I chaired the White Paper Conference Company’s planning conference on Wednesday when we were privileged to hear from a number of high profile and experienced speakers, including Steve Quartermain, Chief Planner at DCLG. But perhaps the issue with the greatest challenge was revealed in the last paper, from Catriona Riddell. The question she had been asked to address might have seemed dull: “How is the Duty to Cooperate being applied in practice? Is it leading to joined up plans across neighbouring local authorities?” But her answer was far from tedious. “No” she said. It is not. She might have been justified in leaving the lectern at that point but she went on to expand on the problem.
The Duty to Cooperate is there of course to try to fill the gap caused by the removal of regional strategies. In a nutshell, she suggested that it is wrong to ask local authorities, whose geographical areas are small, to take what are strategic planning decisions, crossing boundaries, and which may require one authority to make sacrifices for the greater good. Catriona is well qualified to speak on the issue having been Director of Planning at the South East England Regional Assembly and Head of Spatial Planning at Surrey County Council.
She specifically identified three authorities which had withdrawn their plans after the Inspector had found that there had been failures to cooperate with neighbouring authorities, leading to inadequate evidence on the housing market. A total of eight plans have been withdrawn, five examinations suspended and others (she instanced Stevenage) not moving forward.
So if the Duty to Cooperate is not working, where will we do strategic planning between the national level (the NPPF)and the local? Where will we integrate wider economic issues? We do of course have the Local Enterprise Partnerships (LEPs) which bring neighbouring authorities together. The new Growth Deals will make funds available to LEPs and in return they are expected to support the Growth Agenda, which will of course involve exercising planning powers. But the LEPs do not have any planning powers; rather, those powers are at local level. So we are back to the local authority constituents of LEPs facing these issues. But Catriona Riddell pointed out that the LEP board members are heavily drawn from a business background. The first LEP board to come up on my Google search is chaired by the director of a major local employer (a player on the international stage), has a deputy chair from an international bank, and has five other members from commerce, three councillors and two academics. I do not in any way decry their capabilities nor enthusiasm and public spirit, but Catriona Riddell is surely right when she observes that they may prefer to focus on skills and enterprise rather than the politics of planning.
I have just today seen that the Planning Bill currently in the Northern Ireland Assembly contains a clause which restricts JR of planning decisions. If passed into law, challenges will only be possible on the ground of breach of European Union Law or human rights law. So a planning decision taken in breach of any other law will apparently stand. This is astonishing and it is surprising that it has received so little publicity. It means that notice and consultation requirements, the rules for a fair hearing, rules against bias, rules requiring the decision maker not to take into account irrelevant matters and to take into account everything which is relevant, will be unenforceable. Of course some of those may overlap with human rights and some aspects of European Union law, but I rather doubt that the proponents are hoping they have encapsulated all of them in the new limited grounds of challenge.
If this clause passes into law, it will remove the right to hold Government to account for planning matters in Northern Ireland, except on human rights and EU grounds. It threatens to neuter planning law. This is similar to the ouster provisions we saw in the post-war period and which were subject to critical court judgments. They culminated in the historic 1968 judgment of the House of Lords in Anisminic v. Foreign Compensation Commission where their Lordships allowed a challenge despite an ouster clause which said that no decision of the FCC should be called into question in any court of law. They did this by the simple expedient of declaring that a decision which had not been taken in accordance with the legal requirements was not a decision at all; it was void. But it would be unfortunate to have to rely on the Anisminic approach, especially as the clause does allow for limited challenge. Better to remove it during the legislative process and for Government to accept that it must comply with the law.
I see that the relevant clause is in fact an amendment tabled by the DUP and Sinn Fein (and so wonder if I should tread carefully in voicing this criticism) (see this BBC report) and has been criticised not only by Friends of the Earth (here) but also on 26th September by the weighty Northern Ireland Human Rights Commission in a formal letter to the Northern Ireland Minister for the Environment (here).
The Bill has completed four of its six stages before Royal Assent so swift action is needed to reverse this part of it.
