A blog about planning, planning law and planning policy
Disclaimer
The information on this blog is not intended to be advice, legal or otherwise. You should not rely on it and I do not accept liability in connection with it. If you do have a planning law question on which you would like advice, seek legal advice from a suitably qualified solicitor. Specific advice should be sought for specific problems.
The amendments to the Bill are largely to make it amend the Town and Country Planning Act 1990 and other existing legislation.
Theresa Villiers MP has put down 19 amendments to the Levelling Up and Regeneration Bill due to commence its Report Stage on Monday 28 November. She is supported by large numbers of Conservative MPs such as Sir Iain Duncan Smith, Sir Roger Gale, Nadine Dorries, Bob Blackman, Tim Loughton and Bob Stewart. Most of the amendments have over 20 supporters.
Time and space does not permit comment on all the amendments but I do wonder if she and her supporters understand the planning system and what it is meant to achieve. Amending the law, like amending a legal document, without understanding what the law is at present is a hazardous occupation. Sometimes the changes are easily circumvented because of this. Let’s look at some of the amendments. They can be found here (https://publications.parliament.uk/pa/bills/cbill/58-03/0169/amend/levelling_up_rep_rm_1128.pdf ).
One of the Villiers amendments (NC25) attempts to introduce a character test into the consideration of planning applications. Section 70 of the TCPA would be amended so that “the applicant’s character as a developer, including their previous compliance with planning rules and conditions, their record of engagement with planning authorities and delivery of developments, and accounting for whether they have made multiple, repetitive applications” could be taken into account in deciding whether to grant permission. Ms Villiers and her 32 supporters have not realised that planning permissions run with the land, and that planning applications can be made by anybody. So an applicant landowner who would pass their new test and obtains a planning permission can sell the land with the benefit of the permission to a completely different developer who would not have passed it. Also, it is not unusual to establish a single purpose company to carry out just one development. Such a company would, at the time of application have a clean record, but might turn out to have a cavalier attitude to compliance. Equally a new entrant into the development industry would have no record. Or is that to count against them when they are unable to show a record of compliance, engagement and delivery? Where does this amendment get Ms Villiers and her supporters?
At a more fundamental level another amendment, “Requirements of the National Planning Policy Framework” (NC24), would restrict what the NPPF can do and also require it to do certain things. However, at least one of the new required things is already secured in law (the right to object to planning applications) and could not be secured by a policy document anyway. Most importantly, this amendment would impose a legal requirement that the NPPF must not include a presumption in favour of sustainable development.
Regardless of what one thinks of the presumption in favour of sustainable development, to constrain policy in this way misunderstands the purpose of policy. Policy rather than a law is chosen to do something because policy is flexible, whereas law cannot be changed easily to meet changing circumstances. Policy need not always be followed, provided the minister understands they are diverging from it and gives reasons. And here we reach another misunderstanding on the part of Ms Villiers and her supporters. Firstly, the Secretary of State for Levelling Up, Housing and Communities and his civil servant advisers could express the presumption in favour of sustainable development in a different document and so sidestep this Villiers amendment. Secondly there is no statutory duty to follow the NPPF anyway. The Secretary of State’s policy only carries authority because it is their policy. If this ever needed to be made plain, that was done in Hopkins Homes v. Secretary of State, [2017] 1 WLR 1865, ([2017] UKSC 37) where Lord Carnwath, a planning lawyer of great experience and renown, giving the judgment if the Supreme Court, said:
“19 The court heard some discussion about the source of the Secretary of State’s power to issue national policy guidance of this kind. … it was suggested that his powers derived, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system (see R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 , paras 140-143 per Lord Clyde). This is reflected both in specific requirements (such as in section 19(2) of the 2004 Act relating to plan-preparation) and more generally in his power to intervene in many aspects of the planning process, including (by way of call-in) the determination of appeals.
20 In my view this is clearly correct.”
There is a very serious question on whether or not to remove the presumption in favour of sustainable development. It turns really on whether the aim of the planning system is to provide a framework to prevent development or in which to permit development. Do we want sufficient homes at affordable prices or not?
As we look at that, I want to consider two other Villiers amendments. One would create a community right of appeal against a decision to grant planning permission (NC27). This idea surfaces about once every ten years, last seen in the Conservative Green Paper “Open Source Planning” of 2010 in the run up to the election that year and subsequently abandoned. I wrote about it at the time in the Journal of Planning Law [2011] JPL pages 5-9 concluding that:
“ …the call for a third party right of appeal is simply conceptually wrong. The planning system involves third parties very fully, from the preparation of the plan, to the application process and any planning appeal. There is not even a requirement for standing. It is important to remember that the applicant’s right of appeal to the Secretary of State is a safeguard against an unjustified refusal. It is normal to give rights of appeal whenever one applies to a government body for any form of licence, permit or funding. We see this in fields as diverse as environmental permitting and claims for social security payments.
Open Source Planning and the August 20 article say that creation of a third party right of appeal will give “symmetry”. The Government may want to reflect on this claim in the light of the fact that development rights were nationalised without compensation. That is asymmetrical. The grant of permission is what restores the symmetry.”
The main result of a third party or community right of appeal would simply be to delay development.
So, is the planning system a framework to prevent or to permit development? History tells us that it was created to encourage development to happen, such as housing, commerce and industry. We also learn from history that the presumption in favour of development has been in the planning system since 1923 and was restated in 1949 after the creation of the current system, and subsequently. The Conservative government of 2011 was not wrong to describe it as a golden thread running through the planning system.
