 17(7)(za) of the Act the documents which, if prepared, are to be prepared as local development documents are—



(a) any document which—



(i) relates only to part of the area of the local planning authority;



(ii) identifies that area as an area of significant change or special conservation; and



(iii) contains the local planning authority’s policies in relation to the area; and



(b) any other document which includes a site allocation policy.



6. Any document of the description referred to in regulation 5(1)(a)(i), (ii) or (iv) or 5(2)(a) or (b) is a local plan.”
So if a policy document meets any of the criteria in Regulation (1) (a) (i), (ii) or (iv) or 5 (2) it is in reality a local plan and will be at risk of being quashed if the procedures stipulated for a local plan have not been followed. This means that there are huge consequences for authorities whose policy documents fall within any of these criteria – rightly so, in my view (albeit with sympathy for authorities in relation to the difficulties inherent in working out whether a policy falls for instance within Regulation 5 (1) (a) (iii) – ok – or (i), (ii) or (iv) – not ok!).
In the words of Gilbart J:
“It has always been the case since the original TCPA 1947 that the policies of a proposed development plan should be the subject of consultation, and where objection is made, independent examination. PCPA 2004 and the related LP Regs 2012 made considerable changes to the mechanics of the system for bringing forward policies, whether those which have the status of development plan policies for the purposes of the legislative code, or have a less significant role.
Albeit that the procedures for the adoption of a development plan have altered over the years, it is still a fundamental feature of the system that policies which form part of the development plan must be subjected to proper scrutiny, including independent scrutiny.”
In William Davis, Gilbart J held that the relevant housing mix policy “sought to prescribe different percentages for all house sizes, and as between market and affordable housing. It related to “the development and use of land which the local planning authority wish to encourage during any specified period” and therefore fell within Reg 5(1)(a)(i). But it also contained “development management and site allocation policies, which are intended to guide the determination of applications for planning permission” and therefore also engaged Reg 5(1)(a)(iv). On that basis it could only be promoted by way of a local plan as defined.” It was therefore quashed. 
In Skipton, Jay J noted:
“Affordable housing policies are ordinarily located in local plans because they relate to the development and use of land“. 
He found that even if he was wrong about the affordable housing contributions interim policy document being in fact a DPD (and failing the procedural requirements of a DPD), nor was it an SPD – policies in an SPD must be supplementary to policies in a DPD. There were no affordable housing policies that has been saved in Craven’s local plan: “it cannot logically supplement a black hole“.
He concluded:
“In my judgment, the correct analysis is that the NAHC 2016 contains statements in the nature of policies which pertain to the development and use of land which the Defendant wishes to encourage, pending its adoption of a new local plan which will include an affordable housing policy. The development and use of land is either “residential development including affordable housing” or “affordable housing”. It is an interim policy in the nature of a DPD. It should have been consulted on; an SEA should have been carried out; it should have been submitted to the Secretary of State for independent examination.”
There is a final coda to Jay J’s judgment:
“…I am not oblivious to the practical difficulties facing local planning authorities assailed by constant changes in the legislative regime and national policy. However, a local planning authority is required to keep its local plans under review. The correct course is to press on with the timeous preparation of up-to-date local plans, and in the interregnum between draft and adoption, deploy these as material considerations for the purpose of the rights and duties conferred by the 2004 Act.”



I take from these two cases that we should be scrutinising carefully policies that authorities seek to rely on that have not been tested as DPD policies undergoing proper independent scrutiny. For example management policies, site allocation policies and policies encouraging the development and use of land should all be restricted to DPDs so that they can be properly examined as the legislation requires. 
London: another kettle of fish


