The Planning & Environment Group Present
Annual Planning Seminar
Monday 3rd April 2017 International Convention Centre, Birmingham 4 Learning Hours
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Chief Executive & Director of Clerking Tony McDaid Senior Practice Manager Andrew Bisbey Practice Group Clerks Craig Wain & Mitchell Nash Tel: +44 (0) 845 210 5555 Email: [email protected]
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Annual Planning Seminar Monday 3rd April 2017 International Convention Centre, Birmingham
Contents
Section 1 Members List Programme
Section 2 Is the Housing White Paper really ‘fit for purpose'? Hugh Richards, Satnam Choongh & Peter Goatley, No5 Barristers’ Chambers
Section 3 Strategic Planning in City Regions James Corbet Burcher & Chris Young, No5 Barristers’ Chambers
Section 4 The European Dimension Thea Osmund-Smith, Paul Cairnes QC & Richard Humphreys QC, No5 Barristers’ Chambers
Section 5 NSIP Development Celina Colquhoun, No5 Barristers’ Chambers
Section 6 Legal Update Richard Kimblin QC & Scott Stemp, No5 Barristers’ Chambers
Members list Planning & Environment To view or download members CVs please visit www.No5.com
Jeremy Cahill QC - Head of Group Jack Smyth (2007) (Silk: 2002 Call: 1975) Leanne Buckley-Thompson (2009) Martin Kingston QC (Silk: 1992 Call: 1972) Hashi Mohamed (2010) Paul Bleasdale QC (Silk: 2001 Call: 1978) Thea Osmund Smith (2010) Clive Newberry QC (Silk: 1993 Call: 1978) James Corbet Burcher (2011) Paul Cairnes QC (Silk 2016 Call: 1980) Nina Pindham (2012) Richard Humphreys QC (Silk: 2006 Call: 1986) Christian Hawley (2013) Douglas Armstrong QC (Silk: 2005 Call: 1990) * Howard Leithead (2014) Richard Kimblin QC (Silk: 2016 Call: 1998) Timothy Jones (1975) Roger Dyer (1980) Nadia Sharif (1985) Kevin Leigh (1986) Celina Colquhoun (1990) Peter Goatley (1992) Hugh Richards (1992) Satnam Choongh (1994) Tim Sheppard (1995) Christopher Young (1997) Scott Stemp (2000) Jenny Wigley (2000) Suella Fernandes MP (2005) * Rowena Meager (2007)
Chief Executive & Director of Clerking Tony McDaid Senior Practice Manager Associate Tenant * Andrew Bisbey Practice Group Clerks Craig Wain & Mitchell Nash
Tel: +44 (0) 845 210 5555 Fax: +44 (0) 121 606 1501 Email: [email protected] No5 Chambers provides services on an equal opportunity basis
Annual Planning Seminar Monday 3rd April 2017 International Convention Centre, Birmingham
Programme 4 Learning Hours
09:30 – 10:00 Registration & Refreshments
10:00 – 10:10 Welcome and Introduction Peter Goatley, No5 Barristers’ Chambers
10:10 – 10:40 Keynote Address The Honourable Mr Justice Dove, A Judge of the Planning Court
10:40 – 11:00 Will it end ‘log-jams’ in the plan making process? Hugh Richards, No5 Barristers’ Chambers
11:00 – 11:20 Will it result in a faster and better planning application process? Satnam Choongh, No5 Barristers’ Chambers
11:20 – 11:40 Will it make housing delivery more certain? Peter Goatley, No5 Barristers’ Chambers
11:40 – 12:00 Refreshment Break
12:00 – 12:20 How can it effectively address the ‘larger than local’ issues? James Corbet Burcher, No5 Barristers’ Chambers 12:20 – 12:40 How can landowners/promoters effectively engage? Chris Young, No5 Barristers’ Chambers
12:40 – 12:50 Question & Answer Session
12:50 – 14:00 Lunch
14:00 – 14:20 Practical implications of forthcoming EIA Directive Amendments Thea Osmund-Smith, No5 Barristers’ Chambers
14:20 – 14:40 Air Quality Targets Paul Cairnes QC, No5 Barristers’ Chambers
14:40 – 15:00 The implications of Brexit for Environmental Regulations Richard Humphreys QC, No5 Barristers' Chambers
15:00 – 15:20 Are there real opportunities for other developments to ‘piggy-back’ onto NSIP development? Celina Colquhoun, No5 Barristers’ Chambers
15:20 – 15:50 Case Law and Legislation update Richard Kimblin QC & Scott Stemp, No5 Barristers’ Chambers
15:50 – 16:05 Question & Answer Session
16:05 Close
Hugh Richards Planning & Environment
Hugh Richards was called to the Bar having spent 12 years in the Army and read International Politics at the Universities of Wales (Aberystwyth) and California (Santa Barbara). His practice includes planning, environment and rights of way matters at inquiry and in the courts for developers, landowners, local authorities and government agencies. He has particular experience and expertise in housing, NSIP, energy, waste, development plan making, gypsy and travellers and ‘EIA Regulations’ issues. He also has a wider public law practice involving judicial review challenges to decisions of government and regulatory Year of Call: 1992 bodies. He talks regularly at seminars on variety of topics including ‘legal updates’, localism, energy and housing planning policy, Clerks development plan making, NSIPs, giving evidence at planning inquiries and gypsy and traveller issues. Senior Practice Manager Andrew Bisbey He is a school governor, military museum trustee and a keen amateur
actor and singer. He obtained planning permission to build his own Chief Executive & Director of house in the Green Belt. Clerking Tony McDaid His work includes:
Contact a Clerk Tel: +44 (0) 845 210 5555 Local Development Framework / Plan Making: • Landowner: housing allocations in Hertfordshire, Cheshire East, Fax: +44 (0) 121 606 1501 Sussex, Lichfield, Birmingham, Cardiff, Central Bedfordshire [email protected] • Developer: resisting allocations in minerals and waste local plan to prevent impact on housing site • Sedgmoor Core strategy: acting for LA in respect of policies relating to housing, employment land, roads, community facilities and planning obligations relating to the proposed new nuclear power station at Hinkley Point • Somerset authorities: SPD for new nuclear power station at Hinkley Point • Landowner: sustainable urban extension to Oxford • Developer: promoting new settlement of Northstowe in South Cambridgeshire Core Strategy, Area Action Plan and Development Control policies DPDs • West Midlands RSS Review: advised RPB • Leicestershire Minerals & Waste Core Strategy: advised LA • Derby City Local plan: advised LA • Solihull MBC: Local Plan, Gypsy and Traveller Core Strategy policies and site allocations DPD
Planning Applications / Development Management: • Residential: o Developer: schemes of up to 500 houses in Northamptonshire, Leicestershire, Staffordshire, Worcestershire, Warwickshire, Gloucestershire, Nottinghamshire, Cheshire, Berkshire, Solihull; small schemes in ‘back gardens’; barn conversions, extensions, agricultural dwellings, holiday caravan parks; o Local Authority: schemes of up to 5,000 houses in Derbyshire, Worcestershire, Wiltshire, Sussex, ; ‘live-work’ units in Warwickshire; rural/village extensions; o Issues included: ‘EIA Regulations’, ‘Habitats Regulations’ Appropriate Assessment, ‘5 Year Supply’; affordable housing; highways, contributions in planning obligations; world heritage site, conservation areas and listed buildings, AONB. • Care Homes / Villages: for developer in Gloucestershire, Derbyshire and Shropshire; • Retail: o Local Authority: Superstores in Worcestershire, Nottinghamshire, Cornwall; food store in Leicestershire. Out-of-town retail park in Northamptonshire. • Energy from Waste: EfW incinerators for Local Authority in Derbyshire, Shropshire and Leicestershire. For objectors in Hertfordshire (impact on important heritage assets) • Employment: offices in West Midlands, industrial units in Cheshire, multi-modal storage and distribution in Nottinghamshire and Derbyshire • Gypsies & Travellers: o For Local Authorities in Solihull (Meriden site).Warwickshire, Worcestershire, Staffordshire, Shropshire, Flintshire, Cheshire, Yorkshire, Wiltshire o For Gypsies & Travellers in the South West • Minerals: Quarries for developers in Staffordshire and Lincolnshire; ROMP applications. • Education: securing permission for a new school in the green belt.
Nationally Significant Infrastructure Projects • Hinkley Point C nuclear power station – Local authorities • Wylva nuclear power station – Local authority • Keuper underground gas storage – Local Authority • Trunk road alteration – Local authority.
Enforcement / Lawful use: • Gypsy and Traveller sites (as above) • Lawful use by ‘10 year rule’ and commencement of development authorised by planning permission. • Development in breach of condition (including ‘conditions precedent’)
High Court: • Judicial Review of grants of planning permission on grounds including: inadequate consultation, procedural unfairness, defects in EIA process (screening, scoping, content of ES), failure to identify and apply policies in the development plan, failure to consider material considerations, legality of conditions, defects in planning obligation procedure and content, adequacy of ‘summary reasons’ for the grant. • Judicial review of designation of conservation areas. • Injunctions – particularly relating to gypsies and travellers including those in the green belt. • Applications under s288 & s289 TCPA to quash appeal decisions relating to development management, lawful use and enforcement. • Applications under s113 to quash DPDs (or parts thereof).
Compulsory Purchase: • City centre regeneration in Birmingham - objector • Urban regeneration in Northampton - objector • Urban ring road in the Midlands - promoter • Large regeneration project in the South West - promoter • Town Centre regeneration in the Midlands – objectors • Road schemes in Staffordshire - promoter
Other: • Definitive Map modification • Town / Village Green registration • Vehicle Operators’ Licenses (before the Traffic Commissioner) • School Governance and Admissions
MEMBERSHIPS
Planning and Environment Bar Association.
RECOMMENDATIONS
He has been consistently recommended for Planning work in the Chambers UK Guide to the Legal Profession:
"He inspires confidence in his team and he will get right to the point in a case and get it across nicely and firmly. He just inspires confidence." "He is a forceful advocate and looks after his clients' interests very effectively." Chambers UK 2017
Commended by sources for his wide-ranging experience acting for all sides on planning matters. His instructions involve energy and infrastructure, waste and housing matters. "He is a committed advocate who is very good at talking things through. He gets into his cases, and often looks at things from different angles." "He acts with character: he is engaging, and it is stimulating to work with him. He will up the tempo in an inquiry. A very astute, experienced player." Chambers UK 2016
Receives praise for his extensive experience in planning and his clarity of advice. He is especially highly regarded for his handling of work relating to Traveller sites and in Local Development Framework matters. "He's a good strategist who provides solid, practical advice to lay clients." Chambers UK 2015
"He is an excellent advocate and definitely someone to have in your corner when there is a real fight." Chambers UK 2014
"In relation to Traveller sites" Hugh Richards "is very, very good" at dealing with all of the issues that can arise, say solicitors. His recent work in this area includes representing the local planning authority against a large Gypsy and Traveller site at Eaves Green Lane in Solihull, which sprang up over a bank holiday weekend. Chambers UK 2013
“A lawyer with extensive knowledge of town and country planning matters … He's always up to date and deals with cases in a strategically sensible way." Chambers & Partners 2011
“Earns praise for his extensive knowledge of town and country planning matters. He recently acted in a dispute over the redevelopment of industrial land for a care institution.” Chambers & Partners 2010
“He sees the big picture and gets to the heart of the matter” Chambers & Partners 2008
“Always easy to work with” Chambers & Partners 2007
“Distinguished on the grounds of his determined and work focused ethic” Chambers & Partners 2006
He consistently appears in the annual Planning Magazine list of ‘highest rated planning barristers’.
NOTABLE CASES
Milwood Land (Stafford) Ltd v Secretary of State for Communities and Local Government Queen's Bench Division District Registry (Birmingham), 30 June 2015 Keywords: Development plan documents; Greenfield sites; National Planning Policy Framework; Planning permission; Refusal; Residential development; Sustainable development Where Reported: [2015] EWHC 1836 (Admin);
R (on the application of Luton BC) v Central Bedfordshire Council Court of Appeal (Civil Division), 20 May 2015 Keywords: Alternative sites; Costs orders; Development plans; Green belt; Interested parties; National Planning Policy Framework; Planning permission; Special circumstances Where Reported: [2015] EWCA Civ 537; [2015] 2 P. & C.R. 19; [2015] J.P.L. 1132;
Wiltshire Council v Secretary of State for Communities and Local Government Queen's Bench Division (Administrative Court), 20 May 2015 Keywords: Declaratory orders; Error of law; Housing supply; Material considerations; Planning inspectors; Prejudice; Relief Where Reported: [2015] EWHC 1459 (Admin)
Wiltshire Council v Secretary of State for Communities and Local Government Queen's Bench Division (Administrative Court), 05 May 2015 Keywords: Fresh evidence; Housing supply; Material considerations; National Planning Policy Framework; Planning permission; Sustainable development Where Reported: [2015] EWHC 1261 (Admin)
BDW Trading Ltd (t/a David Wilson Homes (Central, Mercia and West Midlands)) v Secretary of State for Communities and Local Government Queen's Bench Division (Administrative Court), 01 April 2015 Keywords: Local development frameworks; Noise; Planning conditions; Planning inspectors; Planning permission; Reasons; Residential development; Road traffic Where Reported: [2015] EWHC 886 (Admin);
R (on the application of Luton BC) v Central Bedfordshire Council Queen's Bench Division (Administrative Court), 19 December 2014 Keywords: Development; Green belt; Local authorities' powers and duties; Planning permission; Planning policy Where Reported: [2014] EWHC 4325 (Admin) Housing White Paper – Will it end the log-jam in the plan-making process?
Introduction
1. In a plan-led system such as ours, with a comprehensive statutory code, having a local plan in place is axiomatic. Yet so many LPAs do not have ‘full plan coverage’ – i.e. a plan that covers not only ‘strategic’ policies and sites but also development management policies and smaller site allocations. This paper looks at why this is, draws lessons from recent experience of the examination of local plans and asks whether recent announcements in the Housing White Paper will address the current log-jam. Some themes will emerge in the course of the paper, but one is apparent right at the outset: plan-making is intensely political – and probably always will be.
2. The Housing White Paper is called “Fixing Our Broken Housing Market”. It will be recalled that in his speech to the party conference in October 2016, the Secretary of State, Sajid Javid, called for “unprecedented steps” to increase the delivery of new homes – his “number one priority” and a “moral duty”.
3. The White Paper has a Foreword from the Prime Minister. She says: we need more land for homes; all areas need a plan to deal the housing pressures they face and communities need a say in the homes that are built; we require all areas to have an up-to-date plan in place and ensure that communities are comfortable with how new homes look.
4. In his Foreword, the Secretary of State says he wants to “seek to build a consensus for a new, positive, mindset to house building.” In his oral statement to the House of Commons he emphasised that “the root cause is simple – for far too long we have not built enough houses”. We need between 225,000 to 275,000 every year and “we have to start right now”. LAs must not be allowed to “duck the difficult decisions”.
5. The White Paper sets out the three respects in which the “housing market” is said to be “broken”. The first problem is “not enough local authorities planning
1 for the new homes they need”. The Secretary of State singles out the following reasons why this is the case: decision-makers’ past response to public attitudes causing some politicians to duck difficult decisions; plan making is slow, expensive and bureaucratic.
Why does plan-making take so long?
6. In my experience it is possible to identify the following main reasons: a. Over-cautious and therefore lengthy pre-submission consultation. b. Apparently good reasons for delay – “now is not the right time”. c. An unnecessary fixation with ‘two part’ plans. d. The plan itself is too long. e. The lack of a clear evidence base. f. Tripping-up over “Cooperation”. g. The submitted plan is not flexible enough to deal with changes of circumstances.
Consultation
7. The statutory code ‘only’ actually requires one round of consultation in the run up to submission (the government says, in the interests of flexibility) – all that Reg 18 requires is that “specific” and “general” consultation bodies and “residents” be given the opportunity to give their views as to what the local plan “ought to contain” and then to take those views into account in the “publication” draft under Reg 20. People then have an opportunity to make comments on the published plan which are forwarded to the inspector appointed to conduct the independent examination. Compare the following with the statutory requirement:
8. Cheshire East Local Plan Strategy (2010-2028) – plan submitted in May 2014 and the examination is only now at ‘main mods’ stage with adoption likely in mid 2017 at the earliest; this extract from the inspector’s interim views in December 2014:
2 “10 … Preparation of the plan began shortly after local government re- organisation that established Cheshire East as a local authority in 2010. Consultation was undertaken throughout this process, from Issues & Options and Place-Shaping stages through to the Town Strategies, Development Strategy and Policy Principles, potential additional sites, Pre-Submission Plan and finally on the Submission Plan.”
9. Scarborough Borough Local Plan (2011-2032) – plan submitted May 2016 and planned for adoption in March 2017 (so a relatively quick examination); but see this extract from the inspector’s final report:
“18. The Council’s Consultation Statement describes how work began several years ago to replace the existing Scarborough Borough Local Plan (1999). Consultations were carried out on issues and options in 2007; a revised strategy and preferred housing allocations in 2009; further issues and options in 2011; and a draft local plan in 2014. The proposed submission local plan was published for consultation in November 2015.”
10. Both took far too long and part of the problem seems to have been the endless ‘stages’ of preparation. Why? Of course it is entirely understandable that LPAs want to ‘take local people with them’ and to ensure that all stakeholders feel that their voice has been heard, particularly in a ‘bottom-up’ not ‘top-down’ system, but:
a. There are some things that the public are simply not in a position to answer – e.g. “how many houses do you think we ought to plan for?” Instead, tell them the assessed need and ask “do you have any reason to disagree?” b. Open ended questions cause delay. So, don’t ask “what should our spatial strategy be?”, ask “we have considered options for a spatial strategy – a, b & c. Our preferred option is b because …. Do you agree? If not, why not? What strategy do you say we should adopt?”
3 c. Seek all possible views at the outset; so: “if it turns out that we need reserve or further sites, where should they be?” d. At the end of the day the LPA (officers and members) have to make a choice based on a full evidence base and planning & political judgment – have the courage to just get on with it! e. Once the LPA has settled on its preferred strategy, consider whether there is actually any need to ask people (again) whether they agree with it.
11. The White Paper does not include any new measures to speed-up the consultation process – indeed it could not. It simply says there will be a review of the consultation procedures “to ensure they are proportionate”. What LPA actually need to do is to work more efficiently and effectively within the current system.
Now is not the right time
12. Nobody pretends plan-making is not subject to ‘external events’ – at Cheshire East although the previous local plans had an end-date of 2011, local government re-organisation in 2010 meant that the predecessor authorities did not make any substantial progress to replacing them. Nationally, replacement of the raft of 2011 end-date plans was delayed by the ‘political’ end of regional planning, which itself took far longer than expected (due to the need for SEA and High Court claims). Very recently, plan-making has been delayed by some LPA in advance / anticipation of changes in the White Paper following the recommendations of the LPEG. But the White Paper simply announced consultation on the LPEG’s recommendations – more delay. Other LPAs have delayed their own plan-making in order to fit in with a time-table that suits their neighbours.