The other amendment to which I want to draw attention is headed “Prohibition of mandatory targets and abolition of five-year land supply rule” (NC21). It would make these targets advisory, not mandatory (which is the position already as the NPPF does not have the force of law, so it and the targets can only be advisory). But the amendment goes on to state that “Accordingly, such targets should not be taken into account in determining planning applications” and that “the NPPF must not impose an obligation on local planning authorities to ensure that sufficient housing development sites are available over five years or any other given period” (my underlining).
From all this it looks very obvious that Theresa Villiers, her supporters and the 55 MPs who have put their name to this amendment do not want to see sufficient housing developed and that they do see the planning system as a mechanism to prevent development from happening.
I was struck by a small paragraph on the front page of The Times last Tuesday (15 November if anyone wants to check). It said “Developers seeking planning permission for new homes with designs out of keeping with the local area may have the projects “called in” by the government and vetoed. See page 2”.
I turned to page 2 where the article was headed “I’ll stop builders putting up shoddy houses, vows Gove”. That sounds completely different from the front page summary. The article explained that Michael Gove, currently the Secretary of State for Levelling-Up, Housing and Communities, will call in planning applications for ugly new houses. In a speech the previous day at the Centre for Policy Studies (the think tank run by Robert Colvile) he said, “The experience of many buyers is that the incredibly expensive homes that they buy simply aren’t up to the standard that they should be.” He went on to highlight too many faults and defects and to criticise the use by housebuilders of “a restrictive pattern book with poor-quality materials, and the aesthetic quality of what they produce is both disappointing and also not in keeping with the high aesthetic standards that may already exist”.
The aim of new planning reforms he said is to hold developers to account and to reduce the factors that had made new developments so controversial. Beautiful homes, with infrastructure, democratic decision making and environmental enhancement would lead to the new homes and infrastructure the country needs.
But surely he is confused on this. On the one hand his concern is about “shoddy homes” faults and defects. On the other hand there is a separate concern about the aesthetic quality (or otherwise) of new housing. Is it beautiful?
There can be little quarrel with the concern about the quality of the new homes. A new home, like a new car, new washing machine, new laptop or any other new item should be fault free. The excellent NHBC scheme for rectifying faults notified in the first two years and guaranteeing structure for ten years should be unnecessary. Of course, it performs a useful function of probably reducing the number and seriousness of faults and defects. But the planning system is not about faults, defects and shoddy building and it is not going to be possible to call in an application because the builder didn’t know how to connect the bathroom plumbing properly or how to install the sliding windows (two real examples from an NHBC snagging list on a newly built home). By then, it will be too late.
So what about the aesthetic quality. Aesthetic quality is something I strongly support and greatly desire, and it is undoubtedly true that the volume housebuilders rely heavily on pattern books (or standard designs). But beauty is in the eye of the beholder. In other words we all have different ideas about what is beautiful. Is the Mona Lisa beautiful? Yes, it is a beautiful painting, skilfully executed, but is she beautiful? People differ on the answer to that question. What I think is a beautiful house or development may not be what you think is beautiful.
I think also that we must acknowledge that the pattern book could deliver something beautiful. Many of us like Victorian houses and Victorian streets, almost all derived from pattern books. The current objections I think are to the use of the same patterns in different parts of the country and in different circumstances. Which brings us to that phrase “not in keeping”. It is a phrase which has fascinated me for many years. It is often used, like “overdevelopment” and “not sustainable” as a way to object to something new. I have never seen any definition of “keeping” in this context and usage suggests it means something like “development which looks different from what is there already”. That cannot be a good test for acceptable design. If it were, we’d all still be living in caves.
So how do we define “beauty” in new housing? For example, Nicholas Boys Smith and the Create Streets group he founded seem to rely heavily on what local people think looks good. But my concern about that is that it will stop new and innovative designs. The Georgian window was an innovation when introduced. Its lovely proportions are the product of the then cutting edge of technology. The panes are the largest piece of transparent glass which could then be produced. Will future candidates for “Grand Designs” be limited to isolated houses in the country?
Michael Gove also wants to go for local opinion, taking the view that planning applications for new homes will be acceptable to local residents if it is understood they will be beautiful. But opinions about what looks good often change over time. I also think that it is unlikely that simply ensuring that new housing is “beautiful” and is thought to be so by local residents will make new housing developments acceptable to them.
Yes let us strive for elegant housing, for good mannered design, but let us not thereby stifle innovative and even unpopular design, and let us not kid ourselves that the way to get support for new housing is to make it beautiful
On 25th October, the Supreme Court handed down its judgment in this case. It was a single judgment, given by Lord Hodge, with whom the other four Justices all agreed without giving judgments of their own. Whilst the other Justices included Lord Neuberger and Lady Hale, they did not include Lord Carnwath who is the most senior planning judge in the country. The judgment revisits and re-opens the law on what a s.106 (or s.75 of the Town and Country Planning (Scotland) Act 1997) agreement can do, and in my view proceeds on an important misunderstanding.
The problem being litigated was a requirement by Aberdeen that Elsick contribute a levy or “roof tax” which would be pooled with contributions from other developments and used to provide desirable infrastructure. However, the link between Elsick’s development and the infrastructure was de minimis or trivial.