The above analysis is relevant to London boroughs but the position of the London Mayor is different, given that his plan making powers are not set out in the 2012 Regulations but in the Greater London Authority Act 1999. As I set out in my 23 April 2017 blog post Make No Little Plans: The London Plan, policies in the London Plan can only deal with “matters which are of strategic importance to Greater London”.
The draft London Plan was of course published on 29 November 2017. As you read its 500 plus pages, ask yourself in relation to each policy whether it truly does meet that “strategic importance to Greater London” test or are we seeing a further boxing in of the policy making powers which should be left to the boroughs?
Partly to seek to bring about changes ahead of progress with this plan and partly to seek to set out his required approach to a level of detail that would be wholly inappropriate for a “strategic” document, the Mayor has set out his approach to affordable housing and viability in a detailed, non statutory, SPG (the Greater London Authority Act does not provide for statutory SPDs). I covered the document in my 20 August 2017 blog post 20 Changes In The Final Version Of The London Mayor’s Affordable Housing & Viability SPG.
A legal challenge to the validity of the SPG has been brought by four retirement living providers (McCarthy & Stone, Churchill Retirement Living, Pegasus Life and Renaissance Retirement), based on three grounds:
– that the SPG “unlawfully represents substantive new policy, without going through the independent examination process which should apply to policy changes of this kind“. 

– lack of strategic environmental assessment

– breach of the Equality Act 2010 and other legislative requirements “since it introduces an unjustified and disproportionate new regulatory hurdle which leads to differential treatment for the elderly and women seeking to have their housing needs met in London“. 

Whether through this litigation or through the examination process that lies ahead for the London Plan itself, some interesting analysis lies ahead as to (1) what are “matters of strategic importance to Greater London” and (2) the extent to which the Mayor can lawfully go faster, or into a greater level of detail, in supplementary planning guidance. 
The examination process for DPDs, and indeed for the London Plan, can sometimes appear superficial in relation to individual policy issues, but at least there is some independent scrutiny. On the other hand where planning applications are refused on the basis of policies that the decision-maker has itself both made and approved, the position can defy any common sense notion of gravity. The authority has simply pulled itself up by its own bootstraps. 
Simon Ricketts, 1 December 2017
Personal views, et cetera

CIL: Haven’t Found What I’m Looking For

So now we know. We will all be continuing to scratch our heads over CIL. 
My 25 March 2017 blog post CIL: Kill Or Cure? summarised the main October 2016 (but only published February 2017) recommendations of the CIL review team: “the replacement of the current system with a more standardised approach of Local Infrastructure Tariffs (LITs) and, in combined authority areas, Strategic Infrastructure Tariffs (SITs). LITs would supposedly be set at a low level calculated by reference to a proportion of the market value per square metre of an average three bedroom property in the local authority area…For developments of ten dwellings or more, there would be a return to the flexibility of section 106 for provision of site-specific infrastructure (netting off LIT liability) and of course abolition of the pooling restriction.”

The team’s brief had been:
“Assess the extent to which CIL does or can provide an effective mechanism for funding infrastructure, and to recommend changes that would improve its operation in support of the Government’s wider housing and growth objectives.” 
In February, the Government promised to respond to the team’s recommendations alongside the Autumn 2017 budget.  Here we are, two years on from when the CIL review team’s work was commissioned in November 2015. The Autumn budget policy paper published on 22 November 2017 does indeed respond to the team’s recommendations, in the following terms:


Going through the proposals:

Removal of section 106 pooling restrictions, recommended by the CIL review team, is to be welcomed. Of course that should not be a green light for authorities in relation to a development proposal to revert to blanket tariff type section 106 requirements which would fail the regulation 123 test and wider principles recently set out by the Supreme Court in the Aberdeen case (see my 28 October 2017 blog post). 
Speeding up the process of setting and revising CIL, also recommended by the CIL review team, needs greater care in my view. It made sense as part of the review team’s concept of lower rates, arrived at in a more mechanistic manner than is currently the case. But there is no hint of lower rates in the Government’s proposal. Accordingly, close scrutiny is required. It is difficult enough as it is to have a meaningful influence on the process. The indication that higher zonal CILs could quickly be introduced to seek to capture land value uplifts around stations for instance is interesting but such interventions will need to be introduced with care if they are not in fact to discourage land owners from making their property available. 
Allowing authorities to set rates that better reflect the uplift in land values between a proposed and existing use was not a proposal that was considered by the CIL review team. It adds a further degree of complexity to the process. Charging schedules will have more categories. Precise floorspace calculations will be required not just of the proposed development but of the building that is to be replaced. Unintended consequences will inevitably arise and influence development strategies.  
A change of the indexation basis to house price inflation from build costs was not recommended by the CIL review team and will marginally complicate the process of calculating indexation, given that different areas will be experiencing differing inflation rates. And why is house price inflation relevant to non-residential floorspace?
Allowing combined authorities and planning joint committees with statutory plan-making functions the option to levy a Strategic Infrastructure Tariff was recommended by the CIL review team but that was against the backdrop of CIL being replaced with a lower “local infrastructure tariff”. Any additional net cost to owners and developers will directly affect viability, ie reduce the amount of affordable housing that schemes could otherwise afford. If the ability to rely on viability arguments is to be reduced, as the Government separately proposes, this is definitely going to impede delivery. Furthermore, why does affordable housing always lose out to infrastructure, particularly when charging authorities are proving very slow in spending the CIL monies that they have so far collected?
The proposals make no mention of the CIL Review team’s proposal, widely supported, of allowing infrastructure to be delivered via section 106 agreements in connection with larger developments, recovering the flexibility and opportunities for efficiency that the CIL system has removed. 
What next?
There will be detailed consultation on these and other changes, ahead of or possibly alongside the draft revised NPPF (rumoured now to have slipped to April 2018) before regulations are made which would probably now not come into force until early 2019. Earlier regulations are expected to deal with the specific ambiguity within regulation 128A affecting section 73 applications (highlighted in the VOA ruling mentioned in my CIL: Kill Or Cure blog post and since challenged by way of judicial review by the charging authority, Wandsworth) – but the transitional provisions within those regulations, and the extent to which the clarification should have retrospective effect, will need careful thought. 
For my part I find it incredibly disappointing that this whole process has been so slow and that the considered recommendations of the review team appear to have been cherry picked, destroying any internal coherence in what is proposed. Aside from correcting some obvious flaws, there appears to be nothing that will reduce CIL’s complexity, the problems arising from the multiplicity of exemptions, the straitjacket that it imposes in relation to more complex schemes and the high rates that are being set with little real scrutiny – indeed quite the reverse. The Government may have answers to these criticisms but simply relying on one paragraph in the budget policy paper really isn’t good enough.  
Simon Ricketts, 24 November 2017
Personal views, et cetera

Local Plan Interventions

As set out in his 16 November 2017 written ministerial statement, the Secretary of State for Communities and Local Government has written to 15 local planning authorities (Basildon, Brentwood, Bolsover, Calderdale, Castle Point, Eastleigh, Liverpool, Mansfield, North East Derbyshire, Northumberland, Runnymede, St Albans, Thanet, Wirral and York), indicating that they have “the opportunity to put forward any exceptional circumstances, by 31 January 2018, which, in their view, justify their failure to produce a Local Plan under the 2004 Act regime.” He will then make a formal decision as to whether formally to intervene in their plan-making. 
His Bristol speech on the same day says this:

“…today is the day that my patience has run out.

Those 15 authorities have left me with no choice but to start the formal process of intervention that we set out in the white paper.

By failing to plan, they have failed the people they are meant to serve.

The people of this country who are crying out for good quality, well-planned housing in the right places, supported by the right infrastructure.

They deserve better, and by stepping in now I’m doing all I can to ensure that they receive it.”

Will this be another empty threat or this time will we actually see some action? Back 20 July 2015 the then minister for housing and planning, Brandon Lewis, announced in a written ministerial statement:

“In cases where no Local Plan has been produced by early 2017 – five years after the publication of the NPPF – we will intervene to arrange for the Plan to be written, in consultation with local people, to accelerate production of a Local Plan.”

