Tag: London Plan

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

Strong Beer: London Tall Buildings & The Master Brewer Case

If you are dealing with any proposal for a building of six storeys or more in London, R (London Borough of Hillingdon) v Mayor of London (Lang J, 15 December 2021) is a vital case, because it resolves for now the question of how the relevant policy in the London Plan, policy D9, is to be interpreted. Is it right, as have some have contended, that tall buildings may only be developed in locations identified as suitable in boroughs’ local plans? Lang J says no.

The three relevant parts of the policy for the purposes of this issue, as quoted in the case, read as follows:

“Definition

A

Based on local context, Development Plans should define what is considered a tall building for specific localities, the height of which will vary between and within different parts of London but should not be less than 6 storeys or 18 metres measured from ground to the floor level of the uppermost storey.

Locations

B

1) Boroughs should determine if there are locations where tall buildings may be an appropriate form of development, subject to meeting the other requirements of the Plan. This process should include engagement with neighbouring boroughs that may be affected by tall building developments in identified locations.

2) Any such locations and appropriate tall building heights should be identified on maps in Development Plans.

3) Tall buildings should only be developed in locations that are identified as suitable in Development Plans.

Impacts

C

Development proposals should address the following impacts:

1) visual impacts […]

2) functional impact […]

3) environmental impact […]”

(there is also a fourth part – as to provision for public access).

The big question has been whether the first and second parts of the policy have to be passed before a scheme can be judged as against the detailed criteria in part C.

The text underlined had been added pursuant to a direction by the Secretary of State dated 10 December 2020 before the plan was then adopted on 2 March 2021.

Quoting from the judgment:

“The Secretary of State’s covering letter, dated 10 December 2020, said as follows:

“….. I am issuing a new Direction regarding Policy D9 (Tall Buildings). There is clearly a place for tall buildings in London, especially where there are existing clusters. However, there are some areas where tall buildings don’t reflect the local character. I believe boroughs should be empowered to choose where tall buildings are built within their communities. Your draft policy goes some way to dealing with this concern. In my view we should go further and I am issuing a further Direction to strengthen the policy to ensure such developments are only brought forward in appropriate and clearly defined areas, as determined by the boroughs whilst still enabling gentle density across London. I am sure that you share my concern about such proposals and will make the required change which will ensure tall buildings do not come forward in inappropriate areas of the capital.”

DR12 set out a “Direction Overview” as follows:

“The draft London Plan includes a policy for tall buildings but this could allow isolated tall buildings outside designated areas for tall buildings and could enable boroughs to define tall buildings as lower than 7 storeys, thus thwarting proposals for gentle density.

This Direction is designed to ensure that there is clear policy against tall buildings outside any areas that boroughs determine are appropriate for tall buildings, whilst ensuring that the concept of gentle density is embodied London wide.

It retains the key role for boroughs to determine where may be appropriate for tall buildings and what the definition of tall buildings are, so that it is suitable for that Borough.”

The ‘statement of reasons’ for DR12 stated inter alia:

“……The modification to policy D9 provides clear justification to avoid forms of development which are often considered to be out of character, whilst encouraging gentle density across London.”

The issue had come before the court in the context of planning permission granted by the Mayor of London for the redevelopment of the former Master Brewer Motel site in Hillingdon – a development promoted by Inland Homes for a series of buildings of up to 11 storeys in height. Hillingdon Council had resolved to refuse planning permission on the basis that tall buildings in this location would be contrary to its local plan but the Mayor had recovered the application for his own determination and approved it on 30 March 2021.

There were three grounds to the judicial review brought by the Council:

“i) The Defendant misinterpreted Policy D9 of the London Plan 2021 by concluding that, notwithstanding conflict with Part B of that policy, tall buildings were to be assessed for policy compliance against the criteria in Part C.

ii) The Defendant erred in failing to take into account a material consideration, namely, the Claimant’s submissions and accompanying expert evidence as to air quality.

iii) The Defendant acted unlawfully and in a manner which was procedurally unfair in that he failed to formally re-consult the Claimant or hold a hearing, prior to his re-determination of the application, following the adoption of the London Plan 2021.”