13. Experience shows that there will always be some reasons why “now” is not the right time. Inevitably that leads to the adoption of a plan at the “wrong” time – i.e. late. The increasing use of the ‘early review’ (see below) should encourage LPA not to wait for the ‘optimum time’.
4 14. The White Paper has little to say about this problem, save that it will “where necessary, intervene to ensure plans are put in place” and to bring forward regulations that require a local plan to be reviewed at least once every five years. Given that many local authorities are taking more than five years to bring a plan forward from preparation to adoption this is an ambitious target. It is not clear whether the requirement to “review at least every five years” means that 5 years should be the maximum time between the adoption of plans, or whether a review must start no later than 5 years after adoption.
Splitting local plans in two - part 1 (strategic) and part 2 (local)
15. This is a hang-over from plan-making long ago (regional, structure and local plans) and not so long ago (core strategies, area action plans, site allocations plans). There is now simply a requirement for a ‘Local Plan’, although it can still be made up of more than one DPD – this is supposed to offer LPAs flexibility and speed; too often it seems to puts them in a straight-jacket.
16. Conceptually, it is attractive to ‘get the strategy settled before we turn to the detail’. If the strategy can be settled quickly and it would be guaranteed to last more than one plan cycle, then there would be something for it. But experience shows that it cannot for any of the following reasons:
a. The evidence base that is required is so extensive that it takes far longer than is first thought. b. LPAs are not resourced for ‘speed’. c. Government policy changes to try to improve the system keep knocking- back progress. d. The unpredictable local political cycle gets in the way. e. Strategic Plans that have been brought forward do not wholly contain long-life strategy. Planning for 15 years ahead may not be really ‘strategic’.
5 f. Delaying non-strategic allocations to a later plan can cause ‘5 year supply’ issues – it is more difficult to include sites on the ‘supply side’ in the early years which are to be identified in a later plan. g. There is a risk that by the time the Part 2 (non-strategic) Plan comes to be submitted that the Part 1 Plan ‘need’ it relies on will be out-of-date. h. There is a risk that if the Part 1 Plan can only be found sound subject to an early review so that a Part 2 Plan will be delayed / de-railed.
17. What are the lessons / answers?
a. If you want a plan that will only need a partial review then make sure that it contains chapters / policies that are unlikely to need reviewing – eg vision, spatial / settlement hierarchy, general policies for development management. b. Policies dealing with development / infrastructure ‘need’, which will need reviewing, should be in other chapters / clearly separate. c. Site allocations (strategic and non-strategic) to meet assessed need, and the approach if delivery fails, should be in yet other chapters. d. If non-strategic allocations are to be left to Neighbourhood Plans, have policies that apply in the interim / if NPs do not come forward. e. Two-stage plan-making may lead to a finding that “relevant policies are not up to date” for the purposes of NPPF para 14 before the Part 2 plan is adopted even though a Part 1 plan may have been very recently adopted.
18. The White Paper’s response it to “make plans easier to produce”. It proposes removing the expectation that an area will be covered by a single local plan and to create ‘flexibility’. But, the flexibility is already there and is part of the problem.
6 The length of the document
19. It is sometimes said by university lecturers that it is easier to write a long essay than a short one – the same might be said of Local Plans. However, by and large a Local Plan’s length depends on the amount of explanatory text rather than the number of policies.
20. A plan that is certainly too long is the emerging Cheshire East Local Plan Strategy – at the last count just prior to ‘main mods’ the ‘clean version’ (ie no strike-throughs) is 592 pages; the ‘vision’ makes an appearance at page 43, the first policy at page 52. The South Worcestershire Development Plan, a joint plan by three LPAs, is 395 pages – but the first strategic policy does not appear until page 40. The Scarborough Local Plan will come in at just under 200 pages. The very recently adopted Birmingham Local Plan is 152 pages.
21. There are obvious disadvantages of a long plan: it takes longer to write and read, the more there is the more there is to object to which prolongs the examination, they key messages get buried in verbiage.
22. The solution to this problem is to be clear at the outset:
a. What must this plan cover? Answer (see Reg 5 and 6): (1) that which can only be included in a DPD and not in any other LDD or strategy (such as a Sustainable Communities Strategy) – so, (i) statements on the development and use of land which the local planning authority wish to encourage during the plan period; (ii) the allocation of sites for a particular type of development or use; (iii) development management and site allocation policies, which are intended to guide the determination of applications for planning permission; (iv) identification of an area of significant change or special conservation and the local planning authority’s policies in relation to the area. (2) A reasoned justification (Reg 13).
b. What can be in other LDD which don’t need independent examination (such as SPD)? See Reg 5(1)(iii) - statements (but not policies or
7 allocations) of any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land.
c. Who is going to use this Local Plan and for what purpose? Answer: (a) those deciding whether to bring forward a planning application and, if so, what to put in it; (b) those assessing and determining that planning application. So, it needs to be fit for that purpose and not any other. It is odd that plans are drafted by officers who may not have very much at all to determining planning applications. The former may be content with ‘fluffy’ statements of vision and principle; the latter just want clarity and policies that allow the answer to a simple question – is the planning application I am looking at in accordance with this policy or not?
23. So, before a plan is submitted for examination someone needs to be locked away to audit the plan from the end-user’s point of view. The plan means what it says, not what the authors might have intended it to mean; it is supposed to be a carefully drafted and considered statement of policy that informs the public at large of the approach that will be consistently followed in decision-taking unless there is good reason to depart from it (Tesco v Dundee CC [2012] UKSC 13 at para 18). ‘Forensic archaeology’ (looking at other documents – such as a committee report or inspector’s report – to discover what the plan means) is not permitted in order to decide what a policy in the development plan means (R(TW Logistics) v Tendring DC [2013] EWCA Civ 9 at paras 13-15).
24. The White Paper does not really address this issue.
The lack of a clear evidence base
25. There is no doubt but that a lack of a clear evidence base is the main cause of examinations being suspended while the LPA is sent away to do further ‘homework’. The biggest such problem is generally the ‘housing numbers’ issue.
8 26. The experience at Cheshire East serves to illustrate the main pit-falls well. The submitted plan included provision for 27,000 houses over the plan period (1,350dpa). This came in for considerable criticism by objectors and the inspector in the first round of hearings. Eventually the inspector decided:
a. The methodology was not robust – it looked at a series of options rather than focussing on what the OAN was as the NPPF / PPG requires. b. The forecasts that led to the options used a series of questionable assumptions and figures. c. It assumed 2011 household formation rates would stay constant after 2021 and did not consider whether historic formation rates had been supressed historically by the recession, past under-supply and worsening affordability. d. It failed to consider whether migration rates had been similarly suppressed. e. It was not clear how market signals including house prices, rents and affordability had been taken into account. f. It failed to take into account the overall need for affordable housing. g. The assumed rates for economic and job growth were unduly pessimistic. Economic growth rate figures used in the OAN calculation were below past growth rates, official employment forecasts and projections which would artificially supress the need for new housing to meet the need of future employees. h. Assumptions for increased economic activity by older people were unduly optimistic further supressing new housing need. i. There was a mismatch between the economic / employment strategy of the local plan and the amount of housing being planned for. j. Although objectors had been making these points for a long time, the Council only really responded seriously to them after the plan was finalised.
27. During the suspension of the examination the Council effectively re-did the OAN calculation. 12 months later, and after a further round of examination hearings, the inspector ‘signed off’ OAN and a housing requirement figure of
9 36,000 (1,800 dpa). There then followed a further 12 month delay while the Council identified additional sites for the newly arrived at requirement and examination hearings were held into the selection / deliverability of all the sites.
28. Over 50% of Cheshire East is not in the Green Belt / AONB so the new housing requirement need not, in theory, have resulted in any loss of Green Belt. However, for spatial reasons Green Belt releases were found to be justified in order to deliver new housing in the north of the borough. However, the initial methodology for selecting the sites for release was unsatisfactory. Therefore, at the same time as the OAN ‘homework’, the Council had to carry out a fresh Green Belt review.
29. The lessons may be obvious, but are essentially these:
a. Accepted OAN methodology must be followed. There will still be room for planning judgment at each stage, but if you don’t adopt a robust methodology this will seriously undermine the outputs of a study. This may become less important if a ‘simpler’ methodology as recommended by the LPEG is adopted. b. If consultants give LPAs ‘options’, then it should hardly come as a surprise if LPAs come under political pressure to pick the lowest option. What LPAs need to know is the professional judgment of the consultants and what it is based on. The LPA can always test the assumptions if need be. c. A housing requirement figure and the justification for site selection should emerge from a proper ‘appreciation’ of the ‘situation’; any temptation to ‘situate’ the ‘appreciation’ (ie fiddle the evidence / judgments to suit a predetermined optimum outcome) will be exposed by the army of ‘developer consultants’. In an evidence-led system fixing the amount and location of new development by relying too much on ‘political expediency’ is high-risk. d. Failing to carry out a robust, transparent assessment of OAN and a proper Green Belt review will considerably delay the adoption of the plan.
10 30. The White Paper’s response in respect of housing OAN is to state that the NPPF “sets out clear criteria but is silent on how this should be done”. It postulates that a standardised approach is the answer and announces that the government will consult “on options”. Now it will be recalled that the LPEG recommended the “adoption of a simplified common methodology within NPPG for the preparation of concise SHMAs with a clear stipulation that this is the approach government expects to be followed”. It then made further recommendations about market signals adjustments, affordability, and sensitivity-testing ONS projections. The LPEG paper produced a flurry of responses, mostly critical. In early March 2017 Barton Willmore published research suggesting that the LPEGs proposals would lead to an 11% reduction in current housing targets in the three northern regions and that actual OAN figures are 20% higher than LPEG-derived figures. It fears a “watering-down” of the link between homes and jobs will have a detrimental effect on economic growth. On the other hand, in November 2016 the NIC said that adopting the LPEG proposals would see an uplift of 22% on raw national household projections.
31. The LPEG itself found that in the local plan examinations it looked at it was possible to detect that OAN was about 9% above household projections. LPEG considered recommending a fixed uplift (say 20%) which would be simple and let everyone know what the ‘target’ figure to be aimed at was. But LPEG stepped-back from such a recommendation as being (a) top-down, (b) inflexible to local variations, and (c) unfair on LPA who had met need and not accumulated a backlog. It felt its ‘simpler SHMA’ approach should be able to deal with these issues.
32. Whatever the outcome, the result needs to be a SHMA / OAN process that gives a clear, robust and unequivocal ‘out put’ that requires very little ‘planning judgment’ (ie opportunity for argument).
33. The White Paper also suggests that there would be an expectation that LPA would adopt the standard methodology and would have to justify departing from it. This would seem to be an opportunity to have debate at examination on
11 whether a LPA should or should not have departed from it – more potential for delay.
34. With regard to the Green Belt, the White Paper walks a difficult tight-rope. Changing Green Belt policy requires huge political courage. However, it does accept that taking land out of the Green Belt should only be contemplated, effectively, as a last resort “when they have examined fully other reasonable options for meeting development requirements”.
35. What appears to be new is a requirement that “where land is removed from the Green Belt, local policies should require the impact be offset by compensatory improvements to the environmental quality or accessibility of remaining Green Belt land”. This may give rise to ‘land assembly’ and valuation issues – development allocations will potentially have to include an indication of where such compensatory measures will take place and whether the whole package (development and compensation) is deliverable.
36. There is also a commitment to “explore” whether “higher contributions can be collected from development as a consequence of land being released from the Green Belt”. This would appear to be a ‘tax’ which will affect land values and may influence whether landowners will release their land.
37. There is also a proposal to modify the tests of soundness so that a plan would (only) have to be “an” appropriate strategy rather than “the most appropriate”. Superficially this should cut down looking at “options” – save that the requirement in SEA would remain.
38. There is also a promise to make the evidence base for plan-making more “proportionate” – but no details are given as to what would be slimmed down or required. Evidence to support statutory requirements (SEA, Habitats Regs, Listed Buildings etc) would still be required.
Cooperation with neighbours and other bodies - policy
12 39. The Duty to Cooperate is a legal requirement (s33A of the 2004 Act) but “cooperation” with neighbouring authorities and others is also an aspect of ‘soundness’ (see NPPF para 157, 178-182) - R (SSOBT) v Selby District Council [2014] EWHC 3441 by Ouseley J at [47]. Guidance is given in PPG at ID9. LPA are required to engage constructively, actively and on an ongoing basis to maximise the effectiveness of Local Plan preparation in the context of strategic cross boundary matters. It is not a duty to agree, but LPA should make every effort to secure the necessary cooperation on strategic cross boundary matters before they submit their Local Plans for examination. The result of the cooperation should be effective and deliverable policies on strategic cross boundary matters.
40. Experience shows the following issues have led to a failure to comply with the DtC (as a matter of law or policy): a. Castle Point BC, Essex – “slashed” its housing numbers in half between the draft plan and submission without any consideration of the impacts on neighbouring LPA. b. St Albans – not sought proactive meaningful engagement with all LPA which it recognised it has “strong economic and spatial relationships”; approach was not “constructive”; meetings held but not “sufficiently active”; not responding to requests from neighbours; matters “should have been addressed much earlier in the plan-making process rather than a month before the hearing session”; lack of meaningful collaboration (reluctance to enter into debate); need more than “watching briefs” and “general liaison”; no in-depth analysis of issues facing LPA in the area”. c. Aylesbury Vale – lack of cooperation in meeting the needs in the wider HMA, particularly the growth of Milton Keynes and Luton; no joint SHMA; insufficient active involvement of other LPA in the HMA to allow any genuine influence on housing numbers in the plan;
13 d. Central Bedfordshire – meeting the needs of neighbouring Luton; challenged the inspector’s decision in the High Court and lost: R(Central Bedfordshire Council) v SSCLG [2015] EWHC 2167 (Admin). e. Coventry & Warwickshire HMA (1) Coventry – withdrew CS (33,000) which had been found sound and replaced with LP for 11,000 after ‘falling out’ with its neighbours over where its need should be met. (2) Warwick – complied with the legal DtC, but the plan was not sound because of the unmet need in the HMA (fall-out from Coventry) f. Derbyshire Dales – said it could not meet need within boundaries; did not ask for help from LPA in HMA until very late in the plan preparation; now promoting a plan in which need is met within boundaries.
41. A clear theme is detectable – in the main ‘problems’ arise where urban authorities in an HMA are ‘hard up’ against their administrative boundaries and so have difficulty meeting all their need; rural neighbours often feel ‘put upon’ which is politically difficult. But there are examples of ‘good practice’ – see for example Derby City Council’s cooperation with South Derbyshire and Amber Valley.
42. The White Paper recognises that there have been ‘cooperation’ issues. The solution, apparently, is to require all LPA to prepare a Statement of Common Ground “setting out how they will work together to meet housing requirements and other issues that cut across authority boundaries.” Unless these SoCG are audited / approved at the start of the plan preparation process, it is not immediately clear how they will help.
14 Coping with the unexpected
43. Plan-making may be taking too long at present, but it is never going to be an overnight process. Something can always happen to ‘put a spanner in the works’. When that happens plan-makers may need to be flexible if they are to avoid withdrawing the plan and starting the preparation phase afresh.
44. The Suffolk Coastal Local Plan was a case in point. It began life in 2006 with “Vision and Objectives”, 4 more rounds of consultation followed between 2007 and 2009; then in 2010 a Draft Plan was consulted on before the Submission Draft was published in December 2011 and was submitted (unchanged) in May 2012. The housing requirement figure of 7,590 was derived from the evidence base of the East of England Plan (the Regional Strategy). The EoEP was revoked in January 2013. The inspector held an Exploratory Meeting to ascertain whether 7,590 amounted to the Full Objectively Assessed Need – after further ‘homework’ the Council reported back that FOAN was 11,000 subject to the findings of the still ongoing SHMA being jointly carried out with neighbouring authorities. The Council’s response was to suggest that they modify the plan to include a commitment to an early review in 2015 as there was enough land for housing until 2020. The only alternative was to withdraw the plan and start again once the outcome of the SHMA was known.
45. The inspector said:
“In the absence of the CS, the Council would be reliant on an old-style Local Plan, adopted in 2006 with significant parts that are considerably older than that. It is a core planning principle of the Framework that planning should be genuinely plan-led.”
“While the land currently identified in the SHLAA and elsewhere would be insufficient to meet objectively assessed needs for the plan period as a whole there are still a substantial number of sites which potentially could come forward in the short to medium term and boost the land supply. If the proposal for a review were to be accepted, planning applications for housing would be considered in the context of an up to date suite of local development
15 management policies that are consistent with the Framework, the CS settlement hierarchy and the locational guidance in the strategic policies. Where appropriate, they would be subject to environmental, habitat and infrastructure assessments. They would also be subject to the model policy that applies the national presumption in favour of sustainable development. Overall, the housing land supply would be improved while still ensuring sustainable outcomes. With the main modifications proposed the non-residential development management policies would provide appropriate guidance for other forms of development.”
“I conclude that in this case having the CS in place at an early stage would support the achievement of sustainable development and bring forward sites to meet the housing needs of the area. An early review would be preferable to the alternative of suspension and likely withdrawal of the plan in terms of achieving the aims of the Framework taken as a whole.”
46. The ‘early review’ mechanism has been used elsewhere and supported by the High Court (see Grand Union Investments Ltd v Dacorum BC [2014] EWHC 1894 (Admin)). Furthermore, an early review within 5 years of the date of adoption now features in advice from the Secretary of State in PPG: “consideration should be given to the option of the local planning authority making a commitment to review the plan or particular policies in the plan within an agreed period, where this would enable the Inspector to conclude that the plan is sound and meets the other legal requirements.”
47. Local plans have been adopted as sound as a result of a provision for triggering an early review in the following circumstances:
a. Where more housing might be needed depending on the outcome of wider SHMAs from nearby areas (eg Lichfield and North Warwickshire). b. Where the results of ongoing work to identify future need for employment land are not yet known (North Warwickshire, Winchester).
16 c. Where a strategic green belt review covering multiple LPA areas is anticipated to meet a housing shortfall in a neighbouring area (Cherwell in respect of Oxford’s need; Dacorum). d. Where it is the least-worst option and early years need can be met (Dacroum, Suffolk Coastal)
48. During the preparation and examination of a plan, the work of others goes on. For example new population / household projections may be published by ONS, work on the evidence base for neighbouring plans may have an impact, sites that were expected to be available suddenly become unavailable because a landowner changes its plans. In particular, if a LPA is ‘sailing close to the wind’ with regard to showing a 5 year supply on adoption, it could get ‘blown off course’. A local plan therefore needs to have some flexibility built in as an insurance policy for a safe passage through to adoption. Experience shows this can be achieved in a number of ways:
a. Plan to allocate sites to meet more than the minimum OAN/requirement figure. This may be politically sensitive – but better than losing the ability to demonstrate a 5YS soon after adoption of the plan and have ‘planning by appeal’. b. Allocate small ‘reserve sites’ to be brought forward in the event that a 5YS is not achieved in the future. Again, at least this heads off the potential for planning by appeal. c. Include criteria to use to judge the allocation of sites in lower tier plans or proposals in planning applications in the interim / in the event the Council in unable to demonstrate a 5YS. d. Include criteria to judge planning applications for footloose inward investment in the event that allocated sites cannot meet the bespoke needs of end-users.