There was then the February 2016 technical consultation on implementation of planning changes which included within its chapter 6 the Government’s proposed criteria for intervention, namely where:

* the least progress in plan-making had been made;

* policies in plans had not been kept up to date;

* there was higher housing pressure; and

* intervention would have the greatest impact in accelerating local plan production.

Decisions on intervention would be informed by the wider planning context in each area (specifically, the extent to which authorities are working co-operatively to put strategic plans in place, and the potential impact that not having a plan has on neighbourhood planning activity).

The Government confirmed in its February 2017 housing white paper that these criteria would indeed be adopted. 

The February 2016 technical consultation proposed that authorities identified for potential intervention would be given an opportunity to set out exceptional circumstances why that should not happen:

“What constitutes an ‘exceptional circumstance’ cannot, by its very nature, be defined fully in advance, but we think it would be helpful to set out the general tests that will be applied in considering such cases. We propose these should be: 

• whether the issue significantly affects the reasonableness of the conclusions that can be drawn from the data and criteria used to inform decisions on intervention; 

• whether the issue had a significant impact on the authority’s ability to produce a local plan, for reasons that were entirely beyond its control.”

We can assume that those 15 authorities will now be looking very carefully at this passage. 

A political decision to intervene is one thing but what would then be the legal process to be followed?

The Housing and Planning Act 2016 amended the default powers of the Secretary of State within section 27 of the Planning and Compulsory Purchase Act 2004, so that it read as follows:

Under section 9 of the Neighbourhood Planning Act 2017, the Secretary of State can now also order the preparation of joint development plans, giving him a further option in the case of interventions, particularly as he “may apportion liability for the expenditure arising on such basis as he thinks just between the local planning authorities for whom the document has been prepared.”
Of course the practicalities are quite another thing. How is the Government actually going to go about the intervention process? Preparing the document centrally, directing an adjoining authority to take the lead or parachuting in civil servants or consultants to carry out the work (all at the cost of the authority) is surely always going to be a last resort. The process is likely to be locally unpopular, prone to error and obviously liable to litigation. Authorities may also trip over themselves in their belated haste. However, surely after the end of January a few authorities are bound to be identified, pour encourager les autres. 
So how have these authorities found themselves in this position? Here’s just a flavour:
Basildon
Yellow Advertiser (20 April 2017):

“Tory chief Phil Turner has suggested calling in independent analysts to go over the plan, which allocates land for development across the borough until 2034. 

Cllr Turner said he hoped to ask experts to go over the plan’s policies on green belt and infrastructure. 

He said he hoped the move would help him cut the number of planned houses in the borough, which currently sits at 15,260.

He said: “We can’t review the whole plan but those two points are areas where we think there may be opportunities about reducing our housing numbers. 

“During the consultations, we’ve had a lot of feedback about how people don’t think we are working hard enough to to save the green belt. We don’t want to build on the green belt and we have avoided it as much as possible but I don’t think the public actually believes us.

“So what we are thinking is we should call in some independent people to scrutinise the plan and tell us where we can maybe use the evidence to put up an argument to challenge the housing numbers.”

Cllr Turner was due to present the proposal to all councillors in a secret meeting last night. 

If approved, he said the process could cost a six-figure sum and take up to six months.”

Brentwood
Largely green belt authority. Prolonged delays.  

Bolsover

Local Plan withdrawn after it failed examination in 2014. Failure to co-operate with North East Derbyshire District Council and Chesterfield Borough Council with regard to a strategic development site. 
Calderdale

Brighouse Echo (17 November 2017):

 “Councillor Scott Benton, Leader of the Calderdale Conservatives, said: “‘The draft Local Plan published by the Labour Council administration has caused great concern throughout the different communities of Calderdale.