I am only focusing on the first ground but the third ground may also be of interest on the question of when an application needs to be re-consulted upon or re-considered in the light of changes in policy.

The analysis carried out by the judge is interesting.

First of all she considers whether the meaning of the policy was “clear and unambiguous” such that under legal principles of interpretation, the courts should not have regard to extrinsic materials to assist in interpretation. She recorded that “[a]ll parties contended that the meaning of Policy D9 was clear and unambiguous, despite the differences in their interpretation of it. In those circumstances, applying the principles set out above, I consider that I ought not to have regard to the letter from the Secretary of State to the Defendant dated 10 December 2020 (paragraph 46 above) as it is not a public document which members of the public could reasonably be expected to access when reading Policy D9. Furthermore, it is of limited value as, taken at its highest, it sets out the Secretary of State’s intentions, whereas the Court must consider the meaning of the words actually used in Policy D9, as amended by DR12, which in my view did not give effect to the expressed intentions in the letter.”

(I’m scratching my head as to how the various parties to litigation can be arguing as to the meaning of a policy but can agree that the meaning of the policy is “clear and unambiguous”. In saying that the Secretary of State’s direction letter “was not a public document which members of the public could reasonably be expected to access when reading Policy D9”, I take it that she was not saying that it was not a “public document”, which of course it was, but that a member of the public should not be expected to go searching for such documents to assist with interpretation of a policy if it is indeed clear and unambiguous).

She then concludes that the council’s interpretation of the policy “cannot be correct”:

“Read straightforwardly, objectively and as a whole, policy D9:

i) requires London Boroughs to define tall buildings within their local plans, subject to certain specified guidance (Part A);

ii) requires London Boroughs to identify within their local plans suitable locations for tall buildings (Part B);

iii) identifies criteria against which the impacts of tall buildings should be assessed (Part C); and

iv) makes provision for public access (Part D).

There is no wording which indicates that Part A and/or Part B are gateways, or pre-conditions, to Part C. In order to give effect of Mr Howell Williams QC’s interpretation, it is necessary to read the words underlined below into the first line of Part C to spell out its true meaning:

“Development proposals in locations that have been identified in development plans under Part B should address the following impacts.”

But if that had been the intention, then words to that effect would have been included within the policy. It would have been a straightforward exercise in drafting. It is significant that the Secretary of State’s direction only required the addition of the word “suitable” to Part B(3). It did not add any text which supports or assists the Claimant’s interpretation, even though the Secretary of State had the opportunity to do so.

In my view, the context is critical to the interpretation. Policy D9 is a planning policy in a development plan. By section 70(2) TCPA 1990 and section 38(6) PCPA 2004, there is a presumption that a determination will be made in accordance with the plan, unless material considerations indicate otherwise. Thus, the decision-maker “will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it”: per Lord Clyde in City of Edinburgh at 1459G. Furthermore, the decision-maker must understand the relevant provisions of the plan “recognising that they may sometimes pull in different directions”: per Lindblom LJ in BDW Trading Ltd at [21], and extensive authorities there cited in support of that proposition. As Lord Reed explained in Tesco Stores Ltd v Dundee City Council, “development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another”.

The drafter of Policy D9, and the Defendant who is the maker of the London Plan, must have been aware of these fundamental legal principles, and therefore that it was possible that the policy in paragraph B(3) might not be followed, in any particular determination, if it was outweighed by other policies in the development plan, or by material considerations. It seems likely that policy provision was made for such cases, given the importance of the issue.

