Is The London Mayor Doing Enough In Practice To Accelerate Housing Delivery?

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.

Before we look at the practice note, let’s see what some of the evidence is saying, for instance the GLA’s own November 2024 document, Housing in London 2024: The evidence base for the London Housing Strategy (the charts referred to are here):

“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.

Thoughts?

Simon Ricketts, 11 January 2025

Personal views, et cetera

How About A Five Yearly Review Of The Use Classes Order & GPDO, Starting This Year?

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:

  1. 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”).
  1. 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 rebuild as 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?

Happy new year!

Simon Ricketts, 5 January 2025

Personal views, et cetera

And Now Take A Deep Breath…

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”.

Now stop and have fun! Merry Christmas.

Simon Ricketts, 21 December 2024

I’m dreaming of a white cat Christmas…

I Love It When A National Planning Policy Framework Comes Together

As John “Hannibal” Smith never quite said on The A-Team.

You’ve read the various summaries of the 12 December 2024 NPPF and accompanying announcements.

This is just a set of links to the various documents and a summary of what they tell us as to what is to come.

I give you:

  • The following revised elements of the government’s planning practice guidance:

“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.

Simon Ricketts, 14 December 2024

Personal views, et cetera

Fundamental (Or Helpful At Least) Alteration To Scope Of Section 73 Applications?

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!

Simon Ricketts, 11 December 2024

Personal views, et cetera

James Bond…Or Mission Impossible?

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?

See the prime minister’s speech at Pinewood Studios (hence his James Bond quip) on 5 December 2024, the Delivering change: our road-map for a mission-led government plan and press statement, PM sets out blueprint for decade of national renewal.

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:

  • Strong Foundations
  • Kickstarting Economic Growth
  • An NHS Fit for the Future
  • Safer Streets
  • Break Down Barriers to Opportunity
  • Make Britain a Clean Energy Superpower

From the press statement:

“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.”

Simon Ricketts, 7 December 2024

Personal views, et cetera

I Just Called You In To Say I Love You

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):

Cranbook

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 limits of 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.”

Warrington

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 objectively assessed 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.

Simon Ricketts, 23 November 2024

Personal views, et cetera

Photo courtesy of Jon Tyson via Unsplash

Hemel Homestead

On 4 November 2024 the New Towns Taskforce published its call for evidence with a deadline of 13 December 2024.

I live near an existing new town: Hemel Hempstead. This morning I happened to come across this 12 minutes promotional film from 1957, pitching its virtues to potential residents and workers, sponsored by furniture company Dexion which was building a factory as part of the new town project. The film is well worth a view. Who wouldn’t want to live in a place like this, I thought – a fresh start, cleanliness, space, facilities, modernity. Much of it is still recognisable to me. The Hemel Homestead dream portrayed in the film certainly hasn’t died, although it’s fair to say that some of those facilities may not still be there, or are much degraded, with an increasing lack of secure funding streams or the ravages of the market economy. And we have seen the replacement of that rather centralised post-war command and control economy, where so many people seemed to accept, whether or not under sufferance) their rigid place in society, with our so much more diverse and individualistic 21st century neo-liberalism.

(The film is on the BFI “Britain on Film” website. Just put in your postcode into this map and you will have access to many digitised amateur home movies, documentaries and news footage dating back more than 100 years).

Those planning the next generation of new towns would do well to reflect on lessons learned from previous generations. The post-war new towns programme saw 27 UK new towns built by state-sponsored development corporations under the New Towns Act 1946 and later amending legislation. One of the conundrums that successive governments have grappled with over the last 45 years or so is how to create the conditions in which the private sector, rather than the state, can bring forward and deliver residential-led proposals at scale, whether in the form of new towns or urban extensions.

Watching that film caused me to turn back to a book I have: Hemel Hempstead: The Story of New Town Development 1947-1997. One of its lessons for government may not be a popular one: expect resistance. Local activism against change, even resort to litigation to seek to prevent development, is certainly nothing new.