49. The lesson is that LPAs should encourage inspectors to be ‘pragmatic’ – the aim is, or ought to be, to get a plan adopted.
17 50. The White Paper is silent on the matter of the ‘early review’. However, it does propose that all plans will have to be reviewed at least every 5 years – so perhaps the answer is that all plans will be subject to early review in any event.
Hugh Richards No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
18 Satnam Choongh Planning & Environment
Satnam Choongh was called to the Bar in 1994 and is a member of Lincoln’s Inn, where he was a Hardwicke Scholar and held the Sir Thomas More Bursary. He specialises in planning and environmental law, acting for developers, local authorities and government agencies. He has worked as in-house counsel, and has a thorough knowledge of all aspects of the planning process, as well as experience of advising upon the commercial aspects of land development (to include negotiating and drafting s.106 agreements, option agreements, overage agreements and allied contracts). Year of Call: 1994 Satnam holds a First Class Honours degree, a D.Phil from Trinity College, Oxford and has worked as a Professor of Law at Birmingham Clerks University and the Chinese University of Hong Kong. Senior Practice Manager Satnam features regularly in the Chambers UK Directory, which has Andrew Bisbey described him as “very sharp”, “extraordinarily bright” and someone “who gets the answers he needs from cross-examination”. Planning Chief Executive & Magazine has placed him amongst the top planning juniors in the Director of Clerking country. Tony McDaid Satnam has considerable depth and breadth of experience: he appears Contact a Clerk at planning and associated inquiries, prosecutes and defends Tel: +44 (0) 845 210 5555 environmental and planning offences in the criminal courts, and acts for Fax: +44 (0) 121 606 1501 both appellants and planning authorities in applications for judicial [email protected] review and statutory challenges in the High Court. He has dealt with the whole range of issues which arise in this area of law, including matters related to listed buildings, Conservation Areas, Green Belt, Sites of Special Scientific Interest, major infrastructure projects under the Transport and Works Act 2000, out of and edge of centre retail stores, Enforcement, Stop, Breach of Condition and Completion Notices, Compulsory Purchase Orders, Advertisement Control, minerals, and matters related to waste disposal and management.
In addition to appearing at numerous residential planning inquiries and a number of retail inquiries, Satnam has appeared in a host of large scale, complex and varied planning cases, including promoting a 3.5 million square feet rail-freight interchange in the Green Belt; opposing an application for a 58 hectare resource recovery park and 95MW RDF Incinerator under the Electricity Act; representing an LPA at the first ever LDF examination; opposing the expansion of Coventry Airport in a 6 month enforcement inquiry followed by a 3 month s.76 Inquiry; appearing at Waste Local Plan inquiries; representing the Highways Agency at a six month multi-party planning inquiry for MSA development; representing the HSE in an inquiry into de-commissioning a nuclear power station in the Snowdonia National Park, and drafting and seeing through to public inquiry a Side Roads Order and CPO to provide a town centre ring road. He has recently represented Rugby Borough Council in a 2 week windfarm inquiry. Inquiry and Court work has included securing planning consent for large scale mixed use schemes, fast food outlets, as well as numerous residential schemes all over the country for several of the volume housebuilders and some of the key national land promoters. He also has particular expertise in retail, having successfully opposed an out of centre retail store in the first post-NPPF retail case, represented Telford Council in a retail case that involved two inquiries and litigation up to the Court of Appeal, and represented Sainsbury in opposing an out of centre store in Bath. He has recent experience of the issues arising from neighbourhood plans having represented Gladman Land Developments in Winslow, a case which involved a challenge to the Winslow Neighbourhood plan that was the subject of an application for an interim injunction and a substantive claim in the High Court.
Lands Tribunal, High Court, Court of Appeal
Satnam has appeared in many of the most important recent cases interpreting key provisions of the NPPF, as well as cases relevant to other important concepts in the administration of the planning system. Examples include: Telford and Wrekin v SoSCLG [2013] EWHC 1638 (Admin) and [2014] EWCA Civ 507 (application of the retail sequential test and correct interpretation of CIL); IMI Properties v Lichfield DC [214] EWHC 240 (Admin) and [2015] EWHC 2077( Admin) (correct procedure for challenging development plans; releasing GB through the plan process); Mackman v SoSE [2015] EWCA Civ 716 (EIA and screening opinions); William Davis v SoSCLG [2013] EWHC 3058 (Admin) (the meaning of the NPPF para.14 presumption); Bloor Homes v SoSCLG [2014] EWHC 754 (Admin) (correct approach to 5 year housing land supply; meaning of plans being silent or absent etc); Hopkins v SoSE [2014] EWCA Civ 470 (procedural fairness at planning inquiries); JB Trustees v SoSCLG [2013] EWHC 3555 (Admin) (locus in statutory challenges); R (on the application of Telford Trustee No.1 /No.2) v Telford and Wreakin Council and Asda Stores Ltd [2011] EWCA Civ 896 (the duty to give reasons for planning permission); R (on the application of Welcome group Limited and others) v Stroud District Council and another (2012) EWHCA 140 (admin) (meaning of the CIL regulations); Herefordshire District Council v White (a Lands Tribunal case that helped clarify the Purchase Notice provisions of the 1990 Act); Norris v SOSE and Stoke on Trent City Council [2006] EWCA Civ.12 (developed the law on the important subject of development in breach of condition precedent); Attorney- General’s Ref. No.5 of 2000 ([2002] Env.LR 5 at 139) (Court of Appeal case on the complex matter of defining “waste” in European Union Law); Micro Designs Ltd v Barratt Homes Limited (High Court and Court of Appeal case on the interpretation of overage provisions).
Advisory Work
Satnam has a prodigious paper practice, and regularly advises both developers and local planning authorities on all matters related to planning, waste, highways, judicial review and statutory challenges. He regularly advises one of the “Big Four” retailers in respect of all retail matters, including judicial review and statutory challenges. Examples of advisory work include:
• advising the three Somerset planning authorities on a range of issues arising from the construction of Hinkley Point C nuclear power station; • Advising two district councils on the meaning of the Local Plan Regulations 2004 and 2012 and the scope of their ability to adopt DPDs, SPGs and non-statutory guidance; • Advising on whether potential national food chain operation fell within A1 or A3/5; • Whether a series of planning permissions on a retail park had inadvertently brought about an unrestricted A1 use; • Whether community facility protection policies apply to site where community facility previously stood; • Distinction between C2 and C3 uses in respect of Assisted Living Units; • Advising on accessibility issues in respect of 700 dwelling planning application; • Advising and settling JR proceedings in respect of ES issues in respect of “Big 4” retail challenge; • Advising LPA on how to approach determination of 2 competing retail schemes in the context of PPS4 practice guidance; • Advising and settling JR proceedings challenging ability of LPA to determine replacement application under DMPO; • Advising on 64 bed care home application in context of employment land protection policies; • Advising on uplift agreement which raised issues of interpretation of CLUED.
Further Experience
Legal Research Fellow Warwick University In-house advocate, Eversheds Solicitors, Birmingham Professor at the Chinese University of Hong Kong Professor and Director of the Centre for Professional Legal Education at Birmingham University
Publications
Planning units, New Chapters in Planning History and Inconsistent Permissions (2009) Journal of Planning Law Development in Breach of Conditions Precedent (2007) Journal of Planning Law The Meaning of Waste in EU Law (2006) Journal of Planning Law
QUALIFICATIONS
LLB (Hons) (First Class) Warwick; D.Phil (Oxon) 1994
MEMBERSHIPS
Planning and Environmental Bar Association
RECOMMENDATIONS
"He has a very keen mind. He produces very well-reasoned opinions and material which addresses the issues. He's an extremely friendly and approachable person and I think he strikes a great affinity with clients - they have always been impressed with his work." "Satnam is excellent in all areas, and his production of written material is particularly compelling." Chambers UK, 2016
"Particular strength in residential, retail, waste and infrastructure matters." Legal 500 2015
Frequently instructed on complex residential and retail mandates, with impressive experience in waste developments. Sources point to his persuasive advocacy and thoughtful approach."He's a superb cross- examiner - he really punches above his weight." "He's excellent. He's very solid and he really knows his stuff. I'm always confident in his advice, and he's robust when he needs to be - a very sound advocate." Chambers UK 2015
"Strong in residential, waste, infrastructure and retail matters." Legal 500 2014
"He always works well with the team, spots strengths and weaknesses in cases, and identifies a very clear case strategy." Chambers UK 2014
‘Thorough and insightful’ junior Satnam Choongh is ‘good at complex areas of planning law’. Legal 500 2013
Satnam Choongh is "criminally underrated as an advocate" in the view of one particularly impressed client, who draws attention to his "sharp legal mind" as well as his "diligent and precise questioning, which gets the answers he needs from cross-examination." Infrastructure, waste and residential matters are Choongh's forte. Chambers UK 2013
“Satnam Choongh acts for developers, local authorities and government agencies at all stages of development, from inquiry to judicial review in the High Court. Peers say that he is “extraordinarily bright with a steady manner. He doesn’t need to shout because he knows how to speak sense”.” Chambers UK 2011
With significant expertise in environmental and administrative law, Satnam Choongh has acted for several local authorities and government agencies, as well as many major private developers. Sources highlight Choongh's ability to inspire confidence in his clients at every single stage of the planning process. Chambers UK 2010 Is the Housing Paper Really Fit For Purpose?
Will it result in a Faster and Better Planning Application Process?
Introduction
1. Chapter 2 of the White Paper (“WP”) is entitled “Building Homes Faster.” So the objective is not simply to build more homes, but to speed up delivery in recognition of the fact that there is significant delay between the grant of a consent and the houses actually appearing on site. The WP (para. 2.4) identifies some of the causes of this delay:
a. LPA capacity to handle applications; b. Too many appeals; c. Time taken to discharge planning conditions/address planning obligations; d. Lack of infrastructure; e. Utility connections; f. Excessive bureaucracy in protecting species (GCN); g. Skills shortages
2. The chapter goes onto provide possible solutions to these problems. There is a lot of talk about how there should be a “partnership” between developers, local authorities and utility providers. The government says (para. 2.5/2.6) that both developers and local authorities need to “up their game”, and that it wants to hold both “to account”.
3. Those of us at the sharp end see little evidence of partnership and a great deal of conflict. Merely urging people to work in partnership will not address the difficulties that currently beset the planning system – the cause of the difficulties has to be identified, with brave and radical reforms introduced to address those difficulties. Much was promised of this White Paper, but it has delivered very little. The government wants others to “up their game” and be “held to account”, but sadly it has not applied the same rigour to itself. It is fair
1 to say that many of the solutions proffered are expressed in tentative terms – they are either lacking in detail with more detail promised later, or they are at this stage proposals only upon which the Government wants to consult further. Where definite reforms are promised, they have about them the air of “too little, too late”, and it is doubtful they will make any significant difference to speeding up the planning application process.
4. This short paper considers five initiatives the government believes will help to deliver more homes faster:
a. An annual assessment of 5 year housing land supply (“5YHLS”); b. A housing delivery test c. Completion notices d. Reforming conditions, s.106 and CIL e. A strategic approach to safeguarding protected species
Annual 5YHLS calculations
5. The idea of having a one-off assessment, fixed for 12 months, of whether an LPA has a 5YHLS is introduced under the heading of “providing greater certainty”. The government believes the requirement for a 5YHLS, with the policy consequences that follow if one cannot be demonstrated, has been an “effective” but “blunt” tool. The negatives are cited as the Increase in appeals with consequent uncertainty for applicants and communities, the increased costs of debating the issue at inquiry, and the undermining of Neighbourhood Plans (NPs) “leaving them vulnerable to speculative applications” (why undermining of NPs is any more unacceptable than undermining of local plans is left unexplained).
6. The solution of having the matter determined through the inspectorate once a year was first mooted in the LPEG report published in March 2016. One is left wondering whether LPEG’s starting point was a false premise, namely that the issue “should be capable of agreement on an annual basis, through discussion between authorities and development interests… and key
2 infrastructure providers in each area”. If the matter was capable of agreement there would not be endless days taken up at inquiry arguing about it, and there would be no need for a solution. The fact is that it is probably the most contention of all issues, and the LPEG suggestion of resolving it through a one-off examination received broad support when consulted upon.
7. The government’s response in the WP is somewhat odd. Having carried out consultation on the LPEG suggestion, this was an opportunity for the government to adopt that approach or a variant of it, and bring it into operation. Instead, it has opted for a voluntary system, where authorities can opt in if they choose, with some of the detail of how the process will work to be subject to yet further consultation. No explanation is provided as to why it should be voluntary rather than mandatory, and it is difficult to see how having two approaches running in parallel across the country is a step towards simplifying the planning system.
8. Few would argue that the present system of arguing over the same issue in several inquiries, with possibly different answers being provided within months of each other, is the best use of resources. So in principle the idea is a welcome one. However, concerns must remain over how long the new process will take. The WP states “the policy will make clear that the authority’s assessment of its housing land supply should be prepared in consultation with developers as well as other interests who have an impact on the delivery of sites (such as infrastructure providers)”. When is this process of dialogue supposed to commence? How long will it take? The prospects of agreement are slim, so time has to be factored in for representations to be submitted to PINS and for PINS to write and issue a report. The practicalities therefore indicate that although fixed for a year once the procedure is completed, the process of dialogue etc for the following year will have to commence a considerable period before the end of the fixed period.
9. This raises the possibility that when applications for permission are submitted, the developer or the authority may focus not on the present position, but what the emerging evidence is showing for the following year. In other words, if the
3 annual report shows no 5YHLS, the LPA (or members) may say that it is material that the emerging evidence indicates a supply will exist in the coming year (the roles can be reversed in this example). In the example provided, the argument will not prevent policies being treated as out of date and operation of the para.14 presumption, but it will be used to undermine the weight attached to the delivery of housing. There is also the possibility that developers will not submit applications until a negative report is issued by PINS, but when it is issued LPAs will be inundated with applications with implications for resources and determination times. Watch out for the law of unintended consequences in full sway.
10. The WP does not provide a methodology for calculating the five-year supply (para. A.79 promises guidance on this), which is surprising given that the LPEG report did put forward a detailed methodology. Why the government did not consult on that methodology, make a decision and issue the methodology now is unclear. Further, LPEG was clear that lack of 5YHLS should not be an opportunity for “speculative applications”, but instead it should trigger a plan- led response, namely the release of reserve sites. The WP is silent on this.
11. The WP launches a consultation on whether authorities who opt for the new one-year fixed rule on 5YHLS should be required to maintain a 10% buffer on their five-year housing land supply. There is no introduction, explanation or context provided for this proposal. It is left unclear as to how it relates to para. 47 of the NPPF (the requirement for 5% or 20% buffer). Presumably the intention is that the NPPF will be amended to make clear that authorities who opt for the new system need only provide for a 10% buffer, otherwise there is no incentive for authorities to choose the new system. If this is indeed the proposal, that will decrease the number of permissions as it will increase the prospects of an LPA being able to show a 5YHLS in the case of those authorities that are currently 20% authorities.
12. Further confusion is caused by one of the questions for consultation. The proposal is that the five-year housing land supply is prepared in draft and then considered by the planning Inspectorate (although one of the questions asks
4 whether the planning Inspectorate should have this role at all!). But the WP asks that if the inspector is to have this role, “should the inspectorate’s consideration focus on whether the approach pursued by the authority in establishing the land supply position is robust, or should the Inspectorate make an assessment of the supply figure?”. Raising this question throws into doubt the essence of the reform, which under LPEG was the idea that the new methodology for calculating supply take a standardised, template approach. The fact that the government thinks that it is possible for an inspector to decide whether the position is robust without himself making an assessment of the supply suggest that LPA’s will be given considerable leeway in deciding whether or not a 5YHLS exists.
13. The proposed treatment of NPs provides another step away from simplification and towards greater complexity. Having introduced a 3YHLS rule for NP areas (Written Ministerial Statement – “WMS”), the government seems to want to row back (to some extent) from this. In doing so, it proposes to introduce yet another rule: the WMS will not apply where delivery in the local planning authority is less than a certain percentage of the authority’s overall requirement (rising in a stepped fashion, so that by 2020 if the supply is less than 65% of the requirement the WMS will not apply).
14. There is also another important change proposed in this respect - NPs will only get protection if it can be demonstrated that their policies will meet their share of local housing need. But this leaves unanswered the question of how one determines whether an area is meeting its share without knowing the overall district requirement, and without a completed process for deciding how much of that requirement should be located in that particular NP area. The idea presupposes the existence of an up to date local plan; if such a plan exists there is no need for the suggested change because a NP must be consistent with the local plan. Further consultation is promised on whether this protection should apply only to those plans which have site allocations, or to all plans provided they meet their share of local housing need.
5 15. As set out above, one of the objectives in introducing a fixed 5YHLS calculation is to provide greater certainty. Whilst the reform should certainly make appeals shorter in those cases where the authority has opted for the new process, it does not follow that the outcome will be any more predictable. Parties will know at the outset whether the test to be applied is that set out in para. 14, and whether relevant policies are in or out of date, but appeal decisions continue to confound attempts to predict the outcome even when there is agreement on this critical issue. Appeals are routinely won, even though there is a 5YHLS and relevant policies are up to date, and routinely lost even though para. 14 is triggered and relevant policies are out of date.
16. If what is sought is certainty of outcome, and by implication a reduction in appeals, there must be a greater tie-in between the outcome of the five-year housing land supply argument and the outcome of appeals. That in turn depends upon the vexed question of what should happen if there is an up-to- date plan, a 5YHLS and a proposal that is contrary to the plan. Should the appeal turn on whether the proposal is nonetheless sustainable, applying the three dimensions of sustainability? Or should permission routinely be refused in such cases, regardless of overall sustainability, in order to give “primacy” to the development plan? A question for another (longer) paper.
The Housing Delivery Test
17. Firstly, what is it?
18. It is a mechanism to (a) highlight whether the number of houses being built is below target (b) establish reasons for under-delivery and (c) where there is under delivery ensure a response that delivers more land for housing.
19. Secondly, how will delivery be measured?
20. Measurement of delivery against target will take place using April 2014 as the beginning of the assessment period. The target against which delivery will be measured will be the target set out in the development plan (where it is less
6 than 5 years old). If the plan is older than 5 years, the target will be derived from household projections until March 2018 and thereafter against the target derived from applying the standard methodology for assessing housing need.
21. Thirdly, what will happen if there is under-delivery?
22. There will be a graduated response over time:
a. From Nov 2017: if delivery is below 95% of the requirement – publish an action plan setting out causes and actions that will be taken. If the delivery is below 85%, in addition to the action plan, the authority must apply a 20% buffer to its 5 year housing land requirement.
b. From Nov 2018: if delivery falls below 25%, automatic application of NPPF para. 14.
c. From Nov 2019: if delivery falls below 45%, automatic application of NPPF para. 14
d. From Nov 2020: if delivery falls below 65%, automatic application of NPPF para. 14.