In considering whether to grant planning permission for a tall building which did not comply with paragraph B(3), because it was not identified in the development plan, it would surely be sensible, and in accordance with the objectives of Policy D9, for the proposal to be assessed by reference to the potential impacts which are listed in Part C. The Claimant’s interpretation leads to the absurd result that a decision-maker in those circumstances is not permitted to have regard to Part C, and must assess the impacts of the proposal in a vacuum.”

Therefore:

“Notwithstanding the non-compliance with Part B of Policy D9, the Defendant determined that the proposal accorded with the provisions of the development plan when read as a whole. That was a planning judgment, based on the benefits of the proposal, such as the contribution of much-needed housing, in particular affordable housing, and the suitability of the Site (brownfield and sustainable, with good transport). The Defendant was satisfied, on the advice of the GLA officers, that sufficient protection from air quality impacts would be achieved. The Defendant was entitled to make this judgment, in the exercise of his discretion.”

Accordingly, boroughs do not have a veto, by virtue of their local plans, as to where tall buildings may be located in their boroughs – policy D9 is not to be interpreted in a way automatically treats proposals for tall buildings as contrary to the development plan where they are not supported in the local plan.

Whether or not this is what the previous Secretary of State intended with his direction may be another matter but of course the London Plan is adopted and free from the possibility of legal challenge (and, pragmatically, the Secretary of State could have course chosen to call in the application but did not) – and if parts A and B were indeed to be a necessary gateway there would be the immediate issue that any development of buildings of six storeys or more would be stymied as contrary to the development plan until boroughs’ plans had caught up with, and been examined in the context of, the new policy approach – hardly consistent with the Secretary of State’s urging for London to achieve a significant increase in housing delivery.

To mark the end of 2021 and, self-indulgently, the 5th anniversary of my firm, we have a unique Clubhouse event planned for 6 pm this Tuesday 21 December: “START ME UP: how Town Legal started 5 years ago – & why”. There will be a stageful of “day one” Townies: Clare Fielding, Patrick Robinson, Meeta Kaur, Benita Wignall, Spencer Tewis-Allen, our former chairman (and ex Herbert Smith Freehills COO) John Mullins and former associate Ricky Gama (now Leigh Day) as well as our good friends, without whom…, Drew Winlaw (Simmons Wavelength) and Beau Brooke (Kindleworth). If you ever wondered what it takes to create a professional services firm from scratch, do tune in. Link to app here.

Simon Ricketts, 17 December 2021

Personal views, et cetera

Photo by Jon Parry courtesy Unsplash

London Plans

Surely planning becomes a democratic irrelevance when the plan making process is slower than the electoral cycle? That’s pretty much the position in London. After all, Sadiq Khan wouldn’t have managed it if he hadn’t been gifted a further year in post by virtue of the postponement of the May 2020 elections.

Election: 7 May 2016. First consultation document: October 2016. Adopted plan 2 March 2021.

But it doesn’t have to be that way. In fact, it shouldn’t be this way. The plan “must deal only with matters which are of strategic importance to Greater London” (section 334(5), Greater London Authority Act 1999).

My 23 April 2017 blog post Make No Little Plans: The London Plan heralded the imminent publication of initial non-statutory consultation in relation to the new London Plan. The hope at that stage was to have an adopted plan in place by Autumn 2019. I referred to the 400 pages or so of the then current plan and expressed the hope that its replacement would be shorter. Hmm, not so.

One of the issues with this process has certainly been of the Mayor’s making – the sheer bloated nature of the plan, with its excessive layers of detail. What can be done to make sure that this never happens again?

But the other issue has not entirely been of the Mayor’s making. For the whole of his period in office he has faced opposition from Government, which has been placing pressure on him to increase planned housing numbers well beyond the already ambitious and probably unachievable numbers that he has been planning for. See for instance the previous Secretary of State’s 27 July 2018 letter and Robert Jenrick’s 13 March 2020 letter directing that a series of amendments be made to the draft plan.

“I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.

