This is the review set up by the Labour party when Ed Miliband announced they proposed to introduce a “Use it or Lose it” provision to counter hoarding of development land. Brock Consulting’s response to the call for evidence has gone in and can be found here.
Strangely, the call for evidence opens with the statement that “the high cost of housing is largely driven by the high cost of land”. That goes contrary to how I understand residual land valuations are done (put simply, the landowner gets what’s left from the purchase price of the finished development after all the construction costs, financing costs, developer’s profit and professional fees are paid). There is a danger with Lyons’ assumption, because it would fail to apply the laws of supply and demand – the price of the finished development is influenced by the numbers of such developments in the market and the amount of money available to buy them. So easier lending to house-buyers is inflationary, and will give the landowner a better price. Once we understand that, we can see that if planning permissions are not granted for housing development that will also drive up the price of housing. (Of course, when times are hard, potential buyers tend to stick with the accommodation they have, so demand drops off and the price of housing ceases to rise, and in extreme cases, drops, leading to negative equity issues.)
I have blogged before on Use it or Lose it (here) . We already have Use it or Lose it powers – planning permissions expire, completion notices can be served, and there are powers to acquire land compulsorily for planning purposes. I hope Lyons will look into breathing new life into the rarely used completion notice and CPO powers before embarking on more legislation in the area. I have often wondered why completion notices are rarely served. Could it be that they just create the need for a new permission? If an authority has a housing shortage, revoking the permission won’t help. In which case, Use it or Lose it would need to focus on compulsory acquisition. But how will that be funded? And how will local authorities do the development? Selling back into the private sector doesn’t sound the way ahead – the new buyer will be driven by market forces and if it was better for the old owner not to develop (for example because the development was not profitable enough) how will things be different for the new buyer?
One of the questions Lyons asks is whether the system is fit for purpose. That is a wide-ranging question. The existing system was hammered out by a Royal Commission and three special committees, the last of which was the Uthwatt Committee. Its brief was to ensure that redevelopment was not held up. But it is difficult to say that a positive attitude to development prevails at the moment. Far from being a means of enabling development and providing homes, the popular attitude sees planning as a method of control, even prevention. And MPs are not immune from those attitudes, as January’s Commons debate on planning showed. If we could regain the positive approach, change hearts and minds, we might see an increase in housebuilding to the levels needed to meet the need.
Lyons is also asked to look at sharing the benefits of development with local communities. The history of post-war town planning is punctuated with attempts to do this. From betterment levy to DLT they have all been counter-productive, complex and eventually repealed. Now we have CIL, conceived by the last Labour government. This seductively simple levy (it would replace the need for complex s.106 agreements and their lengthy negotiations) is proving to be pretty complicated. It has been amended every year in attempts to correct errors in the original regulations. Even the final draft of those had to be amended at the final hour when DCLG and the Treasury at last woke up to what the Law Society had been telling it, that the regulations as drafted were retrospective and would catch planning permissions granted before the regulations were made. The basis for giving credit for existing development has proved to be a thorny problem. The latest amendments – passed on 23rd February this year – amend the very formula for calculating the amount payable. And CIL has not been, and will not be, the end of section 106 agreements.
It is popular to claim that the grant of planning permission gives the landowner a windfall. But this ignores the fact that but for legislation (notably the Town and Country Planning Acts 1947-1990) the landowner could develop without the need for planning permission. The 1947 Act nationalised development land rights, and whilst it originally created a compensation regime, that was effectively abandoned in 1953 (ironically by the Conservative government of the day) and finally abolished (again by the Conservatives) in the Planning and Compensation Act 1991. Little compensation for the expropriation of development rights has ever been paid.
We already have a tax on capital gains, Capital Gains Tax, introduced in 1965, by the then Labour government, and still going strong almost 50 years later.
We already have a well developed planning system, it would be sensible to explore whether its existing legal framework has tools to address the difficulties which have been identified. Sadly however, the Lyons panel contains no lawyers, let alone planning lawyers.
Yesterday the Government announced the creation of a new Planning Court to deal with judicial review and similar challenges to planning decisions. It also announced some changes to the rules on challenges, especially challenges to decisions of the Secretary of State and Inspectors on planning appeals.
The intention is that the Planning Court will be part of the High Court and be up and running by this summer. Interestingly this change is to deal with only about 200 judicial review cases each year, those are the planning cases, out of over 10,000 JRs each year.