23. Although the WP talks about understanding the reasons for under-delivery (para. 2.49 – “starting with an analysis of the causes so that appropriate action can be taken”), the medicine prescribed seems to be standard and automatic regardless of the causes. What if the target cannot be met because of acknowledged constraints? The question will not arise if there is an adopted plan (the requirement should have factored in the constraints) but will arise where the plan is more than 5 years old. What if the target cannot be met because it is an area of low demand, or because there is a recession?
7 Use it or lose it/Completion Notices
24. The old chestnut of “land banking” rumbles on, despite every study to date failing to unearth any evidence to support the allegation (even the data relied upon in the WP shows only 5% of sites are on hold, and there may well be perfectly legitimate reasons in respect of those sites).
25. Under the heading “Holding developers and local authorities to account”, the WP states “We want to ensure local planning authorities have more effective tools to deal with circumstances where planning permission has been granted but no substantive progress has been made.” They way in which it is proposed to do this is “to simplify and speed up the completion notice process, whereby if development on a site has stopped and there is no reasonable prospect of completion, the local authorities can withdraw planning permission for the remainder of the site.”
26. This is precisely what s.94 of the 1990 Act allows now, and it has been in place for decades. The procedure at present is that notice cannot be served until the time for commencement of the development stipulated in the permission has elapsed, it must give the owner at least 12 months to complete the development, and the Order has to be confirmed by the Secretary of State.
27. The changes proposed to this process are relatively minor. The first is to remove the requirement for confirmation by the Secretary of State. There are no details provided, but presumably any change to the process will need to retain a right of appeal. If so, it is difficult to see what is saved in terms of time and expense by removing the present confirmation system.
28. The second change is to allow the notice to be served before the commencement deadline has elapsed, but only if work has already begun. It is said that this will dissuade token starts, but it could just as likely operate as a perverse incentive not to commence the works at all until the deadline has almost been reached. Further, it is difficult to see how an authority could demonstrate that the development will not be completed within a reasonable time when the deadline for commencing development has not yet been
8 reached.
29. The key problem with the proposed reform is that it starts from the wrong premise, namely that the current process is not used because it is complex. The fact is that it is not complex – it is in fact very straightforward. But even if it were complex, the proposed reforms are so minor that they cannot represent any meaningful step towards a much simplified procedure. The truth is that completion notices are not used because their use rarely achieves anything. If the objective is to encourage developers to develop out their sites, taking away the permission does not further that objective. It would only further that objective if there was evidence that the site in question, or other sites, would deliver more quickly if the current permission were taken away. The matter has only to be put in that way to see the difficulties with the premise of the reform.
Reforms to CIL/s.106/Planning conditions
30. Under the heading of “Supporting developers to build out more quickly” the WP addresses the operation of conditions, s.106 and CIL. But only 5 short paragraphs are devoted to what is a huge and complex topic.
31. With regard to conditions, it refers to the deemed discharge mechanism that was introduced in 2015, stating that it is “keen to hear more” about how it is working in practice. But there is no specific consultation questions related to this. In any event, it is not a new reform. The deemed mechanism has so many exceptions that it is difficult to see it having made much difference in practice, and certainly the government has failed to gather any data on the topic.
32. The only other measure mentioned is that which is already in the NP Bill, namely that which gives the SoS power to prohibit conditions that do not meet the national policy tests. But there is no detail – it simply provides the SoS power to make regulations setting out what types of conditions may or may not be imposed and in what circumstances. The proposal has ran into
9 problems in the House of Lords, and one can understand why. Given that the tests are set out in the NPPF, and there is no proposal to change to these, it is difficult to see what further can be said in regulations. Whether any condition is, on the facts of a particular case, reasonable and necessary, can only be decided on a case by case basis. The focus has been on pre- commencement conditions, but in some cases these are necessary because the applicant has not provided the necessary details. If those details exist and have been provided, the condition should not be imposed because it is not necessary, and the policy already provides for this.
33. Turning to s.106 agreements, the WP states (para. 2.30) that the government believes that there is “scope to make changes” to address practical issues. But it does not set out what those changes are, nor are there any specific questions for consultation. There is no more than a proposal to consult in future on “standardised open book s.106 agreements” and methods on collecting data on operation of s.106 agreements. The Housing and Planning Act 2016 includes provision for a s.106 dispute resolution process, but with detailed regulations outstanding. The paper provides nothing further by way of detail, but promises to consider the matter “further, in the context of longer term reform.”
34. On the topic of CIL, the WP begins by noting something that has been apparent now for a long time, namely that the mixture of the two systems of s.106 and CIL is “not as fast, simple, certain or transparent as originally intended.” The WP says that the government will examine the options for reform set out in a review published alongside the WP. This recommends a twin-track system – a low level tariff for all (local infrastructure tariff), but larger developments to have bespoke s.106 agreements. The new local tariff will be based on a standardised methodology, and will not require an examination process. The government is not set to respond to the suggestion until the Autumn budget.
10 Strategic Approach to Protected Species
35. We have all encountered a situation where matters are held up or delayed because of a dispute about whether a licence is going to be required from NE, and if so whether it is likely to be granted (i.e whether the derogation tests will be met). In the strange world of planning, rather than getting confirmation of these matters from NE up front, LPA’s and appellants argue about the matter because NE refuses to respond – the position appears to be “we will tell you when you apply”.
36. A meaningful reform would have been to provide funding for NE coupled with a duty to respond in a timely fashion setting out whether a proposal would have a significant impact on a protected species; whether the works would require a licence; whether a licence would or would not be forthcoming and, if likely to be granted in principle, the mitigation that the developer must put forward.
37. This is not what the government propose. Instead the WP makes reference to a pilot project in Woking where NE and the Borough have managed to streamline the process for GCN, and suggest this may be rolled out nationally. No details are provided whatsoever of what the project in Woking entails. My research suggests that what is being operated is a Borough wide approach. The Borough is mapped, and depending on where the site is within the Borough, there is no need to carry out surveys or apply for a licence. The developer simply makes a contribution to the Council’s Borough-wide programme of improving habitats for GCN.
Satnam Choongh No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
11
Peter Goatley Planning and Environment Peter acts for a wide range of clients including developers, house builders, retailers, construction companies, local authorities, government agencies, financial institutions, telecommunications companies and utility undertakings.
He is a member of the Attorney General's Panel of Treasury Counsel and sits on the committee of the Planning and Environmental Bar Association. He has extensive experience appearing in Court and at public inquiries in respect of a broad range of matters. He regularly Year of Call: 1992 features in lists of highly rated planning counsel and has been described as “a very mature junior with a sound legal mind who is very Clerks thorough and a good tactician” (Chambers UK 2008) Peter Goatley "has a following of major developers for his work" Senior Practice Manager (Legal500 2009) Andrew Bisbey Peter Goatley is widely recognised as an exceptionally capable and Chief Executive & diligent junior. He is particularly revered in the context of highway- Director of Clerking related matters, and recently acted for the Highways Agency in Tony McDaid successfully resisting proposals for a motorway service area on the M42. ( Chambers UK 2010) Contact a Clerk Tel: +44 (0) 845 210 5555 - Planning Appeals and Development Plan Inquiries Fax: +44 (0) 121 606 1501 Retail (food and non-food) [email protected] Residential development Telecommunications installations Listed buildings Motorway service areas Industrial development Transport and Works Act inquiries into major infrastructure projects Compulsory purchase and compensation Highways, including inquiries relating to road schemes, motorway service areas and footpaths Planning enforcement Minerals
- Environmental Matters Water industry consents Proceedings under the Environmental Protection Act 1990 Abatement notice appeals
- Lands Tribunal Proceedings
- Judicial Review and statutory appeals
- Human Rights
- Parliamentary Boundary Commission Inquiries
Peter is regularly listed in both Planning magazine's annual Legal Survey and Chambers & Partners Guide to the Legal Profession as one of the highest rated planning barristers in England and Wales.
Qualifications
MA (Oxon). Formerly a partner in a medium sized commercial solicitors practice
Memberships
Member of the Committee of the Planning and Environment Bar Association
Recommendations
"His communication skills are excellent: he is able to avoid technical jargon, and puts clients at ease. He readily understands complex technical data and arguments." "He gives very commercial advice and is very aware of clients' needs: he gives a very balanced and realistic view of the merits of a certain course of action." Chambers UK, 2016
Receives praise for his impressive range of experience and his track record in large-scale renewable and infrastructure work. Sources highlight his advocacy and his detail-oriented approach."He's accessible, user-friendly, quick-thinking and generous with his time." "I've been impressed with him in inquiries. He conducts himself very well and has a very good manner." Chambers UK 2015
"His attention to detail and his arguments were completely sound, and in court he was well prepared and well presented." Chambers UK 2014
Vastly experienced junior Peter Goatley operates extensively out of all three of No 5 Chambers' offices. He wins extensive client praise, particularly for his appellate work as "he always achieves a good working relationship with the team and provides practical guidance. He is able to assimilate extensive amounts of information and is always thoroughly prepared for the case. In addition to pure legal advice, he is willing to give pragmatic and tactical advice. He has extensive experience and detailed knowledge of the various technical areas connected with planning, such as noise and highways, and he is very effective in cross-examination, having a firm, measured, but non- aggressive approach to cross-examining witnesses. Planning inspectors greatly appreciate his approach and contributions." Chambers UK 2013
Peter Goatley is ‘a go-to barrister for planning and judicial review’. Legal500 2012
Notable Cases
R (on the application of Holding and Barnes plc and Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; [2003] 2 AC 295; [2001] 2 WLR 1389; [2001] 2 All ER 929 (the application of the Human Rights Act 1998 to the planning system)
Varey v United Kingdom (2000) 30 EHRR CD39; Times, January 30 2001 (breach of rights under Article 8 of the European Convention of Human Rights)
Staffordshire County Council v Riley and others [2001] EWCA Civ 257; [2002] PLCR 5; (the commencement of development in minerals matters)
Stirk v Bridgnorth District Council (1997) 73 P & CR 439 (quashing a local plan)
Housing White Paper – Will It Make Housing Delivery More Certain?
Introduction 1 Following the Government’s announcement that there would be a Housing White Paper and what were trailed in the media as apparently radical changes in approach to housing policy and the means for its delivery, some commentators hoped (and indeed anticipated) that there would indeed be a radical re-setting of the Government’s agenda for the delivery of housing, both in the short and the long term.
2 The extent of the problem and its prolonged duration is well known, and is once again recognised in the White Paper. Hugh has already looked at the plan making process and Satnam at that which is proposed for the planning application process. So how does the White Paper contend that housing delivery will actually improve as a result of any of the prescriptions that it contains?
3 Clearly, our collective review of the White Paper does not purport to deal with every single proposition. To use a familiar term, that would probably be disproportionate. However, we have intended to provide an overview and a critique of the principal suggested policy initiatives.
4 Perhaps the main point to be observed is the absence of any single radical initiative in order to improve the way which the system housing development actually functions. The White Paper appears to be deliberately multifaceted. That there is no single proffered solution is probably realistic. The housing market is doubtless too complex to be susceptible to that sort of approach. However does the White Paper’s collection of factors give confidence that the consequence really will be a step change in housing delivery in the medium and long-term?
5 The main highlights of this multifaceted approach appear to be the following:
1 (1) The new standard methodology calculating Objectively Assessed Need for housing (“OAN”). (2) The desire to build homes faster and the potential introduction of the Housing Delivery Test (3) Diversification of the housing market. (4) A consideration of the Green Belt. (5) Garden towns and villages. (6) Land banking. (7) Encouragement to institutional investors to enter the private rental sector. (8) Finance and accelerated construction methods.
Proposals for a standard OAN calculation methodology 6 The consultation on the new standard methodology for calculating OAN will be an interesting exercise for all potential participants. So too will be the process of arriving at the “return” time period for the reconsideration of the OAN in any given LPA area.
7 However, a question which continues to be begged is the satisfactory reconciliation of the local plan system (which provides to meet objectively assessed housing need) and a neighbourhood development plan system which does not. If the aggregate of the neighbourhood development plans within a district does not seek to meet the housing land supply requirements of that district, one is forced to ask how will the OAN for housing ever be met and how is the potential conflict with the “made” neighbourhood development plans to be resolved? Sadly, the White Paper is silent upon this.
2 The desire to build homes faster and the Housing Delivery Test
8 Understandably, the White Paper also espouses the need to build homes faster and alludes to potential sanctions in respect of developers who secure planning permission but who do not use it. I will return to this point, briefly, below.
9 The passage of the White Paper dealing with the proposed housing delivery test1 is perhaps one of the most intriguing proposals, albeit it is unlikely to provide much benefit (even if instituted now) in seeing the delivery of homes over the next 5 or so years.
10 The bold text of the White Paper refers to Government introducing “a new housing delivery test to ensure that local authorities and wider interests are held accountable for their role in ensuring new homes are delivered in their area”. The policy goes on that if the number of homes being built is below target the policy will “provide a mechanism for establishing the reasons why and where necessary trigger policy responses that will ensure that further land comes forward”.
11 This new approach would include transitional provisions and measurement via data from national statistics over a rolling 3 year period2.
12 Where under delivery occurs then such a policy, and guidance (if ultimately promulgated) would be as follows:-
(1) From November 2017, if delivery of housing falls below 95% of the authority’s annual housing requirement, we propose that the local authority should publish an action plan, setting out its understanding of the key reasons for the situation and the actions that it and other parties need to take to get home-building back on track. (2) From November 2017, if delivery of housing falls below 85% of the housing requirement, authorities would in addition be expected to plan
1 White Paper paragraphs 2.47 to 2.51 2 Paragraph 2.49 3 for a 20% buffer on their five-year land supply, if they have not already done so. (3) From November 2018, if delivery of housing falls below 25% of the housing requirement, the presumption in favour of sustainable development in the National Planning Policy Framework would apply automatically (by virtue of relevant planning policies being deemed out of date), which places additional emphasis on the need for planning permission to be granted unless there are strong reasons not to. (4) From November 2019, if delivery falls below 45% the presumption would apply. (5) From November 2020, if delivery falls below 65% the presumption would apply.
13 So what does this really amount to?
(1) If there is under-delivery below 95% of the authority’s annual housing requirement the publication of an “action plan”. Other than a potential further opportunity to kick the housing can down the road this proposal does not appear to hold a mechanism for swift and effective action where housing delivery is falling behind that which has been subject of local plan making. With respect, this does not appear to bode well for addressing emerging housing deficiencies. (2) From November 2017 onwards, an automatic 20% buffer on 5 year housing land supply if delivery falls below 85% of requirement. This does indicate a potential partial corrective mechanism. It will remain to be seen how it comes to be applied by Inspectors and the Secretary of State himself in making decisions. (3) From November 2018, if delivery falls below 25% of the requirement the presumption in favour of sustainable development would apply, a threshold which would increase in the following 2 years to 45% and 65%. Once again, this appears helpful, on paper, but it’s actual consequence in decision-making is perhaps less clear.
4 14 Once again, the interaction between these tiered thresholds and the operation of the Written Ministerial Statement (giving an effective 3 year period of protection to neighbourhood development plans) is unspecified. It is hard to imagine that the interaction of these two policy streams would not be significant to housing delivery. Hence, the absence of a reconciliation of the two does leave the potential effectiveness of this initiative open to question.
15 Further, there is no real engagement with the very real problem of under- delivery or (in some cases) wholescale non-delivery of strategic sites in some local authority areas. It must be acknowledged that such strategic sites are, by their very nature, complex. They are important in providing for the effective long-term strategic planning of so many areas. However, it is also fair to observe that in a number of cases they have effectively blocked residential development occurring in those areas. The logic has proceeded that, as planning permissions have ostensibly been granted for large scale development then other development is not required.
16 Unfortunately, such large-scale and complex developments often fail to come forward without other interventions, normally financial and normally from the public purse. That is often slow in arriving or incomplete in its scope. That too affects delivery and is not addressed by the White Paper. Nor, doubtless for reasons of continued Government spending plans, is any new meaningful public investment suggested.
17 The third principal theme is Government looking to diversify the housing market and to encourage a range of different investors3 to invest and deliver a range of housing. Indeed, there is a return also to favour of local authority built homes. It might have been a long time coming but this is a useful recognition of one of the potentially significant sources of housing supply, particularly of affordable housing.
3 Though, note not Buy-to-Let investors 5 18 Perhaps of more challenge to the planning departments of many authorities is the suggested desire for more factory built homes. Whilst this may have clear potential benefits, in terms of the increased speed of the process of construction, it is less clear as to what this may mean for features of design policy (including paragraph 58 of the NPPF) which looks for development to “establish a strong sense of place”. Indeed, the White Paper continues to stress the importance of design in development and the very local influence upon that design4. How this will be reconciled with the introduction of more factory built housing is, for the present, unclear.
19 Whilst, many developers would be surprised, perhaps pleasantly so, if the detailed, prescriptive and bespoke design requirements of each local planning authority were in some way homogenized (in context of a desire to facilitate more common forms of building) that would not appear to be the anticipated outcome of the White Paper. In that instance, it is not clear how (as a matter of practicality) the introduction of more factory derived housing will be introduced so as to speed the delivery of housing.
Green Belt 20 The position with regard to the consideration of the green belt (and the extent to which this remains off limits) has already been touched on. Given the general continuation of the desirability of an urban focus for development this will remain a thorny issue, particularly in those parts of the country where local planning authorities have simply failed to plan to meet their objectively assessed need and have also failed to demonstrate how they have exercised their duty to cooperate.
21 In that instance, where will there be the prospect for any change, let alone delivery, particularly as the steps necessary (to have exhausted all non- green belt options) may simply be seen as a further and higher hurdle for those seeking to promote housing development to surmount.
4 Paragraphs 1.41-1.46 6 Land banking
22 Without much obvious empirical or other evidence to support the contention, the White Paper makes an allegation that land banking is a significant factor in constraining supply. Whilst the potential for this to occur clearly cannot be ruled out (it would involve a proper investigation of sites planning histories, particularly in circumstances of non-development), evidence based instances of land banking appear very thin on the ground.
23 The greater transparency sought by Government of land holding arrangements would be welcome. It will also be hard to criticise a properly developed “use it or lose it” regime. However, that would mean matters such as realistic viability and more focussed (and limited) conditions on planning permissions, would become more important. Whilst the principle appears unobjectionable, and even commendable, there are nonetheless obvious practical problems: which party is being unrealistic? What happens if the price paid for a site would make it unrealistic to develop? How would disputes be resolved expeditiously? What would happen if the site is self- evidently otherwise a sustainable site to deliver and any alternatives could not be so regarded?
24 I do not propose by this paper to offer glib solutions to these dilemmas but I do highlight that the suggested response of Government is far from problematic.
Encouragement for the institutional sector to enter the privaterented sector
25 It would be surprising if these proposals had not come forward unless there had already been significant high-level discussions involving the institutional sector.