Having considered your Plan at length my conclusion is that the necessary decisions to bring more land into the planning system have not been taken, the added complexity will reduce appetite for development further and slow down the system, and throughout the Plan you have directly contradicted national policy. As you know, by law you must have regard to the need for your strategies to be consistent with national policies.

For these reasons I am left with no choice but to exercise my powers to direct changes.

Your Plan must be brought to the minimum level I would expect to deliver the homes to start serving Londoners in the way they deserve. However, this must be the baseline and given this, I ask that you start considering the next London Plan immediately and how this will meet the higher level and broader housing needs of London.”

Then most recently, only after the Mayor had chased on 9 December 2020 for a response from Government to his April 2020 proposed amendments to address those March 2020 directions, the Secretary of State wrote again on 10 December 2020 with further directions.

But, to accentuate the positive, we now have an adopted new London Plan (542 pages of it).

This is a good Lichfields blog post on it. I did also like this Tom Pemberton post that summarised some of its implications in seven slides.

The whole process will now have to start again, as soon as we are past the 6 May elections, given the Government’s expectation of an immediate review to take into account the current NPPF and the housing numbers deriving from the revised standard method (including indeed its additional 35% figure for London and other major towns and cities). The new numbers are truly challenging/unrealistic (93,500 per annum as against the 52,000 figure in the new plan and annual delivery of less than 37,000).

What a political dilemma for the next Mayor to face – to broker some sort of solution with Government, boroughs, communities, authorities surrounding London and, for so long as there are going to be the range of onerous requirements that are set out in the new plan, developers and funders. On top of all the other challenges post-pandemic, post- Brexit and in the midst of a climate emergency.

And yet numerous candidates have thrown their hats in the ring for 6 May 2021 and we haven’t yet reached the 30 March deadline for delivery of nomination papers (fancy a go?).

I’m chairing a Planning Futures hustings event at 2pm on 9 March 2021, where we will have a number of the candidates or their representatives. It will focus on planning/housing/built environment policies. The event is free so do register and join me.

In preparation I did a little googling to see what the main candidates might be saying that might give some hope that the scale of the challenges ahead are publicly acknowledged.

⁃ Sadiq Khan’s campaign was launched on 4 March, focusing on listing the achievements of his first term rather than setting out any significant new direction or pledges.

⁃ Conservative candidate Shaun Bailey’s campaign website – 100,000 shared ownership homes to be sold at £100,000 each – a London Infrastructure Fund to fund long-term transport projects.

⁃ Green Party candidate Sian Berry’s campaign website – would set up “a People’s Land Commission to find small sites for new homes, green spaces and community support”. “In addition to using existing powers including compulsory purchase orders, I will also continue to lobby central Government for a devolved or national “community right to buy” which will create new rights for local community groups to buy any land or property that is neglected, empty and needed for community uses”.

Liberal Democrat party candidate Luisa Porritt’s campaign includes “homes in the heart of the city”, “a green roadmap” and “reinvent the high street”.

⁃ Women’s Equality Party candidate Mandu Reid: “Stand with us to make sure no woman is turned away from refuge, to close the pay gap in a generation, to balance work and family life for everyone, and to make London the first gender equal city in the world.”

⁃ UKIP candidate Peter Gammons will “will focus on new housing in every borough, holding developers accountable for providing affordable housing and prioritising Londoners.” He has apparently written a book, “London – a road map for recovery”, although I couldn’t find it on Amazon.

I think we need to get beyond these platitudes, and that is what I shall attempt to do on Tuesday….

Simon Ricketts, 6 March 2021

Personal views, et cetera

London, 1572. Those were the days.

London, Friday The 13th

I’ll pass for now on Thursday’s Planning For The Future and indeed Wednesday’s budget. It’s one week at a time at the moment isn’t it? Planning for the future, and the wider politics of planning, has seemed less relevant than planning for a future – the even wider, and deeper, politics of public health and the intersections between virus control, health service capacity, economics and public messaging. You will already have read some other really good summaries and critiques of that document.