The book recounts a public meeting in 1946 at which the minister, Lewis Silkin, sought to justify the proposals. 150 local people turned up, sceptical of the project, expressing concerns as to “just how many undesirables” would move here from London (that would be me then), as to the prospect of demolition of older properties and loss of agricultural land. There was then a public inquiry which lasted all of three days! The Hemel Hempstead Protection Association sought to challenge the conclusions of the inquiry in the High Court on the basis that there had been inadequate consultation with the relevant local authorities but was rejected on 30 July 1947. I can’t find the judgment but the book asserts that it contains the sentence: “It may well mean that the village of Hemel Hempstead must die in order that Great London may live“. I’m not sure about that…

(Poster as reprinted in the book mentioned above, published in 1997 by Dacorum Borough Council)

In turn all of this sparks memories of the more well-known protests against Stevenage new town, recounted for instance in 2022 by Stephen V. Ward ‘An essay in civilisation’? – Stevenage and the post-war New Towns programme (note indeed that celebrities had their role, even back than…):

“In contrast to this expert planning process quietly taking place within the Ministry, local anxieties had been growing since the Abercrombie plan’s first intimation of a satellite town (Cullingworth 1979: 27-31). The awareness from late 1945 that Abercrombie’s proposals were beginning to be acted upon heightened the unease. The Stephenson plan was not, of course, prepared in secret. A few team members had visited the area and there had been meetings with local officials but no formal contact with either the community or elected members of Stevenage Urban District Council. Meanwhile events moved on and opinions hardened. By February 1946, local development applications were being refused because they contravened the still undisclosed New Town plan. Then, in April, the famous novelist E. M. Forster condemned on radio the new ‘meteorite town’ set to land on Stevenage, where his novel Howard’s End had been set (Forster 1965: 68).

Only when the plan was virtually complete, later in April, did the planners and Ministry officials finally meet local councillors to explain it (TNA, HLG 91/74. Beaufoy, Memo, 27.4.1946). But already compulsory purchase notices were landing on Stevenage doormats. Most affected houses were only recently built but located within what would be the northern part of the proposed industrial zone. It meant, bizarrely, that the first specific thing local people learned about the New Town was that, despite a severe national housing shortage, perfectly fit houses would be demolished. (Over time, the industrial zone was reduced in size and these same houses are still there today.) The meeting with the council occurred in an atmosphere of what a ministry official optimistically termed ‘polite antagonism’. A few days later, on 6th May, all hell broke loose (TNA, HLG 91/77). During that day Lewis Silkin visited the town, meeting local people, the council and finally addressing an evening public meeting. Seemingly oblivious of what was brewing, the Minister confidently expected to carry the day. He had already arranged a triumphant news story ‘A New Town is Born’ to be circulated to the world’s press. Others had more accurately foreseen events. On 30th April, the London Evening News led with the headline ‘Doomtown Protest Rising’. The following day the Stevenage Residents’ Protection Association was formed and its membership and funding quickly grew.

At the public meeting (see Figure 2) over 350 people filled Stevenage Town Hall with (in some reports) about half the local population outside, listening on loudspeakers. The strongest objections came from farmers and residents set to lose their livelihoods or homes. There were also many general concerns: that Stevenage was the victim of a national experiment, that history was being uprooted and everything was being done in dictatorial fashion. Despite some cheers, the meeting did not go well for the Minister, his speech frequently being interrupted. He appealed to the audience’s highest instincts and invoked the wartime spirit. Yet such arguments did not assuage protesters who thought him profoundly anti-democratic, with cries of ‘hark, hark, the dictator’ and ‘Gestapo’. Nevertheless, Silkin assured incredulous listeners that soon ‘[p]eople from all over the world will come to Stevenage to see how we here in this country are building for the new way of life.’ He left the hall to find a tyre of his official car had been deflated and (it was suspected) sugar put in the petrol tank.”

(This was the famous incident where of course signs at Stevenage railway station were switched for signs reading “Silkingrad”. See also the litigation brought by those opposing the development, culminating in Franklin v the Minister of Town and Country Planning (House of Lords, 1948).

As was the case in the late 1940s, so now – the government should expect equivalent tests of its resolve. Where would we be if those planning Hemel Hempstead, or Stevenage, or other new towns of the time, had caved? A study of the anti-new towns campaigns and litigation of that time would be an informative read.

Simon Ricketts, 17 November 2024

Personal views, et cetera

Intervention

As the saying almost goes, necessity is the mother of intervention.

Remember Rachel Reeves’ 8 July 2024 speech?

“…if we are to put growth at the centre of our planning system, that means changes not only to the system itself, but to the way that ministers use our powers for direct intervention.

