NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?

The Supreme Court’s judgment in Suffolk Coastal District Council v Hopkins Homes and Richborough Estates v Cheshire East Borough Council, handed down on 10 May 2017, has been keenly anticipated but what does it mean for the development industry?
 The issue

 The issue at stake is subtle but crucial for promoters of residential development in areas that cannot show five years’ supply of deliverable housing sites. In such circumstances, paragraph 49 of the NPPF advises that “[r]elevant policies for the supply of housing should not be considered up-to-date” meaning that what is called the “tilted balance” in the second part of paragraph 14 applies: planning permission should be granted unless:

* “ any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

* specific policies in this Framework indicate development should be restricted”.

 Footnote 9 of the NPPF gives examples of “specific policies”, such as green belt policies or policies relating to particular environmental designations.

 There have been various attempts by the courts to resolve what the phrase “relevant policies for the supply of housing” actually means:

* Should it be given a narrow interpretation, limiting it to policies that deal with the quantum and distribution of new housing, or a wider interpretation, including policies whose effect is to restrict housing development in certain parts of the authority’s area, for example gaps between settlements or land subject to particular landscape designations?

* Once those “relevant policies” have been identified, are they to be given limited weight, or no weight?

 The two cases

The Supreme Court (as did the Court of Appeal previously) had before it two separate cases raising these issues.

The Cheshire East case had first come before Lang J in the High Court. Richborough Estates had appealed against Cheshire East Borough Council’s non-determination of its planning application for 170 (later reduced to 146) homes between Willaston and Crewe. The inspector allowed the appeal. He concluded that the council was unable to demonstrate five years’ housing land supply and that policies in relation to “open countryside”, “green gap” and “housing in the open countryside” were relevant policies for the supply of housing to be given reduced weight by virtue of paragraph 49. Lang J quashed the decision, on the basis that the inspector had erred in treating the “green gap” policy as subject to paragraph 49.
 The Suffolk Coastal case had first come before Supperstone J in the High Court. Suffolk Coastal District Council had refused planning permission for a development of 26 houses in Yoxford. The developer, Hopkins Homes, had appealed and the inspector dismissed the appeal. Notwithstanding a relatively up to date local plan, the inspector had found that it was “very unlikely that a five years’ supply of housing land could now be demonstrated”. He considered that none of the policies in the plan relating to the boundary of settlements, landscape, townscape, settlement hierarchy and the character of key and local service centres were “relevant policies for the supply of housing”. He also found that the proposal would have an unacceptable effect on historic parkland. Supperstone J ruled that the inspector had erred in thinking that paragraph 49 only applied to “policies dealing with the positive provision of housing” and also considered he had failed properly to assess the significance or otherwise of the historic parkland as a non-designated heritage asset.

 The Court of Appeal

Both cases came before the Court of Appeal in January 2016 at a conjoined hearing. Lindblom LJ gave the judgment  of the court on 17 March 2016 and found for the developers in both cases. He gave the phrase in paragraph 49 the “wider” interpretation, construing the words as meaning relevant policies “affecting the supply of housing”. He considered that it was then for the decision maker to determine the weight that should be applied to these policies, deemed out of date.

 The Supreme Court

 The Supreme Court only hears cases that raise points of law of general public importance and this was the first time that issues concerning the NPPF had come before it, Sullivan LJ having granted permission on 1 May 2016. The case was heard by five Supreme Court justices, Lord Carnwath, Lord Neuberger, Lord Clarke, Lord Hodge and Lord Gill, at a hearing on 22 and 23 February 2017. Lord Carnwath gave the lead judgment for all of the justices save for Lord Gill who gave a separate judgment. 

Lord Carnwath and Lord Gill are the two justices most familiar with planning law south and north, respectively, of the border. Lord Gill indeed has been editor of the Scottish Planning Encyclopedia. This was his last case before retirement. His separate judgment provides a wider commentary on the proper role of the planning system in delivering sufficient housing, alongside that of Lord Carnwath, himself a former leading advocate at the planning bar. Carnwath, Gill, Sullivan, Lindblom: these are judges who understand our subject area and its particular complexities. 
As set out by Lord Carnwath at the beginning of his judgment, the appeals provided the opportunity for the court “not only to consider the narrow issues of interpretation of para 49, but to look more broadly at issues concerning the legal status of the NPPF and its relationship with the statutory development plan.”
 The following points may be of particular interest:

 Legal status of the NPPF

 There was some debate at the hearing as to the legal status of the (non-statutory) NPPF and as to the source of the Secretary of State’s power to issue national policy guidance as to the determination of applications and appeals, which could have led the court in an unanticipated direction. However’ despite the lack of any statutory basis (in relation to the determination of applications and appeals, as opposed to his role in relation to plan-making), the court pragmatically held that he did indeed have the power, which arose “expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system.” (Lord Carnwath, paragraph 19)

 Interpretation of the NPPF

 The court stressed that it is important not to overstate the scope of the Secretary of State’s policy-making role. The NPPF is no more than “guidance” and is no more than a “material consideration” for the purposes of section 70(2) of the 1990 Act: “It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme”. (Lord Carnwath, paragraph 21)

 The distinction between interpreting the meaning of words (a matter for the courts) and the application of guidance (exclusively a matter for the planning authority and inspectors) is stressed in Lord Gill’s separate judgment.

 The interaction of law and policy

The Supreme Court had previously determined in Tesco Stores Limited v Dundee City Council  (2012) that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context”. This has led to concerns (expressed by counsel appearing in these proceedings)  “about the over-legalisation of the planning process, as illustrated by the proliferation of case law on paragraph 49 itself…This is particularly unfortunate for what was intended as a simplification of national policy guidance, designed for the lay reader”. (Lord Carnwath, paragraph 23).

 The court made it clear that “it is important that the role of the court is not overstated”. There was a specific development plan policy under consideration in Tesco and “some policies in the development plan may be expressed in much broader terms, and may not require, nor lend themselves to, the same level of legal analysis”. (Lord Carnwath, paragraph 24). “It must be remembered that, whether in a development plan or in a non-statutory statement such as the NPPF, these are statements of policy, not statutory texts, and must be read in that light…Furthermore, the courts should respect the expertise of the specialist planning inspectors and start at least from the presumption that they will have understood the policy framework correctly” and the courts have “cautioned against undue intervention” in policy judgments within specialist tribunals’ areas of competence. (Lord Carnwath, paragraph 25). Applicants for judicial review should “distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy.” (Lord Carnwath, paragraph 26).

 The meaning of NPPF paragraph 14

 The court drew the analogy with a policy for the supply of employment land which may become out of date because of the arrival of a major new source of employment in the area. Whether it is out of date, and what should be the consequence, are matters of planning judgement, including any effect on other related policies, for example for transport. Other competing policies may need to be given less weight, but “again that is a matter of pure planning judgement, not dependent on issues of legal interpretation”. (Lord Carnwath, paragraph 55).  This should also be the approach in relation to housing policies deemed “out of date” under paragraph 49. “It also shows why it is not necessary to label other policies as “out of date” merely in order to determine the weight to be given to them under paragraph 14. As the Court of Appeal recognised, that will remain a matter of judgment for the decision-maker”. (Lord Carnwath, paragraph 56).

 This is vital stuff! It changes what has been the orthodox approach to the paragraph 49/14 conundrum, rendering less important the analysis of which policies are “relevant policies” and bringing us back to a sensible balancing of the issues and allowing the need to secure an adequate supply of housing land to be taken into account in determining the weight to be applied to a policy, even for those policies not specifically  caught by paragraph 49.

 Lord Gill’s separate judgment stresses the importance that the NPPF places on boosting the supply of housing. “The message to planning authorities is unmistakeable”. (Lord Gill, paragraph 77). He refers to “the futility of authorities’ relying in development plans on the allocation of sites that have no realistic prospect of being developed within the five year period”. (paragraph 78).

 In passing it should be noted that Lord Carnwath and Lord Gill both read into the footnote 9 examples of protective designations in the NPPF, references to the related development plan policies. Lord Gill notes that the “rigid enforcement of such policies may prevent a planning authority from meeting its requirement to provide a five-years supply” (paragraph 79).

 The meaning of NPPF paragraph 49

 The meaning of “relevant policies for the supply of housing” on this analysis becomes less important. The court preferred the “narrow” interpretation, namely “housing supply policies”. “However, this should not be seen as leading, as the lower courts seem to have thought, to the need for a legalistic exercise to decide whether individual policies do or do not come within that expression.” If there is a failure to provide for a five year housing land supply “it matters not whether the failure is because of the inadequacies of the policies specifically concerned with housing provision, or because of the overly-restrictive nature of other non-housing policies.” (Lord Carnwath, paragraph 59). The shortfall is enough to trigger the “tilted balance”.

 Lord Gill puts it like this: “If a planning authority that was in default of the requirement of a five-years supply were to continue to apply its environmental and amenity policies with full rigour, the objective of the Framework could be frustrated”. (paragraph 83).

 Application of the principles to the cases

 On this basis, the inspector was wrong to adopt a wider interpretation to the policies at issue in the Cheshire East case. However, “that did not detract materially from the force of his reasoning…He was clearly entitled to conclude that the weight to be given to the restrictive policies was reduced to the extent that they derived from “settlement boundaries that in turn reflect out-of-date housing requirements”. The permission was upheld.

 On this basis, the inspector in the Suffolk Coastal case had embarked on an “inappropriate and unnecessary” exercise in distinguishing between policies which affected the supply of housing and those which did not. He should not have given the weight that he did to the settlement boundary policy  given that it was “to an extent at least, no more than the counterpart of the housing policies.” The decision to dismiss the appeal was quashed and will need to be re-determined.

 Concluding thoughts

 This is the highest court in the land telling us to be less legalistic about the way we frame our arguments as to the application of national and local policies to development proposals. The exercise is not so much a close technical examination as to whether policies are “relevant policies” for the purposes of paragraph 49 but a weighing up of the consequences of a housing supply deficit against policies which are restricting that supply. In the Cheshire East case it is noteworthy that the court considered that it was right that the green gap policy was given less weight – not because it was a paragraph 49 policy (they found that it was not) but because it reflected out-of-date housing requirements. 

We have all perhaps been guilty, spurred on particularly by the Supreme Court itself in Tesco v Dundee, of seeking too often to reduce matters of planning judgment to narrow points of legal interpretation. It is a habit we need to break. 
The court stressed the expert role of inspectors. Of course not all decisions are taken by inspectors. Is the same latitude to be given to local planning authorities’ decisions, whether given on or against officers’ recommendations, or to those of the Secretary of State? The point is unaddressed, given that the only two situations before the court were decisions taken by inspectors. 
If the advice of the court leads to fewer judicial reviews and statutory challenges, that is surely to be welcomed.  
The previous Government has of course been consulting on potential revisions to the NPPF. I would suggest that the new Government reflects on the approach that it should take in the light of this judgment. The amendments that the Government had proposed to paragraph 14 may not give rise to undue concern but shouldn’t more thought be given to whether it is right or not further to complicate paragraph 49 with reference to a three years’ supply safety net where a neighbourhood plan is in place containing defined housing policies, as proposed in the December 2016 written ministerial statement? Isn’t this precisely the over-prescriptive approach being deprecated by the court – and one driven perhaps by a concern that communities were seeing local designations in some way “switched off” or automatically being given less weight through being treated as “relevant policies”? This should no longer be feared. Instead, a sensible balancing exercise will need to be undertaken. 
Lastly, the relationship, in the statutory presumption, as between the adopted development plan and other material considerations, has been sought by some judges to be rigidly applied, in a way which does not sit well with this ruling. I am thinking particularly of Green J’s judgment in East Staffordshire Borough Council v Secretary of State and Barwood Strategic Land  (22 November 2016) an appeal against which is due to be heard by the Court of Appeal (probably again with Lindblom LJ as the lead judge) on 25 May 2017. It will be fascinating to see this early application of the Supreme Court’s thinking. 
Simon Ricketts 10.5.17
Personal views, et cetera

(Town Legal LLP acted for Richborough Estates in this case. Special personal thanks from me to Christopher Young and James Corbet Burcher, both of No 5 Chambers, and to my colleague Ricardo Gama). 

 

 

 

 

 

 

 

 

 

 

Slow Train Coming: Strategic Rail Freight Interchanges In The South East

The planning system doesn’t just fail to provide homes. There are clear lessons to be learned from the unstructured and inadequate approach that successive governments have applied to securing appropriate strategic rail freight interchange developments (SRFIs, in the jargon) to serve London and the south east. That approach has now wasted decades without a spade in the ground, despite millions of pounds having been spent, countless inquiries and High Court proceedings and no doubt a lifetime of worry for those potentially affected. The difficulties with SRFIs also illustrate that the problems aren’t over even when planning consent is obtained – issues of commercial viability and land control are as fundamental. 
This blog post summarises where the three leading contenders have reached: Goodman’s Colnbrook Slough scheme, Helioslough’s former Radlett Aerodrome scheme and Roxhill’s Howbury Park scheme, all in the green belt. It is a long story but that’s why I have tried to tell it.

