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

Banner Review Into Legal Challenges of NSIPs

Making the planning system work more effectively should not be party political. So it is at least a good start to see that conservative life peer Charles Banner KC’s Independent review into legal challenges against Nationally Significant Infrastructure Projects (28 October 2024), commissioned by the previous government, has now been published by the current government. There is nothing very radical in it but, when it comes to making the planning system and associated litigation process work better, surely so much comes down to a version of Sir Dave Brailsford’s theory of marginal gains (see for example the undoubted success which was Bridget Rosewell’s review of planning inquiry processes).

LCB (is that yet an acceptable acronym?) had been appointed alongside fellow barrister Nick Grant in March 2024 to “explore whether NSIPs are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved, whilst guaranteeing the constitutional right to access of justice and meeting the UK’s international obligations.”

As per the Government’s press statement that accompanies the review, the Ministry of Justice has now separately published a call for evidence, based on his recommendations, ending on 30 December 2024 – “the Government is of the view that further analysis of a broader evidence base is necessary before decisions can be taken on the Review’s recommendations”.

Charlie Banner and Nick Grant had clearly put in the hours. It’s a well-thought through document. The review contains much useful background as to the current position, including analysis of the 34 challenges to DCOs which have been brought (30 of which have challenged the grant of a DCO and of which 4 claims were successful), average timescales for each stage of the process and some of the wider implications arising. This is valuable work – I’ve grumbled previously as to how unnecessarily difficult it can be to extract data like this.

They interviewed over 60 people with experience in the field (I’ll declare an interest as being one of many spoken to. I’m feeling rather guilty now for the whole hour that I took up…).

Ten recommendations are made, which I summarise as follows, adding anything particularly interesting from the Government’s accompanying call for evidence as I go:

Recommendation 1 – For so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIP.

Views not sought on this option. The call for evidence notes the government’s separate call for evidence seeking views on options to bring the UK’s policies into compliance with its obligation under the access to justice provision of the Aarhus Convention (30 September 2024)

Recommendation 2 – There is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs.

Views not sought on this option.

Recommendation 3 – The current three bites of the cherry to obtain permission to apply for judicial review is excessive and should be reduced to either two or one: (1) an oral hearing in the High Court with a target timescale of within four weeks of the deadline for filing of acknowledgements of service and (2) consideration on the papers in the Court of Appeal within four weeks of the application for permission to appeal against the refusal of permission to apply for judicial review.

The commentary in the call for evidence document is interesting, pointing at the potential for any such changes to apply to judicial reviews of other planning decisions:

“If the proposed change could result in time and cost savings for litigants and the courts, whilst maintaining adequate access to justice, there could be merit in considering this change not only in the context of NSIPs but also for judicial reviews of other planning decisions in general.

The Government is, however, of the view that more evidence is required to inform a decision on the implementation of this proposed change. We would, therefore, welcome views on the expected benefits and potential risks of this change, both in the context of the NSIP regime and in wider judicial review cases.”

Recommendation 4 – There may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR.

“The Government is of the view that in addition to the practical risks highlighted in the report, there is a more fundamental concern that raising the permission threshold in this way could unduly restrict the right of access to justice…the Government would however welcome views with supporting evidence, where available, on the likely benefits and potential risks of raising the permission threshold as discussed in the report.”


Recommendation 5 – On balance the case has not yet made out for a panel of judges with specialist NSIP experience to be eligible to hear judicial review challenges to DCO decisions.

The call for evidence document notes that there are currently 35 full time High Court judges authorised to consider planning cases, four of whom specialised in planning as practitioners prior to joining the judiciary.

“The Government would welcome views on whether this idea should be taken forward, whilst recognising that the authorisation of judges to hear certain types of case is part of judicial allocation and deployment which is a matter for the judiciary. We would particularly welcome views from members of the judiciary.”

Recommendation 6 – The Civil Procedure Rules should provide that DCO judicial reviews are automatically deemed Significant Planning Court Claims.

(This is important because stricter target timescales apply. All DCO judicial reviews to date have been treated as such – so this should not be controversial…).

“Given the national significance of NSIPs and the complexity of the claims against them, there is a case for formalising the existing practice of designating all judicial review cases concerning DCO decisions as Significant Planning Court Claims. The Government would, however, welcome views on the practical benefits of formalising this existing practice.”

Recommendation 7 – Automatic pre-permission case management conferences should be introduced in relation to judicial review claims challenging DCOs.

Views sought.

Recommendation 8 – Target timescales should be set for the Court of Appeal to  target timescales for determine applications for permission to appeal, and (where permission is granted) thereafter substantive appeals.

“The Government considers that a better understanding of the causes of the current delays at the Court of Appeal and the Supreme Court is needed to determine whether imposing target timescales would help to ensure consistent timely processing of DCO judicial reviews at the appellate courts. In addition, although the report suggests that the relatively limited number of DCO judicial review claims means that these timescales should not be too onerous on the courts, we would welcome views, particularly from the senior judiciary, as to how the introduction of target timescales might affect the operation of the appellate courts.”