“The Labour Party have clearly been taken aback by the scale of the opposition to their plans and instead of meeting their target of producing a Final Plan in December, they have announced that they are now kicking the issue down the road again until after the elections next summer.

“‘Labour’s first attempt at producing a draft Plan was a disaster. Instead of working with residents and other Councillors to produce a Plan that is fit for purpose they have delayed the process until after elections. This makes a mockery of our local democracy and demonstrates why Calderdale requires fresh leadership.”

Castle Point

Local Plan failed examination in April 2017 – failure adequately to assess housing need, and failure to cooperate with neighbouring councils.
Eastleigh
Eastleigh News (16 November 2017):
“In February 2015, Eastleigh had to go back to the drawing board after its first Local Plan was rejected by the planning inspector because, he said, it didn’t plan for enough new homes – in particular new affordable ones.

On December 11 the council will meet for a crunch vote on their new Local Plan and the council’s preferred options of housing development on land North of Bishopstoke and Fair Oak (Options B and C).

There has been fierce local opposition – not just from the residents most likely to be affected by the development of 5,000 new homes but also from residents close to the route of a proposed M3 link road that will stretch across countryside from Upham to Allbrook.

So far this year three councillors have stood down from the ruling Liberal Democrat group to sit as Independents because of their concerns over the direction of the local plan.

It is likely they will join the opposition Conservative group on December 11 in voting against the council’s favoured options – though this is unlikely to prevent their adoption.”

Liverpool
Prolonged delays. 
 Mansfield

Mansfield 103.2 (17 November 2017):

“Hayley Barsby, Interim Chief Executive at Mansfield District Council, said: “We are disappointed to have been named as one of the 15 local authorities.

“We are confident that while we don’t have an up-to-date Local Plan that this hasn’t affected development in the district.

“Mansfield District Council is committed to bringing forward house building – this is demonstrated by the council supporting the Berry Hill development (formerly known as the Lindhurst development) which will create 1,700 new houses for the district.

“Of the 9,024 new homes we need to provide by 2033, planning permission already exists for 4,147.

“Over the past 12 months we have worked hard to bring forward the Local Plan and during this time we have been mindful to undertake feasibility and consultation to ensure it reflects not only the needs of the district but also the views of our communities.

Following an initial consultation in early 2016 on the draft Local Plan, we received 1,477 comments which were then reviewed to ensure the plan is fit for purpose up to 2033.

The council reviewed its position and prepared a new vision and objectives. These have been used to create alternative options for the delivery of sustainable housing and employment to meet future requirements. 

A Preferred Options consultation took place in October and November 2017.”

North East Derbyshire
Derbyshire Times (18 October 2017) quotes the Labour leader of the council in response to criticisms from the local (Conservative) MP:
“We are well aware of the need to protect the character of our area and have done all we can to do this, however the Government’s expectations and targets for housing place significant pressure on our ability to continue this.” 

He added: “As such we’d welcome any moves by the MP to seek a revision to Government policy so that the expectations for north east Derbyshire are realistic and in keeping with those of our residents.”
Northumberland

Northumberland Gazette (16 November 2017):

 “Northumberland’s Local Plan, a key document which details where development should take place, is not likely to be adopted until 2020. In the summer, the county council’s new Conservative administration withdrew the Local Plan Core Strategy – put together by the council’s Labour group before losing the county election in May – to review a number of aspects of the document, primarily due to concerns that numbers for the proposed level of new housing were too high.”

Runnymede
Local plan failed examination in 2014 due to failure to meet housing needs and failure of duty to co-operate. 
 St Albans

Local Plan failed examination in 2016 due to failure of duty to co-operate, council’s subsequent challenge to that decision failed.
Thanet

Prolonged delays but Regulation 19 consultation anticipated in January 2018. 
 Wirral

Wirral Globe (16 February 2017):

“Wirral Council’s leader is preparing for battle with Whitehall over plans that could force the authority to turn green belt land into a housebuilding free for all.