But then yesterday in London some fairly momentous things happened along the currently active fault lines as between MHCLG, the Mayor and the boroughs that I have previously written about in various posts.

Directed modifications to London Plan

First, the Secretary of State issued his letter to the Mayor directing that a series of modifications be made to the draft London Plan pursuant to section 337 of the Greater London Authority Act 1999. The modifications are set out an annex to the letter, in the form of a table setting out each directed “Modification to Remedy National Policy Inconsistency” with a “Statement of Reasons” alongside each modification. The letter and directed modifications are plainly a material consideration to be taken into account where relevant in the determination of planning applications and appeals.

Momentous but perhaps not surprising in the light of the “shot across the bows” letter that Khan had been sent by Robert Jenrick’s predecessor James Brokenshire on 27 July 2018. When you look back at that letter, the position was set out pretty clearly, in allowing the draft plan to proceed under the 2012 NPPF on condition that post adoption the Mayor would then embark on a review of the plan to reflect the revised NPPF (How far away is that review now? Might it have been better if MHCLG had bitten the bullet and required the Mayor to start again on his plan at that stage, so as to be consistent with the new NPPF?).

Back in 2018:

“I am not convinced your assessment of need reflects the full extent of housing need in London to tackle affordability problems.

…

“The Government is […] clear that Plans should be effective, deliverable and consistent with national policy. You will recall that the Government highlighted a number of further issues with your draft Plan in response to your consultation, including that:

⁃ A number of policy areas in the draft that are inconsistent with national policy, such as your policies allowing development on residential gardens and your policy on car parking.

⁃ The detail and complexity of the policies within the draft London Plan have the potential to limit accessibility to the planning system and development.

⁃ The draft Plan strays considerably beyond providing a strategic framework.

⁃ The draft Plan does not provide enough information to explain the approach you will take to ensure your targets are delivered, including collaboration with boroughs and neighbouring areas.

⁃ There are a number of policies in the draft Plan which seek to deal with matters relating to building standards and safety. It is important that there is a consistent approach to setting building standards through the framework of Building Regulations.”

20 months later, following a lengthy examination and inspectors’ report (see my 26 October 2019 blog post More Plans Grounded: West Of England; Sevenoaks; London) the 13 March 2020 direction letter surely in part has the hand of a certain former London Mayor behind it in that as soon as it is past the “Dear Sadiq”, the letter is unforgiving in its content and tone and is a broader attack on the Mayor’s approach to housing:

“Every part of the country must take responsibility to build the homes their communities need. We must build more, better and greener homes through encouraging well-planned development in urban areas; preventing unnecessary urban sprawl so that we can protect the countryside for future generations. This means densifying, taking advantage of opportunities around existing infrastructure and making best use of brownfield and underutilised land.”

“Housing delivery in London under your mayoralty has been deeply disappointing, over the last three years housing delivery has averaged just 37,000 a year; falling short of the existing Plan target and well below your assessment of housing need. Over the same period, other Mayors such as in the West Midlands have gripped their local need for housing and recognised the opportunities this brings, leading significant increases in the delivery of homes.”

(an echo there of the Chancellor’s budget speech on 11 March 2020, which referred to “a new £400m Fund for ambitious Mayors like Andy Street in the West Midlands, to build on Brownfield sites…”)

“Since you became Mayor, the price of an average new build home in London has increased by around £45,000, reaching £515,000 in 2018, 14 times average earnings. Clearly, the housing delivery shortfall you have overseen has led to worsening affordability for Londoners; and things are not improving, with housing starts falling a further 28 per cent last year compared to the previous.”

“Critical strategic sites have stalled, epitomised by your Development Corporation in Old Oak and Park Royal being forced to turn away £250 million of Government funding because of your inability to work successfully with the main landowner. You also turned away £1 billion of investment we offered to deliver Affordable Homes, because of the support and oversight that would accompany this. You have put a series of onerous conditions on estate regeneration schemes for them to be eligible for grant- funding, such as the requirement for residents’ ballots. In attaching such conditions, you are jeopardising housing delivery and this approach will make it significantly more difficult to deliver the Plan’s targets and homes needed.”