Ed Miliband’s speech today at the Labour Party conference contained the following promise (or threat, depending on how you look at these things). “… we’ll say to private developers, you can’t just sit on land and refuse to build. We will give them a very clear message – either use the land or lose the land. That is what the next Labour government will do.” Douglas Alexander, Shadow Foreign Secretary, fleshed this out on the PM programme explaining that where housebuilders are “hoarding” land local councils will be allowed to purchase it compulsorily and secure escalating fees where they are landbanking. Hoarding he said is where a developer judges that because of a significant year on year rise in the value of that land it is worth more to them not to build and to hold on to it for the future than to build the houses the country needs. No-one he said doubts that hoarding is taking place.
So this suggests that regardless of the profitability of the construction and sale of houses at that time, a developer holding land with planning permission will be required to build, or face compulsory purchase and some sort of penalty charge or tax.
What will the results be?
First, local authorities will need to raise the funds to purchase the land. I would welcome comment from experts in CPO valuation, but will that not be at market value which will reflect the planning permission for housing? They will then need to build, themselves or via other developers. If the profitability is low at the time, it may be difficult to find developers willing to take that on, and if councils do so they will risk poor returns.
Second, between now and the election developers may run down their stocks of land. Then when they do want land to develop as demand for houses and profitability increases, they will have to buy at the time (a spot market) which will in turn create a rise in land prices. Keen readers of this blog know that I espouse fairly straightforward supply and demand economics. Who will bear the increased land price? Housebuilders will seek to pass it on to the buyer, and that will work as long as buyers have funds. So there will be house price inflation. But when the buyers run out of funds, the builder then faces the choice, take less profit or stop building and it isn’t the work of genius to predict that builders will stop building.
Isn’t there a simpler course to get more housing? Simply grant more planning permissions and in effect flood the market. To those who say that even more land will be hoarded, I suggest that completion notices are used more. They require completion of a commenced but incomplete development, failing which the permission lapses for the unexpired portion.
The draft NPPG is now available on line after a couple of days of glitches – I have given the link below. Trailed by DCLG over the Bank Holiday weekend, the newspapers picked up on the proposals that more bungalows should be built for the elderly, including clusters only available to older people. And CPRE has picked up on the “affordability” test, claiming that a requirement to release more land for housing where prices are rising is likely to result in unnecessary loss of countryside and deliver very little affordable housing. These issues are actually quite difficult to find in the draft NPPG (bungalows aren’t actually mentioned, and the search engine doesn’t give any results for “affordability” or “indicators”) but they are prominent in the press release which says the new “easy to use” advice sets out guidance on amongst other things “a new affordability test for determining how many homes should be built” and “housing for older people – councils should build more bungalows and plan positively for an ageing population”.
But there are economic fallacies here. The affordability point is important and ought to be looked at alongside the issue of house sizes.
Earlier in August DCLG consulted on a housing standards review, part of which looks at space standards. Fifty years ago Parker Morris standards were introduced and ensured minimum sized rooms in what was then council housing. Whilst not generous, a visit to a home of that era quickly demonstrates the paucity of space in today’s market housing. As the consultation notes: “There is a view (supported by some evidence) that across all tenures, the average size of new homes in England has reduced over time giving rise to concern about their ability to support these routine activities, particularly when homes are fully occupied”. In addition, there is evidence that England has some of the smallest housing in Europe. But the consultation notes that large parts of the home building industry consider that market forces ensure that consumer interests are well served and that there is no evidence that space issues are causing failures in the new homes market. It also suggests that improving space standards will lead to a rise in the price of homes, with the risk that people are priced out of the market.
Of course the new homes market is not failing for lack of space. It is well documented that we are not building enough homes to keep up with the rate of household formation. So prices hold up because demand exceeds supply. Builders will secure the most they can. Indeed, the consistently expressed criticism of George Osborne’s Help to Buy scheme is that it will simply inflate house prices by putting more money into the housing market. The housing market is no different from any other market. And in the same way, if there is not enough money in first time buyers’ pockets then they will not buy. The builder of first time homes then has to cut his prices. That in due course will lead to lower housing land values, and will also exert downward pressure on the price of building materials. Eventually the market will pick up as prices match the money available. At that point it becomes easier for buyers to exercise greater choice over what they are prepared to buy, and the small house becomes less desirable, if bigger ones are available. But the problem here is that we traditionally sell houses by reference to the number of bedrooms rather than floor area. This is changing as floorplans showing floor areas in metric and imperial now frequently appear on estate agents particulars, especially on websites such as Rightmove and Prime Location. This should help get away from the allegedly three-bedroomed house where the third bedroom is about the size of a broom cupboard. Giving floor areas should enable people to be more discerning when they buy.