The Government has ruled Wirral must produce a blueprint demonstrating how it will hit a target of building nearly 1,000 new homes each year over the next five years.

That’s 500 more than the present annual number.

Councillor Phil Davies says he is adamant that he will not sanction the release of green belt land – and has written to communities secretary Sajid Javid urging him to reconsider.”

York
Prolonged delays. 
York Press (16 November 2017):
“City of York Council’s Conservative and Liberal Democrat leaders have pointed to delays caused by the announcement of barracks closures in York, and insisted they are on course to deliver a sound plan by May.

Leader Cllr David Carr said: “We’re making very good progress to deliver a Local Plan which is right for York – one which provides the homes and employment opportunities we need while protecting our city’s greenbelt and special character.

“We rightly reviewed the plan after the Ministry of Defence’s announcement over the future of three very large sites, and consulted once again listen to views from across York.”

…

However the announcement has brought criticism from Labour councillors, who say they warned this could happen.”
Themes
Tell me if I am over-simplifying but it seems to me that there are some common, unsurprising, themes within this list:
– Uncertainties as to the calculation of objectively assessed needs and the extent to which authorities can justify not meeting that need to due to green belt issues (nearly all these authorities have areas of green belt within their boundaries). 
– Uncertainties as to the extent to which it may be appropriate for authorities to assist in meeting other authorities’ needs, the duty to co-operate being far too loose a mechanism (which is not necessarily to suggest that a return to regional planning and “top down” numbers is the answer – these are authorities who didn’t manage to adopt a plan even under that regime, which of course had built into it inherent delays at the regional tier). 

– As a result of this wriggle room, housing numbers becoming a political battleground, with members often not accepting officers’ advice or with changes in approach arising from changes in political control. 

– Delays due to plans having been found unsound at the end of, or a long way into, a long process (usually as a result of these factors). 

– Plainly, these authorities haven’t been sufficiently spurred on by the application of the “tilted balance” leading to development taking place in unplanned, unwanted locations – perhaps due to that policy lever being less effective in relation to green belt – or other Government threats to date. 

– Many of the authorities being, on paper at least (their websites tell a good story to their constituents), now close to being able to submit a plan for examination, after (usually) a series of Regulation 18 consultation processes. 

Is slow plan-making the fault of local politicians or of the planning system itself? I would say both. The lack of prescription as to numbers and methodology has inevitably given room for protracted, unending, debate as to different approaches and outcomes. Debate and local choice is surely to be welcomed but the system has been so loose that in some areas this has slowed progress to an extent that anyone would surely say was unacceptable. Accordingly, the proposed tightening of the OAN methodology (see my 20 September 2017 blog post) and of the duty to co-operate is surely welcome, as is this clear threat by Javid of intervention. 

However, if formal intervention is actually required, the outcome will surely be a political, administrative and legal mess. 
…………………..

Meanwhile, it is perhaps unfortunate timing that in the same week the Secretary of State has made a holding direction in relation to the Stevenage local plan, at the request of local Conservative MP Stephen McPartland, despite a favourable Inspector’s report having been received last month. The issue appears to result from a continuing fault line both in Stevenage and more widely: whether to provide homes by way of town centre redevelopment (as per the plan) or outside the town in a new settlement (as per Mr McPartland). 

Whatever the rights and wrongs of the Stevenage position, why allow such political interventions if the plan has been found sound?
Simon Ricketts, 18 November 2017
Personal views, et cetera

(With thanks to Town Legal colleague Rebecca Craig for some background research. Mistakes and opinions all mine). 

Green Belt Policy: Will It Change?

In all the noise and spin ahead of the Autumn budget on 22 November, I would be wary of reading anything substantive into stories such as these:
Telegraph 4 November 2017 Philip Hammond risks Tory backlash with gamble on opening up the green belt 

Times 30 October 2017 Hammond rebuffed over budget plan for green belt housing
 I don’t believe that there will be anything to change the current policy direction. This Government surely does not have the strength, the resolve or the thinking space. The existing tests in the NPPF for reviewing green belt boundaries and for determining applications for planning permission in the green belt will be retained, with the minor changes that have previously been announced. In my view the real action isn’t around what the policies say, but how they are applied. 