What is an SRFI?

An SFRI is defined in the Government’s National Networks national policy statement January 2015 as a “large multi-purpose rail freight interchange and distribution centre linked into both the rail and trunk road system. It has rail-served warehousing and container handling facilities and may also include manufacturing and processing activities”.

What is the consenting process?

If the proposal falls within the criteria in section 26 of the Planning Act 2008 (eg a site area of at least 60 hectares, to be connected to national rail network and capable of handling (a) consignments of goods from more than one consignor and to more than one consignee, and (b) at least four goods trains a day), it falls under the NSIP procedure.

The only SRFIs so far consented as NSIPs have been Prologis’ Daventry International Rail Freight Terminal (3 July 2014) and Roxhill’s East Midlands Gateway Rail Freight Interchange  (12 January 2016) (the latter against the examining authority’s recommendations). Goodman’s East Midlands Intermodal Park, Roxhill’s Northampton Gateway Rail Freight Interchange, Ashfield Land’s Rail Central Strategic Rail Freight Interchange  (also Northampton) and Four Ashes’ West Midlands Interchange are all at pre-application stage. 

An NSIP can of course include associated development. There can be uncertainties as to the extent of warehousing that is justified and the degree to which commitments are to be given as to its rail-connectedness. For applications made from 6 April 2017, up to around 500 homes may also be included (see section 160 of the Housing and Planning Act 2016 and the Government’s March 2017 guidance). 

If the proposal doesn’t meet the NSIP criteria, it will need to proceed by way of a traditional planning application. The NSIP process has its pros and cons. It is interesting to note that the three schemes we will be looking at in this blog post have been proceeding by way of a planning application, with the site areas of the Colnbrook and Howbury Park schemes being 58.7 hectares and 57.4 hectares respectively (given an NSIP threshold of 60 hectares that looks like a deliberate “serve and avoid” to me…) and with the Radlett application process having predated the switching on of the 2008 Act. 

The need case

The National Networks NPS sets out the need for SRFIs in paras 2.42 to 2.58:

“2.53 The Government’s vision for transport is for a low carbon sustainable transport system that is an engine for economic growth, but is also safer and improves the quality of life in our communities. The Government therefore believes it is important to facilitate the development of the intermodal rail freight industry. The transfer of freight from road to rail has an important part to play in a low carbon economy and in helping to address climate change.

2.54 To facilitate this modal transfer, a network of SRFIs is needed across the regions, to serve regional, sub-regional and cross-regional markets. In all cases it is essential that these have good connectivity with both the road and rail networks, in particular the strategic rail freight network (see maps at Annex C). The enhanced connectivity provided by a network of SRFIs should, in turn, provide improved trading links with our European neighbours and improved international connectivity and enhanced port growth.

“2.56 The Government has concluded that there is a compelling need for an expanded network of SRFIs. It is important that SRFIs are located near the business markets they will serve – major urban centres, or groups of centres – and are linked to key supply chain routes. Given the locational requirements and the need for effective connections for both rail and road, the number of locations suitable for SRFIs will be limited, which will restrict the scope for developers to identify viable alternative sites. 


2.57  Existing operational SRFIs and other intermodal RFIs are situated predominantly in the Midlands and the North. Conversely, in London and the South East, away from the deep-sea ports, most intermodal RFI and rail-connected warehousing is on a small scale and/or poorly located in relation to the main urban areas. 


2.58  This means that SRFI capacity needs to be provided at a wide range of locations, to provide the flexibility needed to match the changing demands of the market, possibly with traffic moving from existing RFI to new larger facilities. There is a particular challenge in expanding rail freight interchanges serving London and the South East.”


Annex C strategic rail freight network map

These facilities are important for our economy, and for reducing vehicle emissions (not that there is any reference to this, or indeed any other supra-local planning interventions, in the Government’s draft air quality plan published on 5 May 2017). Unfortunately, the strategy in the NPS is very general. Whilst there are the references to London and the South East in the passages above, this is even less specific than the former Strategic Rail Authority’s Strategic Rail Freight Interchange policy  March 2004, much argued over at inquiries, which asserted that “required capacity would be met by three or four new Strategic RFI” in London and the South East and that the “qualitative criteria to deliver the capacity mean that suitable sites are likely to be located where the key rail and road radials intersect with 
the M25.”

Currently it is down to the private sector to identify sites which may meet the NPS criteria, with a wary eye on what other sites may be in the frame – a game not for the faint-hearted, meaning a very limited pool of potential promoters.

Since the NPS, we have had DfT’s Rail Freight Strategy  13 September 2016:

Para 53 “This Rail Freight Strategy will not set out proposals for new enhancements to the network nor specify in detail the freight paths that will be needed in future. These issues are being considered by DfT on a longer timescale as part of the long-term planning process for the rail network, which will consider priorities for the railway beyond the current control period (from 2019). To inform the industry’s advice to DfT as part of this process, Network Rail is currently consulting on a more detailed Freight Network Study. This considers the requirements of the rail network over the next 30 years and is intended to support the series of Route Studies that have been published or are under development by Network Rail.”

Will we see an amended National Networks NPS in the foreseeable future so as to give greater direction? I doubt it.  

So now let’s look at the most likely candidates to serve London and the South East

Colnbrook 

Those with long memories may recall Argent’s LIFE (London International Freight Exchange) scheme proposed on land to the north of the A4 at Colnbrook, near Slough. The then Secretary of State dismissed an appeal against refusal of planning permission on 20 August 2002, stating:

“The central issue remains […] where to strike the balance between Green Belt and sustainable transport interests. The proposal would be inappropriate development in the Green Belt and would harm the openness of the Green Belt, at the same time there are positive aspects including some sustainable transport benefits”. 


“The Secretary of State continues to support the principle of encouraging more rail freight, but shares the Inspector’s judgement that the balance of benefits and disbenefits is against the LIFE scheme as currently proposed and that the general presumptions against inappropriate development in the Green Belt should apply”.

Goodman are now promoting a smaller SRFI on part of the site. Their scheme is now imaginatively called SIFE (Slough International Freight Exchange) and was the subject of a planning application in September 2010. It was refused by Slough Borough Council and an inquiry was due to take place into Goodman’s appeal in October 2012. However, the inquiry was then put in the sidings whilst the then Secretary of State decided whether to re-open an inquiry into the Radlett SRFI scheme, which he considered might have significant implications for SIFE. As it happened, due to delays in that inquiry process (of which more later), the SIFE inquiry was not rescheduled until The Radlett decision letter was issued in July 2014. 

After a ten day inquiry in September 2015, the Secretary of State on 12 July 2016 dismissed Goodman’s appeal against refusal by Slough Borough Council of planning permission for SIFE. The Secretary of State addresses the extent to which there is a need for all three facilities (SIFE Colnbrook; Radlett, and Howbury Park):

“24. The Secretary of State has carefully considered the Inspector’s reasoning about need at IR12.88 – 12.103 and accepts the Inspector’s conclusion that the current policy need for a regional network has not been overcome by the SRFI at Radlett and SIFE is able to be regarded as a complementary facility as part of a wider network (IR12.104). 

25. With regard to the Inspector’s analysis of other developments and sites at IR 12.105 – 12.106, the Secretary of State agrees that the NPS makes clear that perpetuating the status quo, which means relying on existing operational rail freight interchanges, is not a viable option. 

26. The Secretary of State agrees with the Inspector that there is a reasonable probability that Radlett will be operational in 2018 and there is the prospect of Howbury Park being progressed to implementation. In addition, rail connected warehousing is under development in Barking. On the downside, the geographical spread is uneven. There is a noticeable gap in provision on the west side of London, with Radlett being complementary to rather than an alternative to SIFE. SIFE would contribute to the development of a network of SRFI in London and the South East and a wider national network in accordance with the policy objective of the NPS (IR12.107).”

However he goes on to reach the following conclusions as to whether there are very special circumstances justifying inappropriate development in the green belt:

“13. The Secretary of State agrees with the Inspector’s comments at IR12.8, and like the Inspector, concludes that the appeal proposal would be inappropriate development in the Green Belt and that it is harmful as such. As the proposal amounts to inappropriate development he considers that, in the absence of very special circumstances, it would conflict with national policies and with the CS. Like the Inspector, the Secretary of State considers that the NPS does not change the policy test for SRFI applications in the Green Belt or the substantial weight to be attached to the harm to the Green Belt (IR12.8). For the reasons given by the Inspector at IR12.9 – 12.11, the Secretary of State agrees with the Inspector’s conclusion (IR12.12) that the proposed development would result in a severe loss of openness. 

14. The Secretary of State agrees with the Inspector that the introduction of major development on the site, even if enclosed within well-defined boundaries, would not assist in checking sprawl and hence would conflict with a purpose of the Green Belt (IR12.13). For the reasons given by the Inspector at IR12.14, the Secretary of State agrees that the proposal would not be compatible with the purpose of preventing neighbouring towns merging into one another. The Secretary of State accepts the Inspector’s conclusion that the proposed development would encroach into the countryside. He agrees too that this conflict is not overcome by the proposed creation of new habitats and other aspects of mitigation in existing countryside areas (12.15). The Secretary of State agrees with the Inspector’s overall conclusion that these conflicts should be afforded substantial weight (IR12.18). The Inspector acknowledges that the proposed SRFI development’s location in the Green Belt may well be an optimum solution in relation to existing patterns of distribution activity, but like the Inspector, the Secretary of State concludes that this does not reduce the actual harm that would occur (IR12.19)”

His overall conclusions:

“40. The Secretary of State accepts that the most important benefit of the proposal is the potential contribution to building up a network of SRFIs in the London and South East region, reducing the unmet need and delivering national policy objectives. In addition, there is the prospect of SIFE being complementary to Radlett and other smaller SRFI developments and improving the geographical spread of these facilities round Greater London. In this context, the Secretary of State accepts that the contribution it would make to meeting unmet need is considerable. 

41. He accepts too that SIFE would comply with the transport and location requirements for SRFIs to an overall very good standard. He acknowledges that sites suitable for SRFIs are scarce and the difficulty in finding sites in the London and South East region. On account of this factor, and the standard of compliance achieved, he affords meeting the site selection criteria significant weight. No less harmful alternative site has been identified in the West London market area, a factor which he affords considerable weight. Attracting less but nevertheless moderate weight are the economic benefits, the reduction in carbon emissions and improvements. 

42. In common with the Inspector in her conclusion, the Secretary of State has been persuaded by the irreparable harm that would be caused to this very sensitive part of the Green Belt in the Colnbrook area, leading to the high level of weight he attaches to this consideration. Overall, the Secretary of State concludes that the benefits of the scheme do not clearly overcome the harm. Consequently very special circumstances do not exist to justify the development. Furthermore, he finds that planning conditions would not be able to overcome the fundamental harms caused to the Green Belt, Strategic Gap and Colne Valley Park and the open environment enjoyed by the local community. In addition, he has concluded that the proposal does not have the support of the NPS because very special circumstances have not been demonstrated.”

Goodman challenged the decision on the basis that it was wrong for the Secretary of State, in adjudicating the “very special circumstances” test, to give no weight to Goodman’s argument that it was inevitable that a Green Belt location is essential for meeting the need for an SRFI in this location. However the decision has been upheld: Goodman Logistics Developments (UK) Ltd v Secretary of State  (Holgate J, 27 April 2017). Holgate J stated:

“It should be noted that Goodman did not advance the extreme argument that the need for another SRFI to serve London and the South East was such that it was inevitable that a a Green Belt site would have to be released for that purpose. There is no policy support for any such proposition. The NPS does not suggest that the need for a network of SFRIs, or for any particular SFRI, is a need to be met come what may, irrespective of the degree of harm which may be caused, or indeed the degree of need for an SRFI in a particular region. Instead, Goodman relied upon an “inevitability” which was qualified. The claimant argued that it is inevitable that another SRFI to serve the London and South East region will be located on a Green Belt site and harm to the Green Belt will occur, if the need for such a SRFI is to be met. The merits of the “inevitability” argument put forward by Goodman were therefore dependent upon the decision-maker’s assessment as to what importance or weight should be attributed to that need and whether that need should indeed be met after taking into account all the harm that would result.”

He goes on:

“The degree of harm that would result from the appeal proposal is only inevitable (in one sense) if the decision-maker concludes that the need for the SRFI and any other benefits flowing from the proposal are of such weight that the balance comes down in favour of granting planning permission. It is not in fact inevitable that the balance will be struck in that way

But if the “need” for SRFIs is not allowed to amount to “very special circumstances” for the purposes of green belt policy, and if there is room for a balancing of the seriousness of that need as against the degree of harm that would be caused, does this lead to unnecessary uncertainty right until the conclusion of the decision making process? Couldn’t the suitability in principle of development in the green belt have been resolved at an earlier stage, preferably via the national policy statement? Similarly, the uncertainties as to the inter-relationship between the three schemes. Why was a decision on Radlett (positive or negative) allowed to become a prerequisite to determining SIFE?