(NB somewhat deferential? There are undoubtedly delays at the appeal stages. delays which look to mere mortals to be capable of reduction…)

Recommendation 9 – The President of the Supreme Court should be invited to consider amending the Supreme Court Rules to introduce target timescales for the determination of applications to the Supreme Court for permission to appeal in judicial review challenges to DCOs.

Same commentary as for recommendation 8.

Recommendation 10 – The Planning Court and Court of Appeal should be invited to publish data on a 3 month rolling basis which, at minimum, should indicate the number and percentage of cases which in the last 3 month period have met the target timescales either for NSIP cases specifically or Significant Planning Court cases generally, or both; as well as what the average and maximum turnaround times have been in that period (for both the permission and the substantive stages).

“This recommendation to invite the Planning Court and the Court of Appeal to improve the way they publish data on the progress of DCO judicial reviews and/or planning cases would not directly address the issue of delays, but it could, as the report notes, provide stakeholders with greater transparency and help inform consideration of further procedural reforms. The report also suggests that this could be easily implemented at little or no additional cost. The Government would welcome views on the likely benefits and potential costs of this proposal.”

The Government is also welcoming views as to:

  • The review and its methodology more generally and whether there is indeed a case for streamlining the process for judicial reviews of DCO decisions
  • other possible changes that could help reduce judicial review related delays to the delivery of NSIPs and provide parties greater certainty in the process. Any proposed change must, however, ensure the right of access to justice is maintained in line with the UK’s domestic and international legal obligations.

Simon Ricketts, 28 October 2024

Personal views, et cetera

Table from review

Together In Electric Dreams

We should be constantly pinching ourselves at the good fortune of (1) living in, what was to previous generations, the future, and (2) having been given the privilege and responsibility of in turn helping to shape a small part of the world in which future generations will live and work.

It wasn’t so long ago that the life of a planning lawyer used to entail posting out cheques for copies of local plans and decision notices (having first had various telephone conversations – yes telephone conversations – to work out the price) or, if it was a rush job, turning up at the local authority’s offices to go through the paper files, or (the horror) sit at their microfiche machine. And sometimes we actually had to sit in a library, with books.

The Planning Portal, individual local authority planning portals and the Planning Inspectorate’s Appeals Casework Portal have been a game changer – but we are on the cusp of bigger improvements in terms of efficiency, transparency of information and the potential for better informed public engagement.

Last week at Town Legal we co-hosted a breakfast roundtable discussion with Gordon Ingram and Claire Locke from Vu.City  to discuss digital 3D planning but the discussion went wider to discuss where we are with digital planning data more widely as well as the Planning Inspectorate’s recent guidance as to the use of artificial intelligence. We had a range of participants from the private and public sectors but I was particularly grateful to Nikki Webber, digital planning lead at the City of London who subsequently shared some of the links to resources that I will now use in this post.

There has been discussion about digitising the planning system for so long that there’s a risk of taking it all for granted, or of not focusing on the vision and how achievable it now is. But huge advantages in terms of efficiency, transparency and quality of decision-making surely flow from (and indeed are already starting to flow from):

  • Ensuring that data that enters the planning system is available for wider public use and that common standards are adopted wherever possible
  • Using technology (1) to give decision-makers and the public a better understanding of the policy options before them and the ability to visualise development proposals in context and (2) to enable better and more straight-forward opportunities for the public to express their views, on the basis of a better understanding of the issues

As the old British Rail slogan went, we’re getting there.

MHCLG’s Digital Planning Programme is doing great, practical, work. Its planning data platform is still at beta testing stage but is already useful, showing planning and housing information provided by local authorities on a single interactive map. It also announced on 18 October 2024 that it is now turning to developing data specifications for planning applications, looking  into “where specifications are required, and define them clearly, taking into account how this data will be used by the planning community. This will build on the work that we have already started, such as the draft specifications for planning applications and decisions , and planning conditions  .”

The legislation required to underpin these advances is taking shape. Part 3, chapter 1 of the Levelling-up and Regeneration Act 2023 deals with planning data. Sections 84, 85, 86 are already in force as of 31 March 2024, by virtue of the Levelling-up and Regeneration Act 2023 (Commencement No. 3 and Transitional and Savings Provision) Regulations 2024 .

Quoting in part from LURA’s explanatory notes:

Section 84 gives the Secretary of State and devolved administrations “the power to regulate the processing of planning data by planning authorities, to create binding “approved data standards” for that processing. It also provides planning authorities with the power to require planning data to be provided to them in accordance with the relevant approved data standards.”

“Example (1):

A planning authority creating their local plan: Currently planning authorities do not follow set standards in how they store or publish local plan information. Through these powers, contributions to the preparation of a local plan and the contents of a local plan will be required to be in accordance with approved data standards. This will render local plan information directly comparable, enabling cross-boundary matters to be dealt with more efficiently as well as the process of updating a local plan as planning authorities will benefit from having easily accessible standardised data.

