Do you have a growth mindset? It’s increasingly a challenge just to keep up but, if we don’t, who will? Today’s blog post does no more than try to keep track of some of the latest announcements.
Does the government have a growth mindset? Well, if “growth” isn’t written in big letters on a white board in the Cabinet Room I’ll be surprised.
In terms of planning reforms, the current pace and focus is growth, growth, growth.
Then changes to judicial review procedure in relation to nationally significant infrastructure projects (see my 25 January 2025 blog post DCO JR Changes, #silkyplanoraks).
The Chancellor’s speech , headlined “Chancellor vows to go further and faster to kickstart economic growth”.
The Chancellor’s speech was certainly a very clear mood board as to where she (“I have been genuinely shocked about how slow our planning system is”) and the government are at. In fact it was a smogasbord of specific announcements (listed in Nicola Gooch’s excellent 1 February 2025 blog post) including
delivery of the Lower Thames Crossing (ahead of any formal decision in relation to the current DCO application…)
measures to unlock the potential of the Oxford-Cambridge growth corridor (noting that there have already been “18 submissions for sizeable new developments” along the route of the East West Rail project) and
(the focus of much media attention) support for a third runway at Heathrow.
Stating the obvious, all of these measures will only work with both (1) a sufficiently stable economy and political environment as a basis for business to make long-term investment decisions (Heathrow’s owner will no doubt be deciding whether finally to press the button on the application process, assessing how long-term this political commitment is likely to be and whether the changes announced to DCO and judicial review procedures have gone far enough in practice to avoid another quagmire of legal challenges) and (2) with the necessary resources and experience available to local authorities, the Planning Inspectorate and statutory consultees. And in addition, another reason why “our planning system is so slow” is because there are always fresh legal pitfalls to avoid (eg see Campaigners hail “important victory” in protection of England’s national parks (Guardian, 1 February 2025).
Of course, there are always calls for the government to go even further. Someone brought to my attention Times’ columnist Emma Duncan’s piece this week, Time for Starmer to cut out the planning lawyers, which ends “What Reeves is doing to the bats she now needs to do to the planning lawyers”. No more living in a £100 million bat tunnel for me. 😥
Congratulations to those in our planning world who have been recommended to be appointed as King’s Counsel in the latest round – Zack Simons (presumably now #silkyplanoraks), Sasha Blackmore and Harriet Townsend.
It occurs to me that belated congratulations are also due to Sarah Sackman KC MP, who many of us know primarily as a superb planning and public law advocate, first at Francis Taylor Building and then Matrix Chambers, but who of course became MP for Finchley and Golders Green in July 2024. She took silk on being appointed as Solicitor General on entering the House of Commons and since 2 December 2024 has been Minister of State in the Ministry of Justice.
I mention Sarah’s background because it is important: we have one of our own, who understands the practical nuances of planning and public law and the operations of the judicial review process, at the heart of government.
There has been much press attention this week on the Prime Minister’s announcement on 23 January 2024, Prime Minister clears path to get Britain building as to changes to be made to procedures governing legal changes of development consent order decisions in relation to nationally significant infrastructure projects, following first the report by Lord Banner KC and subsequent consultation that I summarised in my 28 October 2024 blog post Banner Review Into Legal Challenges of NSIPs.
However, the proposals themselves were announced in more detail in a written statement to the House of Commons that day by Sarah Sackman: Infrastructure Planning and Judicial Review Reform. Working through that statement, first of all the background is set out:
“The delivery of major infrastructure projects is central to the Government’s mission to drive growth and unlock clean power. The largest and most complex of these projects currently require a Development Consent Order (DCO) under the Nationally Significant Infrastructure Projects (NSIPs) regime established by the Planning Act 2008.
The number of legal challenges against DCOs has spiked in recent years, with 58% of decisions being subject to legal challenge. Delays to these major projects have serious implications, including holding back the delivery of essential benefits to the country and imposing considerable additional costs on development.
Despite 30 challenges being brought against major infrastructure projects, only four decisions to approve a project have been overturned by the courts. It comes as research shows that, on average, each legal challenge takes 1.4 years to reach a conclusion and the courts have spent over 10,000 working days handling these cases. Such cases impact upon the use of public money, with major road projects paying up to £121 million per scheme due to delays in legal proceedings. Whilst it is fundamental that the public can challenge the lawfulness of government decisions, there is scope for rebalancing the judicial review process to improve efficiency and reduce delays to NSIPs.”
Few of us would disagree with this.
The statement then sets out the specific changes that are to be introduced in relation to claims for judicial review in relation to DCOs:
Once the claim is made, there will not be an initial High Court stage where a judge considers “on the papers” whether the case is arguable, instead the issue of arguability and as to whether the case should proceed to a full hearing will be considered by a judge at a short hearing. (This is already the case in relation to applications to challenge inspectors’ decision letters in relation to enforcement notice appeals under section 289 of the Town and Country Planning Act 1990, where indeed there is no subsequent right to apply to the Court of Appeal for permission to proceed if the High Court judge finds the challenge to be unarguable,. Indeed, the deadline for bringing such challenges is four rather than six weeks!).
This change follows Lord Banner’s recommendation. The government’s consultation paper had floated the possibility of extending the change to all judicial reviews but this week’s announcement is entirely limited to DCO judicial reviews.
If the judge at that short permission hearing deems the case to be “totally without merit” (i.e. bound to fail), it will not be possible to ask the Court of Appeal to reconsider. At present if the judge considers “on the papers“ that a case is totally without merit, the claimant cannot renew its application for permission before a judge at a short hearing, but can only appeal to a Court of Appeal judge who will determine the appeal on the papers. So, there will be one bite at the cherry – at a short hearing before a High Court judge – rather than two paper stages with no hearing. Given that “totally without merit” grounds are not difficult to identify, is this really very radical?
“non-mandatory” case management conferences will be introduced – sensible and reflecting one of Lord Banner’s recommendations.
All DCO judicial reviews will be designated as significant planning law claims. This is important because specific timescale targets then apply at the High Court stage (not the Court of Appeal) as to how speedily they should be dealt with. However, the issue is somewhat academic given that according to Lord Banner’s report all DCO judicial reviews to date have in practice been treated as significant planning law claims!
The government will “work with the judiciary to introduce target timescales for NSIP judicial reviews in the Court of Appeal and in the Supreme Court”. Given the delays that do happen at these later stage this would be very welcome.
Unsurprisingly the announcement has generated flak on the one hand from those who see the changes as reducing access to justice (see e.g. the Law Society’s position, Society counsels caution over JR curbs (25 January 2025), with comments from Law Society president Richard Atkinson that “Removing the paper permission stage could increase both the cost and length of permission hearings”. “‘It is possible that the certainty of higher costs – especially so early in the case, before permission is even granted – could discourage a claimant to the extent that it raises concerns for access to justice”. “Requiring oral hearings for all permission applications may also lengthen these proceedings, as it prevents those that could be easily dealt with from progressing more quickly.”) and on the other hand from those primarily acting for promoters who see the measures as not going far enough (see e.g. Judicial review reform ‘one step’ to enabling UK infrastructure development (24 January 2025) where infrastructure planning law guru Robbie Owen is quoted as saying that “these changes to judicial review are a step in the right direction but they are relatively minor and do not move the dial nearly enough. The government should be providing for any nationally significant infrastructure project that is a critical national priority to be immune from judicial review altogether, by the DCO for the project being confirmed by parliament through a one clause bill after it has been through the DCO process successfully”)
I don’t agree with either extreme. Mr Atkinson is wrong in what he says: any judicial review claimant at the moment needs to factor in the likely need for a permission hearing in any event (of the 27 challenges determined at the time of the Banner report, only 7 had received permission on the papers – and only 2 did not renew after being refused on the papers. 8 proceeded to a full or rolled-up hearing in any event). Robbie’s approach in my view goes too far the other way and takes away the necessary backstop that is needed by way of judicial review.
However, I do think there is more that could be done by way of changes in due course, in some cases not limited to DCO judicial reviews:
Why not reduce the challenge deadline for DCO judicial reviews from six weeks to four weeks, but at the same time take the opportunity to rectify the issue frequently arising on statutory challenges of all kinds as regards the current need to serve on the parties within that period, by allowing claimants seven days to serve on the defendant and interested parties, after the claim has been filed? By the time the DCO decision has been issued, any claimant will have been engaged for a long time in the process and will have secured access to legal advice. All that remains to be scrutinised is the Secretary of State’s reasoning for the decision – follow the precedent set in the case of enforcement notice appeals.