The policy justification for demanding the contributions was to be found in three documents; a Cumulative Transport Appraisal, Strategic Development Plan and Supplementary Guidance which amended the Strategic Development Plan. The first instance Scottish Court had looked at these. The Supreme Court noted that it had found as a fact that in the un-amended CTA and SDP “many of the planned developments had no impact at all on several of the proposed infrastructure interventions. It added: “[t]his applies to both Elsick and Blackdog relative to a number of the interventions. In respect of others the impact is de minimis “. The Supreme Court also recorded that the first instance Court “also upheld Elsick’s submission that there was no rational basis for relying on [the amendments made by] the SG … to support the contention that a particular intervention was made necessary by reason of either a particular development or the cumulative effect of it along with other developments”.
What did the Supreme Court decide?
It held the s.75 agreement was unlawful for two separate reasons. It concluded:
“61 First, the requirement imposed on a developer to contribute to the pooled Fund, which is to finance the transport infrastructure needed to make acceptable all of the developments which the development plan promotes, entails the use of a developer’s contribution on infrastructure with which its development has no more than a trivial connection and thus is not imposed for a purpose in relation to the development and use of the burdened site as section 75 requires.
62 Further, the Council did not include any provision in the planning obligation restricting the development of the Elsick site until a contribution was made. Instead it resolved to grant planning permission for the development but to issue that permission only once Elsick had entered into the obligation. The planning obligation was therefore neither restricting nor regulating the development of the Elsick site and so was outside the ambit of section 75 .
63 Secondly, Tesco (above) establishes that for a planning obligation, which is to contribute funding, to be a material consideration in the decision to grant planning permission, there must be more than a trivial connection between the development and the intervention or interventions which the proposed contribution will fund. The planning obligation which Elsick entered into could not be a relevant consideration in the grant of the planning permission. In my view, it was not within the power of the planning authority to require a developer to enter into such an obligation which would be irrelevant to its application for permission as a precondition of the grant of that permission.”
This led the Supreme Court to add, with its concluding paragraph: “If planning authorities in Scotland wish to establish a local development land levy in order to facilitate development, legislation is needed to empower them to do so”.
Where did the Supreme Court go wrong?
I have no issue with paragraph 63. Indeed that is the right analysis. If a planning obligation is to be taken into account it must be a material consideration Tesco ([1995] 1 WLR 759) established that the legal threshold for materiality is that the consideration must be more than de minimis. As these considerations were de minimis in some cases and not material at all in others they could not be taken into account. The case could have been dealt with on that basis alone and achieved the same outcome.
What is wrong is to state that the test for the validity of a planning obligation is that it must have a more than trivial connection and be imposed for a planning purpose. The authority which the SC uses for this is Good v. Epping Forest, a Court of Appeal judgment, the judgment of Beldam LJ in Tesco in the Court of Appeal and the apparent approval of Lord Hoffman commenting on Good v. Epping Forest when Tesco reached the House of Lords.
Why is this wrong?
It is wrong because neither section 75 of the Scottish Act nor section 106 in England make the grant of a planning permission a prerequisite for entry into a s.75/106 agreement. Whilst it is rare for one to be entered into without an accompanying planning permission, it is perfectly possible and lawful. So in those circumstances there would be no permission to which there could be a connection or purpose, trivial, planning or otherwise. Indeed Lord Hodge recognises this at para 38 of his judgment:
“The express words of section 75 require a relationship between the planning obligation and the land to be burdened by the obligation because the obligation must in some way restrict or regulate the development or the use of that land. But those restrictions or regulation do not necessarily relate to a particular permitted development on the burdened land. A planning obligation may prohibit the development of the land in a particular way or the use of the land for particular purposes. A planning obligation may keep the burdened land free from any development and may be entered into in circumstances which are not connected with any planning application” (emphasis added).
But then he goes on to ask the question (para 42):
“[C]an a restriction or regulation of a site be imposed in the form of a negative suspensive planning obligation, analogous to the negative suspensive planning condition in the Grampian Regional Council case, for a purpose which does not relate to the development or use of the site? In particular, is it lawful by planning obligation to restrict the commencement of the development of a site until the developer undertakes to make a financial contribution towards infrastructure which is unconnected to the development of the site?”
He answers this with a firm “no” – see paragraphs 42 and 43 of the judgment.
Lord Hodge argues for his position as follows(para 44):
“A planning obligation, which required as a pre-condition for commencing development that a developer pay a financial contribution for a purpose which did not relate to the burdened land, could be said to restrict the development of the site, but it would also be unlawful. Were such a restriction lawful, a planning authority could use a planning obligation in the context of an application for planning permission to extract from a developer benefits for the community which were wholly unconnected with the proposed development, thereby undermining the obligation on the planning authority to determine the application on its merits.”
But this is not right. The reason the planning authority could not demand that, is that it would not be a material consideration.
The better position was expressed by Lord Keith in Tesco:
“An offered planning obligation which has nothing to do with the proposed development, apart from the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it.”
So Lord Keith clearly contemplates valid planning obligations which are not material considerations. Whilst we are considering Lord Keith’s judgment, it is worth noting that Lord Hoffman agreed with it, as did all the other members of the House of Lords.