Example (2):

Central government trying to identify all conservation areas nationally: In the existing system, planning authorities name their conservation areas using different terms (e.g., con area, cons area) making it hard for users of this data, such as central government to identify which areas are not suitable for development and what restrictions are in place. By setting a data standard which will govern the way in which planning authorities must name their conservation areas, and planning authorities publishing this machine-readable data, a national map of conservation areas can be developed which can be used to better safeguard areas of special importance.”

Section 85 allows planning authorities, by published notice, to require a person to provide them with planning data that complies with an approved data standard, that is applicable to that data.

Section 86 allows regulations to be made “requiring a relevant planning authority to make such of its planning data as is specified or described in the regulations available to the public under an approved open licence”.

Whilst these sections are already technically in force, they cannot fully take effect until the government determines what those specific approved data standards will be. Section 87 is also important but not yet in force, which gives the Secretary of State the power to approve software, that is in accordance with data standards, to be used by planning authorities in England. Clearly there is great advantage in consistency of approach as between public authorities as to the software used, so as to ease the user experience and presumably to make providers’ investment in technology more viable but this is to be balanced as against the risks arising from any particular provider being able to exploit a dominant position. Is not a private/public sector approach possibly the most appropriate, as per the Planning Portal (a joint venture between MHCLG and TerraQuest Solutions Limited)?

MHCLG’s Digital Planning Programme has also been funding local authorities’ digital planning projects and its website has links to various case studies. For instance, take a look at Southampton City Council’s work  on increasing accessibility and understanding to improve public engagement, using a Vu.City developed 3D model to help local residents understand what proposals may look like in situ and potentially ease concerns about increased densities. How transformative it would be if local people could see the different options that here might be to accommodate local housing and employment development needs within an area. Or in terms of development management and transparent public engagement, look at London Borough of Camden’s beta testing as to the information it can provide as to major applications in its area (particularly look at the use of images of the proposal and at the “How could this affect you?” section).

With progress of course comes the need for caution. These tools need to be based on accurate information and the risks are accentuated where outputs are the result of modelling and extrapolation of data, rather than taking the form of simply making the raw data more easily available. Any inputs and algorithmic influences need to be capable of being tested. Technology is requiring us all to be additionally cautious in all that we do. In my world for instance, the Law Society has published some useful, detailed, advice as to Generative AI: the essentials  to provide a “broad overview of both the opportunities and risks the legal profession should be aware of to make more informed decisions when deciding whether and how generative AI technologies might be used”. As a firm we now have a policy on the use of AI; no doubt yours does too.

Understanding of the issues has in some ways already moved on greatly since my 27 May 2023 blog post You Can Call Me AI but the risks have increased now that use of Chat GPT and its competitors has become more mainstream. AI is undoubtedly being used by some to generate text for objections to planning applications. I’ve had prospective clients who mention in passing that before asking me the particular question they have looked online and “even Chat GPT didn’t have the answer” (these things are just large language models folks! Would you rely on predictive text as anything more than an occasional short-cut? I don’t like to think about what it must be like to be a GP these days).

Until recently I hadn’t thought about the additional risks arising from generative AI, of false images and documents being relied upon as supposed evidence in planning appeals. So I was pleased to see the Planning Inspectorate’s guidance on Use of artificial intelligence in casework evidence (6 September 2024).

The guidance says:

“If you use AI to create or alter any part of your documents, information or data, you should tell us that you have done this when you provide the material to us. You should also tell us what systems or tools you have used, the source of the information that the AI system has based its content on, and what information or material the AI has been used to create or alter.   

In addition, if you have used AI, you should do the following: 

  • Clearly label where you have used AI in the body of the content that AI has created or altered, and clearly state that AI has been used in that content in any references to it elsewhere in your documentation. 
  • Tell us whether any images or video of people, property, objects or places have been created or altered using AI. 
  • Tell us whether any images or video using AI has changed, augmented, or removed parts of the original image or video, and identify which parts of the image or video has been changed (such as adding or removing buildings or infrastructure within an image).  
  • Tell us the date that you used the AI.
  • Declare your responsibility for the factual accuracy of the content. 
  • Declare your use of AI is responsible and lawful. 
  • Declare that you have appropriate permissions to disclose and share any personal information and that its use complies with data protection and copyright legislation.    “

AI is defined in the document very loosely: “AI is technology that enables a computer or other machine to exhibit ‘intelligence’ normally associated with humans”.

If I can carp a little, whilst the thrust of the guidance and its intent is all good, are we really clear what is and isn’t AI? What about spell-check and other editing functions, what about the photo editing that goes on within any modern camera? Do you know whether the information you are relying upon has itself been prepared partly with the benefit of any AI tool however defined and if AI has been used on what basis are you confirming that “its use complies with data protection and copyright legislation” given the legal issues currently swirling around that subject as to the material upon which some of these AI models are being trained? Perhaps some examples would be helpful of the practical issues on which PINS is particularly focusing.