So what next for the site? As it happens, the proposed new runway at Heathrow Airport in combination with associated mitigation proposals and associated development would in fact take up most of the site in any event. Is this planning process now at least partly about establishing “no scheme world” value? 

Radlett

Helioslough’s proposal for an SFRI on the former Radlett Aerodome site has a similarly lengthy – and even more convoluted – history. Two appeals had been dismissed for rail freight distribution proposals on the site, which again is in the green belt. The second appeal decision, dated 7 July 2010, turned on a conclusion by the Secretary of State that the Colnbrook site could be a less sensitive site than the Radlett site for an SRFI and that therefore “very special circumstances” for the development of the Radlett site had not been made out. 

Helioslough successfully challenged that decision. On 1 July 2011 HH Judge Milwyn Jarman QC ordered that the Secretary of State‟s decision be quashed, holding that the Secretary of State had misconstrued the Strategic Gap policy in Slough’s. Core Strategy and consequently had failed to treat that as an additional policy restraint over and above the Green Belt designation. So the appeal fell to be redetermined by the Secretary of State.

Prior to redetermining it, the Secretary of State consulted with the parties as to whether to conjoin a re-opened inquiry with the inquiry that was to be held into the SIFE Colnbrook appeal. On 14 December 2012 he notified the parties that we was not going to re-open the inquiry but determine it on the basis of the evidence already before him. On 20 December 2012 he issued a letter  indicating that he was minded to allow the appeal, subject to completion of a section 106 agreement. 

St Albans City and District Council sought to challenge by way of judicial review the Secretary of State’s decision to not to re-open the inquiry. However that challenge was refused permission  by Patterson J on 14 June 2013 (and a subsequent renewal application before Collins J failed). 

As it happened, the “minded to grant subject to section 106 agreement” indication was unsatisfactory for the promoter too, which had problems completing a section 106 agreement due to land ownership difficulties (part of the site being owned by Hertfordshire County Council) which had led it to press for obligations to be secured by way of negative Grampian-style condition. Helioslough challenged the Secretary of State’s continued delay in issuing a final decision but permission to proceed with judicial review was rejected by John Howell QC sitting as a deputy judge  on 1 July 2013. 

A section 106 agreement was finally submitted and the Secretary of State granted planning permission in his decision letter  dated 14 July 2014. His conclusions were as follows:

“In conclusion, the Secretary of State has found that the appeal proposal would be inappropriate development in the Green Belt and that, in addition, it would cause further harm through loss of openness and significant encroachment into the countryside. In addition the scheme would contribute to urban sprawl and it would cause some harm to the setting of St Albans. The Secretary of State has attributed substantial weight to the harm that would be caused to the Green Belt. In addition he has found that harms would also arise from the scheme’s adverse effects on landscape and on ecology and that the scheme conflicts with LP policies 104 and 106 in those respects. 

53. The Secretary of State considers that the factors weighing in favour of the appeal include the need for SRFIs to serve London and the South East, to which he has attributed very considerable weight, and the lack of more appropriate alternative locations for an SRFI in the north west sector which would cause less harm to the Green Belt. He has also taken account of the local benefits of the proposals for a country park, improvements to footpaths and bridleways and the Park Street and Frogmore bypass. The Secretary of State considers that these considerations, taken together, clearly outweigh the harm to the Green Belt and the other harms he has identified including the harm in relation to landscape and ecology and amount to very special circumstances. Despite the Secretary of State’s conclusion that the scheme gives rise to conflict with LP policies 104 and 106, in the light of his finding that very special circumstances exist in this case he is satisfied that, overall the scheme is in overall accordance with the development plan”. 

Inevitably, the council challenged the decision. They asserted that the Secretary of State had applied too strict a test in considering whether he could depart from conclusions he had reached in his initial decision and that the Secretary of State failed to take into account a recent decision that he had made on a nearby site. The challenge failed: St Albans City and District Council v Secretary of State  (Holgate J, 13 March 2015).

So shouldn’t this be a scheme that is now proceeding, after all of that work? Reserved matters have been applied for, leading to local heat if a report of a recent planning committee is anything to go by. But the rub is that Hertfordshire County Council as land owner hasn’t made a decision as to whether to make its land available to enable the development to proceed. 
Howbury Park
The third scheme is one in Crayford, again on green belt land, that was initially promoted by Prologis and secured planning permission on appeal in December 2007. However, due to the global financial crisis it did not proceed and the permission is now time expired.

Roxhill has now replaced Prologis as developer and has submitted fresh applications for planning permission to London Borough of Bexley and to Dartford Borough Council (the proposed access road is in Dartford’s administrative area). 

Bexley members resolved to approve the scheme on 16 February 2017 but Dartford members resolved to reject it on 20 April 2017 following their officers’ recommendation. So presumably we may see yet another appeal. 

The Bexley part of the scheme is of course within the remit of the Mayor of London, but not the Dartford part, so there is little that he can do by way of intervention. In any event, it will be seen from his 6 June 2016 Stage 1 report  that he is not particularly providing  a clear strategic lead on the issue:

“11. … The majority of the SRFI developments to date have been in the Midlands and the North, and the aspiration is to have a network of three SRFI around the M25, including this site at Howbury Park, South East London, Radlett, North London(approved by the Secretary of State) and Colnbrook, West London (decision awaited from the Secretary of State) to build a national network.”

“28 Although London Plan policy 6.15a Strategic Rail Freight Interchanges is supportive of the type of facility proposed due to identified strategic need, policy 6.15b caveats this support and sets out criteria which must be delivered within the facility. 

A)  The provision of strategic rail freight interchanges should be supported. Including enabling the potential of the Channel Tunnel Rail link to be exploited for freight serving London and the wider region. 


B)  The facilities must: (a) deliver model shift from road to rail; (b) minimise any adverse impact on the wider transport network; (c) be well related to rail and road corridors capable of accommodating the anticipated level of freight movements; and (d) be well related to the proposed market. 


29 Supporting text paragraph 6.50 acknowledges that these types of large facilities can often only be located in the Green Belt. The Howbury Park site is referenced as a site potentially fulfilling these criteria, reflecting the previous planning permission. Paragraph 6.50 also states: 

‘The Mayor will need to see robust evidence of savings and overall reduction in traffic movements are sufficient to justify Green Belt loss in accordance with policy 7.16, and localised increases in traffic movements.’ “


”38 The need for a SRFI is accepted, and is borne out through the NPS, the London Plan and the Inspector’s decision on the 2007 case. The applicant has made a compelling ‘very special circumstances’ case but GLA officers would advise further clarification should be sought on the biodiversity benefits of the proposal and the environmental benefits, notably whether the emission savings and overall reduction in traffic movements are sufficient to justify the loss of Green Belt in line with London Plan policy 6.15 and supporting paragraph 6.50. It should be noted that TfL has raised concerns in respect of the potential impact on the passenger rail network and has suggested conditions to limit the hours of operation of rail movements in and out of the SRFI. GLA Officers would want to know the full details of the potential impacts on the wider transport network (in line with London Plan policy 6.15B (b) and whether such conditions would hinder the operation and whether this would reduce the potential emission savings and traffic movements. GLA officers would also seek details of the proposed biodiversity management plan and compensatory measures. GLA officers would also expect a similar obligations package as that previously agreed to encourage the take up of rail use. 

39 For the above reasons, at this stage, it is considered premature for GLA officers to make a concrete judgement as to whether the applicant’s very special circumstances case outweighs the identified harm to the Green Belt, and any other harm.”

Concluding thoughts

Even if your work never brings you into contact with the rail or logistic sectors, these convoluted stories must surely give rise to serious concerns. Successive governments have said that these types of facilities are needed in the public interest, for the sake of our national economy and to reduce polluting road freight miles. And yet they wash their hands of any responsibility for lack of delivery. 

The consequences of not providing clear strategic guidance is that years are spent on expensive, contentious planning processes. Often by the time that a process has concluded the world has moved on and the process has to start all over again. 
These are massively expensive schemes to promote. What can we do to make that investment worthwhile? If a site is unacceptable, can’t we indicate that at the outset and not many years later?

To what extent should land ownership issues be resolved at the outset of a major project?

Should the NSIP threshold be reduced? These schemes end up being determined at a national level anyway. Why not funnel them through a process that is more fit for purpose? 

Why don’t we bite the bullet and arrive at more spatially specific policies in the National Networks NPS rather than leave it for promoters to read between the lines as to what the Government’s approach may end up being to particular proposals – particularly given the inevitably sensitive locations involved, often in the green belt? (Or is that taboo issue the answer to my question?). 

Simon Ricketts 6.5.17

Personal views, et cetera

The New EIA Regulations

Well the Government cut it fine but the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 were finally laid before Parliament on 19 April 2017 and will come into force on 16 May 2017, along with equivalent regulations in relation to infrastructure planning, water resources, electricity works, marine works, and land drainage improvement works.
The regulations give effect in England to the EU’s Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment, which was required to be brought into force by member states by that magic 16 May 2017 date. 
My 8.10.16 blog post summarises the main implications of the Directive and expresses some doubt as to whether the Government would meet the deadline. I’m glad that the deadline has been achieved, as inconsistency between EU and domestic requirements as to environmental impact assessment would have made a difficult area, already full of legal trip hazards, even more precarious to navigate.  
The new regulations apply to all EIA development projects unless before 16 May 2016:
– an environmental statement has been submitted;

– a request for a screening opinion or direction has been submitted (in which case the screening is carried out under the 2011 regulations but any EIA will be under the new regime); or

– a request for a scoping opinion or direction has been submitted. 

The changes introduced by the new Regulations are not unduly onerous (and have been flagged by way of the 2014 amending directive for some time now) but there is still a small window for those scheme promoters who would prefer to work to the previous 2011 Regulations. I can see that even small changes in required methodologies may give rise to complications on multi-stage projects where it would be easier, for consistency and to avoid re-doing work, for further environmental statements to continue to address the 2011 rather than 2017 requirements. 
So what are the changes? Colleagues have prepared a black-lined version for internal Town purposes that shows all of the changes as between the 2011 and 2017 versions, which has been invaluable in working through the detail. There has been a lot of tweaking and necessary updating but the main substantive changes are as follows:
Reg 4(2) – there are now express references to assessment needing to include effects on human health, biodiversity, land and climate. 
Reg 4(4) – significant effects to be assessed include “the expected significant effects arising from the vulnerability of the proposed development to major accidents or disasters that are relevant to that development”. 
Reg 4(5) – “The relevant local planning authority or the Secretary of State must ensure that they have, or have access as necessary to, sufficient expertise to examine the environmental statement”. 
Reg 6 – additional information is now required in requests for screening opinions.
Reg 6(6) – LPA can agree to extend response to screening opinion request beyond the current three weeks period to up to 90 days and can extend the period further in exceptional circumstances if it gives reasons and the date when the delayed determination is now expected. 
Reg 7(5) – equivalent extended deadlines for the Secretary of State in relation to requests for screening directions. 
Reg 18(4)(a) – an environmental statement “must be based on the most recent scoping opinion or direction issued (so far as the proposed development remains materially the same as the proposed development that was subject to that opinion or direction.” (Currently there is no requirement for an environmental statement to take on board all of conclusions of the scoping opinion or direction).  
Reg 18(4)(c) – an environmental statement must “be prepared, taking into account the results of any relevant UK environmental assessment, which are reasonably available to the person preparing the environmental statement, with a view to avoiding duplication of assessment”. 
Reg 18(5) – “In order to ensure the completeness and quality of the environmental statement— 
* (a)  the developer must ensure that the environmental statement is prepared by competent experts; and

* (b)  the environmental statement must be accompanied by a statement from the developer outlining the relevant expertise or qualifications of such experts.”

Reg 19(6) – EIA application must not be determined until at least 30 days (was previously 14 days) after copies of the environmental statement were served on consultation bodies.