But Lord Hoffman does not actually support Lord Hodge’s argument. Whilst Lord Hodge sets out the following sentence from Lord Hoffman:
“The vires of planning obligations depends entirely upon the terms of section 106 . This does not require that the planning obligation should relate to any particular development. As the Court of Appeal held in Good v. Epping Forest District Council [1994] 1 W.L.R. 376 , the only tests for the validity of a planning obligation outside the express terms of section 106 are that it must be for a planning purpose and not Wednesbury unreasonable”
he omits these statements which surround it:
“First, the Newbury case was concerned with the validity of a condition and there is a temptation to regard a planning obligation as analogous to a condition. But section 70(2) does not apply to planning obligations. The vires of planning obligations depends entirely upon the terms of section 106 . This does not require that the planning obligation should relate to any particular development.”
“Of course it is normal for a planning obligation to be undertaken or offered in connection with an application for planning permission and to be expressed as conditional upon the grant of that permission. But once the condition has been satisfied, the planning obligation becomes binding and cannot be challenged by the developer or his successor in title on the ground that it lacked a sufficient nexus with the proposed development.”
“Thirdly, while Newbury is a convenient judicial paraphrase of the effect of section 70(2), it cannot be substituted for the words of the statute. The principal questions in a case like this must always be whether the planning obligation was a “material consideration” and whether the planning authority had regard to it.”
We see from Lord Hoffman’s analysis that a planning obligation cannot be challenged once the precondition – grant of permission for example – is met. He says it “cannot be challenged by the developer or his successor in title on the ground that it lacked a sufficient nexus with the proposed development”. That means that the obligation is valid despite any failure to pass the Newbury tests. They are simply a paraphrase of s.70(2) which is of course the requirement to have regard only to material considerations, the development plan and (today) local finance considerations, in each case, so far as material.
Lord Hodge relies heavily on Newbury and his first section is on the tests for the validity of conditions.
We perhaps need to take into account that s.75 of the Scottish Act is in different terms than the English s.106.
The relevant part of s. 75 read as follows:
“75 Planning obligations
(1) A person may, in respect of land in the district of a planning authority—
(a) by agreement with that authority, or
(b) unilaterally,
enter into an obligation (referred to in this section and in sections 75A to 75C as a “planning obligation”) restricting or regulating the development or use of the land, either permanently or during such period as may be specified in the instrument by which the obligation is entered into (referred to in this section and in those sections as the “relevant instrument”).
(2) Without prejudice to the generality of subsection (1), the reference in that subsection to restricting or regulating the development or use of land includes—
(a) requiring operations or activities specified in the relevant instrument to be carried out in, on, under or over the land, or
(b) requiring the land to be used in a way so specified.
(3) A planning obligation may—
(a) be unconditional or subject to conditions,
(b) require the payment—
(i) of a specified amount or an amount determined in accordance with the relevant instrument, or
(ii) of periodical sums either indefinitely or for such period as may be specified in that instrument, and …”
Whereas in England s.106 allows planning obligations (a) to restrict the development or use of the land in any specified way;(b) to require specified operations or activities; (c) to require use in any specified way; or; (d) to require the payment of money.
The difference is that in England there are four available functions for a planning obligation. In Scotland there are only three. To achieve the fourth, payment of money, in Scotland there must be a planning obligation meeting one of the first three functions, to which the payment of money can then be added.
The Supreme Court confirmed that s.75(1) means that to be a planning obligation the promise must restrict or regulate the development or use of the land, and that a mere promise to pay, which did not also restrict or regulate the development would not qualify. So a simple promise to pay on a particular day is not in itself a planning obligation in Scotland. To turn it into a planning obligation, there must be a restriction, such as “no development shall take place until the sum of £x has been paid to the planning authority”. (The legislation also contemplates a planning obligation “regulating” the development, though what that might be is difficult to conceive, at least for this issue.)
So the Supreme Court was able to conclude that the promise to pay was not a planning obligation at all because it did not restrict or regulate the development – see para 62 of Lord Hodge’s judgment. This would have been sufficient to dispose of the case. But the wording of s.75 should not have driven the Supreme Court to hold that planning obligations must always have a more than trivial connection with the development.
Why is this important? After all, it is unusual for a planning obligation to be entered into without an accompanying planning permission. It is important because that is a possibility. It is important because it is sensible to have the right understanding of the law, or further misunderstandings may arise. It is important because there are already many misunderstandings about planning obligations arising from loose language. And it is important because of the final paragraph of the Supreme Court’s decision where they state that:
“If planning authorities in Scotland wish to establish a local development land levy in order to facilitate development, legislation is needed to empower them to do so”
That is not correct. And it is unfortunate because drawing on that, it is being said that a development levy cannot be done under section 106/75. Of course it is easier with a specific power. But the constraint on a local development levy is that it must be a material consideration for the decision whether or not to grant planning permission. If it is, it seems to me that s.75 can be used to secure it.
Hello. It has been a year since I last posted and some may have been wondering where I have been. Nothing sinister, but amongst other things I was applying to become an Examining Inspector, that is, one of the Planning Inspectors dealing with applications for permission for Nationally Significant Infrastructure Projects (or NSIPs) under the Planning Act 2008. I am delighted to say that I was successful and am now on the panel of Examining Inspectors. All we need now is a few more applications. Nuclear power stations, highways schemes and third runways are at the high octane end of the diet of the NSIP regime. Keen readers of the Infrastructure Planning website (https://infrastructure.planninginspectorate.gov.uk/ ) will have noted that while there were 13 applications for NSIPs in 2015, there were four in 2016 and so far none in 2017. Students of politics and economics may wish to draw conclusions. Your insights and comments on this blog will be welcomed.