Planning and JR keep strange company these days and some of the rules changes are to be found in the Criminal Justice and Courts Bill, introduced in the Commons yesterday which deals amongst other thing with penalties for possessing extreme pornographic images. Perhaps the most important change for planning is that challenges (under s.288 of the Town and Country Planning Act 1990) to Secretary of State and Inspector decisions will in future need the permission of the court, as is the case for proper judicial review. In addition, the court will be able to filter out cases where although there has been a procedural failure, the decision would be the same. The driver for a lot of these changes is the uncertainty caused by a court challenge; few developers want to commit to a development when the planning permission may be quashed. So judicial review is a very good delaying tactic, and in the meantime, economic conditions may change. The Government says that out of the 440 JR challenges which went to a hearing in 2011 (that is all categories, not just planning) only 170 were successful. So the other 270 will have delayed things. But we must remember that at least 240 of the 440 will have been non-planning cases, so only about 75 planning projects will have suffered that delay. There will of course have been delays for all 200 planning projects which were subject to JRs whether they went to trial, were settled or abandoned.
Other noteworthy changes include making it easier to leapfrog straight from the High Court to the Supreme Court, missing out the Court of Appeal where it is clear the case will end up in the Supreme Court anyway, and the disclosure of those who back claimants financially, a device used to reduce costs awards and so protect the backers if the claim is unsuccessful.
Those making or on the receiving end of judicial review claims need to take careful legal advice and the changes (only some of which I have highlighted) make this more important. But these changes should please the development industry.
 The Government’s response paper says it will take almost 400, but later reveals that in 2012 there were only 200 planning cases.
 We can deduce this from the following paragraph in the consultation response issued yesterday: “Applications more than doubled from 4,300 in 2000 to 12,600 in 2012. Yet, of the 440 which went on to a final hearing without being refused permission, withdrawn or settled in 2011 just 170 went in favour of the applicant. In 2012 the vast majority of applications, more than 10,000, were for immigration and asylum cases – and almost 200 were on planning issues.”
There is an interesting new decision on what can be taken int account in a planning agreement. Decided on 16th December 2013 but just reported today, R (OAO Hampton Parish Council) v. Herefordshire Council, Hereford RFC and Bloor Homes  EWHC 3947 (Admin) concerns a permission for a new rugby ground and 250 houses, to replace Hereford RFC’s former ground which was situated in the “functional floodplain” and frequently flooded. It was accompanied by a s.106 agreement which prevented the use of the new ground for rugby unless the old ground was transferred to the council for £1.
Sport England and the local authority parks department had both stressed to the planning committee the need to retain the existing ground for continued public amenity as sports fields. The parish council challenged the grant of permission on the grounds (inter alia) that the transfer of the Rugby Club’s existing ground to the Council, was not a material consideration because the existing ground had no relationship or connection with the proposed development, and secondly it did not meet the policy and legal test of necessity. That test is that a planning obligation may only constitute a reason for granting planning permission if the obligation is necessary to make the development acceptable in planning terms – see Reg 122 of the CIL regulations.
The parish council submitted in the High Court that there was no direct connection and that the fact that the land was to be transferred at nominal consideration and without any covenant restricting its use (so that it might be used for valuable development) showed that it was not material, not necessary and amounted to buying the planning permission. Mr Justice Hickinbottom disagreed. The land flooded and could not be used for valuable development; the objections by Sport England and the council’s own parks department showed that it was in the public interest, directly related and a material consideration which could properly be taken into account. Lastly the necessity test was not, he held, a “but for” test. It would not be right to ask if the permission would have been granted but for the planning obligation. Rather, he said, “What is acceptable in planning terms is dependent upon a complex web of policies and other material considerations, and a series of planning judgments. As I have said, there was evidence of the need to retain the existing ground use as playing fields, by way of a public amenity.” But does he really reject the “but for” test? In his next sentence he said: “However, in the circumstances of this case, if the section 106 obligation to transfer the existing grounds to the Council had not been extracted, then it would have been open to the Council through its officers to have negotiated some other entirely different benefit, or changed some other aspect of the proposal to make the entire whole acceptable in planning terms. It is impossible to say precisely what the result of such negotiations might have been. It can be said that, in this finely balanced matter, with the Section 106 obligations as agreed, the proposal was acceptable in planning terms; and, without them, as it stood it would not have been.”
Reg 122 is causing quite a lot of litigation – we already have Derwent Holding v. Trafford BC  EWCA (Civ) 832 and Persimmon v. Secretary of State  EWCA 3931 (Admin). The aim of the policy and now the regulation is to limit what can be demanded by planning authorities. IS not the approach of judges broadening the scope of what can be demanded?
(I am also interested in the substance of this obligation. What would happen in the unlikely event that the council refused to accept the transfer, e.g. if covenants or indemnities were needed from the council? The council would appear to be in a ransom position.)
PINS has issued a Procedural Guide on Planning Appeals. This is a guide for participants and includes guidance on section 106 agreements in the substantial Annexe N. It is particularly pleasing to see references with approval to The Law Society’s Model Planning Agreement. The guide also accepts the structure of that document which makes most obligations conditional on implementation. PINS previous guidance, Good Practice Advice Note 16/2010 – “Submitting Planning Obligations”, had said that everything had to come into force at once, except those parts specifically called out. That made for cumbersome drafting of the s.106 and onerous due diligence when buying land subject to a planning agreement. Other comments made by The Law Society on 16/2010 have also been taken into account.