Reg 20(2)(f) – the LPA must make the environmental statement available online for at least that 30 day period. 
Reg 26 – the decision maker must reach a “reasoned conclusion on the significant effects of the proposed development on the environment”, taking into account their examination of the environmental information submitted and, where appropriate the decision maker’s “own supplementary examination”, “integrate that conclusion into the decision” and “if planning permission or supplementary consent is to be granted, consider whether it is appropriate to impose monitoring measures”. 
Reg 26(4) – “In cases where no statutory timescale is in place the decision of the relevant authority or the Secretary of State, as the case may be, must be taken within a reasonable period of time, taking into account the nature and complexity of the proposed development, from the date on which the relevant authority or the Secretary of State has been provided with the environmental information”.
Reg 27 – where there has to be both an EIA and a Habitats Regulations assessment, the two must be co-ordinated. 
Reg 29 – where planning permission is granted for EIA development, the decision must set out the reasoned conclusion of the decision maker on the significant effects of the development on the environment, any conditions which relate to the likely significant effects of the development on the environment, any measures envisaged to avoid, prevent, reduce and, if possible, offset likely significant adverse effects on the environment and any monitoring measures considered appropriate. 
Reg 30(1)(b) – the consultation bodies are to be informed of the decision in respect of any EIA application. 
Reg 30(1)(d)(iii) – information must be available for public inspection as to the results of consultations undertaken and information gathered.
Reg 35 – “planning authorities in the exercise of their enforcement functions, must have regard to the need to secure compliance with the requirements and objectives of the Directive.”
Reg 64 – objectivity and bias:
“(1) Where an authority or the Secretary of State has a duty under these Regulations, they must perform that duty in an objective manner and so as not to find themselves in a situation giving rise to a conflict of interest. 
(2) Where an authority, or the Secretary of State, is bringing forward a proposal for development and that authority or the Secretary of State, as appropriate, will also be responsible for determining its own proposal, the relevant authority or the Secretary of State must make appropriate administrative arrangements to ensure that there is a functional separation, when performing any duty under these Regulations, between the persons bringing forward a proposal for development and the persons responsible for determining that proposal.”

Schedule 2 – the threshold for industrial estate development projects is reduced from 5 hectares to 0.5 hectares. 
Schedule 3, para 3 – more detail as to the types and characteristics of potential impacts to be taken into account in screening Schedule 2 development. 
Schedule 4, para 1 – more detail as to the necessary description of the development in an environmental statement. 
Schedule 4, para 2 – the environmental statement must include a “description of the reasonable alternatives (for example in terms of development design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects” (in place of the more lax “outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for the choice made, taking into account the environmental effects”). 
Schedule 4, para 3 – it must also include a “description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the development as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.”
Schedule 4, para 10 – it must also include a “reference list detailing the sources used for the descriptions and assessments included in the environmental statement”. 
The explanatory memorandum published with the regulations states that there “are around 500 – 600 environmental statements submitted each year in England through the planning system, representing about 0.1% of all planning applications. There are between 10 – 20 applications for a development consent order under the nationally significant infrastructure planning regime subject to EIA each year”. 
Much of the work of a planning lawyer these days to seek to ensure that environmental impact assessment processes are carried out in a legally correct manner so as not to lead to the unnecessary risk of legal challenge. The new regulations will do nothing to reduce that risk – indeed, particular care will need to be taken in relation to these new requirements. Red pens at the ready…
Simon Ricketts 29.4.17
Personal views, et cetera

(with special thanks to Town colleagues, Spencer Tewis-Allen and Rebecca Craig). 

Make No Little Plans: The London Plan 

“Make no little plans; they have no magic to stir men’s blood and probably themselves will not be realized. Make big plans; aim high in hope and work, remembering that a noble, logical diagram once recorded will never die, but long after we are gone be a living thing, asserting itself with ever-growing insistency” (Daniel Burnham)
The current version of the London Plan is no little plan, but fails the “magic to stir blood” and “noble, logical diagram” tests. It runs to over 400 pages, which is surely ridiculous – particularly since it is legally constrained only to deal with “matters which are of strategic importance to Greater London”. (Whilst no replacement for a formal document, New London Architecture’s 2015 summary of the document in a four minute video fronted by Peter Murray shows how the key messages can be got across in a more accessible and rousing style).

We are expecting initial non-statutory public consultation this autumn into a review of the current plan, so as to reflect the policy priorities of our third London Mayor, Sadiq Khan. Following this initial process, there would then need to be two formal consultation stages (the first with the London Assembly and GLA bodies, the second with the public) before an examination in public into the submitted document, which the Mayor projects for summer 2018, and perhaps adoption (his fingers still crossed) in autumn 2019. So even on a best case the Mayor will not have an adopted plan until over three quarters of his way through his four year term of office. 
His predecessors had the same problem. It took Ken Livingstone four years from election in 2000 to have in place the first London Plan (which ran to an even more thudding 420 pages) and it took Boris Johnson three years from election in 2008 to have in place his 2011 Replacement London Plan, which, subject to three sets of alterations, remains the current plan, supplemented by no fewer than adopted 21 SPGs with two further SPGs currently in draft (Culture and Night Time Economy (April 2017); Affordable Housing & Viability (November 2016)). The extent of reliance on SPGs is no doubt partly down to the exclusion of non-strategic matters from the plan itself (although the SPGs cover a whole range of strategic matters) but as much as anything is probably down to pragmatism, given the slowness of the statutory process. 
Strange and dysfunctional system isn’t it? Particularly when one recalls that the inspector, Anthony Thickett, concluded his report dated 18 November 2014 into the Further Alterations to the London Plan as follows:
“57. The evidence before me strongly suggests that the existing London Plan strategy will not deliver sufficient homes to meet objectively assessed need. The Mayor has committed to a review of the London Plan in 2016 but I do not consider that London can afford to wait until then and recommend that a review commences as soon as the FALP is adopted in 2015 (IRC3). In my view, the Mayor needs to explore options beyond the existing philosophy of the London Plan. That may, in the absence of a wider regional strategy to assess the options for growth and to plan and co-ordinate that growth, include engaging local planning authorities beyond the GLA’s boundaries in discussions regarding the evolution of our capital city. “
There are urgent and important issues to be grappled with, with implications far beyond London postcodes. Why do we put up with such slow processes?
The London Plan, or “spatial development strategy” to give it its statutory title, is a strange and unwieldy beast and, as we await consultation on its new incarnation, let’s remind ourselves of some of the curiosities arising from its statutory basis in sections 334 to 341 of the Greater London Authority Act 1999 and the Town and Country Planning (London Spatial Development Strategy) Regulations 2000.
The legal structure for the plan arrived at in the 1999 Act was at the time largely novel. The plan superseded the then Government’s non-statutory regional planning guidance (specifically, RPG3, the then regional planning guidance for London) and the procedure set out for the adoption of this new strategic regional plan echoed in part the examination-in-public process for structure plans of the time. (My recollection from then was that the emphasis on “strategic” was to mark a contrast from the over-prescriptive and slow plan-making of the previous Greater London Council – nice try!). 
When the development plans system (over-engineered in the extreme) was created by virtue of the Planning and Compulsory Purchase Act 2004 (which also introduced statutory regional spatial strategies for the rest of England), although the London Plan was not a “development plan document”, it was part of the statutory development plan alongside the boroughs’ development plan documents (ie core strategies etc). Under section 38(6) of the 2004 Act, planning applications therefore must be determined “in accordance with the plan unless material considerations indicate otherwise”. 
Increased powers were devolved to the Mayor, including, by way of the Mayor of London Order 2008, the ability to direct that he should be the local planning authority on a planning application of potential strategic importance and determine it himself. The plan’s policies are central to the call-in criteria in Article 7(1) of the Order, all of three of which must be met in order for the Mayor to be able to intervene:
“(a)  the development or any of the issues raised by the development to which the PSI application relates is of such a nature or scale that it would have a significant impact on the implementation of the spatial development strategy;

(b)  the development or any of the issues raised by the development to which the application relates has significant effects that are likely to affect more than one London Borough; and 


(c)  there are sound planning reasons for issuing a direction”

The application of the criteria was tested in R (Spitalfields Historic Trust) v Mayor of London  (Gilbart J, 10 May 2016).

By way of the Localism Act 2011 the regional spatial strategies were abolished but the London Plan remained. The extent to which the London Plan was a development plan for the purposes of the new “duty to cooperate” that the 2011 Act introduced (by way of inserting a new section 33A into the 2004 Act) was left unclear. The plan also now sat not just above the boroughs’ individual local plans but also above potentially a tier of neighbourhood plans below those plans. 
When the Government’s National Planning Policy Framework (haiku-like little plan, in contrast to the swathes of guidance it replaced) was published in March 2012, it cancelled the guidance there had been in Circular 1/2008 as to the contents of the London Plan. There is now very little direct guidance for the Mayor in the NPPF or indeed in subsequent Planning Practice Guidance.
These are some of the key legal elements of the London Plan process:
What it must contain
The plan’s functions are unique:
As well as the Mayor’s “general policies in respect of the development and use of land in Greater London” (section 334(3)), it must deal with any “general spatial development aspects” of the other strategies, policies and proposals that he is responsible for, whether or not they relate to the development or use of land (section 334(4)). These other strategies include transport, bio-diversity, waste, air quality, noise and culture. 
The plan “must deal only with matters which are of strategic importance to Greater London” (section 334(5)). The meaning of “strategic” was tested in R (Mayor of London) v First Secretary of State (Forbes J, 7 April 2008). The then Mayor had directed that Brent Council should refuse planning permission for a student housing scheme on design grounds. The developer appealed against the refusal and in allowing the appeal the Secretary of State awarded costs against the Mayor on the basis that he should not have intervened on grounds that were not of strategic importance. The Mayor challenged the award of costs but the court held that the Secretary of State had been entitled to reach that conclusion. 
Co-operation
There has been legal argument as to the extent to which the formal “duty to co-operate” (for what it’s worth) is engaged in relation to the London Plan. This occupied time at the examination of the 2012 examination of “revised early minor alterations” to the plan and the 2014 examination of further alterations. 
Inspector Geoff Salter in his report dated 19 June 2012 concluded that the duty did not formally apply:
“Section 110 of the Localism Act introduced a new section (33A) of the Planning and Compulsory Purchase Act 2004 which imposes a duty on local planning authorities and other prescribed bodies to co-operate in a range of planning activities. The Mayor is a prescribed person for the purposes of the duty but the London Plan is in effect a regional strategy (RS), the preparation of which does not fall within the list of activities covered by the duty, such as preparation of Development Plan Documents (DPDs). Activities that can reasonably be described as preparing the way for activities such as DPD preparation fall within the duty. However, I do not agree with the South East Waste Planning Advisory Group and the East of England Waste Technical Advisory Body that the LP can be considered to meet this definition, since its production is an activity in its own right“. 
Whereas Inspector Anthony Thickett in his report dated 18 November 2014 appears to reach the opposite conclusion: 
“Section 33A(3) lists the activities to which the duty applies. The first activity is the preparation of development plan documents. The London Plan is part of the development plan for London but the Mayor points to Section 38(2) of the 2004 Act which defines the FALP as a spatial development strategy and not a development plan document. Section 33A(3)(d & e) apply the duty to any activities that can reasonably be considered to prepare the way for or support the preparation of development plan documents. The preparation of the FALP is an activity in its own right but it must, in my view, also prepare the way for and support the preparation of development plan documents.”
By the time of the most recent examination, into further minor alterations to housing and parking standards, inspector David Hogger’s report dated 15 December 2015 simply accepts the Mayor’s position that the duty does not formally apply, as set out in a procedural note submitted to him which contains the following passage:
“Although the duty applies to the Mayor in respect of other authorities’ plans, it is the Mayor’s view (upheld by Leading Counsel) that section 33A does not apply specifically to the activity of preparing or amending the London Plan. However, London Plan Policy 2.2 makes clear that the Mayor is strongly committed to working with authorities and agencies in the East and South East of England to secure sustainable development and the management of growth in the wider metropolitan area and to co-ordinate approaches to other strategic issues of common concern.” (paragraph 3.6)
The point may be a sterile one in part given that all three Inspectors found that in practice there had been sufficient co-operation in any event, in the context of specific duties in the 1999 Act for the Mayor to:

* consult on any alteration to or replacement of the spatial development strategy (the London Plan) with counties and districts adjoining London (section 335), and
* inform local planning authorities in the vicinity of London of his views concerning any matters of common interest relating to the planning or development of London or those areas (sections 339 and 348).

However, it is a point that needs urgently tidying up to avoid legal uncertainty in the context of the forthcoming plan. 