The Deputy Prime Minister has said that when she intervenes in the economic planning system, the benefit of development will be a central consideration and that she will not hesitate to review an application where the potential gain for the regional and national economies warrant it.”

Let’s look at the new Government’s interventions so far in relation to planning applications (by way of Angela Rayner calling in applications for her own determination) and in relation to planning appeals (by way of Angela Rayner recovering appeals for her own determination rather than that of planning inspectors – NB outside world, please don’t call these recoveries call-ins!). (And for a basic procedural primer see this House of Commons research briefing).

Quinn/Sittingbourne call-in

It’s topical because of the big news this week – that Rayner has called in Quinn Estates’ two applications for planning permission for a total of up to around 8,400 homes with significant infrastructure and associated development near Sittingbourne – a scheme known as Highsted Park. The call-in letter is dated 7 November 2024 and landed less than three hours before Swale Borough Council’s Planning Committee was due to consider both applications, both of which were recommended for refusal.

The applications will now be determined by her following a public inquiry – as no doubt would have been the case, via appeal, if the Planning Committee had proceeded to determine the applications, so the timing is interesting. Was the call-in partly a political statement of intent, partly just accelerating timescales and/or partly a recognition of the difficulties arising from local determination of schemes of this sheer scale (particularly where the LPA in question has a local plan which is now over seven years old)?

I do sympathise with Swale over the timing (see their press statement ) but I do not agree with complaints on social media from some that Rayner’s letter is in some ways “subverting local democracy”. I would place money on the fact that were it not for Rayner’s intervention (1) if Swale had resolved to approve the applications, there would have been demands for call-in from those against the proposals and (2) if Swale had refused the applications, Quinn would have appealed. So I regard that as a somewhat hollow complaint, particularly given the new (if we can still call it that) Government’s explicit stance in relation to using its powers of intervention.

There isn’t one publicly accessible resource setting out the decisions which the Secretary of State has made to call in or recover applications or appeals respectively (as opposed to the Secretary of State’s final decisions, for which this is a useful resource).

From my research, I think these are the other ones so far since the election:

Chinese Embassy/Royal Mint Court, Tower Hamlets – call-in

Again called in prior to the LPA’s determination of the application, although against the background of Tower Hamlets Council having refused a previous application.

This one is whatever the phrase is in Cantonese for a massive political hot potato. See this 5 November 2024 Guardian piece for a flavour: China blocking UK plans in Beijing amid east London mega-embassy dispute.

SOG Group/Runcorn – call-in

This might be said to be a more traditional call-in situation, following as it did Halton Council’s resolution to approve the application for planning permission for 545 homes (see for example this 18 October 2024 piece by North West Place Rayner calls in SOG’s 545 Runcorn homes. It seems there may be an HSE objection. An inquiry starts 4 February 2025.

Marlow Film Studio – appeal recovered

See eg the Guardian’s 9 October 2024 piece Angela Rayner reconsiders rejected application for Marlow film studio.

Data centre proposals in Iver (Buckinghamshire) and Abbots Langley (Hertfordshire) – appeals recovered

Both inquiries have now taken place, with the outcomes awaited with interest. The decisions to recover were made within a week of Labour coming into government and indeed were referred to in that Reeves speech I mention above.

Have I missed any?

Of course it is also interesting to see where the Secretary of State has decided not to intervene, for instance in relation to the Wimbledon All England Tennis Club’s expansion proposals approved by the London Mayor in September, and indeed in relation to Peel’s proposals for Chatham Docks.

The politics in relation to these decisions as to whether to intervene or not in local decision making is definitely going to be as important to watch as the detailed proposed changes to the NPPF.

Simon Ricketts, 9 November 2024

Personal views, et cetera

Extract from Quinn Estates website, courtesy of Quinn Estates

The Blob

Do you feel seen?

Kemi Badenoch, the Tories’ new leader, plans war on the “blob” (The Economist, 2 November 2024).

The piece spurred me to read her pamphlet, Conservatism in Crisis: Rise of the Bureaucratic Class  (30 September 2024). Friends, we are the bureaucratic class and we are directly in its sights. And it’s not a wholly unfair challenge.

From her foreword (my emboldening):

“In nearly every country, a new progressive ideology is on the rise. This ideology is based on the twin pillars of constant intervention on behalf of protecting marginalised, vulnerable groups, including protecting us from ourselves – and the idea that bureaucrats make better decisions than individuals, or even democratic nation states.