Since my last post there have been many developments in planning law and policy, including of course the White Paper this year and report on the operation of CIL. We have also seen the Housing and Planning Act 2016 which gives the legislative basis for, among other things, Permission in Principle. I suspect that many of us, when we heard about it, thought, “that’s what outline permission used to be about” and indeed the proliferation of requirements such as design and access statements, parameters plans and local lists of supporting documents has made that process cumbersome. So, probably in response to housing industry lobbying, the “permission in principle”, or PiP has been created.
A PiP is for housing led development. Development orders can provide for PiPs to be contained in a development order, in which case they can only be for development of a prescribed description on land allocated in a qualifying document, or for PiPs to be granted by a local planning authority following an application in accordance with the development order, in which case it must be for development of a “prescribed description”. Once a PiP is granted, technical details consent (TDC) is needed to flesh out the principle. Greybeard planning professionals will not be surprised to learn that the details in an application for TDC are “all matters necessary to enable planning permission to be granted without any reservations of the kind referred to in section 92”, that is, reserved matters.
Now, one of the curious things about PiPs is that the PiP itself is not a planning permission. In case there is any doubt about this, not only has the Town and Country Planning Act 1990 been amended to include the phrase “permission in principle” alongside “planning permission” in several places, the definition section, s.336, specifically says “”planning permission” means permission under Part III or section 293A but does not include permission in principle”. However, an application for technical details consent (TDC) is an application for planning permission see s.70(2ZZB). This distinction is important, because there are things which flow only from being a planning permission.
The PiP legislation has provided from the outset that a PiP can be revoked or modified by the local planning authority. It did this by adding PiPs to planning permissions in the revocation section, s.97. It is the norm to pay compensation when a planning permission is revoked or modified, and s.107 is the lead section. So the PiP legislation provided for compensation but it differentiated between the two types of PiP. When a Pip granted by a local planning authority under a development order is revoked or modified, s.107(1) says compensation is payable. But in the case of a PiP granted by the development order we must look to the terms of the order itself to discover if and what compensation is payable. I don’t know why there should be a difference. It becomes obvious that care is needed here and that there are traps for the unwary.
But assuming we are dealing with a PiP granted by a local planning authority under a development order, we are thinking that it is a bankable proposition, because if revoked or modified, compensation is payable. That, it seems to me, is an error, because for compensation to be payable there must be loss. And now we must turn to s.75 of the Town and Country Planning Act 1990. This section says that “Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it”. Because permission therefore runs with the land, we can rely on it. Revocation will create a loss for which compensation is payable. And persons deriving title can rely on it. So a landowner can obtain permission for development, and sell to a developer who can build the development, who can obtain finance from a bank for the development. But s.75 only applies to a “planning permission”. And because a PiP is not a planning permission, the PiP does not run with the land. The developer who buys does not have the benefit.
But help is at hand. For Parliament has approved the Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017, which will come into force on Monday 27th March 2017, and will add permissions in principle to planning permission in s.75. But we will still need to distinguish between PiPs granted by a development order and PiPs granted under a development order.
The Regulations also cure an anomaly in s.100. The Secretary of State’s power to revoke or modify planning permissions is extended to PiPs from Monday 27th March.
There are a couple of other tidyings-up being done on Monday. We should commend Government and DCLG for dealing with these things, and encourage them to deal with some of the others which are out there.
It took His Honour Judge Sycamore just nine paragraphs to find that a clause preventing landowners from applying for parking permits was not within s.106 of the Town and Country Planning Act 1990. And just one further sentence to quash the planning permission to which the s.106 agreement related.
The case is R (oao Khodari) v. The Royal London Borough Council of Kensington and Chelsea, reported at [2015] EWHC 4084. decided on 18th November 2015. It was less than three years earlier that the same point came up, with the same result, in Westminster City Council v. Secretary of State. I posted about it here.
Why does this happen? Well, s.106 says that to be a planning obligation a promise must be within the categories in s.106(1), which are:
(a) restricting the development or use of the land in any specified way;
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically.
How is a promise not to apply for a car-parking permit within any of those? It isn’t. But s.106 does not need to be this restrictive. Before 1991, it was wider. As I wrote in my post on Westminster: “It is over 10 years since I raised points like these in “Planning obligations, ideas for reform” and the Law Society’s Planning and Environmental Law committee has raised them several times, recently urging the Government to include reform in the latest planning bill. But DCLG and its predecessors resolutely refuse to address the problem. Their current view is that planning authorities and applicants should get proper advice, and if they make mistakes that is their own look-out.” Nothing has changed. Except that it is now 13 years since I wrote that article in the Journal of Planning Law.
The costs claim against Kensington and Chelsea in the latest case was £28,000. And of course the planning permission is also lost. Will DCLG amend s.106 to make the drafting of s.106 agreements less of a hazard?
Writing in The Sunday Times on 10th January, the Prime Minister said “I’ve put the bulldozing of sink estates at the heart of turnaround Britain”. He claimed that housing estates bring together “deep social problems – the blocked opportunity, poor parenting, addiction and mental health problems — that mean so many are unable to fulfil their potential”.
Trellick Tower
He has post-war estates in his sights, especially brutalist and high-rise architecture, claiming that they are entrenching poverty. And he went on to say that 75% of those convicted in the 2011 riots came from post-war estates.