The previous Mayor established the Outer London Commission to consider how parts of outer London might better realise their economic potential. Given as well Anthony Thickett’s urging in his report of the need for a new approach given the pressures for housing, inter-relationships with surrounding areas outside London’s formal boundaries cannot be ignored. The Outer London Commission’s March 2016 report, Coordinating Strategic Policy And Infrastructure Investment Across The Wider South East, touches on the taboo subject of green belt review:

“3.24 […] a strategic review [of green belt boundaries] in London may raise legal issues. The NPPF is very clear that Green Belt reviews should be a local planning authority matter and the two London’s Mayors have so far accepted this. However, S30 of the GLA Act enables the Mayor to take action to further one or more of the authority’s principal purposes. Moreover, the London Plan is legally part of the Development Plan for any area of London and, more practically, the NPPF is clearly written with single tier planning authorities in mind. A case might well be constructed to justify Mayoral/strategic involvement in a review (he already addresses other issues to which the NPPF attributes responsibility to the local planning authority). A formal legal opinion on the admissibility of the Mayor leading a strategic review might inform this.”
No doubt, the new plan will duck the issue, but should it?
Relationship with the boroughs
Section 24(1)(b) of the Planning and Compulsory Purchase Act 2004 requires borough plans to be in general conformity with the London Plan. 
The content of the plan is clearly of critical importance to the boroughs and the sensitivity is heightened given that the Mayor does not have to accept an inspector’s recommendations. Differing political priorities between the Mayor and boroughs can lead to tensions, as we saw in relation to the affordable rented housing policies in “revised early minor modifications” introduced by Boris Johnson. Nine boroughs challenged the policy which had been adopted in the face of recommendations from inspector Geoff Salter in his report dated 19 June 2012. They argued that the policy would unlawfully preclude them from imposing borough-wide caps on rent for affordable rented housing at lower than a London-wide default level of 80% of market value.
The dispute reached the High Court in London Borough of Islington (& 8 other London boroughs) v Mayor of London (Lang J, 25 March 2014). The court dismissed the challenge:
“28. In my view, the Claimants have failed to establish that the Defendant’s strategy is contrary to the NPPF. The NPPF is a national policy framed in terms of broad policy objectives. Detailed decisions on how those objectives can be best achieved have to be made at a regional and local level. The only reference to rent caps for affordable rented housing is in the definition of affordable rented housing, which provides that the rent must be “no more than 80% of the local market rent”. Paragraph 47 of the NPPF does not speak either for or against local rent caps. Nor does it prevent the Defendant from adopting a London-wide policy against rent caps with which local boroughs must comply. There are other ways in which the Claimants can and should “use their evidence base” to ensure their local plans meet “objectively assessed needs” for affordable housing…”
The future
So, a plan is to be adopted in 2019 with a two year preparation process, within which period the environmental and other implications of emerging policies will need to be thoroughly tested. How will it point London forward in a certain and confident way given the various current uncertainties over such issues as Brexit (given the particularly internationally-facing role that Greater London plays, a clear priority for Khan will be to avoid a hard Glexit, regardless of the consistency of any Brexit); Heathrow; Crossrail 2; the Bakerloo Line extension and other infrastructure proposals, and whatever emerges as the (new) Government’s air quality plan? But perhaps above all of these uncertainties remains the continued desperate need for increased housing, with affordability a key component. 

What a challenging prospect the Mayor and his team have ahead of them in appropriately directing boroughs and developers with clarity and precision, retaining the good, snipping out the unnecessary or counter-productive. Let’s hope that, in every respect save its length, this turns out to be no little plan. 
Simon Ricketts 23.4.17
Personal views, et cetera

Parliament, Purdah, Planning

The pre- general election “purdah” period starts at midnight tonight (21 April). What this means is set in Cabinet Office guidance published yesterday, 20 April.
The guidance says:

“During the election period, the Government retains its responsibility to govern, and Ministers remain in charge of their departments. Essential business must be carried on. However, it is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character. Decisions on matters of policy on which a new government might be expected to want the opportunity to take a different view from the present government should be postponed until after the election, provided that such postponement would not be detrimental to the national interest or wasteful of public money”

So don’t hold your breath for any decision letters to be issued. 
In relation to current consultation processes, the guidance says:

“If a consultation is on-going at the time this guidance comes into effect, it should continue as normal. However, departments should not take any steps during an election period that will compete with parliamentary candidates for the public’s attention. This effectively means a ban on publicity for those consultations that are still in process. 


As these restrictions may be detrimental to a consultation, departments are advised to decide on steps to make up for that deficiency while strictly observing the guidance. That can be done, for example, by: 


– prolonging the consultation period; and


– putting out extra publicity for the consultation after the election in order to revive interest (following consultation with any new Minister).

Some consultations, for instance those aimed solely at professional groups, and that carry no publicity will not have the impact of those where a very public and wide-ranging consultation is required. Departments need, therefore, to take into account the circumstances of each consultation.”

There are currently six DCLG consultation processes which are still open:

* Review of park homes legislation: call for evidence

* Running free: consultation on preserving the free use of public parks

* Banning letting agent fees paid by tenants

* 100% business rates retention: further consultation on the design of the reformed system

* Fixing our broken housing market: consultation

* Planning and affordable housing for Build to Rent

the last two of course being particularly important for us in the housing and planning sector. 

The Department for Transport is currently consulting on its draft Airports National Policy Statement in relation to the expansion of Heathrow and on reforming policy on the design and use of UK airspace.

Surely these consultation processes will all now be extended. Can any of them be said to be “aimed solely at professional groups”?
The Government faces an interesting dilemma in relation to its awaited consultation draft air quality plan. Garnham J had ordered on 21 November 2016 that the draft be published by 24 April 2017 following previous deadline breaches summarised in my 4.11.16 blog post. The announcement of the election and consequent purdah period does not automatically extend that deadline. Will we see a draft by the deadline or will ClientEarth be back before the court?
Notwithstanding purdah, Parliament will continue to sit until 2 May 2017. The outstanding Bills are:
• Bus Services Bill

• Children and Social Work Bill 

• Digital Economy Bill 

• Health Services Supplies Bill

• Higher Education and Research Bill 

• National Citizen Service Bill

• Pension Schemes Bill

• Technical and Further Education Bill

and of course the Neighbourhood Planning Bill, which is at its final stages, with final consideration by the House of Lords on 25 April 2017 of amendments made by the Commons. Whilst technically there is therefore the time available before Parliament dissolves, the BBC website  has an interesting analysis of the practical constraints that there will be on Parliamentary time during this final period. My understanding is that public Bills cannot be held over and so the Bill would fall. 
Finally, as we wait for the parties’ manifestos and various pressure groups compose their letters to Santa, this is a collection of some of the commitments which some Town Legal colleagues would personally like to see (tongue in cheek – what votes in many of these one wonders?). We will be jotting up the scores once the manifestos are published but a more than a 10% convergence would be doing pretty well I suspect…
1. Revised NPPF as previously signalled, but with consultation on final wording.

2. Real sanctions for local planning authorities which continue to delay in preparing plans or which do not plan adequately to meet housing requirements. Statutory duty to make local plans every 10 years. 

3. Review of green belt boundaries in the south east should be obligatory at least every 20 years. Where there are no green belt boundaries fixed because there are no local plans in place , the Secretary of State should appoint PINS to lead a plan making exercise at the expense of the defaulting council with step in rights if the Council wants to come back into the fold.

4. Review of effectiveness of Localism Act 2011 procedures, including neighbourhood plan making.

5. No weakening of environmental protections via Great Repeal Bill.

6. Urgent conclusion to CIL review, with short-term remedial measures, including greater flexibility for local planning authorities and developers in relation to strategic sites.

7. Enabling urban extensions and new settlements of true scale (eg 10,000 to 15,000 homes plus associated infrastructure and development) to proceed by way of NSIP.

8. Introduction of duty to cooperate to apply as between the London Mayor and local planning authorities.

9. Reform of rights to light law to reflect modern realities.

10. Greater flexibility for local authorities to dispose of land for less than best consideration.

11. Require better coordinated forward planning with statutory undertakers and infrastructure providers.

12. General commitment to consultation and piloting prior to legislative changes in relation to planning.

13. Increased resourcing in relation to the planning system so as to achieve better quality, more consistent, more timely and more efficient outcomes.

14. High speed Broadband and electric car charging should be a standard requirement.

15. Clarity on approach to viability and review mechanisms.

16. A more stable system with no more changes for the next two years at least (save for these ones!)

Back to the day job…

Simon Ricketts 21 April 2017

Personal views, et cetera

Planners & Pubs

“…That is the best of Britain and it is part of our distinctive and unique contribution to Europe. Distinctive and unique as Britain will remain in Europe. Fifty years from now Britain will still be the country of long shadows on county grounds, warm beer, invincible green suburbs, dog lovers and pools fillers and – as George Orwell said – “old maids bicycling to Holy Communion through the morning mist” and if we get our way – Shakespeare still read even in school. Britain will survive unamendable in all essentials.” (John Major, speech to Conservative Group for Europe, 2003)

The Government is determined that he is proved right about the warm beer at least: drinking establishments will have more protection against changes of use than almost any other use, once recent additions to the Neighbourhood Planning Bill come into effect. 

When the Bill returned to the Commons from the Lords on 28 March 2017, a Lords amendment that sought to remove permitted development rights from A4 uses (“public houses, wine bars or other drinking establishments (but not night clubs)”) was replaced by Commons amendment 22A  :

“(1)    As soon as reasonably practicable after the coming into force of this section, the Secretary of State must make a development order under the Town and Country Planning Act 1990 which:

 (a)    removes any planning permission which is granted by a development order for development consisting of a change in the use of any building or land in England from a use within Class A4 to a use of a kind specified in the order (subject to paragraph (c)),

(b)    removes any planning permission which is granted by a development order for a building operation consisting of the demolition of a building in England which is used, or was last used, for a purpose within Class A4 or for a purpose including use within that class, and

 (c)    grants planning permission for development consisting of a change in the use of a building in England and any land within its curtilage from a use within Class A4 to a mixed use consisting of a use within that Class and a use within Class A3.”

The Bill is likely to receive Royal Assent in late April/early May 2017 and, if the clause survives (there is a “ping pong” procedure on 26 April where the Lords decide whether to accept it), we will need to see how quickly (1) it comes into force and (2) the amended development order is made. The provisions will not affect development which is carried out pursuant to the current General Permitted Development Order before the amended development order comes into force. 

Whilst apparently supported by all parties and (of course) by CAMRA,  it is noteworthy that the provision (1) has been shoehorned into a Bill which covers unrelated matters and (2) has not been the subject of consultation – seldom a recipe for good legislation. 
This is yet another area where successive Governments have been constantly fiddling. 
Amendments to the Use Classes Order in 2005 split the old use class A3 into:
 — A3 Restaurants and cafés – For the sale of food and drink for consumption on the premises – restaurants, snack bars and cafes

— A4 Drinking establishments – Public houses, wine bars or other drinking establishments (but not night clubs)

This was primarily to prevent restaurants turning into drinking places rather than to provide any protection for pubs. Amendments to the General Permitted Development Order included a permitted development right to change from A4 to A3. 
The assets of community value regime introduced by the Localism Act 2011 has been used energetically in relation to pubs in particular, with over 850 pubs registered by 2015 (and much encouragement and cheerleading by Government) but, despite being time consuming for communities and authorities alike, was largely toothless until the changes introduced by the Town and Country Planning (General Permitted Development) (England) Order 2015  pursuant to which, in relation to any drinking establishment, the permitted development rights to change use to A1 or A2, or to demolish, do not apply if it is registered as an asset of community value. Even if it not registered, there is a prior approval requirement to serve as a check as to whether any nomination for registration has been received. 
The Carlton Terrace saga was a salutory lesson for owners and developers. Prior approval for demolition wasn’t obtained and by a 6 July 2016 decision letter  an inspector upheld Westminster City Council’s enforcement notice requiring the pub to be rebuilt. Isn’t it just genuinely “community” pubs, often with heritage value, such as the Carlton, that deserve particular protection?
More recently we have also seen increasingly widespread use by local planning authorities of Article 4 Directions to remove permitted development rights in relation to pubs (most recently for example Southwark Council, which resolved on 7 March 2017 to make a direction).
So what is the justification for further changes?
Gavin Barwell in a debate in the House of Commons on 28 March 2017 explained the Government’s proposed amendments to the Bill as follows:

“I wish to turn to permitted development rights for the change of use or demolition of pubs, and to update the House on the steps we are taking in respect of the permitted development rights for the change of use from office to residential. First, I will speak to the Government amendment in respect of permitted development rights for the change of use or demolition of pubs. Let me start by assuring hon. Members that we have listened to both Houses and to the support that Members have expressed for valued community pubs. They will see that we have accepted the principle of the amendment introduced into the Bill in the other place. Our amendments in lieu therefore set out the detail of how we will take that principle forward.



The amendment commits us to update the Town and Country Planning (General Permitted Development) (England) Order 2015 to remove the permitted development rights for the change of use or demolition of drinking establishments, including pubs. In tabling the amendments in lieu, I reassure hon. Members that we have continued to engage through the passage of the Bill with interested Members and bodies, such as the Campaign for Real Ale and the British Beer and Pub Association. I can confirm that we will remove the permitted development rights to change to a restaurant or cafe, financial or professional service, or a shop. We will also remove the permitted development rights to change to an office for up to two years and to a school for a single academic year.