In the case of non DCO judicial reviews within the remit of the Planning Court, tighten up the requirement for pre-action protocol letters, such that the guidance makes clear that they should be sent as soon as grounds for potential judicial review are considered by a potential claimant to arise, for instance when a local planning authority has resolved to grant planning permission but ahead of the permission being issued. Presently, most potential claimants store up their potential grounds of challenge until the permission has been issued and there is nothing in practice that the local planning authority can do to remedy the position even if it accepts the position set out in the PAP letter. There could be the warning that non-compliance with this guidance may be taken into account in decisions as to the award of costs and as to cost-capping.
Much litigation in this field nowadays is crowdfunded. The Government might give thought as to whether greater controls are required as to the use of crowdfunding in relation to litigation and particularly whether sufficient information is given to potential contributors as to the precise nature of the action contemplated, its prospects of success and the implications of a successful outcome (i.e. usually simply resulting in redetermination) and how funds are used if no action is lodged.
More information should be made available by the courts, particularly the orders made at permission stage so as to inform decisions taken by subsequent claimants and as to the High Court’s and Court of Appeal’s performance as against timescale targets.
Lastly, what possible basis is there for not extending the changes announced to cover legal challenges to the adoption of local plans and in due course spatial development strategies?
There is always a need for judicial overview of decision making. But there is also always a need for speed – justice delayed is justice denied. Bridget Rosewell’s review was an important catalyst for improvement in relation to the Planning Inspectorate’s administration of planning appeal inquiries, at no cost to the quality or fairness of the process itself. The DCO judicial review changes announced this week to my mind are in a similar vein, although I do agree with Robbie that they are relatively minor. Let’s not give up looking for those incremental gains.
Perhaps it’s more like revolution, certainly rapid evolution, and possibly even in some respects the reverse of devolution…
In my 21 December 2024 blog post And Now Take A Deep Breath… I set out what there was in the 16 December 2024 English Devolution White Paper as to the proposed introduction of spatial development strategies across the whole of the country by the end of this Parliament with which local plans will need to be in general conformity. Aside from setting minimum housing requirements for each member authority, SDSs will identify infrastructure needs and strategic locations for development, presumably including where appropriate high level reviews of green belt boundaries.
SDSs will be produced by strategic authorities and in some instances, to begin with, other groupings of local authorities directed by the Secretary of State via powers to be included in the Planning and Infrastructure Bill which is to be published in March.
Strategic authorities will fall into one of two categories:
“Foundation Strategic Authorities: these include non-mayoral combined authorities and combined county authorities automatically, and any local authority designated as a Strategic Authority without a Mayor.
Mayoral Strategic Authorities: the Greater London Authority, all Mayoral Combined Authorities and all Mayoral Combined County Authorities will automatically begin as Mayoral Strategic Authorities. Those who meet specified eligibility criteria may be designated as Established Mayoral Strategic Authorities. This unlocks further devolution, most notably an Integrated Settlement.
The government’s strong preference is for partnerships that bring more than one local authority together over a large geography. In exceptional circumstances the Secretary of State will have the power to designate an individual local authority as a Foundation Strategic Authority only. Our ambition remains for all parts of England to ultimately have a Mayoral (and eventually Established Mayoral) Strategic Authority.”
Much of the detail is yet to emerge, for instance:
What will be the necessary evidence base to support these SDSs and how will they be examined and will there be a refined version of the current “soundness” test?
Will SDSs have to divide out for the constituent member authorities as minimum housing requirements the collective total local housing need for the SDS area and will each local plan need to accept that figure as its minimum housing target?
What will be the tramlines as to what may, must and must not and may be included in SDSs?
How will internal political differences between member authorities be contained where real tensions arise over, for instance, the allocation of housing numbers?
How and to what extent will strategic authorities be required to coordinate with their neighbours?
Of course, core to the government’s reform proposals is not just the universal coverage of the country by strategic authorities (the default assumption being for each to have a combined population of 1.5 million or above), but, below that level, unitary rather than two tier authorities:
“We will expect all two tier areas and smaller or failing unitaries to develop proposals for reorganisation. We will take a phased approach to delivery, taking into account where reorganisation can unlock devolution, where areas are keen to proceed at pace or where it can help address wider failings. However, we are clear that reorganisation should not delay devolution and plans for both should be complementary.
New unitary councils must be the right size to achieve efficiencies, improve capacity and withstand financial shocks. For most areas this will mean creating councils with a population of 500,000 or more, but there may be exceptions to ensure new structures make sense for an area, including for devolution, and decisions will be on a case-by-case basis.”
In terms of the creation of strategic authorities, many councils have already expressed interest in becoming part of the Government’s Devolution Priority Programme, which is for areas wishing to pursue establishment of a Mayoral Strategic Authority. This will be with a view to inaugural mayoral elections in May 2026. The Local Government Association has published a list.
What could this all mean in terms of what the areas will be for SDSs? Catriona Riddell yesterday posted her current understanding as below:
In terms of the move towards unitary authorities, local government minister Jim McMahon wrote to two tier authorities on 16 December 2024:
“As set out in the White Paper, new unitary councils must be the right size to achieve efficiencies, improve capacity and withstand financial shocks. For most areas, this will mean creating councils with a population of 500,000 or more. However, there may be exceptions to ensure new structures make sense for an area, including on devolution.”
“We will take a phased approach and expect to deliver new unitary authorities in April 2027 and 2028.”
“I have heard from some areas that the timing of elections affects their planning for devolution, particularly alongside reorganisation. To help manage these demands, alongside our objectives on devolution, and subject to meeting the timetable outlined in this letter, I am minded-to lay secondary legislation to postpone local council elections from May 2025 to May 2026.
However, I will only do this where this will help the area to deliver both reorganisation and devolution to the most ambitious timeframe – either through the Devolution Priority Programme or where reorganisation is necessary to unlock devolution or open up new devolution options.”
“To lay the relevant legislation to postpone elections, I will need a clear commitment to devolution and reorganisation aims from upper-tier councils in an area, including a request from the council/s whose election is to be postponed, on or before Friday 10 January.”
Again, the Local Government Association’s list is helpful – of counties and unitaries which have made requests, involving postponing their election from 2025 to 2026.
Whilst the government’s advice is that none of this should slow down current local plan making it is going to be interesting to see what transpires – and the local political implications more generally of postponed elections (who knows, perhaps the potential for longer term decision making?).
The pace of change ahead of publication of either the Planning and Infrastructure Bill or the English Devolution Bill is certainly impressive.
There’s an interesting quote from Arthur C Clarke about revolution – and possibly it extends to devolution as well:
“Every revolutionary idea seems to evoke three stages of reaction. They may be summed up by the phrases: (1) It’s completely impossible. (2) It’s possible, but it’s not worth doing. (3) I said it was a good idea all along.”
Congratulations Sir Sadiq Khan, Mayor of London, and Christopher Katkowski CBE KC on your respective new year’s honours.
CK CBE KC of course led work on a report published in January 2024 for the last government which considered any changes to the London Plan which might facilitate housing delivery on brownfield sites in London. The report lays bare the undersupply of new homes in London, which has not kept pace with increases in jobs, population and housing demand.
Sir SK’s Greater London Authority published on 19 December 2024 Accelerating Housing Delivery: Planning and Housing Practice Note. I summarise the document later in this post and would welcome reactions as to whether the document – non-statutory, intended as practical guidance and a material consideration in the determination of planning applications and, in part, renegotiation of existing section 106 agreements – really goes far enough, given where we currently are.
The need for additional housing in London, at all price points, both subsidised (“affordable”) housing and general market housing, has never been more acute. It is in fact much worse now than when CK CBE KC wrote that report. The statistics back that up, with planning approvals and housing starts both down sharply last year.
Annual housing completions have been falling short of the policy target in the 2021 London Plan of 522,870 net housing completions from (2019/20 -2028/29). Everyone knows that the viability position for developers is increasingly difficult, faced with build cost inflation, high interest rates and the costs and uncertainty of, for example, additional building safety requirements. Similarly everyone knows that there is an absence of registered providers willing to take on the affordable housing, leading to stalled schemes (a national problem – see the HBF’s December 2024 press statement 17,000 Affordable Homes stalled by lack of bids from Housing Associations and accompanying report).