Tech isn’t my specialism. Planning and planning law probably isn’t a specialism of those actually developing the technical systems and protocols. But I think we need to make sure that we are all engaging as seamlessly as possible across those professional dividing lines, so that the opportunities to create a better, more efficient, more engaging, possibly even more exciting planning system are fully taken. These are the things that dreams are made of.

Simon Ricketts, 20 October 2024

Personal views, et cetera

Extract from MHCLG’s planning data map

Planning For Industrial Growth & Investment

Sir Keir Starmer’s speech on 14 October 2024 at the international investment summit held at the Guildhall in the City of London generated much media coverage. This blog post is going to look briefly at the references he made in that speech to the planning process.

But first of all, I do draw attention to the important document published by the Government alongside the conference:   Invest 2035: the UK’s modern industrial strategy  (14 October 2024), now being consulted upon until 24 November 2024.

Some snippets:

“Eight growth-driving sectors have been identified: Advanced Manufacturing, Clean Energy Industries, Creative Industries, Defence, Digital and Technologies, Financial Services, Life Sciences, and Professional and Business Services.”

“A core objective of the Industrial Strategy is unleashing the full potential of our cities and regions. The Industrial Strategy will concentrate efforts on places with the greatest potential for our growth sectors: city regions, high-potential clusters, and strategic industrial sites. The Government is committed to devolving significant powers to Mayoral Combined Authorities across England, giving them the tools they need to grow their sectoral clusters and improve the local business environment through ambitious Local Growth Plans. Partnership with devolved governments will make this a UK-wide effort and support the considerable sectoral strengths of Scotland, Wales, and Northern Ireland.”

“The Industrial Strategy and growth-driving Sector Plans will be published alongside the Spending Review in Spring 2025.”

Under the “energy and infrastructure” section:

“An effective planning system is a fundamental enabler for business investment in our growth-driving sectors. At the national and regional level, planning constraints hold back growth, including in high-performing life sciences clusters like Cambridge and clean energy industries hubs such as Tees Valley and the North-East. Firms require predictability and efficiency when applying for consent for projects, but this is not being provided by existing processes. Businesses have told us that the planning consent process is too lengthy and uncertain – infrastructure projects spend an average of 65 months in pre-construction phases, the highest among peer countries.”

“Targeted, long-term infrastructure investment is a vital catalyst to the success and stability of major city regions and clusters of our growth-driving sectors. Businesses agree that the UK has for too long failed to provide a long-term vision and clear statement of intent to support this. A lack of housing in some places across the UK also prevents labour markets from operating effectively and prevents successful agglomerations. Further, additional data centre capacity and access to fast, secure, and reliable digital connectivity is essential to enabling economic growth and to reap the transformational productivity benefits of digitalisation and the adoption of AI. Continued investment is needed to meet our ambitious targets to bring gigabit-capable broadband to all of the UK, and standalone 5G to all populated areas, by 2030.”

Under a section entitled “Growing high-potential clusters”:

“The Industrial Strategy will concentrate efforts on places with the greatest potential for the growth sectors: city regions, high-potential clusters, and strategic industrial sites. The success of the Industrial Strategy’s growth-driving sectors can only be achieved if these clusters reach their full potential, supported through a place-based approach to policy.

Local Growth Plans are a cornerstone of the place-based approach. These locally owned, 10-year strategies will set out how Mayoral Combined Authorities (MCAs) will use their devolved powers and funding to drive growth in their region. They will build on the region’s unique strengths and opportunities to support sectors, identify wider business environment priorities, and provide a framework to unlock private investment. They represent strategic partnerships between central Government and MCAs to identify priorities for growth and will be aligned to the Industrial Strategy.

Alongside this, the Government will explore how to build on existing place-based initiatives to support high-potential clusters and align them behind the Industrial Strategy. This includes considering how the Industrial Strategy can be a ‘lens’ for informing the recommendations for New Towns locations, creating new large-scale settlements in places where high housing demand constrains the growth of high-potential clusters.”

Now to Keir Starmer’s summit speech. I have copied and pasted the passages most relevant to the planning system. (I do apologise that the format of the transcript makes it appear rather lyrical)

“Now, I don’t see regulation as good or bad.

That seems simplistic to me.

Some regulation is life-saving…

We have seen that in recent weeks here, with the report on the tragedy of Grenfell Tower.

But across our public sector…

I would say the previous Government hid behind regulators.

Deferred decisions to them because it was either too weak or indecisive…

Or simply not committed enough to growth.

Planning is a very real example of that…

Or – for our friends from across the pond…

‘Permitting’ is a really clear example of that…”

“we’ve also got to look at regulation – across the piece.

And where it is needlessly holding back the investment we need to take our country forward…

Where it is stopping us building the homes…

The data centres, the warehouses, grid connectors, roads,  trainlines, you name it…

Then mark my words – we will get rid of it.