Local plans
At present, green belt boundaries may be reviewed as part of local plan processes. Established green belt boundaries should only be changed in “exceptional circumstances”. Boundaries are intended to be long term, capable of enduring beyond the plan period. 
The Government’s February 2017 Housing White Paper proposes, at paragraph 1.39, embellishing that “exceptional circumstances” test:
“Therefore we propose to amend and add to national policy to make clear that: 

* authorities should amend Green Belt boundaries only when they can demonstrate that they have examined fully all other reasonable options for meeting their identified development requirements, including: 

    * making effective use of suitable brownfield sites and the opportunities offered by estate regeneration; 


    * the potential offered by land which is currently underused, including surplus public sector land where appropriate; 


    * optimising the proposed density of development; and 


    * exploring whether other authorities can help to meet some of the identified development requirement.”


* and where land is removed from the Green Belt, local policies should require the impact to be offset by compensatory improvements to the environmental quality or accessibility of remaining Green Belt land. We will also explore whether higher contributions can be collected from development as a consequence of land being released from the Green Belt. ”

Wording along these lines is likely to be added to the draft revised NPPF, promised early in 2018, but will make no material difference in practice – the additional guidance may look like tough talk but is largely a statement of the present position. 
Statistics can be used in various ways. At one end of the spectrum there is concerted lobbying by CPRE (see for instance their paper Green Belt Under Siege 2017). But the Government’s own figures DCLG statistical release Local Planning Authority Green Belt: England 2016/17 7 September 2017 sets the issue in context:
“Overall there was a decrease of 790 hectares (less than 0.05%) in the area of Green Belt between 31 March 2016 and 31 March 2017. In 2016/17, eight local planning authorities adopted new plans which resulted in a decrease in the overall area of Green Belt compared to 31 March 2016.”


Regardless of how “exceptional circumstances” are defined, it is presently too easy either for local planning authorities to delay their plan making or to seek to justify not meeting their objectively assessed housing needs on the basis of green belt constraints. Threats of intervention on the part of the DCLG have come to nothing and the duty to cooperate (even when elevated to a duty to provide statements of common ground) is still too far too uncertain as to its effect, allowing local politicians to justify to themselves not assisting with adjoining authorities’ unmet requirements. Furthermore, the Government’s previous politically driven interventions such as in delaying for some time the Birmingham Development Plan at the request of local Conservative MP Andrew Mitchell hardly promote a positive approach. 
The problem isn’t so much specifically about green belt policy but more generally about how effectively to penalising authorities that do not properly plan – and surely about how positively to encourage authorities on every local plan review to consider whether boundaries should be reviewed – possibly even ahead of looking outside their boundaries where adjoining authorities are not readily in a position to pick up their unmet needs? The prolonged delays to plan making in green belt areas such as parts of Hertfordshire and Bedfordshire are a serious indictment of the present system. 
If the imminent draft London Plan as expected fails to encourage the boroughs to review their green belt boundaries, will that not be an opportunity missed? By all means require exceptional circumstances, but rigid adherence to the status quo for political reasons has social, environmental and economic costs. 

(map from LSE paper A 21st Century Metropolitan Green Belt 2016)

Planning applications and appeals
Green belt designation has never been an absolute bar to development. There are two main routes to consent:
First, is the proposal not “inappropriate development” within the meaning of paragraph 89 and 90 of the NPPF? For residential and commercial development the most main potential exemptions are:
* “the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;

* the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces; 


* limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; 


* limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development. ”

Secondly, even if the proposal is for “inappropriate development”, can the applicant demonstrate “very special circumstances”? The guidance is unspecific as to what will amount to very special circumstances: “Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.” The balancing of considerations is left to the decision maker. 