We have the London Plan’s 50% affordable housing requirement – and with a relatively rigid and formulaic system of early stage and late stage viability review mechanisms where that cannot be met (the late stage review not being required where the “fast track” applies, i.e. if the developer commits to at least 35% affordable housing – 50% on industrial or public sector land), all in accordance with London Plan Guidance on affordable housing and on development viability which have remained in draft since May 2023.
“London is home to both the fastest and slowest-growing local housing stocks in England. The number of homes in Kensington and Chelsea grew by 2% over the last decade, compared to 26% in Tower Hamlets (chart 2.1). Using data on new Energy Performance Certificates to track completions of new homes, it looks like new supply in 2024 is following the trend of 2022 and 2023, two of the lowest years in the last five years (chart 2.2).
The quarterly number of planning approvals is falling, and they are concentrated on fewer, larger sites (chart 2.4). Increasing construction on small sites might be key to increasing overall delivery, with 65,000 new build homes completed on small sites between 2012/ 13 and 2021/ 22 (chart 2.3). Sales of new market homes in London peaked in 2022 and then fell considerably, partly due to lower demand from Build to Rent (BTR) providers and the end of Help to Buy (chart 2.6). The BTR sector, which completed 44,585 new homes in London between 2009 and 2023 is nevertheless still growing (chart 2.7).
38% of homes and 46% of habitable rooms recommended for approval by the Mayor in 2023 were affordable, with both of these figures a record high (chart 2.5). Affordable housing starts funded by the GLA fell sharply between 2022/ 23 and 2023/ 24 (charts 2.8 and 2.9), as registered providers and local authorities have diverted resources away from new supply in response to increased remediation and refurbishment costs and the costs of adapting to changing regulations. Completions are also down, but not as much. Of the affordable homes started with GLA support in 2023/ 24, 72% were for social rent. Affordable completions from all funding sources also rose to a recent high of 15,768 in 2022/ 23 (chart 2.10), with data for 2023/ 24 not yet available.
Social housing landlords in London owned just under 800,000 affordable homes for rent in 2023, the highest total since 2002 (chart 2.12). Sales of council homes through the Right to Buy (RTB) scheme have been on a downward trend since their peak in the 1980s, totalling 1,080 in 2023/ 24 (chart 2.11).
Council tax data showed that 2.3% of homes in London were empty in 2023, with only 1% empty longer than 6 months (chart 2.13). These are much lower levels than in the 1980s and 90s, when around 5% of homes used to be empty.
1.34 million homes in London, or 36% of its stock were leasehold homes in 2022/ 23, over half of which were privately rented (chart 2.15). In 2023, there were 22,770 homes in multiple occupation (HMOs) with mandatory licences in London. This is the highest of any region (chart 2.14).”
This is chart 2.8 referred to in that text:
This is an extract from chart 2.4, showing the annualised trend per quarter in the number of new homes approved, and the number of projects:
Ahead of the awaited review of the London Plan, what can be done? The sorts of specific, practical, issues that currently come up again and again relate to the operation of the viability review mechanisms in particular. Since the new Building Safety Act regime came into force on 1 October 2023 the early stage review mechanism, kicking in if substantial implementation (usually defined as construction of the foundations and ground or first floor) hasn’t taken place within two years of permission, is increasingly unworkable for higher-risk buildings given how long the gateway two stage is taking in practice. The contingent liability that the late stage review mechanism represents is unattractive in principle to funders, which is a big challenge in a weak market.
For measures that could have had an immediate positive impact, what about, for instance, introducing suitable flexibility into the triggering of the early stage review? Potentially a temporary “holiday” from the late stage review for schemes that committed to proceed to completion within an agreed timescale? A willingness to accept renegotiation of section 106 agreements on schemes which are now unviable? Some pragmatism as to commuted payments towards off-site delivery where a registered provider cannot be found?
Whilst the document does include some measures which may help at the margins, there’s certainly no “big bang” of that nature. It is in fact curious how little fanfare the practice note has been given. I can’t even find it on the GLA website, let alone any press release. Nor was any formal consultation or indeed feedback invited.
Anthony Lee at BNP Paribas did this good summary on LinkedIn before Christmas but I have seen little else.
I draw out some of the measures as follows:
Allowing the fast track threshold to be reduced, both for new and current applications and also for consented schemes, where the tenure split provides proportionately more social rent than the policy requirement, in accordance with a formula that appears to seek to avoid any financial advantage to the developer in so doing – the only advantage being if that unlocks more GLA funding and/or more willingness on the part of registered providers.
Estate regeneration schemes will be able to qualify for the “fast track” if at least 50% of the additional housing will be delivered as affordable.
The GLA will consider accepting supported housing and accommodation for homeless households, with nomination rights for the relevant borough, as a like for like alternative for intermediate housing, again both for new and current applications and also for consented schemes.
The cost of any meanwhile accommodation for homeless households, with nomination rights given to the relevant borough, may be taken into account in the operation of viability review mechanisms.
With the late stage review, the developer currently retains 40% of any surplus profit. In certain circumstances this can now increase to 70%. However, the criteria are tight. “To qualify for this, the application must provide at least 25 per cent onsite affordable housing by habitable room for schemes with a 35 per cent threshold, and 35 per cent onsite for schemes with a 50 per cent threshold, at the relevant local plan tenure split, and be certified as reaching practical completion within three years of the date of this document.” “For larger phased schemes that provide at least 25 per cent affordable housing across the scheme as a whole that are granted planning permission after the date of this practice note, if the initial or a subsequent phase is certified as reaching practical completion within three years of the date of this document, the GLA will consider allowing the applicant to retain 70 per cent of any surplus profit identified in that phase when the late review is undertaken. The relevant phase must include at least 100 residential units.”
There is this enigmatic sentence: “The GLA will also work with boroughs to identify sites that have been allocated for development or that have been granted consent but that have not come forward for development for many years, or where limited progress has been made, and will assess the nature of interventions required to facilitate this.”
Great flexibility is announced as to the permissible inputs into review mechanisms. The formulae currently focus on changes in gross development value and build costs. “However, in some cases it may be more appropriate to allow for a full viability review to be undertaken which reconsiders all development values and a greater scope of development costs, including professional fees and finance costs.”
The Mayor’s housing design guidance should not be applied mechanistically, in relation to, for instance, the reference to the need to submit “fully furnished internal floorplans” and the objective that new homes should be dual aspect.
Various grant funding measures but I’ll look to others to comment as to the extent they will move the dial.
Changes in the law relating to e.g. tripe shops, maggot breeding and bone grinding were my special subject as a late 80s young lawyer so please hear me out, because this is all central in my view to thinking with regard to the government’s (currently rather all shades of grey) “brownfield passports” concept (see my 28 September 2024 blog post Brownfield Passports…To What? When? How? ).
Two things I find interesting about the UK (now, for the purposes of this post, English and Welsh) town and country system:
The stability of its underlying structure: Many of the provisions of the Town and Country Planning Act 1947 are there, as the kernel of the current, much amended, 1990 Acts. Compare for instance section 12 of the 1947 Act (defining “development”) with section 55 of the Town and Country Planning Act 1990 or section 13 of the 1947 Act with section 59 of the Town and Country Planning Act 1990 (“development orders”).
The continual sets of amendments, large and small, that have been made, within that framework, to reflect differing political priories and economic and social pressures. Drafting by committee? What we have now is the almost impenetrable result of many generations of that. It always helps to understand who added, amended or removed what, when and why.
The tension for law makers is always the same: how to retain what works but ensure, without unnecessary complexity, that the system remains fit for purpose.
Maybe nowhere is this more so than in relation to the concepts of use classes (changes of use within a use class not amounting to “development” requiring planning permission) and permitted development (classes of development which have the benefit of automatic, deemed, planning permission).
When I first studied planning law (at bar school in 1984-85: course run by Victor Moore, as of “A Practical Approach To Planning Law”), we were all operating under the Use Classes Order 1972 (which was largely in the same form as the first Use Classes Order in 1950) and under the General Development Order 1977 (again largely in the form of the first General Development Order in 1948). This truly makes me feel old. These were the 1972 Use Classes Order use classes, dominated by all of those special industrial groups, and with those references to tripe shops, cats-meat shops and the like.
The categories of permitted development rights in the 1977 Order will look very familiar:
The brevity of the “changes of use” category, less familiar:
Conservative governments have been responsible for two major revisions of the system.