This ideology is behind the rise of identity politics, the attacks on the democratic, sovereign nation state, and ever- more government via spending and regulation. It is driving the economic slowdown seen across the West and social polarisation in country after country. A new left, not based primarily on nationalisation and private sector trade unions, but ever increasing social and economic control.

A new class of people, a new and growing bureaucratic class, is driving these changes. More and more jobs are related not to providing goods and services in the marketplace, but are instead focused around administering government rules.

Often these jobs are in private sector bureaucracies, confounding the old split between the public and private sectors.

This pamphlet discusses some of them – and how there is a world of difference, for example, between a lawyer dealing with market contracts and one focused on compliance, human rights or environmental laws. Between the market- focused HR staff fixing pensions and finding the best talent and those dealing with the ever- expanding EDI sector or imposing ever tighter control over employees’ lives, changes driven often by government rules.  The growth of pointless degrees pushed by government so that a middle- class job requires a major millstone of debt, funding a growing university administrative class.”

“We recently saw an excellent paper, Foundations, which built on the strong work by the group Britain Remade, listing the tens of thousands of pages of paperwork required to build infrastructure, holding back our economy. I met with this team as a Secretary of State and explained the challenges I faced were often with fellow Conservatives afraid to challenge the consensus.

Whenever you try to roll back the environmental laws, the diversity and social requirements, to trim the judicial reviews and the fake consultation processes, too many in our party are nowhere to be seen. This is thus not a process problem, but a political problem.

Too many in our party think that the bureaucratic class and their demands should not be confronted, and they are not prepared to make the trade- offs we need in order to get our economy moving again.“

From the executive summary:

“Increasing numbers of middle- class jobs relate more to government rules than goods and services bought and sold in the market. This close relationship with government and regulation creates a different economic, social, cultural and political reality for much of the urban middle class in the UK and wider West.  A lawyer dealing in market contracts between two private sector firms is very different to one dealing in HR, sustainability, compliance etc.”

“Across the West we are moving to a structure of politics that is horizontal – where how you earn your money is as important as how much money you earn. Instead of a vertical political structure, there is now a horizontal political structure.”

“The bureaucratic class benefit from more government, not less government. If you work in a job where you are largely about protecting people in some sense, if your role is derived from the sprawling mass of government regulation, then you will lean toward more government.”

“Expanding regulation is seen in area after area. The legal profession has also grown very sharply as the size of government has grown. From 1971 to the present there has been an over a sevenfold increase in numbers, versus a 200% increase in GDP. Only 10% of the UK’s legal profession’s earnings are related to legal exports. This mirrors the USA, where per head the legal profession largely grew at the rate of the population, but took off toward the end of the 20th century and close to tripled.  New specialisms, such as environmental law, human rights law, human resources and discrimination law, immigration and refugee law are now whole careers in themselves.”

“Here in the UK, statutory instruments, legislation that sits underneath Acts of Parliament, rose from a few thousand in the initial postwar period to well over 10,000 by the late 00s and 2010s. The bureaucratic class has a clear economic cost. But even more importantly, there can be no reform of the public or private sector while the bureaucratic class dominates.

The bureaucratic class cannot fix anything because it always starts from the wrong place.

Bureaucratic class answers are always the same. They always involve more regulation and control over ordinary people – expanding the power and scope of the bureaucratic class – rather than streamlining the public sector and giving more power to public sector users. This drives weak public sector productivity, growing at just 0.2% a year over the past few decades.”

“For example, UK building regulations are now 1,500 pages, despite the misleading and dishonest arguments that the sector is ‘deregulated’. Indeed, the complexity now acts to make the limited genuine requirements (e.g. protecting us from unsafe cladding) obscured in a thicket of wider regulations.

Often the creation of a compliance industry just expands the bureaucratic class. Likewise, the growth of a massive planning bureaucracy has not improved the quality or quantity of what we build, but it has meant bureaucratic class jobs.”

Her conclusions?

“The Conservatives have to realise the bureaucratic class and the new progressive ideology are their opponents. The idea that as Labour fails, then simply because someone has a comfortable middle- class job they will come back to voting for the right is false.

There will have to be a new type of politics. To take on the bureaucratic class means to ditch radical environmental politics, unpick identity politics, focus on a strong positive national identity, limit migration, reduce the endless HR, compliance and sustainability rules, to streamline planning, to focus on bringing down the cost of the welfare state and much more.”