7 26 Be that as it may, there is clearly merit, in principle, in seeking to obtain large scale institutional investment in the private rental sector. Various institutions have already set out various models which will allow for a suitable investment return, having allowed for original capital costs. In the short term they would provide mechanisms to provide a portion of the private rental market. Apartment schemes in urban areas would provide the most obvious vehicle for such a mechanism of delivery. However, this would need to be grafted onto the existing planning system which anticipates the delivery of on-site or (commuted sum) off-site provision for affordable housing. It is unclear as to how a satisfactory funding and delivery model will necessary be arrived at such that private institutional investors will be able to acquire and develop such schemes and whether they will be equally required to satisfy affordable housing requirements in a local authority area.
27 Indeed, a number of other questions readily arise (1) What will be the cost consequences on the passing private rental levels if that were to occur? (2) What would be the consequences, more generally, for the market in favouring one form of housing delivery, such as this, over others?
28 Doubtless, if such a proposition is made sufficiently attractive then institutional investors, currently facing a series of unappealing long term financial returns via other financial instruments, may find this route attractive. However, this policy initiative does appear to appear to be on the nursery slopes at this stage.
De-risking commercial finance
29 The White Paper is relatively thin on how commercial finance may be made less risky. Hence, the present this aspiration is rather difficult to assess. Indeed, the potential introduction of approvals in principle as opposed to planning permissions is presently an innovation the consequence of which is still to be seen. Whilst there is reference to a number of existing
8 Government schemes5 the White Paper is somewhat opaque on how commercial finance will become less risky for those (particularly small and medium sized builders). Hence, for the present, this might be described as aspirational rather than real.
Other matters referred to
30 The White Paper re-treads a number of very well worn pathways: bringing brownfield land back into use6, making best use of public sector land7, and espousing support for small and medium size sites for housing development8.
31 A cynic might note that the sort of small sites brought forward by non- national house builders might well be those located on the periphery of towns and villages, and are just the sort of sites which appear less likely to come forward by reason of the Written Ministerial Statement policy of 12th December 2016. Indeed, the espoused evidence justification for that policy announcement9 appears both dated and very limited10. However, the White Paper at least recognises the need to support this part of the housing industry and we can judge in due course the actions of decision makers in making that a reality.
Garden towns and Villages 32 The promotion of new garden villages, as well as garden towns, is perhaps the most recent celestial orbit for the principle of new settlements, which have been an irregular visitor to the planning scene over the past decades.
5 Such as the Accelerated Construction Programme or the Home Builders Fund - see paragraphs 3.5 and following in the White Paper 6 White Paper paragraphs 1.24 and 1.25 7 Paragraphs 1.26 to 1.28 8 Paragraphs 1.29 to 1.34 9 praying in aid the benefit of neighbourhood development plans 10 This is the subject of extant judicial challenge and so perhaps little more might be usefully said about this at this stage. 9 33 The new settlement public inquiries of the 1980s were replaced by the eco- towns of the early noughties only now to be supplemented by new proposed garden towns and villages. However described, new settlements will clearly have the potential to fulfil a helpful role in delivering a portion of housing in the long term. However, what is common with almost all of these proposed prescriptions is that none will substantively meet the need for housing over the short-medium term, in other words the period of the next 5 or so years. That is a challenge upon which the White Paper offers few new solutions.
Transparency of information, Landbanking and other changes 34 A number of flagged initiatives such as tackling unnecessary delays caused by planning conditions11, revising some of the labyrinthine requirements relating to habitat management of protected species12 and simplifying developer contributions13 are to be welcomed. Perhaps more perplexing are some of the other suggested initiatives.
35 Whilst transparency of information on site ownership and control might well be welcomed, it is unclear how the requirement for developers to provide more information on the timing and the pace of delivery of new housing14 will translate into delivery in circumstances where newly built houses on a development site prove not to sell as a well as the time that planning permission was granted.
36 Similarly, it may be interesting to anticipate the process by which local authorities will start determining the realism of a site being developed in future when deciding to grant planning permission15 given what may be described kindly as a variable track record across many authorities in, what in the 1960s was called “picking winners”.
11 White Paper paragraph 2.26 12 Paragraph 2.27 13 Paragraph 2.28 to 2.30 14 Paragraph 2.36 15 Paragraph 2.39 10 37 One might also imagine the likely “sledging” exercises which may emerge if the White Paper’s proposal (on looking at the developers track record in deciding whether to grant planning permission)16.
38 If one is dealing with a land promotion exercise then no houses may have been built by the applicant for planning permission. Does that mean that in order to promote a site for development the site would need to be either transferred to or in some way promoted by a recognised house builder? How would that approach facilitate the diversification of the housing market which apparently forms part of the Government’s overall objectives?
39 So does the White Paper make housing delivery more certain?
40 As noted earlier, whilst it was unlikely that there would be a single solution to such a huge problem as the present housing crisis the White Paper does not appear to provide a compelling range of solutions. Indeed, with respect, on its face, it simply appears to be something of a reconstituted amalgam of previous initiatives which hitherto have not hitherto had the effect of producing a step-change increase in housing development whether for this or for previous Governments.
41 Will the effect of the White Paper be such as to inhibit or stop local authorities from ducking difficult decisions? Ultimately, the answer to this question will arise from experience. That experience will not just be of decisions taken subsequent to the issue of the White Paper (and any policy or guidance which ultimately arises thereafter). It will also arise from a robust and continuous application of policy seeking to release development. The buck on that point stops with central Government and with the Secretary of State. If the Secretary of State were to be clear and consistent, for more than a short period of time, that he wished to see sites released and developed for housing that message would become readily recognised by all authorities. However, not all authorities are the same, particularly those
16 Paragraph 2.40 11 who themselves have had a consistent and un-justifiable aversion to development over many years. One may hope that it would also mean that there was something of a fairer playing field for those authorities who have done the right thing, have taken difficult decisions (together with the political heat that goes with it) and have sought to recognise the need for housing development in their area.
42 Remember, the White Paper is a consultation document. The period for response ends on 2nd May. Whether you agree or disagree with any of the points made in these presentations we would encourage all who are interested in this important topic to let the Secretary of State know.
Peter Goatley No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
12 James Corbet Burcher Planning & Environment
James Corbet Burcher is a specialist planning barrister.
Since 2012, he has built a substantial practice across all areas of planning work, for a range of private and public sector clients. He is based in London and works across England and Wales, especially in the North West, the Midlands and the South West.
Planning Magazine’s Legal Survey has ranked him as one of the top Year of Call: 2011 barristers under 35 throughout his time in practice. Chambers & Partners 2017 ranks him as an Up & Coming Junior for Planning in the Clerks Midlands: Senior Practice Manager Andrew Bisbey “An up-and-coming junior frequently highlighted for his client- friendly approach who is developing a strong reputation in the Chief Executive & Director of market…He has a good style and intellectual approach…He is Clerking very capable and very keen." Tony McDaid PLANNING COURT AND APPELLATE WORK Contact a Clerk Tel: +44 (0) 845 210 5555 Planning Court and appellate court work are at the core of James’ Fax: +44 (0) 121 606 1501 practice. Many of his cases involve the interpretation of key provisions [email protected] of the National Planning Policy Framework, especially NPPF 14, 47 and 49.
In 2013, he appeared in the first case to be heard in the Planning Court: R(Jones) v English Heritage (as junior to Ian Dove QC). In 2016, he appeared 12 times in the Planning Court and Court of Appeal, both led and unled. He also secured three consent orders in s288 challenges against the Secretary of State. A full list of reported cases is set out below.
In 2017, he will appear in the following appellate cases:
Supreme Court: Cheshire East BC v Richborough Estates Partnership LLP and Secretary of State for Communities and Local Government aka Suffolk Coastal DC v Hopkins Homes and SSCLG on appeal from [2016] EWCA Civ 168: for the Respondent, Richborough Estates (led by Chris Young): the correct interpretation of NPPF 49 “policies for the supply of housing”
Court of Appeal: East Staffordshire v SSCLG and Barwood Strategic Land II LLP [2016] EWHC 2973 (Admin): for the Appellant, Barwood (led by Satnam Choongh): the correct interpretation of NPPF 14 and the presumption in favour of sustainable development
Court of Appeal: R(Williams) v Powys County Council and Bagley [2016] EWHC 480 (Admin): for the Second Respondent (sole instruction): heritage legislation and wind turbine development
Court of Appeal: St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2016] EWHC 968 (Admin), for the Appellant, St Modwen (led by Chris Young): the correct interpretation of NPPF 47 “deliverable” He is presently instructed across five other s288 TCPA and judicial reviews at permission or listing stages before the Planning Court and Court of Appeal.
INQUIRIES, HEARINGS AND EXAMINATIONS
James has a full inquiry practice, for both development industry and LPA clients. In early 2017, he is instructed in several s78 appeals involving schemes of more than 100 units in Staffordshire and Cambridgeshire. In 2013-2014, he acted for Pinewood Studios Ltd obtaining planning permission for film-related development to secure the future of the British film industry on 46ha of Green Belt land (as junior to Martin Kingston QC). Local Plan examination work is a major feature of early 2017, with instructions for various development industry interests across the country in the light of the White Paper/Local Plans Expert Group. In 2014-15, he acted for three LPA plan promoters, and three promoters/house builders, including drafting the Green Belt and Duty to Cooperate submissions on behalf of Gallagher Estates that eventually supported the successful Gallagher v Solihull MBC s113 challenge and the successful defence of the Lichfield Local Plan for Persimmon in IM Properties v Lichfield DC.
Neighbourhood plan examination is a niche area of expertise. Since 2014, he has advised in respect of over 40 neighbourhood plans, including appearances at 6 neighbourhood plan examination hearings. This work has led to regular instruction in Planning Court and Court of Appeal litigation in respect of neighbourhood planning to date: BDW Trading, Gladman v Aylesbury, DLA Delivery v Lewes DC, Kebbell v Leeds CC, with additional instructions in early 2017.
ACADEMIC INTERESTS
James came to the Bar expressly to specialise in planning work, following postgraduate research on 20th century British history, including a dissertation on popular responses to tall building construction in London between 1955 and 1980. This grounding in the historical development of the British planning system informs all of his professional work.
Comparative planning law and practice is now a major area interest, especially in respect of the USA, France and Germany. He has attended a number of international conferences abroad including those of PLPR 2016 in Switzerland and IPHS 2016 in the Netherlands.
QUALIFICATIONS
BA(Hons) Modern History (First Class), Magdalen College, University of Oxford Mst Modern History, Magdalen College, University of Oxford CPE (Distinction), City University LLM (Distinction), University College London BPTC, BPP (London)
AWARDS
University of Oxford: Demy (Full College Academic Scholarship) Oxford Half-Blue, Modern Pentathlon
Lincoln’s Inn: Hardwicke Entrance Award Lord Bowen Scholarship Lord Mansfield Scholarship Sunley Pupillage Award
Other:
UKELA Moot: Winner of both Senior and Junior Competitions
MEMBERSHIPS
ALBA PEBA UKELA NIPA CTBUH
NOTABLE CASES
Trustees of the Barker Mill Estates v Test Valley BC [2016] EWHC 3028 (Admin)
East Staffordshire BC v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin)
R(Kebbell Developments Ltd) v Leeds City Council [2016] EWHC 2664 (Admin)
R(Flint) v South Gloucestershire Council [2016] EWHC 2180 (Admin)
Stryjak v Hounslow LBC [2016] EWHC 1897 (Admin)
R(Wright) v Forest of Dean DC [2016] EWHC 1349 (Admin)
St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2016] EWHC 968 (Admin)
Richborough Estates Partnership LLP and Secretary of State for Communities and Local Government v Cheshire East BC [2016] EWCA Civ 168 Cheshire East BC v Secretary of State for Communities and Local Government and Renew Land Developments [2016] EWHC 571 (Admin)
R(Williams) v Powys County Council and Bagley [2016] EWHC 480 (Admin)
R(Dudfield) v Forest of Dean DC [2016] EWHC 291 (Admin)
West Berkshire DC v Secretary of State for Communities and Local Government and HDD Burghfield Common Ltd [2016] EWHC 267 (Admin)
R(DLA Delivery Ltd) v Lewes DC [2015] EWHC 2311 (Admin)
IM Properties Development Ltd v Lichfield DC [2015] EWHC 2077 (Admin) Kings Lynn and West Norfolk BC v Secretary of State for Communities and Local Government and Elm Park Holdings [2015] EWHC 2464 (Admin)
IM Properties Development Ltd v Lichfield DC [2015] EWHC 1982 (Admin)
Wychavon DC v Secretary of State for Communities and Local Government and North Oak Homes Ltd [2015] EWHC 761 (Admin)
Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin)
R(Gladman Developments Ltd) v Aylesbury Vale DC [2014] EWHC 4323 (Admin)
R(IM Properties Development Ltd) v Lichfield DC [2014] EWHC 2440 (Admin)
R(Jones) v English Heritage [2014] EWHC 2259 (Admin)
Zurich Assurance Ltd v Winchester City Council [2014] EWHC 758 (Admin)
South Northamptonshire Council v Secretary of State for Communities and Local Government and Barwood Homes Ltd [2014] EWHC 570 (Admin)
R(Scottish Widows Plc) v Cherwell DC [2013] EWHC 3968 (Admin)
RECOMMENDATIONS
"He has a good style and intellectual approach." "He comes back very quickly, lets you know what he is doing and doesn't leave you hanging. He is very capable and very keen." Chambers UK 2017 Strategic Planning in City Regions
How can it effectively address the ‘larger than local’ issues?
If we ask: “Do we now live in an enlightened age?” the answer is: No. But we do live in an age of enlightenment.1
With cities, it is as with dreams: everything imaginable can be dreamed, but even the most unexpected dream is a rebus that conceals a desire or, its reverse, a fear. Cities, like dreams, are made of desires and fears, even if the thread of their discourse is secret, their rules are absurd, their perspectives deceitful, and everything conceals something else.2
The City Region and its Forebears
1. The concept of the “city region” as an ideal unit for strategic planning is long- standing.3 There are also multiple international examples.4
2. The realisation of that concept in UK town and country planning has been slow and troubled.5
3. Geographical, political and socio-cultural obstacles have grown and engrained over time, serving in term as an impediment to a clear legal (i.e. statutory) framework.
4. Nonetheless, the movement towards generating joint local plans at city region level has developed powerful political and practitioner supporters and the trajectory is (currently) towards expansion.
1 Kant, Was ist Aufklärung? (1749) 2 Calvino, Le città invisibili (1979) 3 Geddes, Cities in Evolution (1915), see also Hall, Cities of Tomorrow, 4th Edn (2014), Ch. 5 4 Notably in France, Germany and the Netherlands 5 Redcliffe-Maud Report (1969), Senior Memorandum of Dissent
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5. In short, we do not yet live in an era of the City Region. At best, we live in an era of greater City Regionalisation, but the direction of travel is uncertain and, some would say, under threat.
Legislative History
6. The contemporary era (post-2000) has been characterised by legislative innovation and experimentation, commencing with the rise and fall of Regional Strategies via the Planning and Compulsory Purchase Act 2004, and local authority consolidation under the Local Democracy, Economic Development and Construction Act 2009.
7. The Localism Act 2011 did not have a “city region” focus. Indeed many would argue the opposite, first, through devolution of plan-making powers to the far lower community level and second, through the introduction of the “duty to cooperate”: aka the “duty to chat”, duty to delay”6 or simply “tea and biscuits”.
8. However, from the Coalition Agreement onwards, a drive towards directly elected mayors and regionally balanced growth drove legislative reform culminating in the the Cities and Local Government Devolution Act 2016 (“CLGD Act”).
9. The CLGD Act enables but does not mandate city region organisation. Nor does it provide any clear structure to either the form of plan or the methodology that should be applied to approaching strategic issues.
10. In summary, the City Region legislation has significant gaps.
Devolution
11. 26 Devolution Deals in England were initially agreed in two “Waves”.7 In each case, the deal itself has been accompanied by the language of “opportunity”,
6 Local Plans Expert Group Report (2016), paragraph 5.3 7 DCLG Annual Report 2015-2016 (2 December 2016)
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however, there is a sharp disjuncture between the early promise of such deals and the actual delivery to date.
12. The paradigm or front-runner of city region-level planning at present is the Greater Manchester Combined Authority Area’s Greater Manchester Spatial Framework.
13. Useful insights are available from the Greater Birmingham and Solihull LEP (GBSLEP), the West Yorkshire Combined Authority Area, the West of England LEP (amongst others).
The Greater Manchester Spatial Framework
14. The Greater Manchester Spatial Framework (GMSF) First Draft Consultation ran from 31 October 2016 to 16 January 2017.
15. The consolidation of planning vision by ten Local Authorities (with different political leadership) represented an important, emblematic success. The “larger than local issues” have been identified and quantified.
16. Much of the commentary has focussed on the extent of Green Belt Release, but the underlying economic growth target is also of pivotal significance, as this drives the housing growth target and indeed all questions of housing, employment and retail allocations, identification of the Gateways, environmental protections and so on.
17. At the date of this Conference, there is no specific published timescale on the submission and examination of the GMSF. Before those two key steps, there are important political events still to run: notably the Mayoral Election on 4 May 2017. The Mayoral electoral front-runner, Andy Burnham has been sharply critical of the Green Belt policies as “unfair and disproportionate” and committed to “re-write” the framework. In the aftermath of the election, there will (just as at the General Election or in the London Mayoral Election) be a period of further negotiation and policy formulation.
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18. The “larger than local issues” are therefore some considerable distance from being “addressed”. There are in fact no lessons to be learnt, yet, save that this experience demonstrates the central problems of building a City Region programme upon a legislative structure without a mandatory obligation to prepare, submit and examine by precise dates, without synchronisation with major developments at the political level.
19. The complexity of the process just to reach the present phase of consultation is very telling. If the GMSF, with such substantial political backing and with one of the most clearly defined and logical geographical cannot achieve submission within three years of commencement, then that raises serious questions for other areas’ ability to do so in turn.
The GBSLEP as Coordinating Vehicle
20. The GBSLEP authorities are (arguably) political and geographically much more disparate than the GMCA authorities. In particular, place of Birmingham within the region is not an exact fit for the centrality of Manchester. Central Government pressure has also not been exerted in the same way to date.
21. The GBSLEP pathway has been to focus on economic growth, whilst comprehensive plan-making has been more partial.
22. The Birmingham Development Plan has plainly now been adopted (unchallenged), but with clear substantial further work to complete on the Green Belt Review, which in turn will require further scrutiny of the adequacy of the housing figures.
23. Further GBSLEP plan-making must also await developments at the Mayoral election level. Here too, recalling the legacy of the Chamberlain era (1873-76), personal influence may be significant, both in galvanising local support and in sourcing funding from central government.
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24. It is therefore, regrettably, too early to say whether the “larger than local issues” can be “addressed”. At best, it is clear that the GBSLEP will steer strategic employment allocations, but the provision of adequate supplies of housing would appear to require a much greater political will (both regionally and amongst Central Government than presently exists).
Summary
25. In assessing the City Region programme, one identifies a continuous disjuncture between aspirations and realities, between how various sources describe their ambitions for a given Region, and what they are prepared to deliver.
26. National policy aspirations are equally high, but conscious of the regional political realities, there is not yet a bright-line test or other policy mechanism of sufficient clarity to mandate a city region wide housing requirement. There is no clear political will to return to or re-draft the Regional Strategy edifice.