The same law of supply and demand will of course apply to the general supply of housing. So the affordability test should work. If people can’t afford new homes, we need to get more homes onto the market, and that means releasing more land for housing. It’s not rocket science. CPRE dismiss this as a simplistic economic view. Possibly, that led to The Times reporting that story under the headline “Anger at plan to cut price of rural housing”.
And so to bungalows. Some parts of the world have fabulous bungalows, think of Sydney, or California. Here in England I am sure we have some, but from the pictures in newspapers this week you wouldn’t think so. Instead they tend to be in clusters and rather samey. The idea from DCLG seems to be to group old people together in an estate of bungalows. But doesn’t that go against good, integrated communities, where young and old can live together, where old can influence the outlook of the young? We demand the integration of affordable housing with market housing. And new developments usually have a range of house types, for different sizes and ages. Shouldn’t we keep it that way for the elderly as well. And design really superb bungalows.
Those with long memories will recall that in the mid-1980s the Government consulted on four routes across Kent for the Channel Tunnel Rail Link. The routes were drawn with a thick line which scaled up to a couple of miles across. Apart from threatening four times as many people than was necessary, the populace in the Garden of England is articulate and the response was predictable. There does seem to be a lot of ill-informed comment and scaremongering about hydraulic fracturing and shale gas, but I wonder if there are a few light-hearted lessons from this summer for would be shale gas drillers?
Perhaps avoid the otherwise news-free summer when carrying out controversial activities – Balcombe has hardly been out of the newspapers since June. The former planning minister Greg Clark who had to steer the NPPF through the summer campaign against it by the National Trust, CPRE and Daily Telegraph would have some words of wisdom on that hazard.
Perhaps also be careful with the choice of company name. With unfortunate absurdity, it reminds me of Lewis Carroll’s nonsense poem, “The Lobster Quadrille” in Alice in Wonderland.
I also couldn’t help thinking that Cuadrilla rhymes with Godzilla, the Japanese giant monster, star of many films, and even metaphor for nuclear weapons (according to this Wikipedia article ).
Or maybe it’s a four-headed drill bit, an advance on Cerberus, the three-headed hell-hound who guards the entrance to the underworld, but also not the sort of image you want to portray.
Try to find a better nickname for the process than “fracking”. It sounds so aggressive.
Words are important and planning, after all, is politics.
I was prompted by an article about this to consider the SEA directive more fully. The SEA Directive is rather broadly written. It requires environmental assessment of “plans and “programmes” which are likely to have significant environmental effects. But the problem is deciding what is a “plan or programme”.
The definition says they include plans and programmes (and modifications to them) which are (a) required by legislative, regulatory or administrative provisions and (b) are either (i) subject to preparation/adoption by an authority, at national regional or local level or (ii) prepared by an authority for adoption through a legislative procedure by Parliament or Government. The directive also says that all plans and programmes prepared for (amongst other things) transport and town and country planning) which also “set the framework for future development consent of projects [falling under the normal Environmental Assessment Directive]” are to be assessed.
The issue arose seriously in England with HS2, the proposed high speed rail link from London to Birmingham and beyond (litigated in HS2 Action Alliance and others v. SoS for Transport EWCA Civ 920). The Government announced its intention to build HS2 in a Command Paper (High Speed Rail, Decisions and Next Steps) which also said that the necessary powers and planning permission would be sought by a hybrid Bill through Parliament. There was no assessment of the environmental effects under the SEA directive. But assessment would be done under the normal Environmental Assessment Directive at the hybrid Bill stage. The complaint of HS2 Action Alliance in practical terms was that SEA requires wider consideration of alternatives than normal EA. Indeed one of the reasons for SEA is that it allows for assessment of plans which are setting the scene and which will influence subsequent decisions, so alternatives are important as the field is narrowed.