In making these changes, the Government are keen to avoid any potential unintended consequences. As such, we are clear that the best way to support pubs is to retain the A4 “drinking establishments” use class for pubs, wine bars and other types of bars. Doing so will allow pubs to innovate and intensify their use, for example by opening a pub garden or starting to provide live music, without facing a risk that this will be a change of use that requires a full planning application. Our intention in retaining the A4 use class is to allow pubs to develop within this use class without having to seek planning permission, thus avoiding unintended consequences, and unnecessary cost and bureaucracy. “




“The changes in respect of permitted development rights for the change of use or demolition of pubs mean that in future a planning application will be required in all cases. This will also be the case for premises in mixed use, for example as a pub and a restaurant. This addresses the long-standing call that there should be local consideration and an opportunity for the community to comment on the future of their local pub. It is important that local planning authorities have relevant planning policies in place to support this decision taking. Once we have made the changes, the current provisions, which remove permitted development rights for the change of use or demolition of pubs that are listed as assets of community value, are no longer necessary and will fall away.”



 “Importantly, we have listened to the points made about the need for pubs to be able to expand their food offer in order to meet changing market need and support their continued viability—the issue that my right hon. Friend the Member for Wokingham is concerned about. Therefore, at the same time as getting rid of the permitted development rights that allow for demolition or change of use, we will introduce a new permitted development right to allow drinking establishments to extend their food offering so as to become a mixed A4 pub and A3 restaurant. The Government believe that this will ensure that pubs have nothing to fear when it comes to requiring planning permission or enforcement against the change of use where a pub is extending its food offer. This will give them vital additional flexibility.”
Of course the measure won’t just apply to “valued community pubs” but to all drinking establishments that fall within use class A4. Is that proportionate?

The proposal that there should be deemed permission to change from A4 to a mixed A3/A4 use has attracted some criticism. Whilst there does need to be flexibility to allow dining pub type operations, is there the risk of opening the door to uses which are actually A3, as a stepping stone to A1 or A2? The concern is overstated in my view but these use distinctions are increasingly difficult in practice. 
Indeed, for the bigger picture in relation to changing trends in drinking and eating, the House of Lords Select Committee report on the Licensing Act 2003 dated 4 April 2017 makes fascinating reading. Who knows when Parliament will have the time to set matters right but the report is a sustained attack on the 2003 licensing reforms and the abject failure of that legislation to achieve its objectives:
“During the passage of the Licensing Bill one of the much over-used expressions was that it was going to change the UK to a “café culture”, by which was meant the imagined Continental habit of modest and leisurely consumption of alcohol at any civilised hour, preferably in clement weather. The fact that this has not materialised seems to have come as no surprise to any of our witnesses, nor to us; it takes more than an Act of Parliament to change the habits of generations, and this country’s climate was never going to favour such a change. The café culture which has grown up takes a rather different form and is confined to town centres, where between 2011 and 2016 a fall of 2,000 in the number of bars, pubs and night clubs has been accompanied by an increase of 6,000 in the number of cafés, fast food outlets and restaurants.”
To what extent is the loss of drinking establishments down to our planning regime and how much is it down to consumer trends? Who is going to operate – and drink in – all of these protected pubs?
At the moment of course licensing is a separate world from planning (and from planners and planning lawyers). Woe betide the objector who raises an issue in the wrong forum. 
For those of us who may wonder from time to time whether the planning system is perhaps a little unpredictable, there are some real horror stories in the report as to the operation of local authority licensing committees. Indeed the Select Committee advocates that the present procedures be replaced by something much more aligned with our current planning system, with licensing committees merged with planning committees and appeals to planning inspectors:
“Previous committees of this House conducting scrutiny of statutes have found that the Act in question is basically satisfactory, but that its implementation is not. In the case of the Licensing Act our conclusion is that, while the implementation of the Act leaves a great deal to be desired, to a large extent this is caused by an inadequate statutory framework whose basic flaws have, if anything, been compounded by subsequent piecemeal amendments. A radical comprehensive overhaul is needed, and this is what our recommendations seek to achieve.”

“For five hundred years the licensing of persons and premises was the task of justices of the peace. Those who devised the new policy in 2000 thought, rightly, that this was not a task for the judiciary but for local administration. If they had looked to see how local authorities regulate the responsible use of land in other situations, they would have seen that the planning system, already well established and usually working efficiently, was well placed to take on this additional task. 

Instead the legislation established new licensing committees for each of 350 local authorities. The councillors sitting on these new committees, and the staff assisting them, had no experience of the complex new law they were administering. Our evidence shows that, while most members of licensing committees no doubt attempt to apply the law justly and fairly, too often standards fall short. Many councillors have insufficient training; all should undertake compulsory training. We were told of cases of clear inadequacies in fulfilling their functions, resulting in a haphazard decision-making process. 

The planning system has its detractors, but planning committees are well established, with better support from experienced staff. Our main recommendation is that there should be a trial merger of licensing committees with planning committees. To be clear, we are not recommending a merger of licensing law and planning law; we are suggesting that the councillors who sit on planning committees, using the same procedure and practice and with the same support as they already have, should deal with proceedings under the Licensing Act in the same way that they already deal with planning legislation. 

Appeals from decisions of licensing committees now go to the same magistrates who, until 2005, dealt with the applications. This not only defies logic; it leads to unsatisfactory results, as many of our witnesses have testified. Planning appeals go to inspectors who have the training for this, and for whom this is a full time job. We recommend that they should hear licensing appeals as well. ”

Trebles all round!

Simon Ricketts 13.4.17

Personal views, et cetera

Heffalump Traps: The Ashdown Forest Cases

The Ashdown Forest in East Sussex is unique. Lindblom LJ recently described it as follows:
“Ashdown Forest contains one of the largest continuous blocks of lowland heath in south-east England. The [Special Area of Conservation] which extends to about 2,700 hectares, comprises both Northern Atlantic wet heaths with Erica tetralix and European dry heaths. It is a “European site” under regulation 8 of the Habitats regulations. The [Special Protection Area] was designated mainly for the protection of two species of bird: the Nightjar and the Dartford Warbler, both included in Annex 1 of EU Directive 79/409/EEC on the conservation of wild birds, as amended. Ashdown Forest is also designated a Site of Special Scientific Interest (“SSSI”), for its heaths, birds, invertebrates, reptiles and amphibians, including the Great Crested Newt.”

The Ashdown Forest was of course also the inspiration for A.A. Milne’s Winnie the Pooh:

“Anyone who has read the stories knows the forest and doesn’t need me to describe it. Pooh’s Forest and Ashdown Forest are identical.” (Christopher Milne)


This honeypot is particularly vulnerable to the indirect effects arising from development in two respects:

– nitrogen deposition caused by motor vehicles

– impacts from recreational use of the forest
It can be particularly difficult to model the levels at which those effects are likely to arise. Any standardised thresholds are bound to be simplistic and to err either on the side of unnecessary restriction of development or on the side of risking significant harm to the forest. But we can’t embark on a huge multi-disciplinary research project every time any change is proposed – and, even then, will the results be accurate?

Whether we are in or out of the EU, I assume that we all accept that there are some particularly special places such as Ashdown Forest that require longterm protection due their nature conservation value and which can be harmed in a number of ways by the incremental effects (direct and indirect) of development? Equally, I’m sure we all recognise that a balance has to be struck in the level of survey work and assessment that local planning authorities and developers should do to determine whether development will acceptable?

It would never be easy to construct a legal regime that provides a fair and efficient process for determining what survey work and assessment is required and where the dividing line is between what is acceptable and unacceptable. As both a Special Area of Conservation and Special Protection Area, the Ashdown Forest is protected under the EU’s Habitats and Birds Directive, transposed in England and Wales by the Conservation of Habitats and Species Regulations 2010.
In basic summary, if it cannot be proven, beyond reasonable scientific doubt, that there will be no significant effect on the site either alone or in combination with other plans or projects, “appropriate assessment” is required, namely consideration of the impacts on the integrity of the European site, either alone on in combination with other plans and projects, with regard to the site’s structure and function and its conservation objectives. If the assessment determines that there will be adverse impacts which cannot be mitigated or avoided by alternative solutions, the plan or project can only proceed in extremely limited circumstances. Appropriate assessment can be a significant undertaking. Relevant for what follows, policy makers have come up with a pragmatic mechanism of requiring contributions by developers to Suitable Alternative Natural Greenspace (“SANGs”) to provide for areas to come forward that will take recreational pressure away from protected sites as a standardised form of mitigation, often thereby avoiding the need for individual, development by development, appropriate assessment. 
Additional levels of protection, not just relevant to European designated sites, are provided by the Strategic Environmental Assessment Directive (in relation to the formulation of plans or programmes whose policies may give rise to significant environmental effects) and by the Environmental Impact Assessment Directive (in relation to certain categories of development projects which may give rise to significant environmental effects). Each has a screening stage, by which the need for detailed assessment work can be avoided if it can be shown that significant environmental effects are unlikely to arise. 
The Great Repeal Bill will operate post Brexit so as to continue to give legal effect in the UK to all of these regimes until such time as Parliament reviews each of them. The Government published on 30 March its White Paper, Legislating for the United Kingdom’s withdrawal from the United Kingdom. It contains this details-free passage on environmental protection:
“The Government is committed to ensuring that we become the first generation to leave the environment in a better state than we found it. 

The UK’s current legislative framework at national, EU and international level has delivered tangible environmental benefits, such as cleaner rivers and reductions in emissions of sulphur dioxide and ozone depleting substances emissions. Many existing environmental laws also enshrine standards that affect the trade in products and substances across different markets, within the EU as well as internationally. 

The Great Repeal Bill will ensure that the whole body of existing EU environmental
 law continues to have effect in UK law. This will provide businesses and stakeholders with maximum certainty as we leave the EU. We will then have the opportunity,
over time, to ensure our legislative framework is outcome driven and delivers on our overall commitment to improve the environment within a generation. The Government recognises the need to consult on future changes to the regulatory frameworks, including through parliamentary scrutiny. ”
That may sound benign, but let’s keep an eye on that reference to ensuring “our legislative framework is outcome driven”. “Too much red tape’ appears to be the knee jerk reaction of many politicians to EU environmental legislation, viz recent jabs at protected species such as the great crested newt and at SANGs.
So have we got the balance right in our current legislation? Ashdown Forest has in the last two years given us four court rulings (three at Court of Appeal level) which in different ways identify the difficulties and complexities that inevitably arise in practice. If the sensitivity of a site such as the Ashdown Forest is a given, how would any other system better regulate the competing interests at play and provide an effective regime for determining forensically what are often complex and difficult environmental and ecological scientific issues?
Chronologically (if we ignore famous proceedings that ran from 1876 to 1882 as to the extent of commoners’ rights over the forest versus the rights of a landowner, the 7th Earl De La Warr), the cases have been as follows:

Ashdown Forest Economic Development LLP v Wealden District Council and South Downs National Park Authority (Court of Appeal, 9 July 2015)

This was a challenge by local landowners, including in fact the 11th Earl De La Warr, to policies in the Wealden Local Plan, including a requirement for SANGs provision in relation to housing developments within 7 kilometres of the forest. The Court of Appeal quashed the requirement, holding “with a degree of reluctance” that the council and the national park authority had failed to consider reasonable alternatives to the 7 kilometres cordon, in breach of the requirements of the Strategic Environmental Assessment Directive, overturning Sales J’s first instance ruling.  
Sales J had also rejected the landowners’ challenge to a cap on housing numbers in the plan, which had been justified on the basis of seeking to ensure that traffic movements did not increase beyond 1,000 AADT (annual average daily traffic flows on any road in the forest, equivalent to a 1% increase), treated by the authorities and Natural England as a threshold beyond which appropriate assessment would be required under the Habitats Regulations. The landowners were not given permission to appeal that ground and so that housing numbers policy stands. 
Secretary of State v Wealdon District Council (Court of Appeal, 31 January 2017)
This was a challenge by Wealden District Council to an inspector’s decision to allow an appeal against the refusal of planning permission for the construction of 103 dwellings, 42 of them to be provided as affordable housing, and the provision of 10 hectares of SANGs and public open space, on land at Steel Cross, a small settlement to the north of Crowborough. The site is about 2.4 km from the edge of the forest. The inspector had found that there would have been a need for appropriate assessment despite the 1,000 AADT threshold not having been reached, but for proposed mitigation in the form of financial contributions towards heathland management. The challenge had succeeded at first instance before Lang J and the Court of Appeal had to address a number of submissions from the opposing parties based on SAC and SPA issues:
– did the inspector adopt too strict an approach in concluding that there was no need for an appropriate assessment? 
– was he wrong to assume that heathland management to mitigate the effects of nitrogen deposition would be carried out under a strategic access management and monitoring strategy (“SAMMS”)? 

– did he fail to take into account evidence given for the council on the efficacy of heathland management?