27. The legislative gaps are stark, especially in the CLGD Act 2016. The statutory duty under the PCPA 2004 continues to apply at local level only, with mere permissive powers for Joint Local Plans. Faced with these gaps, there is ample opportunity for localist forces to decline to make greater commitments than those provided in the existing wave of NPPF-era plans.
28. That politico-legal structure has significant knock-on effects, technically, in raising questions over the precise evidence base and calculation of need/requirement/supply figures. Financially, questions remain over how this is to be funded. And all the whilst, outside the GMSF context, popular recognition of the City Region programme, beyond the GMCA context appears to be limited. These in turn feedback to the regional political sphere, in preventing clear commitments by local government beyond their statutory obligations. As ever, policy is being designed against a shifting economic backdrop, including notably the question of internal migration towards major cities, driven in large
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part by the price of housing in the South-East. The economic impact of Brexit could also itself be determinative.
29. For the City Region programme to deliver, there needs to be radical legislative enactment (or amendment), back towards the RS/RSS plan-making duties that existed under the PCPA 2004. At present, there is insufficient political attention on the topic, as the Brexit programme commences and then occupies the field for at least the next two years. Even then, an examination of Legislative Committee Debates during the passage of the Localism Act 2011 up to the Neighbourhood Planning Bill reveals that planning legislation is amongst the most contentious of issues at present, with repeat amendments. Some of these amendments are, in as measured terms as possible, opportunistic and impractical. Even if Parliament was focussed on this task above all others, it is unclear whether the product would be delivery-centred.
30. Finally, it is perhaps important to recall the importance of a balance of power. Certain cities within the said Regions were subject to comprehensive redevelopment a half-century ago, through untrammelled local executive power. The pendulum may well have appeared to swing too far back to Localism, but re-setting it to an effective, delivery-focussed route will require substantial local democratic buy-in: addressing and countering fears about development at the same time as explaining the scale of the need.
James Corbet Burcher
No5 Barristers’ Chambers
+44 (0) 845 210 5555
6 Christopher Young Planning & Environment
Chris acts for many of the UK’s leading developers and house builders, with an enviable track record at appeal. He also advises Tesco Stores on a national basis, investment funds such as Rockspring and major landowners such as Tarmac and the University of Reading.
In the 2016 Planning survey of 270 leading planning solicitors & consultants he was rated, nd Year of Call: 1997 - 2 nationally for residential work amongst all barristers, including QCs; rd Clerks - 3 nationally for public inquiry work amongst all barristers, including QCs; rd Senior Practice Manager - 3 nationally for development plan work amongst all barristers, Andrew Bisbey including QCs; nd - 2 nationally amongst all junior barristers in the field of town Chief Executive & and country planning; and Director of Clerking - the only junior to be listed in the top rankings for either Tony McDaid residential or inquiry work.
Contact a Clerk “His knowledge of planning law is encyclopaedic, and he is the go- Tel: +44 (0) 845 210 5555 to junior for housing matters.” – Legal 500 (2016) Fax: +44 (0) 121 606 1501 [email protected] “He is confident, has excellent technical knowledge and sheer force. He’s a guy with a lot of charisma: he makes you sit up and listen.” – Chambers Directory 2016
“Widely acclaimed as a leading planning junior, with an impressive reputation for precision and strategic thinking in both advice and advocacy.” – Chambers and Partners 2015
Chris is regularly involved in major public inquiries recovered for determination by the Secretary of State and the Welsh Ministers, including acting successfully for the developer in housing appeals at Sandbach in Cheshire, Shinfield in Wokingham (x2), Tetbury in Gloucestershire (plus cost award), Pontprennau at Cardiff (plus full award of cost), Burton on Trent in Staffordshire (plus full award of costs), Burbage in Leicestershire, Rolleston on Dove in Staffordshire, Hedge End in Hampshire, and Newick in East Sussex. He also acted successfully for the LPA at Stephenson’s Green also in Leicestershire. Further Secretary of State decisions from inquiries 2014/2015 are awaited on major housing schemes in Cheshire and Gloucestershire.
He regularly appears in the Higher Courts when major housing schemes have been refused planning permission by the Secretary of State, and has acted successfully to have those decisions quashed. Three recent decisions on major housing schemes have involved Ministers consenting to judgment before the matter gets to Court. He has also successfully defended planning permissions won on appeal against challenges by local authorities, such as in West Berkshire v SSCLG and HDD. He acted for the Claimant in the first successful challenge to a Neighbourhood Plan decision issued by the Secretary of State and advises extensively on neighbourhood planning issues. Several of his cases this year involve proceedings in the Court of Appeal, including acting for the successful Claimant in Richborough v Cheshire East Council, and the first Court of Appeal case involving the legislation and regulations governing neighbourhood plans: DLA Delivery v Lewes DC.
Chris presently acts for most of the major house builders, including David Wilson Homes, Barratt, Taylor Wimpey, Bellway, Bovis, Bloors, Linden, Redrow, Charles Church and Persimmon, and many of the major national developers, including, Hallam Land, Gleeson Strategic, Richborough Estates, Heron, Welbeck, Catesby and St Modwen. He also acts for smaller regional house builders including Martin Grant Homes, William Davis, Larkfleet and Croudace and regional development companies such as Summerfield, Henry Davidson, SWSD, Waddeton Park and Rosconn. He also acts for charities, small builders and individuals, including farmers on agricultural matters. He acts for a consortium of 25 house builders and land promoters in seeking to challenge the latest Written Ministerial Statement from the Secretary of State (12 Dec 2016)
Chris has been involved in numerous Local Plan examinations including acting for St Modwen in the East Riding Local Plan, Richborough Estates at the Birmingham Local Plan, and Radley College at the Vale of the White Horse Plan. He also acted for the three South Worcestershire authorities in respect of the Part 2 EIP hearings on their recently adopted Joint Local Plan, and for Redditch BC and Bromsgrove DC in respect of Part 2 of the Joint EIP hearings into their local plans.
Chris is a member of the Planning and Environmental Bar Association (PEBA), the Compulsory Purchase Association (CPA) and National Infrastructure Planning Association (NIPA). He lectures throughout the UK at RTPI, housing and in-house events on a variety of topics including planning legislation, neighbourhood planning, housing numbers, financial viability, retail and housing planning policy.
SUPREME COURT, COURT OF APPEAL AND HIGH COURT WORK IN THE LAST 2 YEARS
• Richborough Estates v Cheshire East BC & SSCLG [2016] – Court of Appeal (Jackson, Vos and Lindblom LLJ) - acted successfully for the Appellant on appeal from Lang J in the joint seminal case on the implications of LPAs not having a five year supply of housing land: effect on Green Gap and Green Belt: NPPF paragraphs 49 & 14: PERMISSION GRANTED TO THE COUNCIL FOR THE CASE TO BE HEARD BY THE SUPREME COURT (HEARING: 22/23 FEBRUARY 2017)
• David Lock Delivery v Lewes DC and Newick PC [2017] – Court of Appeal (Lewison and Lindblom LLJ) - challenge to the making of a Neighbourhood Plan: challenge to the legitimacy of a NDP proceeding ahead of an up-to-date Local Plan and the selection of NDP examiners by the NDP Steering Group; the Habitats Directive and SEA Directive: successful in convincing the Court of two errors of law, but the Court exercised its discretion not to quash: DLD SEEKING PERMISSION TO APPEAL TO THE SUPREME COURT
• St Modwen v SSCLG and East Riding Council [2016] – High Court (Ouseley J) - acting for St Modwen in challenging a decision of the Secretary of State refusing permission for 500 new homes on employment land: the case concerned the interpretation of NPPF paragraph 47 and the phrase “specific deliverable sites”: PERMISSION GRANTED TO ST MODWEN BY LINDBLOM LJ TO APPEAL TO THE COURT TO APPEAL (HEARING: 7/8 JUNE 2017) • Richborough Estates and 24 others v SSCLG [2017] –- acted for a consortium of 25 housebuilders and land promoters seeking Judicial Review of the 12 December 2016 Written Ministerial Statement (WMS) by the Planning Minister (Gavin Barwell MP). The WMS seeks to remove the requirement for a continuous five-year supply of housing land in neighbourhood plan areas. It was issued without consultation contrary to the expectation of consultation on such matters built up over 30 years. The Claimants are waiting for the Secretary of State to issue a defence.
• Kebbell Development Ltd v Leeds City Council [2016] – High Court – acting for Kebbell in their challenge to the rejection by the LPA of the recommendations of a Neighbourhood Development Plan Examiner: rejection of permission by High Court (HHJ Roger Kaye QC): success appeal to the Court of Appeal for permission; main hearing refused by Kerr J: CLIENT SEEKING PERMISSION TO APPEAL TO THE COURT OF APPEAL
• Eastleigh BC v SSCLG and Miller Homes, Gleeson and Welbeck [2017] – High Court – acting for the Miller, Gleeson and Welbeck in defending a planning permission for 660 dwellings at Hedge End in Hampshire from a challenge by the local planning authority. The Secretary of State is also defending the decision. The LPA have yet to secure permission to bring the claim.
• Cumberledge v SSCLG and DLA Delivery [2017] – High Court – acting for DLA defending a planning permission for 50 dwellings at Newick in East Sussex from a challenge by a local resident and Conservative peer. The Secretary of State is also defending the decision. The Claimant has yet to secure permission to bring the claim.
• Persimmon v Newcastle SSCLG & Bellway [2017] – High Court: acting for Bellway, Persimmon challenge both Bellway’s permission for 600 dwellings west of Newcastle and the Council masterplan for the area. Permission to bring the claims (and one against CEG) refused by Kerr J; PERSIMMON SEEK A PERMISSION TO BRING THE CLAIMS AT RENEWAL HEARING BEFORE DOVE J (listed for hearing 8/9 March 2017)
• West Berkshire DC v SSCLG & HDD [2016] – High Court: (Supperstone J) acted successfully for HDD in defending a permission granted on appeal for residential development; the rejection of a housing requirement in an adopted Core Strategy and the use of a consultant-derived figure for the annual objectively assessed housing need: NPPF paragraphs 47 and 14; NO FURTHER APPEAL
• Darnhall Estates v SSCLG and Cheshire West [2017] – High Court acting for Darnhall Estates in challenging the refusal by the Secretary of State of planning permission for 180 new homes including affordable homes, self-build homes and homes built by small and medium sized local builders in Winsford, Cheshire. PERMISSION GRANTED TO BRING THE APPEAL ON ALL 12 GROUNDS BY LANG J (HEARING 11/12 JULY 2017)
• Allaston Developments v SSCLG and Forest of Dean DC [2016] - High Court - challenge to the refusal of permission for 200 new homes including affordable homes, a care home, self-build homes and homes built by small local builders based on a draft NDP: SECRETARY OF STATE CONSENTED TO JUDGMENT; APPEAL TO BE REDETERMINED
• Burton and South Derbyshire College v Secretary of State [2015] – High Court - acted for the Claimant in the first successful challenge to a neighbourhood plan decision made by the Secretary of State: refusal of housing development in light of an emerging neighbourhood plan – Secretary of State consented to judgment: SECRETARY OF STATE CONSENTED TO JUDGMENT; APPEAL REDETERMINED AND PLANNING PERMISSION GRANTED
• Rutherford v Cotswold DC [2015] – High Court - acted successfully for the Claimant in a challenge to the grant of permission for international dressage facility built by Phillips family – the Council consented to Judgment and subsequently refused the application on the redetermination: COUNCIL CONSENTED TO JUDGMENT
• Smith-Ryland v Warwick DC [2015] – High Court - acted for the Claimant in a challenge to the grant of permission for residential development – Defendant consented to Judgment: COUNCIL CONSENTED TO JUDGMENT
EXAMPLES OF HOUSING WORK IN THE LAST 2 YEARS:
2017 • Hallam Land Management – winning an appeal 160 houses and 90 bed care home at Burford in the Cotswold: OAN, 5YS, landscape and sustainability in issue; and at the West Oxfordshire EIP, in opposition to the Council’s draft Local Plan, which has now been suspended. • Taylor Wimpey, Linden and Bovis – advising the companies on their scheme for 5,500 homes at Sherford, Plymouth • South Worcestershire Authorities – advising the three LPAs on major housing proposals for 2500 homes south of Worcester: viability • Rockspring Hanover – representing the company at appeal for 900 houses on a brownfield site at Thorpe Arch near Boston Spa in Yorkshire • Bloors and Barratt – advising the companies in respect of a proposal for 700 homes proposal at Wrexham in Wales • Ptarmigan – advising on major mixed use proposals at the Harwell Research Science Park • Bellway – advising the company on an application for 200 houses at Ashford in Kent; and representing the company at appeal for 130 houses at Bowlands Hey in Lancashire and 75 houses in Seaham, County Durham • Larkfleet – representing the company at appeal for 200 houses at Kirton in Lincolnshire: landscape and flooding issues; and advising on a proposal for mixed use development at Scunthorpe • Richborough Estates – representing the company at appeals for housing in 75 houses at Semington in Wiltshire and 65 houses at Swallowfield in Berkshire: OAN, 5YS, landscape • Catesby – representing the company at appeals for 70 houses at Wilstead in Bedfordshire and 55 houses at Felsted in Essex: OAN, 5YS, landscape, ecology and heritage
2016 • Miller Homes, Gleeson and Wellbeck – winning an appeal before the Secretary of State appeal for a 660 house urban extension in Hampshire: OAN, 5YS, sustainability, highways and landscape in issue • Miller Homes – winning an appeal for 200 new homes at Bidford on Avon: OAN, 5YS, affordable housing, NDP, prematurity and sustainability in issue. • Persimmon and Taylor Wimpey – winning an appeal for a 200 house urban extension to Wells in Somerset: OAN, 5YS, NDP and sustainability in issue • Richborough Estates – winning an appeal for 140 new houses in Ludlow, Shropshire: issues including OAN, 5YS, heritage and landscape • DLA Delivery – winning an appeal before the Secretary of State for 50 houses at Newick in East Sussex: on a site not allocated in the neighbourhood development plan • Bellway Homes – successfully advising the company on securing planning permission for a major urban extension for 600 new homes on the edge of Newcastle-upon-Tyne: infrastructure delivery in issue • Richborough Estates – representing the company at the Birmingham EIP on the promotion of 2,500 homes in the West Midlands Green Belt: the Inspector subsequently suspended the EIP following concerns over the City Council’s SEA and OAN • Bloor Homes – advising on application for 1,000 homes at North Worcestershire Golf Club • South Deryshire College – winning an appeal before the Secretary of State for 100 houses in Rolleston on Dove: neighbourhood plan and landscape issues • Radley College - advising on an applications and appearing at the Local Plan EIP for 200 homes in the Oxfordshire Green Belt • South West Strategic Development - representing the company at appeal for 170 houses on the edge of Weston Super Mare, Somerset: 5YS and landscape impact • Redrow - representing the company at appeal for 170 houses at Newport in Shropshire: OAN, 5YS, landscape and highways • Persimmon – advising on a scheme 355 new homes at Penkridge, Staffordshire • Barratt – advising on a scheme for 230 new homes at Trentham in Stoke-on-Trent • Redrow Homes – advising on a successful application for 377 new homes at Leckhampton, Cheltenham including specifically persuading Sec of State against a call-in inquiry: also advising Redrow on the major urban extension at North West Cheltenham
2015 • Martin Grant Homes – winning an appeal for 300 new houses on the edge of Church Cookham in Hampshire close to the Thames Basin Surrey Heaths: SANG and the Habitats Directive in issue • Catesby Developments – winning an appeal for 140 new houses on the edge of Shefford in Bedfordshire: OAN, 5YS and landscape in issue: the Council withdrew its evidence after the exchange of evidence • Linden Homes - advising a major sustainable urban extension for 600 new homes on the edge of Bideford in Devon • Barratt, Persimmon and Heron Land – advising on a major urban extension for 750 new homes at Chippenham, Wiltshire • Summerfield – winning an appeal for 80 new houses on designated employment land at M5 Junction 21 in North Somerset, in spite of an employment led Local Plan. • Henry Davidson – winning an appeal for 90 new houses at Burghfield Common in West Berkshire and successfully defending the decision in the High Court: OAN, 5YS, Core Strategy policy and prematurity to an allocations DPD in issue • Rosconn – winning an appeal for 80 houses at Shepshed in Charnwood: OAN, 5YS, affordable housing, sustainability and landscape in issue • Richborough Estates – winning an appeal for 70 houses at Davenham in Cheshire: OAN, 5YS and landscape • Catesby – advising on a successful application for 100 houses on land at Balsall Common in the West Midlands Green Belt • Taylor Wimpey – advising on residential development at RAF Quedegley, Gloucs
SOME SIGNIFICANT HOUSING WORK IN 2014:
• St Modwen Developments – winning an appeal for 300 houses on “the best oven ready, prime employment land” in Stoke-on-Trent – issues included housing and employment land supply. • Hignett Family Trust – advising on the successful promotion of a 300 house site removed from the Green Belt at Bath; also within the Cotswold AONB and with European protected species • Rainier Properties – winning an appeal at an appeal before the Secretary of State for 135 houses on parkland land on the edge of the village of Burbage – issues included housing supply and landscape impact • Hallam Land – winning an appeal for 120 houses on the greenfield land on the edge of Launceston, Cornwall (plus a full award of costs) – issues included housing supply, landscape and highways • Bloor Homes – advising on a successful application for 400 houses on the edge of Chippenham, Wiltshire • Bloor Homes – advising on the promotion of 1,000 house strategic allocation for a major urban extension at Bideford, Devon
SOME SIGNIFICANT HOUSING WORK IN 2013:
• St Modwen Development – winning appeal for 660 new houses and ¾ million sq feet of employment premises at Branston, Burton-on- Trent, (plus a full award of costs) - main issues: five year supply, highways • Bloor Homes – advised on the successful promotion of 300 new houses at Thornbury in South Gloucestershire through the Core Strategy (securing its allocation as the only additional housing site) and winning the concurrent appeal – main issues: five years supply, drainage, heritage and education • Heron Developments – winning an appeal recovered by the Welsh Ministers for 150 new houses on greenfield land at Cardiff (plus a full award of costs): the result was instrumental in the City Council abandoning its stance on prevent peripheral expansion of the Capital • University of Reading – winning an appeal for 120 new houses at The Manor, Shinfield: seminal case on NPPF/173 and new RICS guidance on financial viability in planning and the concept of a competitive return for the landowner;
RETAIL WORK • Punch Taverns (2017) – advising the company on a retail site in Worcestershire • Hackling (2015-16) – advising on proposal for supermarket proposal in the Cotswolds • Tesco Stores Ltd (2014) – winning an appeal for a supermarket in Stourport, Worcestershire • Lidl Ltd (2014) – advising the company on proposals in Yorkshire and the South East • Tesco Stores Ltd (2013) – winning an appeal for a supermarket proposal in Coleford, Gloucestershire • Tesco Stores Ltd (2013) – winning an appeal for a supermarket proposal in Halifax, Yorkshire where the Council withdrew their evidence the day before the inquiry • Tesco Stores Ltd (2012) – winning an appeal for a supermarket in Reading with objections on noise and highway grounds • Greatline Ltd/ Tesco (2011) – instructed in respect of 80,000 sqft out of centre foodstore in Corby and advising on successful approach to avoiding a JR challenge by Land Securities • Tesco Extra Superstore (2011) – winning an appeal for a 11,000 sqm superstore in Caerphilly, (plus a partial award of costs)
EMPLOYMENT, EDUCATION, SPORT AND LEISURE • Waddeton Park (2017) – representing the company at appeal a new free school and 200 houses at Midsomer Norton, Somerset • North Warwickshire BC (2017) – representing the LPA at an appeal for a rail freight facility and employment development at Daw Mill • Forest Holidays (2013) advising on the company’s successful application for a new holiday resort in the forests at Micheldever in Hampshire • Edgbaston Cricket Club Redevelopment (2012) representing BCC and WCCC in CPO proceedings • Solihull Rugby Club Redevelopment (2010) - represented the LPA (Solihull MBC) at appeal: appellant withdrew and substantial costs awarded to the LPA • Me ndip Hills (2009) – winning an appeal for large Olympic rifle and pistol shooting ranges in the open countryside • Edgbaston Cricket Club Redevelopment (2009-10) - representing WCCC in JR proceedings relating to the new stand required in time for the Ashes
COMPULSORY PURCHASE WORK:
• Greer v Stoke-on-Trent City Council (2015) - representing the Council in mediation proceedings on compensation claims relating to compulsory purchase of land with permission for housing and retail use • Birmingham City Council (2013) – winning a Housing Act CPO regeneration proposals in North Newtown • Birmingham City Council (2012) – winning an Education Act CPO in Newtown • Coventry City Council (2011) – winning a Planning CPO in Far Gosford • Staffordshire University & Stoke Sixth Form College (2010) – winning an Education CPO at the University • Stoke-on-Trent City Council and RENEW (2009-2012) – winning several major large scale clearance CPOs in the Pathfinder area, including under HHSRS system.