Take the East Anglia 2 wind farm.

A £4 billion investment.

One Gigawatt of clean energy.

An important project – absolutely.

But also the sort of thing a country as committed to clean energy as we are…

Needs to replicate again and again.

Now regulators demanded over four thousand planning documents for that project…

Not 4000 pages – 4000 documents.

And then six weeks after finally receiving planning consent…

It was held up for a further two years by judicial review.

I mean – as an investor…

When you see this inertia…

You just don’t bother do you?

And that – in a nutshell…

Is the biggest supply-side problem we have in our country.

So it’s time to upgrade the regulatory regime…”

Is the focus of his criticism the influence on the planning system of those aspects which are regulated (or at least the subject of oversight) from the likes of the Environment Agency and Natural England, is it the planning system itself, or is it the role of the courts? Or all of the above? I’m not sure that Anglia Two was particularly an example of where the regulatory regime needs to be (or at least can in a straight-forward way be) “upgraded”, but the previous government of course did of course commission Lord Banner KC in March 2024 to lead a review to “explore whether NSIPs are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved, whilst guaranteeing the constitutional right to access of justice and meeting the UK’s international obligations.” It would have been better if perhaps the current government had published the report (assuming it is concluded) alongside Monday’s speech because, guess what, it may point to some of the answers. When can we see it?

DCOs authorising construction of the East Anglia ONE North and East Anglia TWO Offshore Wind Farms with associated onshore and offshore development were granted on 31 March 2022, the case for challenge having been found to be arguable. The challenge to those DCOs, brought by a campaign group Substation Action Save East Suffolk Limited was rejected in the High Court on 13 December 2022 (relatively speedy as far as this sort of litigation is concerned – the Planning Court does generally make sure that cases move at a pace). As is often the way, the greater delay then came at Court of Appeal stage, with the Court of Appeal only dismissing the group’s appeal on 17 January 2024. Any planning lawyer will say the same: get the Court of Appeal operating at the pace of the Planning Court. The Court of Appeal’s judgment in R (Substation Action Save East Suffolk Limited) v Secretary of State  (Court of Appeal, 17 January 2024) was summarised by my Town Legal colleague Jack Curnow here.

Some of you will have been at, or heard the subsequent 50 Shades of Planning podcast recording of, our recent Town Legal/Landmark Chambers 100 Days of Labour event. I did ten minutes on what had emerged to that point in relation to commercial and infrastructure development. If only we had waited a week or so! People may find interesting this table of decisions on recovered appeals, call-ins and DCOs (in relation to all types of development) since 4 July 2024, prepared by Town Legal’s Victoria Porter alongside Landmark Chambers’ Edward Arash Abedian, and which shows a 100% approval rate for each to date…

Simon Ricketts, 16 October 2024

Personal views, et cetera

The Guildhall, in the City of London

106 Questions & The Future Of Neighbourhood Planning Ain’t One

I found it surprising and maybe disappointing that the very long list of questions raised by MHCLG in its proposed reforms to the National Planning Policy Framework and other changes to the planning system consultation document (30 July 2024) didn’t include any in relation to neighbourhood planning.

I suppose I shouldn’t be churlish – if it were not for the Localism Act 2011, Duncan Field and I would not have started our L is For Localism blog that year (all posts lost to the ether it seems. Oh well). The blog led to the publication of our Localism and Planning book the next year (don’t buy it – we haven’t updated it). And after we killed the blog around that point, L is for Localism was undoubtedly the blueprint I used when starting up simonicity in 2016.

But, come on, why are we questioning the good sense of the abolition of regional strategies (section 109 of the 2011 Act) and contemplating the reinvention of a strategic level of plan-making, particularly by way of the Government’s promised Devolution Bill, whilst accepting without question the additional “neighbourhood” plan-making tier introduced by way of section 116 of the same Act?

Valid questions to ask might be:

  • On balance, does neighbourhood planning help or hinder the delivery of new housing?
  • On balance, does neighbourhood planning materially improve the quality of new development?
  • Is neighbourhood planning widely seen as giving communities a voice which they would not otherwise have via their borough or district council, or unitary authority?
  • Is the bureaucracy and legalistic processes inherent in neighbourhood planning under the 2011 Act off-putting to communities and/or does it impose material financial burdens and resourcing difficulties for the authorities that have to administer it? Indirectly, does this favour communities with a particular demographic?
  • Are neighbourhood referendum turn-outs indicative of a healthy democratic process?
  • If they are to be retained, should neighbourhood plans remain part of the development plan or, given that they are not tested for soundness as local plans are, should they just be a material consideration in the determination of planning applications?
  • Can respondents point to widespread use (indeed any use) of the community right to build or of neighbourhood development orders?
  • Are neighbourhood forums sufficiently democratic or is there a case for encouraging communities instead to rely on or create parish or town councils if they consider that a neighbourhood tier of governance is desirable in their area?