HS2 Action Alliance claimed the Command Paper (usually called DNS) was a plan or programme required by administrative provisions which set the framework for future development consent. So was it or not?
The problem is obvious; this is a high level plan in which the Government says it has decided it is going to build HS2. It’s going to go from London to Birmingham so the route is broadly defined, though no doubt there can be wiggles (or more likely sweeping curves) and tunnels to avoid sensitive areas. But there are going to be constraints on that, and compromises. The jurisprudence of the European Court of Justice maintains that broad approach to the directive: for example it says “the definitions … must be interpreted broadly”, and “the objective of the directive is to provide for a high level of protection for the environment and contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes … likely to have a significant effect on the environment”. It is sadly vague on the meaning of “framework”; it appears to say it is a term which must reflect the objective of taking into account environmental effects of the framework itself (which I do not think takes us much further) and definitely says that it is unclear how strong the requirements of a plan or project to influence individual projects must be for it to be a framework. The vagueness which one might also call comprehensiveness continues in A-G Kokott’s opinion in Terre Wallone where she says: “To summarise it can be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent … in particular with regard to location, nature, size and operating conditions or by allocating resources.”
So did the Court of Appeal make things any clearer in HS2? It decided that SEA was not necessary, and the main reason it came to that conclusion was that Parliament is free to disregard DNS. It stated that to “set” a “framework” there must be some legal influence from the “plan or programme” on the subsequent development consent decision. As Parliament is sovereign there is no legal influence. That logic has some strength to it. But the Court of Appeal also said it would not rule out the possibility that a plan or programme sets the framework where it has a sufficiently potent factual influence, unless the decision maker is Parliament.
So bets are hedged here and we continue to have uncertainty about whether SEA is needed – if there is legal influence it is; but there is still the possibility that factual influence will do. This leads me to some questions and a plea. My plea is for some greater certainty over this issue. The repeal of the Regional Spatial Strategies was subject to voluntary SEA. The NPPF was not.
And here are my questions. The Court of Appeal decision hinges on the development consent decision being taken by Parliament. But what would happen if Government decided instead to use the Planning Act 2008 and seek a development consent order from the Secretary of State? Under the DCO procedure, “important and relevant matters” must be taken into account. The Government’s view can hardly be less than important and relevant. Is that not a “legal influence”? Is it sufficient factual influence?
 “Why Central Craigavon was wrongly decided (and other problems with the incorporation of the Strategic Environmental Assessment Directive into domestic law)” by Gregory Jones QC and others  JPL 1074
 Inter-Environnement Bruxelles v. Region de Bruxelles-Capitale
 Advocate General Kokott in Terre Wallone v. Region Wallone
 Advocate General Kokott in Terre Wallone v. Region Wallone
Last weekend saw DCLG announce that people should be allowed to rent out their driveways without the need for planning permission.
“Councils should be welcoming common sense ways that help hard-working people park easier and cheaply and for families to make some spare cash. Councils shouldn’t be interfering in an honest activity that causes no harm to others, unless there are serious concerns. Parking charges and fines are not a cash cow for town halls.
This government is standing up against the town hall parking bullies and over-zealous parking enforcement.”
But the Planning Officers Society is reported to be concerned about this. “Planning” tells us
‘the Planning Officers Society (POS), which represents senior local authority planning officers, today said that councils that asked for a planning application in such circumstances were doing so because they considered the proposal to be a material change of use.
POS president Mike Kiely said: “The legal position on what is or isn’t a material change of use is for the courts to decide. All the government can do is highlight what the existing legal position is” ‘.
Oh dear. Whether there is a material change of use is a matter of fact and degree for the local planning authority not the Courts. If you doubt this fundamental proposition of planning law, here is a concise statement from Carnwath LJ (as he then was) in Fidler v. Secretary of State and Reigate and Banstead  EWCA Civ 1295: “Whether the use of land has changed in any manner that is material for planning purposes is a question of fact and degree for the decision maker to determine in the light of all the circumstances of the case”.
