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 bowsletter 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