You may wish to add to this list.

This thinking was sparked by Dan Mitchell posting on LinkedIn about the Perranzabuloe neighbourhood plan referendum in Cornwall this month, where the turn-out was just 7.5%*. Shouldn’t we be asking what low turn-outs like this are telling us and in fact shouldn’t there be a minimum turn-out required in order for the plan to be approved? I’ve been googling around and have found other neighbourhood plan referendums this year with turn-outs of less than 15%. Until now, I had thought that the process of elected police and crime commissioners was the democratic process with which the public is least engaged but even in the Police and Crime Commissioner elections on 2 May 2024, the turn-out in England was 24% . By contrast the turn-out at the 2024 general election was 59.7% and that was the lowest since 2001.

Don’t people know what is going on, or don’t they care? If the former, the system is ripe for abuse by those who do actually vote. If the latter, isn’t this all just a waste of time and money?

Oh I’m going to be attacked for this one but doesn’t someone have to ask these questions?

Simon Ricketts, 12 October 2024

Personal views, et cetera

*After I posted this, Ben Castell pointed out that the turn-out in Perranzabuloe was in fact approaching 15% – the maths on their website appears to be incorrect: “Electorate 5099, ballot papers issued 680, turnout 7.5%”! My core point however remains.

Brownfield Passports…To What? When? How?

At 9.30 am last Sunday out popped an MHCLG policy paper Brownfield Passport: Making the Most of Urban Land  and an accompanying press statement New ‘brownfield passports’ to seize the growth opportunities of urban areas (22 September 2024).

The timing was interesting:

  • Obviously, synchronised with the Labour party conference in Liverpool last weekend – Sir Keir Starmer’s speech there promised: “‘we are introducing new planning passports that will turbo-charge housebuilding in our inner cities.” In more general terms Rachel Reeves there: “What you will see in your town, your city, is a sight that we have not seen often enough in our country – shovels in the ground, cranes in the sky, the sounds and the sights of the future arriving. We will make that a reality.”
  • Coincidentally, synchronised with a presentation starting, also starting at 9.30 am last Sunday, by the first of that day’s Oxford Joint Planning Law Conference speakers, Ant Breach of Centre for Cities: “BOLDER: A Zoning System for England”. In some ways, the idea of passporting particular types of development is nothing if not zoning.

“We have been clear that development must look to brownfield first, prioritising the development of previously used land wherever possible. To support this, we will make the targeted changes set out below, including making clear that the default answer to brownfield development should be “yes”, as the first step on the way to delivering brownfield passports.”

If the work had been done in time, it would obviously have made more sense for the proposals in the latest working paper to have been part of the July 2024 consultation, both so that those responding had a better understanding of the intended policy end-point and so that the changes could be introduced at the same time that the revised NPPF itself is published (still, we hope, before the end of this year – maybe keep 20 or 23 December free of meetings folks…).

We are where we are. What do we learn from this latest policy paper? I hesitate to be hyper-critical as we all know that a new government is moving at pace, that these issues are difficult and that the objective is to be applauded (in my view at least) but…

It is a bit of a “throw ideas at the wall and see what sticks” piece of work isn’t it? “Brownfield passport” is nice branding, up there with “grey belt”, but what rights would this “passport” actually bring?

Its purpose is to be “more specific about the development that should be regarded as acceptable, with the default answer to suitable proposals being a straightforward “yes”.”

This needs to be viewed against the changes to the NPPF that are already proposed that would reinforce the presumption in favour of granting planning permission for development proposals on brownfield land. Paragraph 122 of the draft revised NPPF states that planning policies and decisions should, amongst other things: “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs, proposals for which should be regarded as acceptable in principle, and support appropriate opportunities to remediate despoiled, degraded, derelict, contaminated or unstable land” (the underlined text is what is proposed to be inserted into what is already within the current NPPF at paragraph 123 (c)).

So how is the “brownfield passport” concept intended to move the dial still further in favour of brownfield development?

Well first of all, it’s not the equivalent of planning permission: “while we are not considering the granting of automatic planning permission on suitable brownfield sites or removing appropriate local oversight of the development control process, we do want to explore ways in which providing more explicit expectations for development could lower the risk, cost, and uncertainty associated with securing planning permissions on brownfield land.”

Instead:

“In order to maximise clarity and certainty about the opportunities to make best use of urban land, we think there is scope to make further policy changes, at both a national and local level, relating to the principle, scale, and form of development in different types of location.

We see these potential changes as a form of ‘brownfield passport’: setting clear parameters which, if met, serve as accepted markers of suitability, with approval becoming the default and a swifter outcome.”

Hmm.

MHLG floats a number of options:

  • First, tightening the NPPF further, by “being explicit that development on brownfield land within urban settlements is acceptable unless specified exclusions apply. Those exclusions could, for example, include that there is no adverse impact in relation to flood risk and access that cannot be mitigated.”
  • Secondly, by using the proposed National Development Management Policies system “to set minimum expectations for certain types of location where a particular scale of development may be appropriate.