The first was shortly after I qualified, with the introduction of the (now amended many times) Town and Country Planning (Use Classes) Order 1987 the main functions of which do not nowadays appear very controversial: (1) lumping together office, light industrial and research and development uses within a new use class B1 and (2) abolishing the use classes containing all those old special industrial groups. Alongside this was the Town and Country Planning General Development Order 1988.
That system then survived without major reform for around quarter of a century.
The second set of changes to the system has been the multiple waves of deregulatory changes made between 2013 and 2024, particularly the creation of class E for a wide range of commercial uses in 2020 (see my 24 July 2020 blog post E Is For Economy) and the various new permitted development rights enabling residential conversion and demolition/rebuild in relation to commercial (and in some instances agricultural) buildings. The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) is a shape-shifting monster.
The system is in desperate need of reform:
what should be the core objectives behind removing the need for planning permission for certain categories of use and works, given the Government’s missions?
How can the system operate with simplicity but also appropriate flexibility and reflecting local circumstances where appropriate?
What areas of the current system need modernising to reflect current economic or social pressures, priories and ways of living and working?
Depressingly, my 1 July 2016 blog post Time To Review The C Use Classes remains more relevant than ever. It’s still time! The nettle has not been grasped.
As for permitted development rights, perhaps the big political question is whether the concept of automatic planning permission for the conversion of certain types of commercial buildings to residential use should be rejected outright, based on the experience since May 2013, or can be made to work acceptably.
In 2023-24 8,825 of England’s 198,610 new dwelling completions were by way of permitted development rights . Between 2015/16 and 2022/23, 102,830 new homes were delivered by way of permitted development rights, around 6% of new homes. This is a not insignificant contribution, by numbers at least.
To this we add the Government’s drive towards brownfield development in urban areas (that brownfield passports document I mentioned); the extent to which commercial space is surplus to market requirements, and the carbon benefits of finding new uses for existing buildings (although query how this squares with the “demolish commercial and rebuildas residential” permitted development right).
Of course a big problem is that much of the resulting accommodation has not been of a decent standard (see e.g. Research into the quality standard of homes delivered through change of use permitted development rights by Dr Ben Clifford, Dr Patricia Canelas, Dr Jessica Ferm and Dr Nicola Livingstone Bartlett School of Planning, UCL and Professor Alex Lord and Dr Richard Dunning, Department of Geography and Planning, University of Liverpool, July 2020, published by MHCLG in 2020, strangely alongside yet further deregulatory measures). The Town and Country Planning Association is lobbying for a “Healthy Homes Bill”, describing permitted development rights as creating “slums for the future”.
Is there a middle ground? Do permitted development rights have a role in delivering homes, in the quantity needed but also to the necessary quality – decent, healthy?
The previous government consulted on further changes to permitted development rights in February 2024 . The outcome of that process was never published. We await Labour’s next steps.
What went wrong with commercial to residential permitted development rights?
For a start the measure seemed to be seen by ministers as a short-term tactical intervention rather than based on any longer-term strategy or analysis. In May 2013 the right was first introduced (initially just for three years) to allow changes from office use to residential use, the twin objectives being to boost housing and to help regeneration by way of putting vacant or under-utilised office space to productive use. The “prior approval” requirements were minimal, with no minimum space standards, no minimum standards for daylight and no protection in relation to noise, for instance. As is still the case, local planning authorities could not impose requirements as to affordable housing or require contributions towards for instance education or health facilities. Authorities could make “article 4” directions limiting the areas within which the permitted development right would apply but at risk of these being cancelled or amended by the government (as has frequently happened).
The right was extended to shops and to financial and professional services uses in April 2014 and made permanent in Autumn 2015. Adequacy of daylight was introduced as a prior approval requirement in August 2020 and minimum space standards in April 2021. Initially buildings of any size could be converted to residential. A 1,500 sq m cap was introduced in September 2020 (at the same time that there was the separate but related de-regulation measure of gathering together most commercial uses within a single use class, the new class E) and then that cap was removed in March 2024. Similarly, a requirement was also introduced that the building should have been vacant for at least three months before the application was made, only for that also to be removed. Are you keeping up? (Incidentally, I am grateful to my colleague Gregor Donaldson for reminding me of some of these twists and turns).
One might conclude from this chopping and changing that from the outset the process has lacked a proper strategic foundation, core objectives and a commitment to ensure that resulting development is not of poorer quality, or having a free ride at the expense of development achieved by way of the traditional planning application route. Care is needed with criticism of outcomes: to what extent did these result from the initial wave of conversions, before additional prior approval safeguards had been introduced? Also remember that these developments do have to comply with the Building Regulations and with housing legislation. Not every failing is down to the GPDO.
Before we give up on removing unnecessary matters from the planning application process and on this streamlined route for delivering new accommodation on urban brownfield land, surely there is an urgent need to examine whether the system can indeed ensure, by way of objective criteria, that:
– (possibly by way of an article 4 direction process following better national guidance and the opportunity for public consultation) development locations are sustainable for their residents, with access to public transport, schools, health and community facilities;
– schemes should pay their way in terms of affordable housing and other section 106 agreement requirements in the same way as schemes delivered by way of planning application.
But more widely, surely we need to embed a rhythm within government of reviewing the operation of the Use Classes Order and General Permitted Development Order regularly, in an orderly rather than ad hoc way, so as to ensure that we have both a reasonable level of stability but also a proper regular process for reflecting emerging economic, social and indeed technological trends?
Can I share with you that there have been times this year when the pace of announcements in terms of changes to the planning system, when taken with some significant case law to digest, has led me to wonder how I am meant to keep up?
Even in the last month, no sooner than the new National Planning Policy Framework and associated announcements (see my 14 December 2024 blog post I Love It When A National Planning Policy Framework Comes Together) was published, there were pre-Christmas sucker punches in the form of:
I’m not complaining; change is needed. However, now is not the time for deep dives into either topic, other than to say this:
The English Devolution white paper is necessary, if complex, reading. Aside from heralding significant local government reorganisation and devolution of power to sub-national levels, for us the most key paragraph 3.5, housing and strategic planning, which concludes with this summary of what is proposed:
“Box A: Universal system of strategic planning
The government has been clear that it will implement a universal system of strategic planning within the next five years. The model that is proposed is the Spatial Development Strategy (SDS), which is well established in London, the London Plan having been produced and continually reviewed over 20 years. As set out at 3.5, where Strategic Authorities exist, they will be responsible for producing or agreeing the SDS for their areas.
While it is our ambition for every area of England to be covered by a Strategic Authority, this will be a gradual process. We want to move quickly on strategic planning. This means that where no Strategic Authority is in place or is planned to be in place, the government will take a power through the forthcoming Planning and Infrastructure Bill to direct defined groupings of upper-tier county councils, unitary councils, and in some cases Foundation Strategic Authorities to deliver an SDS. Given the intention to have all SDSs produced by Strategic Authorities in due course, the government believes it makes sense in the first instance for these groupings of local authorities to be guided by the sensible geography criteria that have been set out for agreeing new devolution deals (see 2.2.1). The arrangements for agreeing a SDS in areas without a Strategic Authority will follow the same principles as Foundation Strategic Authorities.
In all areas, SDSs will guide development for the Local Planning Authorities in the area, and their local plans will need to be in general conformity with the SDS. However, Local Planning Authorities should not delay development of Local Plans while they await the adoption of an SDS. Relevant Local Plans should continue to be updated or developed alongside the SDS process.
Areas will be able to set a SDS to enable their area to grow, identify the infrastructure that is needed and strategic locations for development. This will include an obligation to apportion an assessment of the housing need of the Strategic Authority across its constituent members. The government intends for that assessment to be the cumulative total of the local housing need of each constituent member, as determined by the Standard Method set out in national planning policy. The apportioned figure set for each constituent member in the SDS will then be the minimum housing requirement for the purposes of each member authority’s next Local Plan. Agreement on the precise distribution of housing need will be agreed through the SDS development process. We also expect that the authorities producing SDSs will be able to encourage the pooling of resources and prioritising of efforts across their constituent authorities to meet housing need.