(I covered the Old Oak and Park Royal Local Plan saga in my 4 January 2020 blog post Elephant, Dove, Old Oak, RICS. The Mayor published guidelines in August 2018 on applying his requirement (as a pre-condition to grant funding) for residents’ ballots in connection with estate regeneration schemes).

“Following the Planning Inspectorate’s investigation of your Plan, they only deem your Plan credible to deliver 52,000 homes a year. This is significantly below your own identified need of around 66,000 homes and well below what most commentators think is the real need of London. As I have set out, the shortfall between housing need in London and the homes your Plan delivers has significant consequences for Londoners.”

“Everyone should have the chance to save for and buy their own home so they can have a stake in society. In the short run this requires a proactive stance in building homes for ownership, including Shared Ownership and First Homes, and in parallel delivering a consistently high level of housing supply of all tenures. You should also be looking to deliver homes which people of different ages, backgrounds and situations in life can live in. Your Plan tilts away from this, towards one-bed flats at the expense of all else, driving people out of our capital when they want to have a family.”

(Of course, this is one of the largest and deepest fault lines – as to the relative weight to be given to intermediate affordable housing tenures, including in particular shared ownership and now – covered in my 29 February 2020 blog post – first homes).

“Your Plan added layers of complexity that will make development more difficult unnecessarily; with policies on things as small as bed linen. Prescription to this degree makes the planning process more cumbersome and difficult to navigate; in turn meaning less developments come forward and those that do progress slowly. One may have sympathy with some of individual policies in your Plan, but in aggregate this approach is inconsistent with the pro-development stance we should be taking and ultimately only serves to make Londoners worse off.”

(Bed linen? Well, Policy H16, Large-scale purpose-built shared living, lists the necessary criteria in order for a development to fall within the policy, and, it is true, one of the criteria is that “communal facilities and services are provided that are sufficient to meet the requirements of the intended number of residents and offer at least:

a) convenient access to a communal kitchen

b) outside communal amenity space (roof terrace and/or garden)

c) internal communal amenity space (dining rooms, lounges)

d) laundry and drying facilities

e) a concierge

f) bedding and linen changing and/or room cleaning services.”

Interestingly the Secretary of State is not directing any changes to H16).

“This challenging environment is exacerbated by your empty threats of rent controls, which by law you cannot introduce without Government consent. As we all know, evidence from around the world shows that rent controls lead to landlords leaving the market, poorer quality housing and soaring rents for anyone not covered by the controls.”

(Mayor demands powers to bring rents down, 19 July 2019)

“I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.”

So what modifications are proposed? As set out in the annex to the letter:

⁃ insertion of “the need for additional family housing” into policy H10.

⁃ references to optimising site capacity into policy D3, including the potential for boroughs to consider positively expansion of existing clusters of high density buildings and expanding Opportunity Area boundaries where appropriate.

⁃ deleting from policy H2 references to in lieu affordable housing contributions from schemes of nine or fewer homes.

⁃ removing the “no net loss of industrial floorspace” requirement from policy E4 and allowing boroughs to “identify opportunities to strategically coordinate development plans to identify opportunities to substitute Strategic Industrial Land where evidence that alternative, more suitable, locations exist”.

⁃ amending green belt and metropolitan open land policies G2 and G3 respectively to make them consistent with national policy.

⁃ introductory passage to be amended encouraging boroughs to review their housing targets where “they have additional evidence that suggests they can achieve delivery of housing above these figures whilst remaining in line with the strategic policies established in this plan”

⁃ reintroducing the previous 2016 maximum residential car parking standards.