The Court of Appeal held that the inspector’s approach to the potential relevance of even relatively small additional traffic numbers had not been wrong but he had failed to justify why, in the face of contrary evidence from the council, he considered that heathland management would amount to adequate mitigation. Furthermore:
“As Mr Price Lewis submitted, the inspector did not explain how he thought the financial contributions in the section 106 obligation were in fact going to be translated into practical measures to prevent or overcome the possible effects of nitrogen deposition to which he had referred, as well as funding the SAMMS projects which would tackle the potential effects of recreational use. He did not say what he thought was actually going to be done, by whom, and when, in implementing the “habitat management” upon which his conclusion on the need for “appropriate assessment” was predicated. That conclusion depended on his judgment that, with mitigation, including heathland management to mitigate the effects of nitrogen deposition, the proposed development, together with other proposals, was not likely to have significant effects on the European site. Such mitigation, as he made clear, was essential to his “precautionary approach”. So if there was any real doubt about the requisite heathland management coming forward, his conclusion that an “appropriate assessment” was not required would, to that extent, be undermined. It was necessary for him to establish with reasonable certainty that the relevant mitigation, including heathland management, would actually be delivered. But he did not do that. He did not identify a solid proposal for heathland management, relevant to this proposed development, to which there was a firm commitment on the part of those who were going to carry it out. His conclusions in paragraphs 68 and 71 of his decision letter, and in paragraph 105, clearly depended on the concept that the “contributions to SAMMS” in the section 106 obligation “would” – as he put it – actually be used, in part, to fund “projects” of “habitat management”. These projects would involve measures, such as cutting and grazing to reduce, “offset” or “outweigh” the effects of nitrogen deposition attributable to this development in combination with other proposals, including “additional eutrophication”. But which “projects” he had in mind is obscure.”
The planning permission was quashed. 
R (DLA Delivery Ltd) v Lewes District Council (Court of Appeal, 10 February 2017)  
This case raises a number of issues in relation to neighbourhood planning (see my 19.2.17 blog post, Five Problems With Neighbourhood Plans ) but for the purposes of this blog post the relevant question before the Court of Appeal was whether the neighbourhood plan for Newick, approximately 7 km from the forest, contravened the Strategic Environmental Assessment Directive in that the need for strategic environmental assessment had been screened out, relying on on the emerging sustainability appraisal work carried out by Lewes District Council and the national park authority. The claim had been brought by a promoter of a scheme which had not been allocated for development in the plan. If SEA had been found to be required, this would have given it the opportunity to promote its site as a reasonable alternative for those allocated, given that it was outside the magic 7 km radius of the forest. Whilst the court found errors in the council’s reasoning for arriving at a negative screening opinion, they were not such as to vitiate the decision and the plan was not quashed. 
Wealden District Council v Secretary of State, Lewes District Council and South Downs National Park Authority  (Jay J, 20 March 2017)
The forest lies within Wealden’s and the national park authority’s respective administrative areas. Lewes District Council’s boundary is around 5-6km from the forest. This was a challenge by Wealden District Council of a joint core strategy prepared by Lewes and the national park authority. Wealden claimed that Lewes and the national park authority had acted unlawfully in concluding, on advice from Natural England, that the joint core strategy would not be likely to have a significant effect on the SAC in combination with the Wealden core strategy. 
Natural England had advised that if the expected increase in AADT flows on any route within 200m of a protected site was less than 1,000 cars per day or 200 HGVs per day, equivalent to less than a 1% increase in traffic, then appropriate assessment was not necessary. The expected increase turned out to be 190 AADT, but the expected increase of 950 generated by proposals in the Wealden core strategy was ignored. The defendants tried to argue before the court that the 1,000 AADT threshold was “sufficiently robust and precautionary to cover any likely scenario of in-combination effects. The amounts of nitrogen dioxide in play are so small that they are effectively de minimis and of neutral effect”. 
The judge held that Natural England’s approach was “plainly erroneous”. There was “no sensible or logical basis” for excluding the Wealden core strategy from account” and a “clear breach” of the Habitats Directive. 
A couple of additional points to note:
– The challenge was to policies in the joint core strategy, but (unlike the national park authority) Lewes had adopted it more than six weeks before the challenge had been brought. Accordingly only the policies relating to the provision of new housing in the national park authority’s area were quashed. 
– In an extreme case of nominative determinism, Natural England’s expert advisor, as in a number of these cases, was one Marion Ashdown. 

Controversy relating to Ashdown Forest is likely to continue if a recent Daily Mirror piece  on the Mid-Sussex local plan inspector’s 20 February 2017 preliminary conclusions on housing requirements is anything to go by…
So what do we conclude from all of this?
Even once we agree that complex eco-systems such as Ashdown Forest need protection, the dividing line between an appropriate precautionary approach to house-building in the vicinity and inappropriate over-protection is really hard to draw, and it is equally difficult to apply triage so as to reduce the amount of detailed assessment work required. 
The necessary predictions draw upon scientific disciplines such as chemistry, statistics, ecology and psychology as much as they are about planning or law. 
Perhaps there is room for greater clarity. After all, it is concerning when even the Government’s statutory advisory body can be “plainly erroneous” in its approach. And it is concerning that so many complex cases are reaching the courts – and leading to the quashing of decisions and policies. This hardly gives a certain basis for house building. 
But don’t think that this is ever going to be easy or that the problems mainly lie with the nature of the EU directives from which the legal principles flow. We will reinvent the wheel at our peril. 

After all that, perhaps there is one thing on which we can all agree?

It is more fun to talk with someone who doesn’t use long, difficult words but rather short, easy words like “What about lunch?” (A.A. Milne)

Simon Ricketts 8.4.17
Personal views, et cetera

Great Expectations: Pip & The Brownfield Land Registers

“We changed again, and yet again, and it was now too late and too far to go back, and I went on“. (Charles Dickens, Great Expectations)
Permissions in principle will change our planning system significantly, mark my words. In my 11.6.16 blog post  I posed a series of questions arising from the legislative skeleton that is sections 150 and 151 of the Housing and Planning Act 2016. 
Victorian part-work style, we now have had the Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017  (made 6 March 2017, in force 27 March 2017), the Town and Country Planning (Brownfield Land Register) Regulations 2017  (made 20 March 2017, in force 16 April 2017) and the Town and Country Planning (Permission in Principle) Order 2017 (made 20 March 2017, 15 April 2017). The statutory instruments don’t yet give effect to all of what sections 150 and 151 enable, but we now have some answers. 
This blog post is not a full summary of how the regime will operate. There are various good summaries but I particularly recommend the Lichfields 27 March 2017 ‘essential guide‘.
A few headlines from the new regime:
1. Local planning authorities will be under a statutory duty to publish their brownfield land registers by 31 December 2017 and then maintain them, reviewing the entries at least annually. 
2. The registers will be in two parts:
– Part 1: previously developed land with an area of at least 0.25 hectares that is suitable and available for residential development and where residential development is achievable (all defined terms)
– Part 2: land in Part 1 where the local planning authority has exercised its discretion to enter the land in Part 2 and has decided to allocate the land for residential development having followed defined publicity, notification and consultation procedures. 

3. The information that must be recorded for each entry is specified and includes

– “the minimum and maximum net number of dwellings, given as a range, which in the authority’s opinion, the land is capable of supporting”

– “where the development includes non-housing development, the scale of any such development and the use to which it is to be put“. 

4. Part 2 will not include sites where the development would require environmental impact assessment. So, if the proposed development falls within Schedule 2 column 1 of the 2011 EIA regulations (for most purposes, more than 150 dwellings or on more than 5 hectares), a negative screening opinion or direction must first be obtained (but remember, indicative screening thresholds as to when significant environmental effects are likely to arise allow for the possibility of projects much larger than 150 dwellings). 

5. There are no statutory rights of appeal if the local planning authority refuses to include land on the register (ECHR article 6 compliant?). Judicial review would, as always with any decision of a public body, be available but the decision to include land on Part 2 is at the local planning authority’s discretion so that would not be easy.  

6. Once land is on Part 2 it has automatic “permission in principle” for five years. In order to be able to carry out the development, application for technical details consent is required, particularising “all matters necessary to enable planning permission to be granted”. The statutory determination period for technical details consent is ten weeks for major development and otherwise five weeks, so deliberately shorter than the equivalent periods in relation to “traditional” non-EIA planning applications (thirteen and eight weeks respectively). A section 106 agreement may be required if the usual tests are met. 

7. There is no defined limit on the extent of non-housing development that can benefit from the procedure, alongside residential development. 

8. The procedure applies to conversion and extension of existing buildings as well as development. 

For a wider overview of where this mechanism is heading, there are also useful references in DCLG Planning Update Newsletter March 2017, from which it is clear that further regulations will follow to (1) allow applications for permission in principle to be made for minor development (ie basically less than ten homes) for sites on part 1 of a brownfield land register and to (2) allow automatic permission in principle to stem from allocation in defined categories of statutory development plans rather than just from designation on a brownfield land register. Guidance is also in the offing (dovetailed with the revised NPPF? We can but hope). 
We also await the Government’s response to its February 2016 technical consultation on implementation of planning changes  chapter 2 (permission in principle) and chapter 3 (brownfield register). It was originally promised to be published alongside the regulations. In the meantime, a number of passages in the consultation document are useful in putting flesh on the bones:

“The result of a grant of permission in principle is that the acceptability of the ‘prescribed particulars’ cannot be re-opened when an application for technical details consent is considered by the local planning authority. Local planning authorities will not have the opportunity to impose any conditions when they grant permission in principle. It will therefore be important for the development granted in principle to be described in sufficient detail, to ensure that the parameters within which subsequent application for technical details consent must come forward is absolutely clear.”

“We expect that the parameters of the technical details that need to be agreed, such as essential infrastructure provision, will have been described at the permission in principle stage and will vary from site to site”

“We are proposing that local planning authorities should use existing evidence within an up to date Strategic Housing Land Availability Assessment as the starting point for identifying suitable sites for local brownfield registers. To support this, we will encourage authorities to consider whether their Assessments are up to date and, if not, to undertake prompt reviews. 


While sites contained within the Strategic Housing Land Availability Assessment are a useful starting point, we will encourage local authorities to ensure they have considered any other relevant sources if these are not included in their Assessments. This could include sites with extant planning permission and sites known to the authority that have not previously been considered (for example public sector land). 


We will also expect authorities to use the existing call for sites process to ask members of the public and other interested parties to volunteer potentially suitable sites for inclusion in their registers. We propose that this would be a short targeted exercise aimed at as wide an audience as is practicable. That will enable windfall sites to be put forward by developers and others for consideration by the authority. 

Authorities that have recently undertaken a full Strategic Housing Land Availability Assessment may not consider this to be necessary when initially compiling a register. However, in areas without up to date evidence and for all authorities completing subsequent annual reviews of their register, the process of volunteering potentially suitable sites will play an important role in refreshing the evidence base and help ensure all suitable sites, including windfall sites, are included.”

“We intend to introduce measures that will apply where additional action is needed to ensure that sufficient progress is being made. These measures could include a policy based incentive which would mean that local planning authorities that had failed to make sufficient progress against the brownfield objective would be unable to claim the existence of an up-to-date five year housing land supply when considering applications for brownfield development, and therefore the presumption in favour of sustainable development would apply.

“We propose that the measures we adopt would take effect fully from 2020, and would apply to any local planning authority that had not met the 90% commitment by that date. However, in light of the need for local planning authorities to make continuous progress towards the 90% commitment, we are also interested in views on any intermediate objectives and actions that might apply. “

Be in no doubt, eventually we will have a mechanism that:

– imposes hard statutory deadlines on authorities to publish and regularly update their registers
– whilst light on statutory recourses for developers whose land is not included, will be focused on by Government – woe betide authorities that do not play ball

– will in many cases provide a quicker route to development than the familiar allocation, outline permission, reserved matters approach

– will be potentially relevant for establishing the development credentials of a site even if in due course a traditional planning application is intended

If you have residential development or conversion in mind, the first step is to seek to ensure that your property is on Part 1 of the first round of brownfield land registers, to be published by 31 December 2017. Within the 73 authority pilot areas  this process is well underway. Although care is needed to secure reference to an appropriate scale of development, that’s a pretty immediate way to secure acceptance that your site is suitable for residential development!

Simon Ricketts 1.4.17
Personal views, et cetera

CIL: Kill Or Cure?