It has an echo of Project 2025 doesn’t it? Many of you, frustrated by ever more onerous regulation, longer timescales, the need to appoint ever increasing numbers of “experts“, the burden of regulatory compliance procedures, will find this an attractive diagnosis. What is our response?

There is a simple response: how do we streamline planning, for example, whilst not harming the quality or quantity of what we build or the environmental and social protections we expect? If we can, let’s do it. My inner concern is whether this response will continue to be enough.

The dilemmas are all around us, all of the time.

Exhibit 1: The topic I covered in last week’s blog post, Banner Review Into Legal Challenges of NSIPs. We all want to simplify processes surely, but how? Many of the time it’s not the so-called bureaucratic class (i.e. me and my cosy friends – you lot) standing in the way – it’s people: voters; local politicians; volunteers.

Exhibit 2: the House of Lords Built Environment Committee’s current inquiry into Labour’s “grey belt” proposal. I gave evidence to it as the only lawyer or indeed private sector advisor. I had heard much hand wringing from some as to how the proposal is too uncertain in its drafting and is therefore likely to lead to endless litigation, that it is all hopelessly vague, that the release of land from the green belt should be a matter for local planning authorities by way of local plans. How come I, as a card-carrying member of Kemi Badenoch’s supposed bureaucratic class was the one pushing back (see the draft transcript of my evidence): to deliver on the government’s housing and growth objectives it will need to make changes like these; there will not be endless litigation; simple definitions are fine – in fact the dangers lie with complexity. Oh for the days of the 1955 green belt circular – three pages or so, no consultation, no angst as to what “very special circumstances” (for instance) actually might mean. We all surely are in this fix with every intended piece of policy or legislation: do we aim for complex, comprehensively drafted solutions, covering every permutation of outcome or is something simpler, more broadly stated, ever to be preferred if it can have an immediate effect (and avoid the additional risks of ambiguity that come with complexity)?

Exhibit 3: Labour’s planning reforms more generally and my view as to the greatest danger that they face: the risk of being neutralised, as so many reform proposals previously have been: by endless consultation processes; processes to review the outcome of those consultation processes, and consultation processes to drill down to the next detailed stage, by which time the world has moved on and yes the moment has gone again.

Paul Smith of the Strategic Land Group spotted the following references to the government’s planning reforms in the Office of Budget Responsibility’s economic and fiscal outlook paper published  alongside the budget on 30 October 2024. Its assessment of current policy risks includes this:

“The Government has proposed significant changes to the National Planning Policy Framework as part of wider reforms to the planning system. These changes are yet to be finalised, as responses to a recent public consultation are being processed by the Government. As such, there is insufficient certainty to adjust our current forecast for these measures and we will continue to monitor developments, especially around their implementation given past reform attempts, to judge if and when to incorporate them. These reforms may enable greater delivery of new housing and infrastructure projects, which would boost the associated investment flows, as well as increasing productivity over the longer term.”

I would agree with the passage that I have emboldened. Incidentally, it’s interesting to see that the OBR’s overall assessment as to likely net additions for the five years to 2029-2030 is relatively upbeat:

“We forecast property transactions to rise from around 275,000 a quarter in 2024 to around 350,000 a quarter over the forecast. Property transactions rose by around 10 per cent over the first half of 2024, 8 percentage points higher than we had anticipated in March. Compared to our March forecast, property transactions are therefore higher in the short term but marginally lower in the medium term, reflecting our forecast for fewer net additions to the housing stock, which reduces supply. We expect housing starts, a leading indicator of net additions to the housing stock, to gradually pick up from a decade-low of around 100,000 in 2024 to reach around 160,000 in 2029. Cumulatively over the forecast, net additions are around 1.3 million. The Government has proposed significant changes to the National Planning Policy Framework as part of wider reforms to the planning system, which represent an upside risk to our housing supply forecast.”

Will Kemi Badenoch lead a resurgent Conservative party to victory in 2029? I would say that this partly depends upon whether the current government does manage to push on through with its planning reforms and whether house building numbers do start to increase to, if not its target of 1.5m homes within this Parliamentary term, then to at least that OBR projection.

In the meantime Kemi, maybe I’ll retrain as something more useful, like a contracts lawyer. (What??!!).

Simon Ricketts, 3 November 2024

Personal views, et cetera