By way of recent example, the Secretary of State allowed an appeal on 1 November 2017 for a proposed development by Oaklands College and Taylor Wimpey comprising “new and refurbished college buildings, enabling residential development of 348 dwellings, car parking, associated access and landscaping.” His decision letter concluded as follows:
“35. The Secretary of State agrees with the Inspector (IR 248) that the proposal is inappropriate development in the Green Belt, which is harmful by definition. He further agrees there would be additional harm by reason of a reduction in openness and by virtue of encroachment into the countryside. Therefore he attributes substantial weight to the harm to the Green Belt caused by the proposed development. 

36. The Secretary of State agrees with the Inspector that there would be some limited harm to the character and appearance of the area (IR249) and he gives limited weight to this harm. 

37. The Secretary of State agrees with the Inspector that the delivery of significant improvements to the College weighs very heavily in favour of the proposal (IR 251). The Secretary of State gives the educational benefits significant weight in favour of the proposal. He also agrees with the Inspector that in light of the lack of a five year housing land supply, the proposed market and affordable housing is a significant benefit (IR 252) that carries significant weight in favour of the proposal. Additionally, the Secretary of State agrees that the enhancement of beneficial Green Belt uses carry moderate weight in favour of the proposal. The Secretary of State gives limited weight to improvements to the non- designated heritage assets (IR 253). 

38. The Secretary of State shares the Inspector’s view that the effect on protected trees in Beaumont Wood, the relationship with the policies related to the Watling Chase Community Forest, and the effect on traffic and flooding in the Sandpit Lane area are neutral factors in the planning balance (IR 254). 
39. Overall, the Secretary of State agrees with the Inspector that the considerations summarised above clearly outweigh the harm to the Green Belt, justifying the proposal on the basis of very special circumstances (IR 255). He therefore concludes that relevant policies relating to development in the Green Belt do not indicate that the proposed development should be restricted. The Secretary of State also concludes that the adverse impacts of the proposed development would not significantly and demonstrably outweigh the benefits.

40. Overall, the Secretary of State agrees with the Inspector that there are persuasive material considerations which warrant a decision other than in accordance with the development plan (IR255).”
The application of the NPPF’s tests in relation to plan making and decision taking inevitably gives rise to disputes both as to interpretation (see the many court rulings listed by Landmark Chambers in relation to each of the relevant paragraphs of the NPPF) and as to the weight to be applied to the various material considerations (meaning unpredictability, together with many speculative applications). But with even greater inflexibility (after all the policy hurdles are already extremely high) there would be another set of problems. 

Any politician is going to be cautious about a major policy shift. It is an open question as to whether the public understands the policy basis for green belt – the way in which, often vast, swathes of land around our cities have been identified as an ad hoc series of urban containment zones:
“- to check the unrestricted sprawl of large built-up areas;

– to prevent neighbouring towns merging into one another; 


– to assist in safeguarding the countryside from encroachment; 


– to preserve the setting and special character of historic towns; and 


– to assist in urban regeneration, by encouraging the recycling of derelict and other urban land”

However, free market solutions advocated by the likes of the IEA and the Adam Smith Institute are wide of the mark. The idea of the green belt, albeit largely abstract, albeit largely restrictive and not driven by specific landscape, environmental or conservation attributions, has captured the public imagination like no other planning invention – perhaps, in a very British way, because it simply carries the expectation of being left alone. The challenge is how, without watering down existing green belt principles, to prevent the designation being used for local political purposes as an argument that increases inequality, renders housing unaffordable, increases commuting distances and drives urban development to unacceptable densities or sensitive non green belt locations? 
In the same way as in its early years the objective of green belt designation moved away from providing open space for recreation and towards a more restrictive role, over time can it move again towards a positive role more closely aligned with other landscape, land use or nature conservation designations?
Another eighty years or so should crack it. 
Simon Ricketts, 11 November 2017
Personal views, et cetera