If anyone doesn’t think that the Community Infrastructure Levy urgently needs reform, do read this 1 March 2017 VOA ruling on one of many thorny issues that arise constantly in practice: how to calculate indexation (as well as how to calculate chargeable floorspace) in relation to section 73 permissions that amend pre-CIL permissions. The copy of the ruling in the link to the gov.uk website is redacted but I can tell you that around £3m turned on the decision relating to a development of 527 dwellings. The authority in question (I will preserve anonymity) has been interpreting the Regulations in a way which it asserts to be literal and correct, but which leads to unfairly onerous liability arising (which for some people arises completely out of the blue by way of revised liability notices being served). 
The VOA member considered that the authority’s approach “is wrong and undermines the purpose of regulation 128A” (the regulation that seeks to avoid double charging in the case of development pursuant to section 73 permissions). I understand that the issue may now reach the High Court by way of judicial review. As with any tax legislation, the dilemma is as to what room is there for a purposive interpretation, however unfair the consequences of a literal reading. After all, see R (Orbital Shopping Park Swindon) Limited v Swindon Borough Council (Patterson J, 3 March 2016):
“…not only would the defendant’s approach be contrary to the whole approach to the interpretation of planning permissions it would be contrary to constitutional principles. As was said in Vestey v Inland Revenue Commissioners [1980] AC 1148 by Lord Wilberforce:


”Taxes are imposed upon subjects by Parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined. 
A proposition that whether a subject is to be taxed or not, or, if he is, the amount of his liability, is to be decided (even though within a limit) by an administrative body represents a radical departure from constitutional principle. It may be that the revenue could persuade Parliament to enact such a proposition in such terms that the courts would have to give effect to it: but, unless it has done so, the courts, acting on constitutional principles not only should not, but cannot, validate it.”
In that case a literal interpretation was to the benefit of the payer rather than the authority. Patterson J underlined “the importance of a close and clear analysis of what the statute actually requires“. 

The problem is that the 2010 Regulations are a hopeless mess; anything but clear to payer or authority alike – the antithesis of good tax legislation or indeed good planning legislation. The successive sets of amendments in 2011, 2012, 2013 and 2014 have resolved some problems, ignored others and created new ones. Due to ambiguities in the Regulations, CIL liability arising from a development is in many cases dependent on the approach being taken by individual collecting authorities, which is plainly contrary to the rule of law as well as wasteful of the time and money of all concerned. Planning consultants are having to act as tax accountants, with very large amounts of money at stake, dependent not just on an accurate reading of the legislation that accords with the collecting authority’s approach (unless there is to be an appeal to the VOA) but on service of the correct notices at the correct time – the process does not allow for any mercy on the part of the authority. 

Of course the planning system has from its outset wrestled with two core unresolved issues:
– The extent to which the system should have any land value capture role

– Apportionment of responsibilities between the state and developers/land owners for infrastructure delivery/funding. 

CIL is the latest attempt to square the circle but has proved hopelessly inefficient. 
For an excellent, detailed, analysis of the underlying issues, still nothing beats Tom Dobson’s 2012 paper to the Oxford Joint Planning Law Conference. 
Tom of course subsequently was one of the team, led by Liz Peace, appointed by the Government in November 2015 to:
“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.” 

Whilst the political reverberations of Brexit have been an unwarranted distraction from things that might actually help to improve lives and provide homes, it is so disappointing that the review team’s report was only published in February 2017, alongside the Housing White Paper. (Why was it held up till then? There is no read-across to the white paper proposals). The report is dated October 2016 but its contents were an open secret as long ago as June last year (see my CIL BILL? 3.6.16 blog post). Not only that but the Government has indicated that it will not be responding to the report’s recommendations until this Autumn’s budget. This presumably means no substantial changes until April or October 2018 at the earliest. 

The review team considered four options:
– do nothing

– abolition

– minor reform

– more extensive reform

The report is a solid piece of work, well argued and rooted in experience. It identifies CIL’s failings (raising less money than anticipated, over-complicated, opaque) and firmly recommends extensive reform, particularly 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, although the “example rates” in appendix 5 of the report are not particularly low given that there would be far fewer exemptions and reliefs and less opportunity to net off existing floorspace:
* £20 – £90 per m2 for Authorities in the North of England

* £30 – £90 per m2 for Authorities in the Midlands

* £30 – £220 per m2 for Authorities in the South and East of England

* £50 – £440 per m2 for London Boroughs

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 (come on government, if you do nothing else, remove the pooling restriction – even Donald Trump would be able to achieve that!). 

There would be transitional arrangements, with the review team speculating that these could take us to the end of this Parliament in 2020. Alas, with subsequent slippages even that now looks optimistic. 
What do we think the Government will do with the report? It is worrying that Gavin Barwell was talking at MIPIM of somehow including affordable housing in any revised system (see for instance Inside Housing’s article 24 March 2017). Keep it simple!
My personal guess is that significant change may well be too much for this government at this time. If so, ministers need to face that reality and it really is urgent that we at least push for Plan B: a further set of amending Regulations (preferably in the form of a consolidated version of the 2010 Regulations), putting right what we can, including abolition of the pooling restriction, alongside a clearer approach to indexation, to section 73 permissions and to payments in kind. The report called for interim measures but without setting them out in detail. 
Many of you remain in the “kill CIL” camp. I recognise that the CIL review team’s recommendations are radical but to go one step further and lose any levy or tariff mechanism would in my view be impractical. For bigger schemes, section 106 agreements definitely have advantages (as long as the negotiation process can be as streamlined as possible and the authority’s requirements signposted in policies) but for smaller projects a standardised approach should in theory leave everyone knowing where they stand – and another major lurch to a new system would inevitably have unanticipated outcomes. 
That June 2016 blog post was my first. And this is my 50th, with no real progress on CIL in the meantime. Gavin Barwell has rightly won many plaudits as planning minister but for many of us his real test will be to clear up quickly this CIL mess created by his predecessors (the coalition government in 2010 should have ditched it in the way that the Conservatives’ Open Source Planning manifesto document had suggested). As politicians love to say about most things, but true in the case of CIL, it’s broken. 
Simon Ricketts 25.3.17
Personal views, et cetera

London Calling: Mayoral Interventions

Sadiq Khan is now 10 months into his role. How has he been using his Mayor of London Order 2008 powers to intervene in relation to strategic planning applications? The number one priority in his manifesto was, after all, to:
“tackle the housing crisis, building thousands more homes for Londoners each year, setting an ambitious target of 50 per cent of new homes being genuinely affordable, and getting a better deal for renters.”


The consultation draft of the new London Plan is expected in August 2017, although we already have his draft affordable housing and viability SPG with its 35% affordable housing threshold approach (below which viability appraisal justification is required), covered in my 1.12.16 blog post. Ahead of the anticipated adopted version, a couple of items in the 14 March 2017 report to the London Assembly’s Planning Committee are of background interest:

– from page 9 a transcript of a discussion held on 1 February 2017 with James Murray, Jamie Ratcliff and private sector representatives in relation to the draft SPG

– from page 51 the Committee’s proposed response to the draft SPG.

Given that the Mayor’s intervention powers under the 2008 Order (to direct refusal of an application or call it in for his own determination) are the most direct levers that he can pull in relation to specific development proposals, it is perhaps surprising that so far we have not seen them used as much as under the last days of the Johnson regime.
This is how it stands as at 18 March 2017:
Flamingo Park, Bromley
Khan’s first intervention was in fact to direct refusal on 15 June 2016 of the Flamingo Park scheme in Bromley of a Green Belt scheme for a new stadium for Cray Wanderers FC along with 28 flats. (One for pub quizzes: Cray Wanderers claim to be the oldest football club in London – and second oldest in the world!). 
The London Borough of Bromley was minded to grant planning permission, but the Mayor considered that the ‘very special circumstances’ test for inappropriate development in the Green Belt had not been met. He added:
“Whilst writing I would take this opportunity to express my concern as to the lack of affordable housing and the effect the excess parking provision will have on the highway network in the vicinity of the site.”
Unusually, the Secretary of State promptly intervened and called in the application before the refusal was issued. The Mayor was preparing to defend the refusal direction but the applicant Cray Wanderers announced yesterday (17 March 2017) that it has withdrawn the application following legal advice and discussions with the Mayor and Bromley Council. It will resubmit a new application “in the next four to six weeks”. 
It will be interesting to see the extent to which the new scheme sees any increased housing component and the approach taken to affordable housing. 

Plough Lane, Merton

Khan’s next intervention also related to a proposed football stadium – this time Galliard Homes proposal for a new 20,000 seat football stadium for AFC Wimbledon and 602 residential units, on the Wimbledon Greyhound Stadium site, next to the site, now redeveloped for housing, of the old Wimbledon FC stadium in Plough Lane (Wimbledon FC now having of course having emigrated to Milton Keynes as MK Dons). (I hope you’re following this – I rather wish I had included Wimbledon and Cray Wanderers in my 7.1.17 blog post Level Playing Fields: Football Stadia & Planning).
The proposals included 9.6% affordable housing (all intermediate, shared ownership) with a review mechanism. The application was called in by previous Mayor Boris Johnson on 26 March 2016 (against GLA officers’ advice), but in an unusual twist, Mayor Sadiq Khan released it back to Merton on 19 August 2016 for Merton to approve. I had previously doubted (and possibly still do) whether it is lawful for a Mayor to release back an application which has previously been called in – there is certainly no express power to do so – but the Mayor’s reports set out the legal justification that he relies on. 
Bishopsgate Goodsyard, Hackney

There is one further Johnson hangover, the application for the mixed use redevelopment of Bishopsgate Goodsyard (including 1,356 residential units) which was called in by him on 23 September 2016 at the request of the applicant. Despite having been called in presumably with the intention of approving it, or at least reaching a determination more speedily than if it had been left with the London Borough of Hackney as local planning authority, the application then hit the buffers when a GLA officers’ report was published on 8 April 2016, recommending that he refuse it at the representation hearing arranged for 18 April 2016. The applicant decided to defer the hearing to address the issues and there it rests. The next twist is anyone’s guess. Will Khan even have to reach any decision or will we see withdrawal and resubmission?

We now come to two much more recent decisions, both on 10 March 2017. The Mayor’s draft SPG was obviously referred to in both cases and affordable housing review mechanisms imposed in both cases, with a cap of 50% – which is the borough-wide requirement applicable in both cases (albeit Haringey’s emerging local plan appears to be proposing a lower 40% borough wide target). 
Hale Wharf, Haringey
Haringey members had resolved, against officers’ recommendations, to refuse planning permission for this 505 residential unit scheme, within the Upper Lee Valley Opportunity Area and the Tottenham Housing Zone, on no fewer than eleven grounds. The Mayor called it in on 4 January 2017 and approved it on 10 March 2017 as recommended in his officers’ stage 3 report.
The position secured on affordable housing was as follows:
“a minimum of 177 units (35% of overall units) to be affordable, with 20% affordable rent and 80% shared ownership by habitable room. 

Details of affordability will be secured. Review mechanisms as follows will secure the delivery of more affordable housing (up to 50% of the scheme or the level of grant funding) should it be viable: 
- 

Review mechanism (1): In the event that the development has not been substantially implemented within 2 years of the date of the decision, an updated viability assessment shall be submitted in order to establish if additional affordable housing can be provided and any such additional affordable housing shall be provided on site; 
- 

Review mechanism (2): A viability assessment shall be submitted prior to substantial completion of Phase 1 in order to establish if additional affordable housing can be provided and any such additional housing shall be provided on site; 
- 

Review mechanism (3): A viability assessment shall be submitted prior to substantial completion of Phase 3, to establish whether there is any surplus from the completed scheme which can be contributed towards off-site provision of affordable housing. 
- 

Review mechanism (4): Further review if development stalls for a period of more than 24 months.”
It’s worth noting that there was already significant GLA funding being given for infrastructure for the scheme before the application was called in but the Mayor’s involvement appears to have secured £7.75m worth of affordable housing funding to a registered provider, so the review mechanism will be aimed at recovery and recycling of that grant funding.
Palmerston Road, Harrow

Harrow members resolved, again against their officers’ recommendations, to refuse an application by Origin Housing for a mixed use development within the Harrow and Wealdstone Opportunity Area and the Heart of Harrow Housing Zone to provide 187 residential units, within 5 buildings of between 1 and 17 storeys. Again, on 10 March 2017 the Mayor accepted the recommendations in his officers’ stage 3 report.
The affordable housing position secured is as follows: 
– a minimum of 74 homes (40% of overall units) on the site to be provided as affordable homes, with 30% affordable rent and 70% shared ownership (40% was proposed in the original application but the tenure mix is different);

– a viability review mechanism will secure the delivery of more affordable housing (up to a level of 50% of the scheme) should it be viable. 

 The affordable housing is with grant based on the Mayor’s Affordable Housing Programme 2016-21, with an early review mechanism if enabling works are not substantially commenced within two years. 

Conclusions

Of course the Mayor has to be selective as to how to use his powers. After all, the legal limits are clear from R (Spitalfields Historic Trust) v Mayor of London (Gilbart J, 10 May 2016), where Mayor Johnson’s use of the Mayoral call in power was tested and just about survived. However, so far, perhaps true to the man – and maybe no bad thing – we have seen a more cautious approach from Sadiq Khan:

– one direction of refusal where, who knows, a compromise may be on the cards

– one previously called in application returned to the borough to determine

– two applications called in and approved, but both schemes offering more than 35% affordable housing, with a review mechanism potentially to get to 50% – both schemes in opportunity areas and London housing zones where officers’ recommendations to approve had been overturned.

Administrations usually become more interventionist over time. I headed this piece London Calling, but with Mayor Khan we certainly haven’t yet seen The Clash. 
Simon Ricketts 18.3.17
Personal views, et cetera