Now there are certainly some unpleasant places to live and there are schemes to transform estates. Oddly enough, the scheme to transform Woodberry Down includes a number of tower blocks of flats, but which are for private ownership. But there is huge social dislocation in demolishing entire streets or apartment blocks. Communities which have formed are scattered and need to re-establish. The post-war estates were partly to re-house those whose houses had been destroyed during the war, but later, and into the 1970s, there was an entirely well-intentioned policy of clearing housing which was declared “unfit for human habitation” and replacing it with modern homes. Communities were split up and then re-housed in new council housing estates. From 1967 onwards these had to meet Parker-Morris space standards and some built before then were at that standard or above. Le Corbusier, operating in Europe, had considerable influence on building decent sized homes, and spacious local authority homes based on his Modulor were built in this country as early as the 1950s.
In contrast, the homes of today are small and fail by some margin to meet the space standards of post-war housing. The architectural commentator Owen Hatherley, writing in The Guardian two years ago pointed out that “The average family home is now 96.8 sq m rather than 98.8 sq m a decade ago, or 153 sq m in the 1920s”.
Inside a flat at Trellick Tower
But observation suggests that a major factor in the quality of life is people. Trellick Tower, an examplar of Brutalism if ever there was one, designed by Erno Goldfinger, has now become highly desirable for some. It has even been listed at Grade II*. Le Corbusier’s Unité d’Habitation in Marseilles, once a very grubby building (I know, I visited it in the early 1970s) is now popular with young professionals and media-types, and it looks good today. Margaret Thatcher knew about this and one of the drivers for the right to buy was that owners of property tend to look after it better than renters.
In an earlier housing announcement, during the election campaign, the Conservatives pledged to extend the right to
The view over London from Trellick Tower
buy to housing association tenants. But will tenants not think twice when they consider that if things don’t go according to plan and their estate ends up in poor shape, with petty criminals living there, they might be in for the same fate? (Much of our social housing is now in the hands of housing associations, where local authorities were effectively compelled to transfer it by previous governments.) What also of those who have already exercised their right to buy their council house or flat and now find that Mr Cameron has their estate in his sights?
Can we really say that re-housing people will be the answer to blocked opportunity, poor parenting, addiction and mental health problems? We must look after our social housing properly. Repairs and renewals will be needed for the new housing the Prime Minister is proposing.
And where does he imagine the 75% convicted in the 2011 riots are going to live when their “sink estates” are demolished? Why, we shall find them in the new housing of the 21st century.
In a tear-jerker Victorian ballad, the American minstrel Paul Dresser narrated how a soldier-boy was to be shot at dawn for desertion after his dying mother called for him. “When the truth at last was known, his innocence at once was shown; To save from such an unjust fate, A pardon sent, but ‘twas too late!” The awful deed was done and the boy sent “into the arms of his Maker”.
But in the world of environmental assessment it seems that the late arrival of an important document may not always be so fatal.
In R (oao Silke Roskilly) v. Cornwall County Council [2015] EWHC 3711 an application was made for planning permission for some buildings to allow the restart of mineral extraction at Dean Quarry on the Lizard Peninsula. There was no environmental assessment and the Council gave a screening direction that one was not needed. This is not as surprising as it might sound as the conditions on the quarrying permission had been revised under the ROMP procedure in the Environment Act 1995. However, an objector– Silke Roskilly – had, between the council’s screening opinion and the grant of permission, applied to the Secretary of State for his screening opinion. Regulation 4(8) allows any person to seek screening from the Secretary of State.
Cornwall proceeded to grant the permission without waiting for the Secretary of State’s opinion. When it came through, he decided the development did indeed require an environmental statement. As there is a prohibition on granting planning permission for EIA development without taking the “environmental information” into account, the objector challenged the grant of planning permission.
The developer and Council countered that at the time the decision was taken it was lawful – there was a valid screening opinion of the Council that the planning application was not for EIA development. Nonetheless Mr Justice Dove decided that the later issue of the Secretary of State’s screening opinion meant that the permission was invalid and he quashed it. (He also held that it was irrational for Cornwall not to have waited for the Secretary of State’s opinion, and quashed on that ground as well.)
What is this going to mean in practice? Not only is there no limit on who can seek a screening opinion from the Secretary of State, there also seems to be no time limit. So could one be sought right up to the grant of permission? That would effectively allow objectors to delay the decision considerably whilst waiting for the Secretary of State, especially as Mr Justice Dove held that failure to wait for the Secretary of State’s screening opinion was in that case irrational.
Could one be sought after the permission has been granted? In a slightly confused paragraph 40 Mr Justice Dove seems to entertain this even as he dismisses it, saying “Of course, there will come a time after the grant of planning permission when no screening direction has been requested when that consent is immune for Judicial Review as a result of the passage of time and therefore no purpose could be served by seeking a screening direction from the Secretary of State”. But the reasoning there is not so strong. Whilst the six week period for judicial review may pass, that does not make the permission wholly immune from challenge. In the first place, there is a discretion to extend the JR period (which Mr Justice Dove had to exercise himself in that case, and which he has exercised before in Gerber v Wiltshire Council [2015] EWHC 524). Secondly, validity can sometimes be raised in a collateral challenge. So for example, if the applicant sought to make a s.73 application for permission to develop without complying with conditions subject to which a previous permission was granted, the validity of the previous permission might come under scrutiny, and if successful that would remove the basis of the s.73 application.