However there are some parts of Annexe N which remain unhelpful to a streamlined planning system. For example, it continues to disapprove of the execution of planning agreements in counterpart. For non-lawyer readers, this is a tried and tested legal way of executing documents, used most extensively in leases. There, the landlord executes one copy of the lease and gives it to the tenant. The tenant executes an identical copy and gives it to the landlord. Each then holds a copy and can sue on the promises made by the other. But it is used in many other situations especially where there are several parties, often the case with s.106s, and avoids having to get every copy of the document executed by every party. Instead, each party executes enough copies for the others to whom it is making promises to have one, and thereby have an executed copy on which they can sue. This saves a lot of time, for example where some parties are situated abroad. But Annexe N sternly warns against this: “This is not appropriate to planning obligations, since these are public law documents which are entered on the planning register and the local land charges register and are often copied to residents and other interested people. The planning obligation should be conveniently available as one single document executed by all the relevant parties.” This reasoning simply does not make sense. Why does the public law nature of a s.106 agreement mean that counterparts are inappropriate? Thankfully however the next paragraph allows that there are circumstances in which counterparts are the only practical option.
Annexe N also contains an extensive section about execution and includes suggested wording for execution and attestation clauses. Whilst it is not unhelpful to include this, one has to question why it is needed. Solicitors draw up deeds every day of the week and are completely familiar with the legal formulae. Indeed there are several different formulae – choice is largely a matter of style – for example some people choose “In witness whereof” and some choose the more modern “In witness of the above”. So it is doubly disturbing that the Annexe in one case actually prescribes the wording. This really goes too far. Even the Land Registry in its very thorough and authoritative guidance on execution of documents does not do that. But PINS’ approach will mean that Inspectors will reject s.106 agreements which do not use the prescribed wording, even when the different wording used is lawful and effective. One would hope that common sense would prevail, but the omens are not good. There has been at least one case of an Inspector requiring a properly executed s.106 agreement to be re-printed and re-executed because the signatures were on a separate page from the text. The separation was contrary to the requirements of Advice Note 16/10. But the Inspector would not accept the solicitor’s assurance that the execution was still good. Whilst it is good practice not to separate signature pages in that way, the execution is still valid and 16/10 was wrong to suggest otherwise.
We have to ask if guidance like this is simplifying and speeding up the system. The answer has to be a resounding “no” to both. The solicitor who prepares a s.106 agreement for an inquiry only occasionally is likely to be caught out by this unnecessary requirement. The solicitor who prepares them regularly but whose firm has a house-style wording different from that in Annexe N will have to spend extra time changing the wording, a completely unnecessary expense for the client.
The guidance is also one-sided; it is completely silent on what constitutes proper execution by the local authority. This is not helpful. Not only is it important to know that the promises given by the local planning authority (e.g. to abide by arbitration provisions in the agreement) are properly executed, it also ignores the fact that local authorities own land and may enter into a s.106 agreement as a landowner. If PINS is concerned to ensure that private sector landowners have properly entered into s.106 agreements, that concern should also extend to the public sector.
Annexe N closes with the following words:
“If parties are legally represented we would expect their lawyers to inform the Inspector as to whether or not they are satisfied with the execution of the obligation.”
This is going to require solicitors and barristers to address squarely the question of how one executes a s.106 agreement and is probably a good thing. It also raises the issue of who has to be satisfied. The normal position in all transactions is caveat emptor, that is, “let the buyer beware”, and so it should be for the landowner’s and developer’s solicitors to satisfy themselves that the planning authority has executed properly, and for the planning authority’s solicitors to satisfy themselves whether the landowner and developer have executed properly. It should not be the task of a solicitor to confirm whether his or her client has executed properly. That would be to underwrite the client’s process. Rather, the other side should ask for such assurances as they think fit. Where land is being bought and sold, there are presumptions of due execution which apply in favour of purchasers and the question is rarely raised. But planning agreements rarely buy and sell land. In many corporate transactions, board minutes are routinely required to show that the documents are properly executed. Lawyers now need to decide what is needed for a s.106 agreement. And if it turns out to be rather cumbersome, then the government should legislate to simplify the law. Section 106 agreements are not going to go away and we need a planning system which is streamlined and fleet of foot.
To close, I return to the question, for whom is this guidance? Why is it needed at all? Some of the aspects of s.106 agreements addressed by Annexe N are incredibly basic. For example it tells us that the landowner must be a party and that the colouring of plans must reflect the description of those colours in the text. It tells us that manuscript amendments must be initialled and even includes a glossary of legal terms. What has been going on? Who is drafting s.106 agreements? Are solicitors doing a very poor job? Does PINS routinely see s.106 agreements which do not reflect the legal requirements? And if so why is this?
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