The content of SDSs will be kept deliberately high level with the dual purpose of preserving detailed policy and site allocations for local planning authorities through their local plans, and for enabling strategic plans to be produced quickly, with the intention of achieving national coverage by the end of this Parliament. The government expects high levels of collaboration to be demonstrated between the Strategic or upper-tier local authorities who are responsible for the SDSs and local planning authorities in the area. There will be a formal duty for responsible authorities to consult district councils on the development of the SDS and a route for district councils to raise concerns with the planning inspectorate.
Across all areas, these arrangements will encourage partnership working and we envisage that there will be genuine opportunities for efficiencies by sharing research, evidence and expertise that can support both the SDS and Local Plans. However, the government is determined to ensure that, whatever the circumstances, SDSs can be concluded and adopted in a reasonable time period. In order to ensure universal coverage of strategic plans, we will legislate for intervention powers, which will enable the government to intervene where plans are not forthcoming to the timeframe. These will include directing on timetables or particular policy content such as the distribution of housing need, through to taking over the preparation of an SDS and adopting it on behalf of strategic planning authorities.”
The intention of achieving national coverage by the end of this Parliament”! The necessary legislative changes will be introduced in part via the forthcoming Planning and Infrastructure Bill and partly through the forthcoming English Devolution Bill. I’m pleased to be part of the strategic planning working group chaired by Catriona Riddell and founded by Prior + Partners which is looking to help lay the groundwork to ensure that strategic planning can work effectively. Three half days sessions have been held so far, with two to follow in January.
But there will be plenty more to explore in the white paper beyond the introduction of strategic development strategies. For instance, once the relevant strategic development strategy is in place, Mayoral Strategic Authorities will have equivalent development management powers as the London Mayor, enabling them to intervene with applications of potential strategic importance and will have the power to raise a Mayoral Community Infrastructure Levy to support the delivery of strategic infrastructure projects.
There are other nuggets hidden away in the text, for instance the proposed replacement of the community “right to bid” for assets of community value by a strengthened “right to buy”.
As for the Government’s compulsory purchase compensation proposals, the big news is of course the potential widening of the scope for “no hope value” CPOs, to include acquisitions of “brownfield land in built-up areas, suitable for housing delivery, but with no extant planning permission for residential development” and “land allocated for residential development in an adopted plan but which has not come forward for development.” I speculated as to what might be proposed, and as to the potential implications, in my 21 July 2024 blog post, Hope/No Hope. Although you may prefer just to try my Spotify playlist, A Deep Dive Into Land Value Capture.
Can I end on a more serious note? I started this post wondering how people are meant to keep up. I’ve also been wondering what the best role is for blogs like this. I started writing it for my own benefit – just to join the dots on what is happening week by week , as well as for amusement – I like writing! It’s brilliant that many of you regularly read what I do but I never meant to replace more reliable sources of CPD. Indeed just preparing summaries of documents is not what this blog is about. It hit me hard when I learned that EG (formerly the Estates Gazette) will be closing next year. Those are proper journalists. My gratitude goes out to all of those in the specialist press (particular shout-outs to Planning and the Planner) and also those in the sensible end of mainstream media who are all trained, and paid, to report and analyse on what is happening. I can only provide amateur snapshots. The day job – practising, rather than pontificating on, all this stuff – is always my bigger focus. This is a golden age for planning and planning law blogs (I’m always in awe of eg Zack, Nicola, Sam Stafford, Philip Barnes, Paul Smith and others – oh no who have I offended by omission?) but we need to keep professional journalism alive too!
Related thought: this week there was a fascinating The Lawyer Podcast: Christmas Special — is someone you know a workaholic? Do listen – it is equally relevant for planners as lawyers! The evening I listened to it I was going to go back to my desk to read one of the documents I mentioned above but, taking in its message, I stopped and deliberately closed my eyes and listened to some music instead. Our professional area of interest is so intertwined with public policy, industry gossip etc that I find it difficult sometimes to work out whether what I am doing is work. Maybe LinkedIn needs that gambling industry warning: “When the Fun Stops, Stop”.
Plan-making – the only revision being to include this new passage:
“Local plan intervention
The Secretary of State has wide-ranging plan-making intervention powers under the Planning and Compulsory Purchase Act 2004. What are the policy criteria that apply to certain intervention decisions?
Decisions on intervention will be taken in line with relevant legal tests and should have regard to plan progress and local development needs. The Secretary of State may also consider other matters that they deem relevant to the case, including sub regional or regional or national development needs.
These criteria will be used by the Secretary of State to inform decisions on exercising local plan intervention powers set out in sections 27 and 27A of the 2004 Act. They will also be used to inform decisions on local plan and minerals and waste plan intervention taken under sections 15HA and 15HD of the 2004 Act (when amended by the Levelling-up and Regeneration Act 2023). They replace the previous criteria in the 2017 Housing White Paper.
Planning authorities will be invited to put forward any exceptional circumstances that they think that the Secretary of State should consider in relation to any plan-making intervention action”
Viability – the only revision being to include this new passage:
“Golden Rules for Green Belt development
Where development takes place on land situated in, or released from, the Green Belt and is subject to the ‘Golden Rules’ set out in paragraph 156 of the National Planning Policy Framework, site specific viability assessment should not be undertaken or taken into account for the purpose of reducing developer contributions, including affordable housing. The government intends to review this Viability Guidance and will be considering whether there are circumstances in which site-specific viability assessment may be taken into account, for example, on large sites and Previously Developed Land.
Prior to development plan policies for affordable housing being updated in accordance with paragraph 67 in the National Planning Policy Framework, the amount of affordable housing contributions required are subject to an overall cap of 50% (see paragraph 157 of the NPPF). This 50% cap does not prevent a developer from agreeing to provide affordable housing contributions which exceed the 50% cap, in any particular case.
In paragraph 157, the highest existing affordable housing requirement that would otherwise apply means the highest requirement that the local planning authority could seek in line with its existing policy. For example, (a) if a policy is framed as “up to 30%” then the uplift is applied to 30%; and (b) if a policy is framed as “30% subject to viability” then the uplift should be applied to 30% regardless of viability. The percentage uplift should be applied to the proportion of affordable housing that would otherwise be delivered on site.”
What is still to come? Well, we can glean at least the following from the above:
From the Government’s response document:
Whilst of course we are expecting a paper on strategic planning before Christmas, ahead of a Devolution Bill, the response document says this: “Given that government has committed to introduce a universal system of strategic planning, specific wording to address how strategic plans are tested will be considered in a future revision to the National Planning Policy Framework. No changes to the National Planning Policy Framework will be made at this point.”
Possible further measures in relation to brownfield development: “Following the launch of the consultation, the government published a paper on ‘Brownfield Passports – Making the Most of Urban Land’. The purpose of the paper is to consider whether there are opportunities to go further in terms of providing faster and more certain routes to permission for urban brownfield land. Although not a formal consultation, the paper is intended to inform further discussions on this issue. The government will take into account the views received in deciding what further action could be taken, with the intention that any changes to policy would be incorporated as part of future planning changes to deliver a set of national policies for decision making.”
“We will also be publishing further guidance on Green Belt reviews in January 2025, to ensure a more consistent approach to the identification of grey belt land. This will assist in ensuring inappropriate or high performing land is not identified for release or development and will set out how the performance of Green Belt should be assessed. This guidance will also provide guidance on how to ensure that parcels of land identified for development do not fundamentally undermine the purpose of the wider Green Belt.” This will also include further guidance on the identification of grey belt.
“…we intend to publish planning practice guidance on Local Nature Recovery Strategies as soon as possible in January 2025. This will further clarify the role of Local Nature Recovery Strategies when it comes to enhancing the Green Belt and provide greater certainty for stakeholders when it comes to the role of Local Nature Recovery Strategies in the planning decision making process and the plan-making system.”
“In the context of our wider reforms to planning policy, we will review the Planning Policy for Traveller Sites next year.”
As regards viability assessment in relation to green belt sites: “To make sure that the viability system works to optimise developer contributions, allowing negotiations only where genuinely necessary, the government intends to update viability planning practice guidance. Prior to new viability guidance being published, site specific viability assessment should not be used. As part of the review, government will consider the circumstances in which site specific viability assessment is allowed, with specific reference to large sites and Previously Developed Land.” “Overall, the government still believes there is merit in providing more guidance on benchmark land values. However more work is required to review and then implement the approach. The government is therefore considering the treatment of benchmark land values as part of a review into the viability planning practice guidance in 2025.”