⁃ watering down the restrictions in policy T6 on retail parking: “G. Boroughs should consider alternative standards where there is clear that evidence that the standards in Table 10.5 would result in (a) A diversion of demand from town centres to out of town centres, undermining the town centres first approach (b) a significant reduction in the viability of mixed-use redevelopment proposals in town centre”

⁃ deletion of paragraph 4.1.11 which was critical of the Government’s housing delivery test.

In addition to the modifications, the letter indicates that the Secretary of State is “taking this opportunity to highlight some of the specific areas where I think your Plan has fallen short of best serving Londoners.”

⁃ He is “Directing” the Mayor to “work constructively with ambitious London Boroughs and my Department to encourage and support the delivery of boroughs which strive to deliver more housing.”

⁃ “I hope that where your small sites policies are appropriate, you are doing all you can to ensure sites are brought forward.”

⁃ “The Inspectors considered your industrial land policies to be unrealistic; taking an over-restrictive stance to hinder Boroughs’ abilities to choose more optimal uses for industrial sites where housing is in high demand. I am directing you to take a more proportionate stance – removing the ‘no net loss’ requirement on existing industrial land sites whilst ensuring Boroughs bring new industrial land into the supply.”

⁃ “I am concerned that your Plan will be to the detriment of family sized dwellings which are and will continue to be needed across London. This is not just in relation to their provision but also their loss, particularly where family sized dwellings are subdivided into flats or redeveloped entirely. I am therefore Directing you to ensure this is a consideration of London Boroughs when preparing policies and taking decisions in relation to dwelling mix.”

⁃ “It is important that development is brought forward to maximise site capacity, in the spirit of and to compliment the surrounding area, not to its detriment. Sites cannot be looked at in isolation and Londoners need to be given the confidence that high density developments will be directed to the most appropriate sites; maximising density within this framework. Examples of this are gentle density around high streets and town centres, and higher density in clusters which have already taken this approach. I am therefore Directing you to ensure that such developments are consented in areas that are able to accommodate them.”

⁃ In relation to aviation, “the Court of Appeal recently handed down judgment in the judicial review claims relating to the Airports National Policy Statement. The government is carefully considering the complex judgment and so does not consider it appropriate to make any direction in relation to Policy T8 Aviation at the present time. This is without prejudice to my power to make a direction under section 337 at any time before publication of the spatial development strategy, including in relation to Policy T8 Aviation.”

Finally, the Secretary of State wishes to see a “new standard for transparency and accountability for delivery at a local level” and a commitment to work together (regular meetings!) to provide “the fullest account of how the housing market and planning system is performing in London, where there are blockages and what is needed to unblock these, and what tools or actions can be undertaken to further increase housing delivery”.

“Housing in our capital is simply too important for the underachievement and drift displayed under you [sic] Mayoralty, and now in your Plan, to continue.”

To receive such a letter would be a bad start to the day for any Mayor.

Kensington Forum Hotel JR

Shortly after the letter was published, I separately saw a consent order, sealed by the High Court yesterday, 13 March 2020, the effect of which was to record the fact that the Mayor has consented to judgment in the judicial review brought by the Royal Borough of Kensington and Chelsea of his decision, having recovered the application, to grant planning permission for the Kensington Forum Hotel development. I have previously referred to the saga in my 26 January 2019 blog post The Secretary Of State & London and my 15 November 2019 blog post Planning Or Politics? Significant London Planning Decisions 2019. You will recall that planning permission was issued by the Mayor the same day as he had held his representation hearing. RBKC had judicially reviewed that permission and on 27 November 2019 secured an order for disclosure. The consent order records that following “a review of the documents disclosed pursuant to that order”, and in the light of RBKC’s case put in its grounds of claim and evidence, the Mayor “concedes that the Decision should be quashed on the basis of Ground 4, in particular that the decision to grant planning permission was made for an improper purpose and having regard to irrelevant considerations; namely that the Secretary of State should not be given the opportunity to call in the application for his own determination”. The Mayor has agreed as part of the order to pay RBKC’s costs in the sum of £90,000.