The BBC and The Times are today carrying stories that 10 Downing Street is again postponing a decision on whether to proceed with a new runway at Heathrow. People will remember that early in the Coalition Government Sir Howard Davies was asked to lead The Airports Commission, charged with reporting in the summer of 2015 (after the May 2015 General Election) on where to put a new runway. It duly reported on 1st July, recommending a third runway at Heathrow, but a decision on the matter was immediately postponed by the Prime Minister, David Cameron, albeit with a promise that it would come out before the end of 2015. Now, it is postponed again. It’s difficult to work out the reason, but putting cynicism aside, it may be for more environmental work to be done amid issues on air quality.
Cynics and political opponents say that it has more to do with the Mayoral elections in London where Zac Goldsmith, the Conservative candidate, opposes a third runway at Heathrow; the election is next May. And we should note in passing that Nick Clegg, the erstwhile leader of the Liberal party and former Deputy Prime Minister in the Coalition Government, writing in The Evening Standard last week said that all the logic points to Gatwick.
As time passes, this decision becomes more, not less difficult to take. Why? Because as time moves on, things change. It is not as though Sir Howard Davies and his fellow commissioners ignored environmental issues. Their full terms of reference are too wordy by far to bear repetition here, but they include the following: “The Commission should base the recommendations in its Final Report on a detailed consideration of the case for each of the credible options. This should include the development or examination of detailed business cases and environmental assessments for each option, as well as consideration of their operational, commercial and technical viability”. They were expressly required to carry out environmental assessment. (As if anyone in the United Kingdom would make a recommendation for a new runway without doing that.) The Commission was established ostensibly to look dispassionately and objectively at all the issues, including economics, and come up with a recommendation. It took environmental factors into account. If we now send the issue off to look only at environmental factors (already addressed by the Commission) then we send it off to what Bernard Levin over thirty years ago called “the single issue fanatics”. Surely the point of the Airports Commission was that it was to look at matters in the round, and make a balanced recommendation. (Which is why it is disingenuous of Nick Clegg to claim that the logic all points to Gatwick.)
Or is Number 10 saying that Sir Howard and his fellow commissioners forgot the environmental part of their brief?
Sir Howard Davies
I would be surprised. Their report is 344 pages long and the Environmental Assessment section is over ten per cent of that. Not even a moron in a hurry (to re-use another phrase from the 80s) could forget that. Or is the problem that something else has come up? For example, in October, Clean Air London published the opinion of Robert McCracken QC about the Air Quality Directive. The argument is that since the UK is in admitted breach of the Directive and the Treaty on the Functioning of the EU requires Member States to refrain any measure that would jeopardise the attainment of the Union’s objectives, any planning consent which would worsen the existing position in the locality or cause a new breach should not be issued. If that is an influential factor in Number 10’s approach, then first, Robert Mc Cracken QC and Clean Air London should be very pleased with their reach. But second, we see the results of prevarication.
What is actually happening here? It seems to me that the truth is that politicians are simply unwilling to take the decision. When I was a young assistant solicitor at Herbert Smith, Andrew Congreve, then the head of the property department, reminded us that whilst there is moral good in making a good decision, there is a moral good just in making a decision. Prevarication simply creates problems. Things change. It creates uncertainty. And with uncertainty, other decisions become more difficult. Paradoxically, it is better to take even the wrong decision than not to decide. But it is unlikely that The Airports Commission made the wrong recommendation. Not after expenditure of £20 million or so on their work.
The other paradox is that the Government knows this. Less than three months ago I wrote on this blog about the Treasury publication “Fixing the Foundations” that: ‘“Fixing the Foundations describes [the problem] like this: “Previous studies have found that the country’s planning system –where development proposals require individual planning permission and are subject to detailed and discretionary scrutiny –can create the sort of “slow, expensive and uncertain process” that reduces the appetite to build.” Government is now committed to removing all unnecessary obstacles to the redevelopment of brownfield land, “including these sorts of planning obstacles”’. But it is not committed to doing that when it comes to airports. We should recognise that we are not yet at the planning application stage on the airport capacity issue. The Government is simply struggling even to formulate a policy on where the capacity should be increased. When (if?) the application comes forward it will be exhaustively scrutinised under either the Development Consent Order process of the Planning Act 2008 or a Hybrid Bill, which will of course and quite properly require environmental assessment. Under Labour’s Planning Act 2008 – as amended by the Coalition Government – the final decision lies with the Secretary of State. In the original (Labour Government) form of that Act, once the policy was set, the decision was out of politicians’ hands. Instead, the Infrastructure
Heathrow Terminal 5
Planning Commission had the final say, meaning that the final decision lay with technocrats rather than democrats. That Act was the product of political exasperation with the three and a half year public inquiry into Heathrow’s Terminal Five. But the real reason the T5 inquiry took so long was the absence and then change of Government policy.
It is a rich and sad irony that the Government still cannot make the necessary airports policy. The technocrat approach passed the buck. Responsibility for these most controversial of decisions which impinge on the day to day lives of thousands should lie with politicians, the democratic approach in other words. But that requires politicians willing to take unpopular decisions in what they honestly believe to be the public good. Are the democrats up to the job?