“The government is considering making reforms to the compulsory purchase process and compensation rules to improve land assembly, speed-up site delivery and lower costs of development delivered through compulsory purchase powers to ensure benefits are delivered for communities. Any government reforms to the compulsory purchase process and compensation rules will be considered as part of the changes to be made in the Planning and Infrastructure Bill and will be subject to the consultation process for that Bill.”
The government will consider further the approach to exception sites and will also take further steps to encourage the delivery of mixed tenure developments “including setting a site size threshold above which sites must deliver a mix of tenures”. It will consider what further steps it can take to support social and affordable housing as part of its national development management policies promised for next year.
In relation to measures to encourage build out of permitted schemes:
“To bring greater transparency and accountability we will go further, and take the steps necessary to implement build out reporting. We will implement the following provisions in the Levelling–up and Regeneration Act 2023, following technical consultation:
Housing developers will be required to formally notify local planning authorities before they commence development (via development commencement notices) and then report annually to them on their actual housing delivery (via development progress reports). This will ensure that local planning authorities can clearly identify where delays occur, enabling them to work more effectively with developers to tackle the issue.
We will also be bringing forward a measure to provide local planning authorities with the power to decline future planning applications made by developers who fail to build out earlier planning permissions granted on land in the authority’s area at a reasonable rate.”
Updated policy guidance will be published on how the ‘vision-led’ approach to transport planning should apply in practice.
“After considering the comments received requesting further clarity on terminology and the application of policy for renewable and low carbon energy development, we will shortly be updating planning practice guidance to support these changes in practice.”
“The government plans to publish a 12-week consultation on land use early in the New Year. The consultation will inform the development of a Land Use Framework for England, to be published in 2025. This will set out the government’s vision for long-term land use change and focus on the principles for land use decision making and priority areas for policy change.”
On energy standards for developments:
“The government will bring forward future standards next year which will set our new homes and buildings on a path that moves away from relying on volatile fossil fuels and ensures they are fit for a net zero future. We will also keep building regulations under review to ensure that new buildings are built to mitigate the risk of climate change, including through a potential review of Part O, which seeks to mitigate the risk of overheating, and water efficiency options.” “…we intend to update planning practice guidance to assist local authorities in considering carbon emissions within the plan-making process, and to support developers in using carbon accounting to reduce carbon emissions as part of their development proposals.”
“We will consider whether further changes are required to manage flood risk, coastal change and sustainable drainage systems provision through the planning system when we consult on further planning reform, including a set of national policies related to decision making.”
On planning application fees:
“The government intend to bring forward regulations to implement the increase of householder application fees at the earliest opportunity, subject to Parliamentary procedures. The charge for prior approvals notifications will also be increased at a similar rate to the increase for householder application fees. Through these regulations the government also intend to increase fees for applications to discharge conditions and to introduce a new banded fee structure for S73 applications to reflect different development types. The previous government consulted on this proposal in the consultation ‘An Accelerated Planning System’ in March 2024.
The government have announced their intention to take forward measures in the proposed Planning and Infrastructure Bill to introduce a power for local planning authorities to be able to set their own fees. As part of these proposals, we will conduct a comprehensive review of all national fees in order to establish a robust baseline for full cost recovery of fees and to inform a national default fee.”
“The government intends to take forward measures in the proposed Planning and Infrastructure Bill to introduce a power for local planning authorities to be able to vary or set their own fees. The government intends to pursue a model that would enable local variation from a national default fee. In varying or setting their own fees, local authorities will not be able to be set fees above costs. The government will provide guidance on fee setting, including what costs can be recovered. Where local planning authorities set their own fees, or vary from a national fee, they will have to consult and publish their schedule of fees. The Secretary of State will have the power to intervene where it is considered fees are excessive or unjustified. The government will continue to monitor the performance of local planning authorities. These measures are all subject to Parliamentary procedures.
The detail of fee localisation will be set out in affirmative regulations and supported by guidance. We will also undertake a benchmarking exercise to establish a robust baseline for full cost recovery of fees and to inform a national default fee. We will consult further on the details of local fee setting model and the benchmarking of costs in due course.”
From the minister’s statement to the House of Commons:
“As part of the Government’s plans to deliver much needed affordable homes, Homes England is today launching a new clearing service to help unblock the delivery of section 106 affordable housing. This follows reports in recent months of developers experiencing greater difficulty in selling section 106 affordable homes for which they have planning permission. This new service will help improve the functioning of the market for affordable housing, by supporting buyers and sellers to find each other more effectively – with developers able to share details of unsold section 106 affordable homes for registered providers and local authorities to search. The service aims to facilitate dialogue and partnerships that allow homes to be delivered in line with the originally agreed tenure mix set out in section 106 agreements. It will also provide new data and insight into the section 106 market. The Government is calling on all developers with uncontracted section 106 affordable homes, including small and medium builders, to proactively and pragmatically engage with the new clearing service, and on registered providers and local planning authorities to engage positively as providers and enablers of affordable housing. This is an important step in unlocking these homes and driving delivery.”
(Details of Homes England’s new Section 106 Affordable Housing Clearing Service are on its website).
“As proposed in the summer, we will bring onshore wind back into the Nationally Significant Infrastructure Projects consenting regime, and raise the threshold of projects for both onshore wind and solar to 100MW. We will follow through with prescribing data centres, gigafactories and laboratories as types of business or commercial development capable of being directed into the Nationally Significant Infrastructure Projects consenting regime, depending on the scale of the project.”
That’s all for now, until the next door on MHCLG’s advent calendar opens.
I want to share with you my colleague Susannah Herbert’s summary today of yesterday’s Court of Appeal judgment, Test Valley Borough Council v Fiske . It will form part of our next weekly case update (subscribe for free here).
What follows is all Susicity rather than Simonicity:
The Court of Appeal has clarified the scope of variations that can be made by an application under section 73 of the Town and Country Planning Act 1990. Lord Justice Holgate’s leading judgment also contains guidance on the Wheatcroft principle as well as the scope of section 96A.
In the High Court, Morris J had held that the use of section 73 was subject to two restrictions and that conditions imposed under section 73 would be unlawful if:
(1) they are inconsistent in a material way with the operative part of the original permission (“restriction 1“);
(2) if they make a “fundamental alteration” of the development permitted by the original permission, reading that permission as a whole (“restriction 2“).
This was in contrast to the case of Armstrong v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 176 (Admin) decided earlier that year which had concluded that the only restriction on the use of section 73 was restriction 1 and that there was no “fundamental alteration” test.
The Court of Appeal has confirmed that restriction 1 does apply to section 73 permissions and restriction 1 is the correct test (paragraph 121) and that restriction 2 does not apply (paragraph 126).
Restriction 1
In respect of the scope of restriction 1, paragraph 130 explains that “Restriction (1) is not limited to conditions which fundamentally or substantially alter the operative part of the earlier planning permission. Whilst a de minimis alteration of an operative part may not be ultra vires s.73 (see Lane J in R (Atwill) v New Forest National Park Authority [2023] EWHC 625 (Admin); [2023] PTSR 1471 at [64]), that concept only refers to trifling matters which are ignored by the law. It would not apply, for example, to the alteration of that part of a grant which relates to incidental or ancillary development.”
It was accepted that Finney v Welsh Ministers [2019] EWCA Civ 1868; [2020] PTSR 455 had decided that the operative part of a planning permission granted under s.73 cannot differ from the operative part of an extant permission. The planning permission that was the subject of this case stated in the operative part that original 2017 full planning permission was granted for “for the above development in accordance with the approved plans listed below” and the section 73 planning permission also used this formulation. The ”above development” included reference to a substation and the effect of the plans approved pursuant to the section 73 permission was to exclude the substation from the development authorised by the permission. This therefore breached restriction 1 because this exclusion of the substation means that the conditions of the section 73 permission are inconsistent with the operative part of that consent (paragraph 36).
Extent of the operative part of the permission
In terms of what is to be considered the extent of the operative part of the permission, the judgment also notes (at paragraph 37), that there were various other changes made to the plans that had been referred to in the operative part of the permission which would “At first sight … appear to infringe the [Finney] principle”. The court did not hear argument on this point so this was not elaborated on. However, this suggests that where plans are listed or directly referred to in the description of development, such plans would be included in the scope of the operative part of the permission and therefore, it would not be possible to amend them by way of a section 73 application.