Policy could, for example, say that development should be of at least four storeys fronting principal streets in settlements which have a high level of accessibility, and/or set acceptable density ranges that allow for suitable forms of intensification. A similar approach has been used successfully in some other countries where efforts have been made to densify urban areas through ‘upzoning’. While it would still require approval from the local planning authority, it would establish a very strong starting position which would carry significant weight in making decisions and create an expectation that compliant schemes are approved.

The policy parameters, such as height and what conferred a high degree of accessibility, would need to be set carefully, both to make the most of suitable opportunities and to avoid inappropriate development.”

It would surely be difficult to do this on a blanket, national, basis. MHCLG recognises this, so a less exciting variant is that “policy could be amended to encourage such parameters to be set through local development plans, which could also be articulated through design codes for appropriate locations – whether across whole urban areas or at a more local scale.”

  • Thirdly, “the potential to use design guides and codes that draw on the existing character of places, to identify these opportunities and provide clarity on the types of development that are regarded as acceptable in particular locations.”
  • Fourthly, for local planning authorities to make local development orders “in order to provide upfront consent to developments that meet the specified criteria…Combining them with criteria on the scale and/or form of development as suggested above would allow a local planning authority to effectively establish one or more zones in which particular types of development had planning permission without the need for individual applications.”
  • Fifthly, whether any of these proposals “could be supported by linking them to the national scheme of delegation, which [the government has] committed to provide for through the Planning and Infrastructure Bill.” Now there’s an idea!

The paper ends with this paragraph:

“As part of wider action to support the development of small sites, we will also consider whether any of these proposals could apply to non-brownfield land in urban areas, with suitable safeguards to retain land which should be kept open or has important environmental benefits.”

So, having established that we are not really talking about “passports” – rather, various ways in which the planning system might further assist in the promotion for development of particular categories of schemes,  and we aren’t really just talking about “brownfield” either.

There will in due course be a call for evidence.

“Brownfield land“ in planning-speak is “previously developed land”, or PDL. I’m beginning to wonder whether there should be another specific terms that we might all find helpful: Previously Developed Policy Interventions, or PDPI. Nicola Gooch wrote a great blog post last Sunday, Brownfield Passports: building on old foundations? reflecting some of the PDPIs which have sought in recent years to encourage brownfield development and the promote the ‘gentle densification’ of urban areas, e.g.:

  • Street votes
  • Permissions in principle
  • Zoning (as per the 2020 white paper)

To this I would add the various waves of changes to the General Permitted Development Order including Part 20 of Schedule 2  – construction of new dwellinghouses. Or indeed, what about this for déjà vu, the previous government’s 13 February 2024 consultation paper Strengthening planning policy for brownfield development (13 February 2024)?

Someone quipped to me this week that a brownfield passport is all well and good but that the big question will be how easy it will be to get the visa that allows us actually to get anywhere. Mind you that wording on the inside cover of your passport does always sound good:

“His Britannic Majesty’s Secretary of State Requests and requires in the Name of His Majesty all those whom it may concern to allow the bearer to pass freely without let or hindrance and to afford the bearer such assistance and protection as may be necessary.”

Let’s not lose sight of that as the objective!

Simon Ricketts, 28 September 2024

Personal views, et cetera

Street Robbery?

There was a surprising announcement on Tuesday by the Mayor of London, “supported by the new Government”, that he is to create a Mayoral Development Corporation to “transform Oxford Street, including turning the road into a traffic-free pedestrianised avenue” so that it can “once again become the leading retail destination in the world” (see Mayor of London and government announce bold plans to transform Oxford Street (17 September 2024).

We all know that there was a longstanding disagreement between the Mayor and the previous Conservative administration of Westminster City Council as to whether the street should be pedestrianised, his 2016 pedestrianisation scheme having been scuppered by opposition by WCC, as highway authority and therefore the relevant body to implement the proposals, in June 2018. But Labour took control of WCC  in May 2022 and I’m left scratching my head as to what lies behind his announcement and its timing.

WCC’s Statement on Oxford Street  (17 September 2024) reveals that the council was only informed the previous Thursday that this was on the cards. The plan would serve to frustrate the council’s own plans to redesign and improve the street.

Not only that, the council had a by-election two days after the announcement and lost one of its West End seats to the Conservatives (see Labour loses central London by-election to Tories amid row over Sadiq Khan’s Oxford Street pedestrianisation (Standard, 20 September 2024)). Was the result affected by the announcement? Well it can’t have helped, given how locally unpopular the prospect of pedestrianisation has been, with residents concerned about buses and taxis being displaced to other streets.

The Mayor’s announcement contains no information as to what the boundaries would be of the proposed Mayoral Development Corporation. I’m assuming that the main reason for designating the Corporation would be to give it the necessary planning and highways powers to deliver not just the pedestrianisation but any necessary works on surrounding streets – and is the Mayor looking to include the surrounding buildings within its area? There is no information in the public domain.