DEGREES AND SCHOLARSHIPS
BA (Hons) Double First 1994 Diploma in Law 1996 LLM (London) 1998
Queen Mother Scholarship 1996 Queen Mother/Fox Scholarship 1997 Monroe Debating Prize 1998 (All Middle Temple)
RECOMMENDATIONS
He has been recommended in directories such as Chambers Directory and the Legal 500 for the last 12 years. He has been in the top band (Band 1) for Junior Planning Counsel for the last 6 years:
Christopher Young: "Works tirelessly at planning inquiries to cover all possible issues and is very strong on five-year housing land supply and viability issues." "He has a great client base and is very good on residential work, displaying an amazing attention to detail." Chambers UK 2017
Christopher Young: “His knowledge of planning law is encyclopaedic, and he is the go-to junior for housing matters.” – Legal 500 2016
Christopher Young: “Operates a practice centred entirely on work involving town and country planning, compulsory purchase, and highways law. He has an impressive record representing clients in appeals before the High Court, and is an accomplished advocate in inquiries. He typically acts for major private sector clients on large development projects.” Strengths: “He is confident, has excellent technical knowledge and sheer force. He’s a guy with a lot of charisma: he makes you sit up and listen.” “He is full of enthusiasm for his work and that brings an extra dimension to it. He clearly enjoys what he does, has a very good grasp of his cases and you can always rely on him to give it 100%. He can also be quite ruthless when necessary.” – Chambers Directory 2016
“Christopher Young: Widely acclaimed as a leading planning junior, with an impressive reputation for precision and strategic thinking in both advice and advocacy. He is especially well known for his residential-side expertise and his experience in compulsory purchase order (CPO) work.” - Chambers Directory 2015
Expertise: His advice and input were invaluable, and he was clearly well researched. He knew every document and he was firm when he needed to be.” “Chris impressed me. That young man has a bright future.” – Chambers Directory 2015
“Christopher Young has a strong reputation amongst the Midlands circuit’s planning practitioners. He is particularly heavily involved in inquiries related to the residential sector. “He is energetic, enthusiastic, he gets involved in things and he is very popular with clients” – Chambers Directory 2014
“The “very impressive” Christopher Young is a compulsory purchase, highways and town and country planning specialist.” - Chambers Directory 2013
“According to feedback, Christopher Young” shows great attention to detail, a thorough understanding of the issues and a real hunger for knowing the case inside and out.” - Chambers Directory 2012
“Christopher Young is commended for his representation of giants in the retail sector in relation to planning and CPOs” - Chambers Directory 2011
“Christopher Young is noted for his remarkable degree of expertise in planning, highways and CPOs. Overall the past year, he has represented both Tesco and Lidl in a number of separate planning issues and has also acted in major litigation challenging the government’s high-profile eco-town proposals.” – Chambers Directory 2010
“The market has great expectations of Christopher Young” who interviewees described as having “silk potential written all over him”. “He never fails to impress us with his talent, commented one client.” – Chambers Directory 2009
“Christopher Young is noted as being a “bright, confident and forthright inquiry advocate.” – Chambers Directory 2008
“In addition to advising an array of housing developers in connection with local plans, Christopher Young’s recent highlights including successfully defending Trafford’s MBC’s housing moratorium” – Chambers Directory 2007
“Christopher Young’s practice focuses exclusively on town and country planning and highways. Solicitors sung his praises for “always being clear” and inspiring confidence in client she was acknowledged as having a “brain you can trust” Chambers Directory 2006
“Christopher Young was portrayed as “a clear thinker who is diligent and always responds quickly.” – Chambers Directory 2005 New to the table, Christopher Young stood out as “punching above his weight.” – Chambers Directory 2004
“Christopher Young has a major following of developers for his planning work” Legal 500
Strategic Planning in City Regions How can landowners and developers effectively engage?
“Urban geographers’ conceptualization of city marketing is heavily influenced by David Harvey’s classic article, ‘From managerialism to entrepreneuralism’. Harvey makes three related claims. First, that since the early 1970’s, city governments have had to take an entrepreneurial stance in relation to capital... Second, this shift has entailed a relocation of control over, and risks emanating from urban economic development. Control of local governance is increasingly vested in private and unelected institutions. Local state agencies are thus, left playing a facilitating role in urban policy making whilst assuming more of the risks of development. It is this relocation of risk that Harvey sees as distinguishing contemporary entrepreneurial city marketing from earlier forms of civic boosterism. His third argument is that the entrepreneurial impulse has encouraged an initiatory or speculative ethos in entrepreneurial cites that leads coalitions of private and public actors to focus more resources and attention on the construction of spectacular sites or built environments that will, it is hoped, prime pump for further private investment.”
Introduction 1. Securing a strategic allocation within a City Region Plan/Strategic Framework is a long-term process.
2. Many of the principles applicable to conventional Local Plan Examination process are applicable, with the added dimensions of time, scale and complexity.
3. Most of the principles of effective engagement will be well-known to experienced landowners and developers. The trick is to upscale these, to develop a workable, mid to long-term strategy calling upon various legal and planning contexts. Most important of all is the need to offer some degree of vision, articulated through master-planning. Comprehensive development proposals that embrace bot development and infrastructure are the key at this scale. Consultation on the Greater Manchester Spatial Framework have seen an outpouring of concern about infrastructure requirement, both physical (most especially roads) and social (most especially schools).
4. Major areas of public open space are also a key ingredient in site promoted within a Spatial Framework Plan. These are of course major features of existing Sustainable Urban Extensions (SUE) which have been allocated in local plans. But this is land which may also form part of key areas of separation between existing and new development/ settlements.
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5. The following are a series of thoughts on how to apply existing skills/knowledge to a problem on this scale.
Step 1: Situational Analysis What is the situation & how does it affect us? 6. At the outset, when the City Region Plan is announced or a given land interest acquired, a landowner/developer should conduct an initial “appreciation” of the current situation, focussed on chronology and geography.
7. On the client side, the key starting points are a clear identification of (1) the type of development for which permission is sought; (2) the geographical extent of the land ownership/interest; (3) the commercial opportunities and constraints that govern the promotion of this land for an allocation.
8. Exploration of the applicable emerging City Region Plan context should begin with a sketch of the Plan’s timetable, its (current) preparation, its (prospective) publication and (long-term) target date for examination and adoption. It may also be helpful to observe how the existing development plan documents are tied to the fate of the document, as any delay will leave them in force, albeit increasingly out of date.
9. At this stage, it is also useful to identify existing known or provisional dates to run in parallel , whether at the commercial level: e.g. the expiry or extension of an option agreement, an upcoming s78 appeal timetable, and at the national level, e.g. consultation dates on national policy, such as National Planning Policy Framework Mk II. The latter will inevitably have significant effects on the timing of submission and examination.
Step 2: Fixing the Purpose of Engagement What are we seeking to achieve and why? 10. Having appraised the situation, one then turns to the identification of the desired actions/effects. on the said Plan.
11. An owner/developer may start with the benefit of an existing allocation, as its sole interest in the plan area. In this scenario, the task will ordinarily be to protect the allocation and the Plan itself towards adoption: Defence.
12. Many more owners/developers will start without such an allocation, and may not achieve this through the plan preparation stages up to submission. Such individuals may be seeking to delay, disrupt or force withdrawal of the Local Plan at Examination: Attack.
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13. An important further category of larger landowners/developers may have secured an allocation on one or more sites, but still be seeking further allocations. Their position is complex: Balanced Attack/Defence.
14. In each of the above scenarios, the individual owner/developer will naturally need to identify whether an early application (including a s78 appeal) stands a good prospect of success in the interim prior to submission.
15. A significant factor will also be the extent of political support at both LPA level and at the LEP/Combined Authority level (depending on structure), which may itself be dependent upon holding off an application at the present time. Conversely, expedition may be merited if political support is not present. For a larger scheme, facing call-in/recovery, an appreciation of the national political position is always merited.
Step 3: Converting Purpose to Effects What effects do we need to achieve and what directions must we secure to shape the plan?
16. The desired effects mirror those at Local Examination level, either supporting or objecting/seeking changes:
- Housing Requirement Figure - Economic Growth Targets - Green Belt and Other Constraint Policies And consequently: to Allocations Policies or equivalent apportionment of housing supply to constituent geographical areas
17. A significant component of this will require confirming compliance with overarching statutory duties: Strategic Environmental Assessment and Habitats.
18. The Duty to Cooperate will, on the surface, normally appear to be secure territory for a plan promoter, but neighbouring authorities outside the City Region may still be forgotten. In any event, it is helpful to understand the extent of LPA discourse and genuine agreement.
19. The allocation owner/promoter’s task and desired effects are theoretically relatively clear: to shepherd the plan to adoption with the allocation secure. In practice, however, the task will require constant vigilance.
20. The objector has more options (including, as always the aim of pure delay), but if the goal is positively to secure an allocation that has otherwise been denied,
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then they will need rigorously to identify a pathway to successful allocation or consent through appeal, ordinarily premised on being preferable in sustainability terms.
Step 4: Identifying the Pressure Points (Geography, Chronology and Evidence) Where and when can we best accomplish each action/effect? 21. For allocation owners/promoters, certain effects must be commenced at the earliest stage, the Pre-Consultation Stage, namely the allocation itself (which may build upon or expand from an existing Local Plan allocation).
22. The general rule for an objector, from a pure legal perspective, is that the earlier that a concern is raised the better, to avoid any allegation that the matter has not been considered sufficiently important to raise before this time.
23. The Consultation Stage mirrors the above. The earlier the better, with evidence proportionate to that offered by the Plan’s authors.
24. The Examination Stage is likely to be long-running and staggered. The quality of submissions at this stage will however benefit immeasurably from font- loading of the evidence base. Not only is this good practice generally, but will steer the Inspector’s questions and expose the quality/absence of answers from the local planning authorities.
25. Finally, it follows from the above observations that the focus should really be on the Application and Appeal Stages, whether because the Plan itself is going to be seriously delayed or presents no realistic prospect of allocation.
Step 5: Assembling the Team (and the Budget) What resources do we need to accomplish each action/effect? 26. Having identified one’s aims and their corresponding chronology, the project management element should then shift to personnel and resources.
27. Day-to-day team leadership across the sector remains varied: between Planning Solicitors and Consultants. Each have their merits, and the Planning Bar works equally well with both.
28. A multi-disciplinary team of planning, environmental and other technical experts will need to be instructed (and coordinated).
29. Timetabling/diary management should begin as early as possible, in an era of 6 to 12 month booking of busy advocate and expert witness diaries.
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30. Whilst the evidence needs to be proportionate to the stage of the exercise, the ultimate target must be the quality of the evidence that can be relied upon at the eventual examination stage, just as for an inquiry but will considerably more elongated timescales.
Step 6: Synchronisation of Effort When and where do the actions take place in relation to each other? 31. The above steps may have an obvious linear progression, but it is more likely that there will be considerable overlaps and potential issues of sequence.
32. The timetabling recommended in Step 1 (updated as necessary) will ensure some de-conflict of these steps.
33. Flexibility is essential, but should not distract from basic scenario planning.
34. Key elements of unpredictability include: the political strategy (where lines of communication will need to be open and responsive), the evidential strategy (which will require constant supervision and checking to ensure accuracy, and the examination process, including responses to Inspector’s Pre-Examination Notes and equivalent intervention.
35. Alliances amongst development industry participants may also be necessary, and can ensure economy of expenditure.
36. Finally, a legal challenge by way of s113 PCPA 2004 may be necessary, although will ordinarily only emerge as practical at the very end of the examination and adoption process, due to the ouster provisions.
Step 7: Building in Security and Focus What control measures do we need to impose? 37. Controlling the focus of the promotion/objection strategy and maintaining it secure from both localised and external changes is vital over the long duration of a City Region Plan.
38. Changes of position will occur; the key is how one responds to them.
39. The evidence base needs to be as consistent as possible, but where the public bodies’ position alters then interim responses may be necessary.
40. Equally, on the legal side, Notes to the Inspector or Counsel’s Opinion may be required to either defend an attack or launch one.
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41. The political sphere will also need to be managed, for example, if electoral changes or Board member changes alter the balance of support.
Conclusion 42. Landowners and promoters engage best in large-scale development plan exercises, when they themselves plan their own strategy over the long-term, building in sufficient flexibility to respond, and deploying the resources proportionate to the financial rewards available.
43. Until the statutory scheme and policy scheme is rendered more certain, there is considerable benefit in developing a front-loaded strategy, equivalent to the DCO process for major infrastructure.
Chris Young No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
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Thea Osmund-Smith Planning & Environment
In 2015 Thea was rated by Planning Magazine as one of the top 3 planning barristers under 35 years old. She is a specialist planning and environmental law practitioner and regularly advises a wide range of clients including local authorities, parish council’s, commercial and private clients.
This year, Thea has appeared at a number of Planning Inquiries and Hearings and in the High Court. Recent High Court hearings include: Year of Call: 2010
Clerks R (on the application of Leicestershire Police and Crime Commissioner) v Blaby DC [2014] EWHC 1719 (Admin). In this Senior Practice Manager matter, Thea represented the Police (as junior to Jenny Wigley) in Andrew Bisbey challenging the decision of Blaby DC to grant permission for a sustainable urban extension without making adequate provision for Policing infrastructure. While the Local Authority accepted the need to Chief Executive & mitigate the impact of the development on police infrastructure, Director of Clerking development viability concerns meant the necessary funding could not Tony McDaid be delivered until a late stage in the project leaving the Police to plug the infrastructure gap. The claim was made on the basis that the Contact a Clerk decision to grant permission was irrational, and although ultimately the Tel: +44 (0) 845 210 5555 challenge failed, the case raises a number of interesting questions Fax: +44 (0) 121 606 1501 about the interrelationship between local authorities and infrastructure [email protected] providers as well as the application of the CIL Regulations and the impact of development viability.
Pertemps Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2308 (Admin) Thea advised and represented the successful Claimant company in this matter which involved the interpretation and application of Policy P17 “Countryside and Green Belt” of the Solihull Local Plan. It was a challenge by Pertemps Investments Ltd to the decision of a Planning Inspector dismissing its appeal for a new office building in the grounds of Meriden Hall near Coventry. The site is in the Green Belt, and the development was said to conflict with Policy P17 because it was a new building that was inappropriate in the Green Belt. Lindblom J however quashed the Inspector’s decision on the basis that he failed to properly understand and apply the policy, which could have been a powerful factor in the planning balance in favour of the proposal, and because it was inconsistent with an earlier decision of the Council in respect of the same policy.
Thea has experience of a broad spectrum of planning related matters including:
• Local Plans -Thea was involved in the preliminary hearings of the Coventry Core Strategy, and more recently, appeared at the Warwick Local Plan Examination. Thea has also drafted representations for the King’s Lynn and West Norfolk Local Plan
• Housing – Thea has extensive experience of dealing with objectively assessed needs, housing land supply issues, and prematurity in the context of local and neighbourhood plans. Thea has appeared at planning Inquiries both promoting and objecting to housing schemes, and has dealt with a wide range of issues including landscape and character, transport, drainage, heritage, ecology, locational sustainability and environmental impact. Recent appeals include:
- Legbourne Road, Louth 970 dwellings, APP/D2510/A/14/2218774
- Land at the Asps, Warwick 900 dwellings, APP/T3725/A/14/2221613
-Land at Leckhampton, Cheltenham up to 650 dwellings APP/B1605/W/14/3001717
-Langton Hill, Horncastle 300 dwellings, APP/D2510/A/14/2214716
-Ledsham Road, Ellesmere Port 2000 dwellings APP/A0665/A/13/2209026
• Renewable Energy - Thea has acted for promoters and objectors of wind farm development. Given the scale of turbine development and the acknowledged landscape impact of wind farms, landscape harm is a common issue as is the impact on the historic environment. Moreover, environmental impact, protection of European protected species and the Habitats Directive are also issues that often need to be addressed. Recent projects include the following
- Llaithddu Wind Farm Promoting a 27 turbine scheme in the context of a conjoined s36 Inquiry together with 5 sites and related grid connection works.
- Mynydd y Gwynt Promoting a nationally significant infrastructure project for up to 27 turbines - a decision is pending.
- Hemswell Cliff Wind Farm Thea acted on behalf of a local residents group – VOCAT in objecting to the scheme on heritage, archaeology and landscape grounds. The appeal was refused after the introduction of the new planning practice guidance because the scheme was found not to have community backing.
- Churchover Wind Farm Acting on behalf of the Parish Council objecting to a scheme of 3 turbines on heritage and landscape grounds. A decision is awaited on this matter - arguments on the recent PPG and the meaning of “community backing” featured heavily in both the evidence and the submissions.
• Section 106 contributions, development viability and the application of the CIL Regulations 2010 - Thea has advised a range on of clients on the applicability of the Regulations to specific contributions, and on the wording of 106 Agreements / Unilateral undertakings. In particular, Thea’s recent work has included advising infrastructure providers on the pooling of contributions, and what practical steps might be taken to avoid a conflict with the Regulations to ensure that development can be considered acceptable in planning terms. Thea frequently gives advice on the discharge and modification of planning conditions, and the lawful implementation of planning permissions. Thea is frequently asked to advise on the renegotiation and removal of planning obligations, particularly in the context of affordable housing as well as enforcement of section 106 agreements / unilateral undertakings .