Wheatcroft
The judgment also addressed the relevance of the Wheatcroft principle that had been cited in many of the relevant cases. The judgment explains “The important point here is that the Wheatcroft principle is concerned with the effects of altering a development proposal on the process for assessing and determining the merits of a planning application (or appeal), including procedural effects on parties participating in that process. By contrast, the limits of the power conferred by s.73 are concerned with the relationship between the alteration of conditions in an existing planning permission and the protection of substantive development rights granted by that permission. This is a completely different matter, which is subject to the express language of s.73.”
Restriction 2
In respect of restriction 2, paragraph 126 states that “Provided that a s.73 permission does not alter the operative part of an extant permission, there is nothing in Finney to suggest that conditions imposed under s. 73 may not have the effect of substantially or fundamentally altering the earlier planning permission.”. The reasoning (paragraph 129) explains that:
(1) Section 73 is limited to applications to develop land without complying with conditions attached to a permission previously granted (s.73(1)). Parliament has empowered a LPA to grant a s.73 permission without any of the conditions to which the original permission was subject. What the planning authority may consider is limited by s.73(2). Parliament has expressly provided for specific situations where the power may not be used (s.73(4) and (5)). But it has not restricted the power to vary or remove conditions previously imposed to non-substantial or non-fundamental alterations;
(2) Parliament has inserted s.96A into the TCPA 1990, allowing for an application to be made to alter both a grant of planning permission and the conditions imposed, subject to a restriction to non-material amendments. In addition, the new s.73B will allow for the grant of a new permission “not substantially different” from an existing permission. If Parliament had wished to prohibit the imposition under s.73 of conditions which make a “fundamental” or “substantial” alteration to a permission without changing the operative part, it would have said so in the legislation;
(3) The power in s.73 is subject to the restriction that it may not result in a permission, the operative part and/or the conditions of which are inconsistent with the operative part of the earlier permission, either in terms of the language used or its effect. No justification has been identified for imposing restriction (2) as an additional limitation on the power of s.73, in the light of the statutory purpose of that provision;
(4) Parliament has provided what it considers to be adequate procedural protections for the consideration of s.73 applications, including consultation and an opportunity for representations to be made;
(5) Although a substantial or fundamental alteration may be sought under s.73, that does not dictate the outcome of the application. The planning authority has ample jurisdiction to determine the planning merits of any such application
This is also helpful in confirming that s96A allows for non-material amendments to both the description of development and the conditions attached to a permission. Points 4 and 5 are also a helpful reminder that the LPA does have discretion in deciding whether a section 73 application is acceptable in planning terms.
Conclusions
A section 73 permission cannot be granted if it would conflict with the operative part of the permission in a way that is more than de minimis (restriction 1).
There is no test of “fundamental alteration” applicable to section 73, and therefore, provided that the conditions are not in conflict with the operative part of the permission, a section 73 permission may include conditions that allow for a development that would otherwise be considered a fundamental alteration to the original permission.
The operative part of a planning permission may be considered to include plans referred to in that part of the permission which may reduce the scope of potential section 73 applications depending on the specific wording of the permission.
It is also important to note that section 73 applications are still subject to consultation and they should be decided in accordance with the development plan and any material considerations.
The government has not confirmed a timetable for bringing section 73B into force. This would allow local planning authorities to grant permission under this section if they are satisfied that its effect will not be “substantially different” from that of the existing permission. Section 73B will allow for amendments to both the operative part of the permission and the conditions which should allow for a more straightforward process in many cases, but subject to that “not substantially different” limitation.
Thanks Susannah. Back to me for a final brief comment: Dear MHCLG, this is all unnecessary complexity and a significant cause of delay in the delivery of development. Yes to bringing section 73B into force but it could be improved upon (whisper the additional complication of “Hillside” for scheme amendments) and the forthcoming Planning and Infrastructure Bill would surely be an early opportunity!
Below each of the Government’s “missions” we now have a set of “measurable milestones” – although if a milestone isn’t measurable isn’t it just a stone?
This may be a shallow comment to make upfront but as always (it’s not just this government) the organisational cliché bingo is so disappointing:
kickstarting
turbo-charge
driving through
breaking down barriers
I’d be run out of a partners’ meeting if I used such language I suspect.
Missions…
I always liked that intro to Mission Impossible where the hidden tape recorder is found and the recording starts: “Good morning [X], your mission, should you choose to accept it….”
The missions of this government are not easy to keep in mind. There were five at the time of the general election. There are now six:
“The milestones for change set out in the plan will track the government’s progress against each of the missions by the end of the parliament, ensuring accountability to the public.”
“These include a new commitment to fast track planning decisions on at least 150 major economic infrastructure projects, and the biggest housebuilding and infrastructure push in 50 years to turbocharge economic growth across the country.”
In the plan itself, the “kickstarting economic growth” mission has two milestones:
Milestone: Raising living standards in every part of the United Kingdom
Milestone: Rebuilding Britain
As to the second milestone (I have emboldened the key passages):
“The failure of the planning regime has not just left us without the homes we need. Britain also lacks other key infrastructure that we should be able to rely on such as transport and energy, or gigafactories and data centres needed for industries of the future.
It is slower and more costly to build economic infrastructure in England than other major countries like France and Italy. No new reservoir has been built since 1992.
The time it takes to secure planning permission for major economic infrastructure projects has almost doubled in the last decade to more than 4 years. Our growth mission will change this: fast-tracking infrastructure delivery and home building and enabling businesses to invest.”
“Our milestone
We must make the dream of home ownership a reality for people across the country. New homes must be supported with the right infrastructure, from roads to reservoirs.
So, through the growth mission, the government has a hugely ambitious milestone of building 1.5 million safe and decent homes in England this Parliament.
A boost in new homes must deliver for aspiring owners and renters, and provide secure, affordable and quality housing.
We will do this while delivering the infrastructure the country needs – not simply through investment, but by reforming planning rules and fast-tracking 150 planning decisions on major infrastructure by the end of this Parliament – more than double the number decided in the previous Parliament.
In building 1.5 million homes, we will measure progress through the number of net additional dwellings built in England over the course of this Parliament.”
“…we will publish ten-year strategies for housing and infrastructure next spring, with clear priorities, plans to deliver, and a pipeline of projects for investors and supply chains. These will reflect our next steps – reform, investment, supply. We will:
Reform the planning system so that it is pro-growth and pro-infrastructure. We will publish a new National Planning Policy Framework by the end of 2024 and update all relevant National Policy Statements by next summer. We will make improvements to planning at a local level, modernising planning committees and increasing local planning capacity. We will use the Planning and Infrastructure Bill to create a win-win for development and nature; and streamline processes for critical infrastructure. For the first time we will strategically join up decisions on housing, business growth and infrastructure at both a national and local level, with the Westminster government’s industrial, housing and infrastructure strategies aligning with the local growth plans and strategic development plans led by mayors. Only by delivering these reforms will we unlock investment and delivery.”
“Work in partnership with local leaders, housebuilders and infrastructure developers to deliver investment into these sectors”
“Increase supply and deliver the biggest boost to social and affordable housing in a generation”
As far as “measurable milestones” go we have the government doubling down on its 1.5 million new homes commitment; we have this “150 planning decisions on major infrastructure” commitment (NB perhaps don’t assume that only NSIPs count – I refer below to decisions this week in relation to a proposed data centre and to a proposed prison, both under the Town and Country Planning Act); the promised new NPPF (all betting now is on 12 December), and updated “relevant” national policy statements by next summer.
Given that come the next general election the government will undoubtedly be held to account, is it right for it to stick with that 1.5m new homes pledge when it is not likely to be met (albeit that the Conservatives’ pre-election pledge, ridiculously, was even higher at 1.6M)? Is a single target such as this the right approach, or (as may be the case with the milestone adopted in relation to the “NHS fit for the future” mission of reducing average waits for planned hospital care to 18 weeks) might it unhelpfully skew organisational behaviour and focus?
Almost more important than all this was the tone of the prime minister’s speech itself – many people picking up on his colourful references to civil servants “comfortable in the tepid bath of managed decline” and to “the nimbys, the regulators, the blockers and bureaucrats…the alliance of naysayers”. I’m not sure that he could be more clear as to the direction that this government will be taking in order to deliver on those milestones.
I set out sections of his speech below because it is interesting to see the tone: this is fighting talk.
“There’s no investment in our public services, without difficult decisions.
No solution to the housing crisis, without approving controversial development… “
“Clearly if we don’t turbocharge housebuilding with reform…
We’re won’t meet that milestone.”