I have been wondering for some time whether there is something other than increasing the supply of planning permissions which is needed to address the housing shortage and affordability. The Government has pledged to construct 1,000,000 houses during the life of this Parliament, by 2020 therefore. They also pledge 200,000 Starter Homes in the same period. That sounds positive, but Governments do not actually build houses any more. That is almost exclusively the function of the private sector.
The Government also points to the rise in numbers of dwellings granted permission last year (242,000 in the year to June 2015) and 170,690 net additional dwellings in 2014-15, a rise of 25% over the previous year. These are significant rises. But there is some way to go to reach the target of 200,000 per annum. In addition, house price inflation is running at 10% p.a. (for the year to October 2015 – see the FT on 5th November quoting the Halifax/Savills survey released on 29th October), and estate agents routinely announce, trumpet even, that there are nine buyers chasing each dwelling for sale in some areas. Housing is becoming less and less affordable. Between the first quarter of 1989 and the third quarter of 2015 first time buyer house prices in the UK as a whole have risen from 3.8 times average wages to 5.1 times. In London they have risen from 5.6 times to 9.6 times (source, Nationwide). The problem even applies to the new Starter Homes initiative. A couple, both on an average salary would struggle to buy one in 90% of all council areas in the South-East according to Savills’ research quoted by Anne Ashworth in The Times yesterday.
What has triggered my thinking is observing the way large housing sites are actually built and sold. Whilst there are sites with permission for sometimes thousands of houses, not all the houses come forward at the same time. Now of course there are practical construction reasons why the developments are phased. One can’t have too many developers at work simultaneously – there would be clashes between machinery, deliveries and construction programmes. In addition, the on-site infrastructure needs to be installed, and to keep up front costs under control that will be phased as well. The BBC Today programme however ran a piece on 3rd November 2015 pointing out that at Ebbsfleet there has been a planning permission for 15,000 dwellings for some years yet since construction began in 2007 only 350 dwellings have been built. (See this link for further details.) Now the banking crisis has of course intervened, but even so this is a remarkably slow rate of delivery, explained by the industry by reference to the cost of site preparation. That is odd, as the site preparation costs would normally have been estimated and allowed for in the original proposal.
Recently, figures about the decline of the small and medium sized house-builder have been getting some publicity. The Lyons Housing Review highlighted that whilst in the 1980s there were 10,000 active SME builders who between the delivered about 57% of housing, in 2013 there were only 2,800, producing 27%. Matthew Parris, writing in The Times on 14th November championed small housebuilders. Having first observed that “We face a crisis on housing. We need a lot more, fast. And something seems to be blocking what you might call the elasticity of the housebuilding industry’s response to a huge and compelling increase in demand. Demand soars, need screams, profit beckons, but supply still creeps. There appears to be a stickiness in the system. The latest figures show housebuilding substantially up. Good. But it needs to soar.” He went on to suggest that the small housebuilders have a role to play in doing smaller developments which, he said, do not attract the volume housebuilders as their business models demand the economies of scale offered by large sites. Parris attributes the decline in SME builders to their credit having dried up and his suggestion is for Government credit guarantees to be offered.
But I wonder if there is another way in which housebuilders, small and large, could help to increase supply, rate of build and affordability, namely by being more numerous. 75% of new housing is delivered by the volume housebuilders. That is between six and ten companies, depending on where you go for your definition. Which is a very small number of players controlling their delivery. The trick in marketing new houses is of course to bring them onto the market at slightly less than the rate of demand. If the rate of delivery exceeds demand, prices will fall. But with only ten major players in the market, there is not so much competition. One way to increase competition would be to split up the current volume housebuilders into smaller entities. If there were more players, there would be more competition, which normally drives down prices in a combination of more supply and more players competing for purchasers.
Whilst the Government is doubtless very reluctant to see house prices drop, the current rate of increase is highly problematic. Furthermore, the increased numbers of houses being permitted does not seem to be addressing the issue. The Office of Fair Trading studied the industry in 2008 (Homebuilding in the UK: A market study, September 2008, Office of Fair Trading) and concluded there was little evidence of competition problems or ability to restrict prices. Whilst I would not argue against granting more permissions, the problem is moving to getting those permissions built out, and it would seem sensible to review the OFT’s 2008 conclusion. A review of the competitiveness of the new housing market by the newly established Competition and Markets Authority would be the first step.
Today’s Times carries an extract form Bill Bryson’s new book “The Road to Little Dribbling; More Notes From a Small Island”. Under the headline “We ought to be appalled to see what is happening to the green belt”, the extract is a paean for the retention of the green belt. But it slips between green belt and green field, almost equating the two and fails to maintain the important distinction. It lists the benefits of the green belt, but fails to note the problems – such as increased journey times, air pollution, and the creation of a belt beyond the belt of highly priced rural properties, in ideal commuting locations.
And Bryson adds to the mythology of the undoubtedly beneficial green belts by claiming, erroneously, that “The notion of green belts was enshrined in the 1947 Town and Country Planning Act”. It was not. The first green belt, around London, was created under the Green Belt (London and Home Counties) Act 1938. Apart from that, the basis for green belts is entirely in policy, which, unlike legislation, can be changed by policy makers. Unlike the laws of the Medes and the Persians, green belts can be repealed, or changed. We don’t have to go back to King Darius and Daniel in the Lion’s Den (read Daniel, Chapter 6 if you want to see the unfortunate consequences) to see how undesirable it is to make things immutable.