But the DCLG view seems to me to be unorthodox as well, at least as reported in The Times for 3rd August which said that planning permission would not be needed as long as the rent did not exceed £2400 p.a. How can the level of rent be relevant to whether there is a material change of use?
But perhaps I can offer the following suggestions.
(i) A driveway is a domestic driveway for the parking of cars of the owners and visitors to the house. This will normally involve about two vehicle movements per car per working day, say four movements per day as a rule. But if we add a rented space, and suppose the house is near a commuter railway station, that will increase the movements by 50%. That might well be material.
(ii) I was told many years ago by a highway consultant that in yellow line zones there are restrictions on charging for car parking at a rate below that of authorised car parks, unless consent had been obtained under road traffic legislation. The reason for this was so as not to undermine the effective restriction on traffic in the zone caused by limiting the number of spaces provided. Why are councils not using that to enforce against renting out domestic driveways for parking?
There is an interesting article by James Maurici QC and Andrew Parkinson, both of Landmark Chambers, in the latest edition of the Environmental Law Review. It concerns the need for appropriate assessment under the Habitats Directive, which must be undertaken by each competent authority if there is a likelihood of significant adverse effects on any European Site (I summarise and truncate for brevity). The Chief Executive of the Planning Inspectorate had written to an objector to say that the Inspector would consider if the effect of the proposal would be to have a significant adverse effect on a nearby SAC and if so would undertake the necessary appropriate assessment. Before then, the Environment Agency, also a competent authority and from whom a permit was also needed, had ruled that in its view the proposal would not have a significant effect. It granted its permit after the close of the inquiry and before the Inspector’s report. The Inspector did not carry out an appropriate assessment and relied on the fact that the EA had granted a permit as indicating that appropriate assessment was not necessary. The objector, Cornwall Waste Forum, challenged that decision claiming a legitimate expectation that the Secretary of State, as the other competent authority, would determine the likelihood of significant effects.
One of the reasons the Court of Appeal rejected the claim was that the Planning Inspectorate has no power to bind the Secretary of State. This is of course quite right. This case had not been delegated to the Inspector to decide and so it was for the Secretary of State to proceed as he thought fit, free from any assurances given by the Planning Inspectorate. As Maurici and Parkinson comment “Carnwath LJ’s finding that the Planning Inspectorate and the Inspector had no authority to bind the Secretary of State’s application of regulation 65 means that pre-inquiry correspondence (whic is likely to be through the Planning Inspectorate) in unlikely to found a legitimate expectation against the Secretary of State in the future.” But this also operates as between the Inspectorate and the Inspector. Maurici and Parkinson say that inconsistency of approach between Inspectorate and SofS/Inspector may give rise to a natural justice or procedural impropriety claim in future. But this is a long (and not entirely reliable) way round to enforce what is in effect a procedural ruling by the Planning Inspectorate.
The Inspectorate needs to have a way of making procedural rulings before an Inquiry, but currently I know of no power to do so. It has duty inspectors available who make such rulings already, but it has always seemed to me that their decisions are liable to be overturned by the Inspector deciding the case. Has the time not come to put the pre-inquiry (or pre-hearing, or pre-written reps decision) rulings on a proper legal basis? Especially when the Inspectorate is under some cost and time pressure.
If you would like to read the article it is at  Env L Rev 152. (And yes those are the authors above, in alphabetical order.)
A somewhat surprising alliance between the Daily Telegraph and Labour’s shadow secretary for Communities and Local Government – Hilary Benn – has emerged this morning, with an article by Hilary Benn headlined “The Coalition have got it wrong over planning”.
So let us recall what the Coalition (or rather the Conservative policies adopted by the Coalition) have done in planning. They have abolished the “hated top-down housing targets”, hand in hand with the creation of ”localism”, abolished the Infrastructure Planning Commission quango and put sustainable development in the centre of the presumption in favour of development, rephrased as the presumption in favour of sustainable development.