So the Mayor will now need to reconsider whether to grant planning permission (a further representation hearing) and the Secretary of State will no doubt consider whether to call in the application.

Postponed election

The coup de grace yesterday for the Mayor must surely have been the Government’s announcement that legislation will be introduced to postpone until May 2021 the local, Mayoral and Police & Crime Commissioner elections that were due to take place on 7 May 2020. After all, he would have been a re-election shoe-in this May if the polls are to be believed (eg see Sadiq Khan Has A Massive Lead In The London Mayoral Election According To A New Poll Londonist, 10 March 2020). Next year? Well that’s a long time away.

One last word on Planning For The Future. The Secretary of State promises “an ambitious Planning White Paper in the Spring”. Obviously government has a stretched and blurred definition of the seasons but technically “Spring” starts on 20 March. It’s one week at a time at the moment isn’t it?

Simon Ricketts, 14 March 2020

Personal views, et cetera

A retweet by the Secretary of State. Probably wisely, the Mayor has not yet risen to the bait.

London Plan Examination Update

We are now clearer as to what lies ahead, for the next year at least: the documents and deadlines are beginning to come thick and fast.

The appointed panel of inspectors (Roisin Barrett, William Fieldhouse and David Smith) set out this timetable in their Panel Note No 1 (August 2018):

• End of August 2018 – Panel consult the Mayor on a draft list of matters and participants.

• Mid September – Publication of draft list of matters and participants.

• Mid October – deadline for comments on draft list of matters and
participants.

• Early November – Technical seminars (if necessary).

• Early November – Publication of final list of matters and participants (at
least 6 weeks before EIP starts).

• Early December – first deadline for written statements in response to EIP
matters.

• Mid January to May 2019 – EIP hearing sessions.

• Summer 2019 – Panel report.

Over 20,000 representations to the draft plan were received from around 4,000 individuals and organisations (the GLA website has a useful link to them).

The Panel published today, 14 September 2018, its:

⁃Panel Note no 3

⁃draft list of matters for consideration at the EIP

⁃draft list of participants

There will be a maximum of 22 participants at each session. Those who have not been invited to appear have an opportunity until 11 October 2018 to make representations as to why they should be invited.

The Panel asked the Mayor a series of preliminary questions in their Panel Note no 2 to which he responded earlier this month. The exchange encapsulates some of the main themes that lie ahead such as:

⁃ whether all of the policies can be justified as of strategic importance

⁃ the extent to which there is or is not agreement with the London boroughs and other relevant interests

⁃ the extent to which the draft plan deviates from national policies and guidance eg in relation to the application of affordable housing requirements with regard to small sites, the vacant building credit and the green belt

⁃ the extent of cooperation with other authorities, regardless of whether the duty to cooperate formally applies.

The Mayor published on 13 August 2018 600 or so pages of “early suggested changes” to the draft plan, which are minor in nature (see Lichfields’ summary for some of the headline changes).

It is difficult to keep up! For instance, I would also draw attention to a July 2018 practice note on how public sector land is defined for the purposes of the 50% affordable housing threshold in the affordable housing and viability SPG and policy H6 of the draft plan.

I referred in my 5 August 2018 blog post Housing Needs, Housing Shortfalls to the Secretary of State’s letter dated 27 July 2018 to the Mayor of London, setting out the changes that the Secretary of State wishes to see to the current draft London Plan, as well as the need for a more fundamental review once it is adopted. It is interesting to note that MHCLG is an invited participant in relation to a number of the examination sessions.

My 23 April 2017 blog post, Make No Little Plans: The London Plan set out the statutory constraints that apply to the London Plan and the difficulties that previous London Mayors have faced in securing an adopted plan until late in their first term.

Would a simpler, more focused, perhaps less ambitious plan have stood more chance of early adoption? That May 2020 election is going to come round very quickly.

Simon Ricketts, 14 September 2018

Personal views, et cetera