The procedure for establishing Mayoral Development Corporations is set out in sections 196 to 200 of the Localism Act 2011. The Mayor will need first to consult a number of bodies, including of course WCC, before placing it before the London Assembly, undertaking public consultation and then notifying the Secretary of State.

What funding will be made available by the Government? Again, nothing is in the public domain.

All in all this seems to me a very odd use of the Mayor’s powers to achieve a scheme which surely could have been driven through with WCC’s Labour administration with appropriate sticks and carrots. Or is the announcement itself just the waving of a big stick? Time will tell…

Simon Ricketts, 21 September 2024

Personal views, et cetera

image of Mayor’s 2016 scheme courtesy of Mayor of London

When Would Local Plan Policies Be “Out Of Date” For The Purposes Of Para 11(d) Of The Draft Revised NPPF?

This is an important question, given that the consequence is that what is called in the jargon the “tilted balance” applies, namely that planning permission should be granted for any development proposal unless:

  • The application of policies in the NPPF “that protect areas or assets of particular importance provides a clear reason for refusing the development proposed” – those areas and assets being habitats sites, SSSIs, green belt, local green space, AONBs (now “national landscapes”), national parks, Heritage Coast, irreplaceable habitats, designated heritage assets (and some other heritage assets of archaeological value) and areas at risk of flooding or coastal change; or
  • “Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the NPPF] taken as a whole, in particular those for the location and design of development … and for securing affordable homes”; or
  • The proposal would conflict with a neighbourhood plan which is no more than five years old and contains policies and allocations to meet its identified housing requirement.

The new Government is of course not just consulting on the draft revised NPPF but on a revised “standard method” for determining local housing need (see chapter 4 of its consultation document) and that standard method would significantly increase the local housing plan figure for most authorities. The effect for each authority is shown on this MHCLG spreadsheet or visually on Lichfields’ interactive map.

Maybe it’s just me but I found it quite difficult to get straight in my mind when an authority’s failure to demonstrate a five year supply of housing land to meet the new local housing need figure would mean that its local plan is to be treated as “out of date” such that the tilted balance applies. Here’s my thinking and it perhaps points to some areas where the draft revised NPPF needs to be tightened or at least made clearer.

Paragraph references in what follows are to the draft revised document.

  • The reference in paragraph 11 (d) is to “where “the policies for the supply of land are out of date”
  • Footnote 9 explains that:

“This includes, for applications involving the provision of housing, situations where: (a) the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, if applicable, as set out in paragraph 76); or (b) where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.”

  • Paragraph 76 states:

“Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:

  1. 5% to ensure choice and competition in the market for land; or
  1. 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply”
  • Paragraphs 224 and 225 state:

“224. The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication. Plans may also need to be revised to reflect policy changes which this Framework has made.

225. However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

  • Accordingly, until it is five years old, an adopted local plan will not be “out of date” on the basis of applying the proposed new standard method for assessing local housing need, but rather on the basis of whether it can demonstrate a five year supply of deliverable housing sites (calculated by reference to the housing requirement set out in strategic policies in the plan), with the appropriate buffer set out in paragraph 76 and has delivered at least 75% of its housing requirement over the last three years. Once the plan is five years old, the tilted balance will apply if there is not at least a five year supply of deliverable housing sites as against their new standard method local housing need figure (and delivery of 75% of its housing requirement over the last three years).
  • This applies to plans submitted for examination or adopted no later than one month after publication of the final version of the draft revised NPPF (see paragraph 226). For plans not adopted by that date the following transitional arrangements apply (in summary) as per paragraphs 226 and 227:

Where a plan was submitted for examination within a month of publication of the revised NPPF with a local housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), once the plan is adopted, the authority will be “expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need”. [There is no reference in the draft revised NPPF as to how long the authority has to conclude that process before its plan will be treated other than set out in my emboldened paragraph above. Surely this needs to be clarified, because otherwise it is a recipe for confusion at best and gaming of the system at worst].

Where a local plan has reached regulation 19 pre-submission stage with an emerging annual housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), the plan should proceed to examination within 18 months of publication of the revised NPPF. [There is no express indication of what the consequences are if this deadline is missed; presumably the need to plan as against the relevant local housing need (under the new standard method) – again, shouldn’t this be clarified?].

Hence presumably why we are seeing some authorities speed up with their emerging plans, with an eye on baking in housing targets based on the current standard method, although of course that is only going to work if their plans do not require significant further work during the examination process to make them sound (see the planning minister’s 30 July 2024 letter to the Planning Inspectorate).

I will try to make next weekend’s post (if there is one: I just remembered it’s the Oxford Joint Planning Law Conference – may see you there) more exciting, sorry.

Simon Ricketts, 14 September 2024

Personal views, et cetera

Oldest example of tilted balance: photo by Manish Tulaskar courtesy of Unsplash