And now let us consider what Mr Benn says. “Local communities should decide where they want new homes and developments to go and then give their consent in the form of planning permission.” This is just what Eric Pickles says, and what the Conservatives have been saying since well before the last election. But they should not get all the credit, because John Prescott said much the same thing. His 2004 reforms of the local plan system were driven by his belief that if you gave people a say early enough in the system they would engage and be able to decide what should be built and where. He, Hilary Benn and indeed the current administration repeatedly protest that if you give local people the power to decide they will take responsible decisions.
Second Mr Benn says that unpopular and inappropriate developments permitted by a national quango reporting direct to ministers will give rise to much anger. The quango in question here is the highly respected Planning Inspectorate which will take decisions when local authorities are designated because, for example, they are too slow. The decision is actually to be taken by the Secretary of State. The democratic safeguard of a report to ministers is there, though Benn seems to criticise it. Were it to be missing, I would agree with him. But significantly, the last Labour administration put in place the Infrastructure Planning Commission which took decisions with no democratic accountability. I haven’t checked how Mr Benn voted, though he is likely to have followed the Government whip and voted for that.
What about sustainable development. Mr Benn’s article is silent on this but the Telegraph has some information from the Labour party: “Labour sources said last night that the party would scrap the Coalition’s National Planning Policy Framework (NPPF), which came into force earlier this
year and requires councils to promote “sustainable development” in planning decisions.” Now I thought that sustainable development was a good thing. But the DT at least seems think differently: “This newspaper’s Hands Off Our Land campaign last year led to the Government
watering down changes in the NPPF, although it still contained a bias in favour of sustainable development.” But Benn opens his article with a critique of the NPPF, complaining that local authorities were given only 12 months to get their plans in place, or the NPPF presumptions would take precedence. This really is disingenuous. The plans in question are those being drawn up under John Prescott’s Planning and Compensation Act 2004 – almost a decade has passed for councils to get those plans in place. More accurately, 65 years will have passed next month since the Town and Country Planning Act 1947 came into force which placed local development plans at the heart of the system, but which experience has shown are slow in the making.
In his drive to give local communities full decision making power Mr Benn concludes that in his experience if you give people responsibility for these things they will respond. “If they get it wrong there will be no-one else to blame for the lack of new homes” he says. But there will be someone else responsible – the Governments which abdicate responsibility for taking the unpopular decisions the nation needs.
The market town which has been the subject of these “We want a say” posts is Saffron Walden and this week just past saw a television programme on Saffron Walden in the BBC’s series “Town”. This is a series in a similar mould to Coast and is presented by Nicholas Crane who also presented Coast.
The programme on Saffron Walden began as a most interesting review of the history and geography of the town, but moved on to consider the development against which “Your chance to say no” has been campaigning. Whilst Crane, who is a geographer (and local boy, having studied at the forerunner of the Anglia Ruskin University in Cambridge) recognised that towns change and must change as time marches on he came out with some quite extraordinary statements about planning in this country. First he asserted that the new housing was a “response to Government imposed targets”. And second he stated that our landscapes have been protected by a “fundamental principle of planning” that “the long term use of land takes precedence over an owner’s right to profit”. How long, he asked, can that principle survive?
Where does Crane get this from? The current Government, with great fanfare, has deliberately abandoned what it usually describes as the “hated top-down housing targets”. And where do we see a principle of planning that long term use trumps the owner’s right to profit? If that were a principle there could never have been any change, because change would always be from the previous “long term use”. Agriculture would have triumphed, there would be no urban growth. Instead, towns would have become more and more crowded. Does Crane want a return to the high-rise blocks of the 1960s (shortly before he studied geography)? For that would the consequence of the principle he claims is fundamental to our planning system. How does he see that in relation to the “presumption in favour of development” which certainly is fundamental to planning? And where does he find his principle written down?
It is very sad that broadcasters of popular television programmes should put out myths like this and simply fail to research mainline Government policy properly.
Still, in its favour “Town” did dispel one myth. The “Your chance to say no” campaign says that the plan is for “thousands of new houses” in Saffron Walden. Crane gave the local councillor with responsibility for social housing the opportunity to point out that the number in the plan is actually 860 – not exactly “1000s” even when added to the 440 already permitted. The best the campaigner interviewed could say was that developers will come back later for more.