“I do think too many people in Whitehall are comfortable in the tepid bath of managed decline.”
“take our planning system…
A blockage in our economy that is so big…
It obscures an entire future…
Stops this country building roads, grid connections, laboratories, trainlines, warehouses, windfarms, power stations…
You name it.
A chokehold on the growth our country needs…
Suffocating the aspirations of working families.
I mean – you walk around our country…
You look at our infrastructure…
And it is clear almost immediately…
That we have long freeloaded off the British genius of the past.
Because we won’t build a future…
We haven’t built a reservoir for over 30 years…
And even the projects we do approve…
Are fought tooth and nail…
Nail and tooth…
Until you end up
With the absurd spectacle of a £100m bat tunnel…
Holding up the country’s single biggest infrastructure project.
Driving up taxes and the cost of living, beyond belief.
I tell you now…
This Government will not accept this nonsense anymore.
We will streamline the approval process in the forthcoming Planning and Infrastructure Bill…
And driving through that reform – I can announce another new target…
Not just 1.5 million homes…
But also 150 major infrastructure projects…
A milestone that will triple the number of decisions on national infrastructure compared with the last Parliament.
And just as important…
Will send a very clear message…
To the nimbys, the regulators, the blockers and bureaucrats…
The alliance of naysayers…
The people who say no “Britain can’t do this”…
We can’t get things done in our country.
We say to them – you no longer have the upper hand…
Britain says yes.”
Of course, actions speak louder than words. This week we have seen M&S’ Oxford Street project finally approved following the quashing of the previous government’s decision (see my 2 March 2024 blog post M&S Mess 2: “The SoS Appears To Have Become Thoroughly Confused On This Point”); a green belt data centre project allowed on appeal, the appeal having been recovered for the Secretary of State’s decision-making very soon after the July 2024 election, and a prison project approved against the inspector’s recommendations (see my 10 June 2024 blog post New Prisons https://simonicity.com/2024/06/10/new-prisons/ for more general context).
“This tape will now self-destruct in five seconds. Good luck.”
NB The title to this post is just for the benefit of those who say to me that the titles are the best bit. (I agree).
Following on from my 9 November 2024 blog post Intervention, there were two decisions issued yesterday (22 November 2024) resulting from call-ins of applications by the previous Government, one in relation to Berkeley’s Cranbrook scheme (initially refused by the previously Secretary of State, which decision was then quashed by consent, and now finally approved), the other in relation to a large logistics scheme in the Warrington green belt (initially resolved to be approved by Warrington Council, but now refused by the Secretary of State).
The Secretary of State’s power in section 77 of the Town and Country Planning Act 1990 to call-in applications for planning permission which raise planning issues of more than local importance is sparingly used. Usually, the power is used after the local planning authority has resolved to approve an application for planning permission for development. The Secretary of State’s policy remains that examples of where “planning issues of more than local importance” include those which in her opinion:
“may conflict with national policies on important matters;
may have significant long-term impact on economic growth and meeting housing needs across a wider area than a single local authority;
could have significant effects beyond their immediate locality;
give rise to substantial cross-boundary or national controversy;
raise significant architectural and urban design issues; or
may involve the interests of national security or of foreign Governments.
However, each case will continue to be considered on its individual merits.”
The Quinn Estates/Sittingbourne situation I mentioned in my Intervention blog post is unusual, in that the decision to call-in was taken just before a meeting of the local planning authority’s planning committee where the applications in question were recommended for refusal.
The case remains that call-in by the Secretary of State (under section 77) is of little advantage to an applicant as opposed to appeal (under section 78) against the refusal or non-determination of the relevant application. The procedures are equivalent. The position is very much in contrast to the position in London where the Mayor can become the relevant planning authority for applications which meet specified criteria and then determine them rapidly via a representations hearing – a useful process in unlocking situations as with, recently, the proposed redevelopment of Springfield Hospital in Wandsworth and the proposed expansion of the All England Lawn Tennis Club in Wimbledon.
Turning to yesterday’s decisions (neither of which incidentally draw at all on the contents of the draft revised NPPF – we should hold our excitement as to the relevance of that document until the final version emerges before the end of the next month – these Christmas NPPF drops are now an annual staple of our festive plans):
I reported on the previous Secretary of State’s initial decision to refuse the application in my 22 April 2023 blog post, Mind Blowing Decisions. As it turned out, the decision was so mind blowing that the Secretary of State ended up consenting to judgment in October 2023 when the decision was challenged in the High Court by Berkeley.
The new Secretary of State has considered further representations from the parties and has now approved the scheme.
You may recall the previous Secretary of State’s criticisms of the scheme as not “sensitively designed” and being “of a generic suburban nature”. Those concerns haven’t entirely gone away but their relevance is now downplayed:
“Whilst the Secretary of State has concerns about the layout and design of the proposal, particularly the sensitivity and appropriateness of the design in the context of its setting, she has taken into account that only 20% of the site would be built on (IR730) and the proposed development would deliver landscape enhancements (IR826). Overall, she considers that the design of the scheme is a neutral factor in this case.”
The Secretary of State also notes the now enhanced protection for AONBs (now national landscapes) via section 245 of the Levelling-up and Regeneration Act 2023 and that the local planning authority can now demonstrate a five-year housing land supply but again these factors do not lead to refusal of the application. She “considers that the delivery of 165 homes (40% affordable housing) carries significant weight.”
Her overall conclusions:
“58. For the reasons given above, the Secretary of State considers that the application is not in accordance with Policies LBD1 of the Local Plan, Core Policies 1 and 14 of the Core
Strategy, and Policy AL/STR 1 of the Site Allocations LP, and is not fully in accordance with Policy EN21, EN22, EN25 of the Local Plan or Core Policy 12. She considers that the application is not in accordance with the development plan overall. She has gone on to consider whether there are material considerations which indicate that the proposal should be determined other than in accordance with the development plan.
59. Weighing in favour of the development are the need for and delivery of housing, the BNG, enhanced recreation opportunities, improvements in highway safety, heritage benefits to the historic landscape and landscape benefits by way of woodland planting and management, which collectively carry substantial weight.
60. Weighing against the proposal is the harm to the landscape and the scenic beauty of the HWAONB which attracts great weight, harm arising from development outside the limitsof built development which carries moderate weight, harm to air quality which carries very limited weight and the effect on the plan-making process of the eLP which carries very limited weight.
61. The Secretary of State has concluded for the reasons given above that exceptional circumstances exist to justify the proposed development in the HWAONB and that the
development would be in the public interest. The AONB test at paragraph 183 (formerly 177) of the Framework is therefore favourable to the proposal.
62. Overall, the Secretary of State’s conclusion on section 38(6) of the Planning and Compulsory Purchase Act 2004 is that despite the conflict with the development plan, the material considerations in this case indicate that permission should be granted.
63. The Secretary of State therefore concludes that planning permission should be granted.”
This was an application for planning permission for around 3 million square feet of B8 development at Bradley Hall Farm, Grappenhall Lane, Warrington. The application was originally made in April 2019. Warrington Council had resolved to approve the application in March 2022 before it was called in in November 2022. The site had been proposed to be allocated in the emerging local plan before then being removed in the plan that was adopted in December 2023, the local plan inspector having concluded that there was no strategic need for the allocation.
In her decision letter yesterday, the Secretary of State reaches this conclusion on employment land supply and demand, and the need for employment land:
“For the reasons given at IR340-349 the Secretary of State recognises that there is a strong demand for logistics facilities and that the supply of the largest sites is limited within the region (IR347). However, overall she agrees with the Inspector at IR350 that the case for logistics supply and demand is overstated and largely based on subjective opinion rather than robust quantitative data.”
“The Secretary of State agrees at IR353 that it was not for the Inspector to revisit the underlaying basis of the very recently adopted Local Plan and determine the objectivelyassessed need for employment land in Warrington.
For the reasons given at IR351-359 and IR384, the Secretary of State, like the Inspector, accepts that a need for large scale units across the region is present (IR358). Like the Inspector, she is not persuaded that there is a lack of alternatives across the region, but agrees that provision is limited and not ideal. She further agrees therefore that a genuine need for the site within a regional context has not been wholly proven (IR359). The Secretary of State agrees with the Inspector at IR384 that the need for employment land carries limited weight.”
Overall, she found that the necessary “very special circumstances” case had not been made out.
SIMONICITY 