• Enforcement –Thea is regularly instructed to advise on the drafting of enforcement notices and the securing of injunctions for breaches of planning control. Thea attends both enforcement Inquiries and hearings and has also appeared in the Crown Court and the Magistrates’ Court in enforcement cases. Thea wrote a paper on recent updates in planning enforcement and the use of the Proceeds of Crime Act earlier this year, which can be accessed via this link.
• Permitted Development Rights and Lawful Development Certificates - Recent changes in the General Permitted Development Order have given rise to a number of interpretative difficulties and Thea regularly advises on the availability of permitted development rights, and the use of planning conditions to exclude those rights.
• Commercial and Leisure and Tourism development – Thea has worked on a number of proposals for business and industrial development in the past year, including a recent proposal for a 3M Sq Ft warehouse and distribution development.
Recent Experience
In 2014 and 2015 Thea has appeared at a number of housing appeals (both large and small) where issues have included prematurity, landscape (as well as AONB), highways, heritage, ecology, drainage, and planning obligations. Thea is of course familiar with the NPPF and arguments concerning objectively assessed housing need and housing land supply, both are which are frequently the subject of detailed argument at Planning Inquiries.
Over the past two years, Thea has appeared at a number of wind farm Inquiries, notably as junior to Richard Kimblin promoting two 27 turbine schemes – one as section 36 application and the other a nationally significant infrastructure project. In East Lindsey Thea was successful in resisting a three turbine wind farm scheme (Land Adjacent to Louth Canal APP/D2510/A/13/2200887) on the basis of harm to a nearby heritage asset, as well as harm to residential amenity of a nearby property, despite the house being 620m from the nearest turbine - a distance normally considered too far to cause unacceptable conditions for residential amenity. More recently, Thea was successful in resisting a scheme at Hemswell Cliff, Lincolnshire partly because the scheme did not have “community backing” for the purposes of the new Planning Practice Guidance. Such arguments are likely to feature heavily in forthcoming wind farm inquiries.
After appearing at the Preliminary Hearing Session in respect of Coventry City Council’s Core Strategy in 2013 and making successful written and oral submissions on the failure of the Council to comply with the Duty to Co-operate, Thea has continued to take a keen interest in the forward planning process with a specific focus on neighbourhood planning and the CIL regime see [2014] EWHC 1719 (Admin). Thea recently appeared at the Warwick Local Plan Examination to object to the Council’s proposed housing requirement on behalf of commercial clients. The Inspector agreed with the objections that were raised by a number of interested parties, and so further work is now to be done on the plan. Now that CIL Reg 123 is in force, Thea is regularly instructed to advise infrastructure providers on the impact of the Regulations, the issue of pooling and how that might be addressed through drafting of clauses in planning obligations.
Thea has advised on and settled grounds in a number of judicial review cases as well as appearing in the High Court on a number of occasions this year. Thea also appears in the Magistrates, and Crown Courts in respect of enforcement matters as well as section 215 Notice Appeals, and in the County Court to obtain injunctive relief.
Further Experience
Thea has written for the UK Environmental Law Association’s publication ‘e-law,’ on the issue of costs of Environmental Judicial Review, and spoke on ‘the year’s hottest cases’ at the UKELA Annual Conference . The paper she presented was published in a special issue of Environmental Law & Management. Thea also writes and regularly presents papers at seminars and conferences both on behalf of the planning group and when invited by clients to do so.
QUALIFICATIONS & AWARDS
LLB, First Class, University of Warwick BVC graded ‘Very Competent,’ College of Law The Lord Slynn of Hadley Environmental Law Moot 2011, Winner; Major Scholarship, Inner Temple (2009); Duke of Edinburgh Entrance Award, Inner Temple (2009); University of Warwick Law School Prize for Best Overall Performance (2008, 2009).
RECOMMENDATIONS
Cited by commentators as a junior with an impressive ability to see straight to the heart of the matter at hand. She has particular experience of inquiries relating to housing and renewable energy development. Strengths: "She gives clear and robust advice, performs well on her feet as an advocate, and handles clients extremely well." Chambers UK 2016
Thea did an excellent job. In truth, I believed that we were going to fight a bit of a losing battle, but thanks to Thea's advocacy, I now believe we have a chance of winning the case. - Client
Thea undertook an excellent inquiry for us and we were all very impressed. - Client
I thought Thea did a brilliant job at the hearing yesterday and whatever the judge’s ruling I am in no doubt that (a) we have done the right thing and (b) we have given it our best shot. - Client MEMBERSHIPS
UKELA PEBA Inner Temple
Practical Implications of Environmental Impact Assessment Directive Amendments1
1. This paper seeks to give an overview of the 2014 EIA Directive that amends the 2011 Directive. The changes will have to be transposed into UK law by May 2017, and the Government has already consulted on Draft Regulations.
2. The most significant changes (in summary) are:
• The addition of a definition of the environmental impact assessment process - Article 1(2)g;
• Changes to the circumstances in which a project may be exempt from the requirements of the Directive – Articles 1(3);
• Introduction of Joint and/or Coordinated procedures for projects which are subject to the Habitats or Wild Birds Directives as well as the EIA Directive – Article 2(3);
• Changes to the list of environmental factors to be considered as part of the environmental impact assessment process – Article 3;
• Clarification of the options for screening and amendments to the information which is required and the criteria to be applied when screening projects to determine whether the Directive applies – Article 4, Annex IIA and Annex III;
• Amendments to the information to be included in the environmental statement – Article 5 and Annex IV;
1 No 5 CHAMBERS ICC CONFERENCE – 3 APRIL 2017
1 • A requirement for environmental statements to be ‘based on’ a scoping opinion, where one is issued – Article 5(2);
• The use of competent experts - Article 5(3);
• A requirement to inform the public of projects electronically - Article 6(2) and 6(5);
• A new article elaborating on information to be given in decision notices and the decision making procedures – Article 8a;
• Monitoring significant adverse effects - Article 8a(4);
• A new Article requiring the avoidance of conflicts of interest – Article 9a;
• The introduction of penalties for infringements of national provisions – Article 10a.
3. The paper is split into the following four sections:
1) Introduction 2) Brief overview of EIA Directive regime 3) Current Position 4) Main changes and effect on day-to-day practice
Introduction
4. The first EIA Directive came into force in 1985 as Council Directive 85/337/EEC (the “1985 Directive”) and was amended in 1997, 2003 and 2009. The 1985 Directive and its three amendments were codified by Directive 2011/92/EU. The 2011 Environmental Impact Assessment (“EIA”) Directive forms part of European law and has now been amended by Directive 2014/52/EU (“the 2014 Amendments”), which must be incorporated into UK law by May 2017.
2 5. The 2014 Amendments entered into force on 15 May 2014 allegedly to simplify the rules for assessing the potential effects of projects on the environment in line with the drive for smarter regulation. It is intended that the 2014 Amendments will reduce the administrative burden on those involved in Environmental Assessment, and also reflect the changes that have taken place since the original Directive came into force in 1985; for example increasing access to electronic communications and data sharing platforms. The Regulations are intended to improve the level of environmental protection with a view to making business decisions on public and private investments more sound, and more predictable and sustainable in the longer term.
Overview
6. Environmental Impact Assessment is a process that can be summarised as follows:
(i) Some project types are always considered likely to have significant effects on the environment and must be subject to environmental impact assessment in all cases. These project types are listed in Annex I of the Directive, e.g. nuclear power stations, oil refineries and large quarries. (ii) Other project types are only considered likely to have significant effects in some cases depending on their nature, size and location. These project types are listed in Annex II of the Directive and include urban development and smaller energy and infrastructure projects. (iii) Projects listed in Annex II must be subject to environmental impact assessment where it is determined that they are likely to have significant effects on the environment. (iv) The process for determining whether a project listed in
3 Annex II is likely to have significant effects on the environment is usually referred to as ‘screening’. Member States can decide whether a project listed in Annex II should be subject to environmental impact assessment through a case-by-case examination and/or by setting thresholds or criteria. Annexes I and II are replicated in Schedule 1 and 2 of the current Regulations respectively.
7. The developer may request the competent authority to say what should be covered by the EIA information to be provided by the developer (scoping stage); the developer must provide information on the environmental impact (EIA report – Annex IV also known as an Environmental Statement); the environmental authorities and the public (and affected Member States) must be informed and consulted; the competent authority decides, taking into consideration the results of consultations. The public is informed of the decision afterwards and can challenge the decision before the courts.
8. Fundamentally the scheme of the current EIA process doesn't change as a result of the 2014 amendments, but there is added detail.
Screening – is EIA required?
Scoping – determining the information needed for assessment
Developer prepares an environmental statement.
Consultation on application and Environmental Statement
4 Decision maker examines the information presented in the environmental statement and any other information including that obtained through the consultation and takes it into account in deciding whether to grant development consent
Post decision procedures
Current position
9. The current Regulations in force are the Town and Country Planning (Environmental Impact Assessment) Regulations 2011/1824, which transpose the 2011, 21 page Directive, into 113 pages. The proposed 2017 Regulations on which the Government has recently consulted occupy just 67 pages. The Technical Consultation opened in December for seven weeks. Responses are presently being considered.
10. In case readers are wondering whether we ought to be troubled with the 2014 Amendments given the impending departure from the European Union, the short answer to the question is “yes”. First, EIA is not a new concept and has ensured better environmental standards and protections for decades. It is unlikely that leaving the EU will prompt the UK to simply abandon what is now a well-utilised and embedded system of environmental protection. Moreover, Member States have to transpose the amendments to the Directive into domestic legislation by 16 May 2017, i.e. in two months time. The UK will still be a member of the EU on that date, and there are significant
5 financial penalties for late transposition.
11. The impact of Brexit is explained in the very first paragraph of the Government’s Consultation Paper on the proposed approach to implementing European Directive 2014/52/EU (“the Consultation Paper”):
“1. On 23 June, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation. The outcome of these negotiations will determine what arrangements apply in relation to EU legislation in future once the UK has left the EU.”
12. Accordingly, the 2014 amendments must be transposed, and the Government proposes to do so through The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (“the 2017 Regulations”); they will apply only in England. This paper does not consider the position elsewhere in the UK.
13. The final form of the Regulations will be known shortly, but the Consultation Paper reveals the intention that the Regulations should be streamlined and do no more than is necessary to transpose EU Law:
“16.The Government’s Better Regulation agenda includes the requirements that when transposing EU law the Government will ensure that the UK does not go beyond the minimum requirements of the measure which is being transposed and will use copy out for transposition where it is available, except where doing so would adversely affect UK interests.
6 We have sought to follow these principles in transposing the amendments made by Directive 2014/52/EU, and to minimise additional regulatory burden whilst protecting the environment. “ (emphasis added)
14. In particular, it is considered that the present system is well understood, by those engaged in the process and thus
….” proposals for consultation therefore represent what we consider to be the minimum changes necessary to the existing regulations in order to bring them into line with the amended Directive. This will also minimise familiarisation costs and business uncertainty.”
The main changes and day-to-day practice
Article 1 - Exclusions
• Exclusion for projects having defence as their “sole purpose”, which is a restriction on the existing exemption that applies to projects serving national defence purposes, whether that is the sole purpose or not.
• Exclusion for projects having the response to civil emergencies as their sole purpose. What constitutes a “civil emergency” is not defined by the Directive nor the Draft Regulations but presumably could apply to major weather events as well maritime incidents for example - the responses to which could conceivably require development that would normally require environmental impact assessment.
• The 2014 Directive introduces a definition of the environmental impact assessment process. Article 1(2)(g).
7 Article 2 – Joint / Coordinated procedures
• Introduction of Joint and/or Coordinated procedures for projects which are subject to assessment under other Directives as well as the EIA Directive.
• Where a project is simultaneously subject to an assessment under the Environmental Impact Assessment Directive and also under the Habitats and/or Wild Birds Directives, the 2014 Directive requires that, where appropriate, either a coordinated procedure or a joint procedure should be used. The coordinated procedure requires designating an authority, or authorities, to coordinate separate assessments. The joint procedure, on the other hand, requires Member States to endeavour to provide for a single assessment of a project’s impacts on the environment.
• The Government considers that the coordinated procedure provides the greatest flexibility for developers around the phasing and timing of environmental impact assessment and ‘appropriate assessment’ under the Habitats Directive. No other Directive is included for coordination within the draft Regulations. This is thought to reflect existing practice in England.
• The consultation paper explains that the joint procedure would require the information to inform both assessments to be dealt with in a single assessment and views are sought on whether it be helpful to make provision to deal expressly with the situation where more than one authority is involved in granting permission for a proposal.
• At present, the proposed Regulation is:
27.—(1) Where in relation to EIA development there is, in
8 addition to the requirement for an EIA to be carried out in accordance with these Regulations, also a requirement to carry out a Habitats Regulation Assessment, the relevant planning authority or the Secretary of State, as the case may be must where appropriate ensure that the Habitats Regulation Assessment and the EIA are co-ordinated.
• So for example, consent for development is presently issued by the decision taker only after consideration of EIA and the Habitats Regulations (and consideration of the EIA and Habitats Regulations Assessment by various statutory advisers/environmental authorities and consultation bodies) - this “coordinated” assessment approach will continue and is transposed in the draft Regulations.
• It is difficult to see therefore what change will be brought about by the requirement for co-ordination in the majority of cases. It may not affect EIA or planning practice to any great extent, as EIA is usually already closely co-ordinated with Habitat Regulations Assessment when both are required, and there are many instances where one, but not the other is required.
• However, the proposed Regulations in maintaining the status quo would seem to fall short of what the Directive is seeking to achieve as explained at recital 37 of the 2014 Amendments:
In order to improve the effectiveness of the assessments, reduce administrative complexity and increase economic efficiency, where the obligation to carry out assessments related to environmental issues arises simultaneously from this Directive and Directive 92/43/EEC and/or Directive 2009/147/EC, Member States should ensure that coordinated and/or joint procedures fulfilling the requirements of these Directives are provided, where appropriate and taking into account their specific organisational characteristics. Where the
9 obligation to carry out assessments related to environmental issues arises simultaneously from this Directive and from other Union legislation, such as Directive 2000/60/EC of the European Parliament and of the Council, Directive 2001/42/EC, Directive 2008/98/EC of the European Parliament and of the Council, Directive 2010/75/EU of the European Parliament and of the Council and Directive 2012/18/EU, Member States should be able to provide for coordinated and/or joint procedures fulfilling the requirements of the relevant Union legislation. Where coordinated or joint procedures are set up, Member States should designate an authority responsible for performing the corresponding duties. Taking into account institutional structured Member States should be able to, where they deem it necessary, designate more than one authority
• In particular, it is difficult to see how the proposed arrangement will lead to any improvement in the effectiveness of the assessments, reduce administrative complexity and increase economic efficiency, but very little information is given within the Directive as to what is intended by the procedure or practical example of when it might be useful and effective. The Commission is to provide further guidance in due course and guidance issued in the UK following the adoption of new Regulations may be able to make some practical difference.
Article 4 – Screening
• The 2014 Directive has introduced a new detailed list of the information that the applicant must provide to the competent authority to help it screen an application for Annex II development. The requirements are contained within the new Annex II.A and include:
10 (i) a description of the project, including where relevant, demolition works; (ii) a description of the aspects of the environment likely to be significantly affected by the project; and (iii) a description of the likely significant effects on the environment resulting from
a. expected residues, emissions and production of waste; b. use of natural resources, in particular, soil, land, water and biodiversity.
• Screening will therefore become significantly more comprehensive and potentially establish a need to submit a mini-EIA at an early stage, albeit the focus is on “likely significant effect” and not simply “potential significant effects.” In practice, that should cut down on the information to be provided to the LPA.
• Article 4 also makes clear that the developer “may provide a description of any features of the project and/or measure envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.”
• The Consultation Paper explains the practical effect of that addition:
While this reflects existing domestic case law (see, for example, R(on the application of Champion v North Norfolk District Council) [2015] UKSC 52 and practice, it is anticipated that more developers will seek to demonstrate that their project will not be likely to have significant environmental effects through earlier consideration of mitigation or avoidance measures. While the extent to which mitigation measures can be used to “screen out” development at the screening stage will 11 depend on the specific circumstances in each case, this should help reduce the number of projects subject to environmental impact assessment.
• Article 4(5) now requires that the authority must state the “main reasons” rather than “full reasons” (see 2011 Regs) for its determination, including, if the determination is that an assessment is not required, any features of the proposed development and measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.
• As with any requirement to give reasons, the provision is likely to provide fertile ground for challenge, particularly where the potential for mitigation has removed the need for an EIA, and bearing in mind that screening is not a stage that requires consultation of members of the public. Moreover, while the requirement is now to give “main” rather than ”full” reasons, it would nonetheless be prudent for decision-takers to either keep a record of, or express the full reason for the decision within the determination given the potential for challenge.
• Article 4(6) introduces the requirement that the competent authority must make its screening determination ‘as soon as possible’ and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required. This period can be extended in exceptional circumstances.
• The Government’s proposals for the Regulation are that where a local planning authority is adopting a screening opinion, it must do so within 3 weeks although a longer period (up to 90 days but no more) can be agreed with the applicant.
12 Article 3 and Article 5 – Contents of the EIA
• There are some minor changes to Article 3 and additions such as “human health”, “land” and specific reference to protected species and habitats, presumably because of the desire to coordinate assessments. The effects to be assessed are those that are “significant” which provides clarification over the 2011 Directive that referred to “the direct and indirect effects of a project on the following factors.”
• Further, Article 3(2) of the Directive also introduces a new requirement to consider the expected effects deriving from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project concerned for example including those caused by climate change.
• The amended Directive brings the minimum information requirements into Article 5(1). There have been some other amendments to Annex IV. However, DCLG’s preliminary view is that it is likely in practice that all of the issues listed in the amended Annex should already be included in an environmental statement, where it is considered to be relevant to an assessment of the likely significant effects of development and thus, there will be little change arising from the 2014 Amendments.
• Also new to Article 5 as elsewhere in the 2014 Amendments, is the focus on “likely significant effects” rather than just “main effects” or “significant adverse effect”. The amendment is likely to help focus Environmental Statements so that they are shorter and more relevant.
Article 5 – Alternatives
• Presently, the 2011 Regulations require that an ES outlines the main alternatives studied by the applicant or appellant and an indication of
13 the main reasons for the choice made, taking into account the environmental effects.
• The PPG explains that an applicant does not actually have to consider alternatives but where alternatives have been considered, the applicant is required to include in their Environmental Statement an outline of the main alternatives considered, and the main reasons for their choice.
• The Directive broadens the requirement to include:
“a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment….” (Art 5(1)(d))
• According to Annex IV, paragraph 2, alternatives now refer to “project design, technology, location, size and scale”. The wording no longer refers to “main” alternatives but now rather “reasonable” alternatives. So for example, while in some assessments it is common to see a study limited to alternative designs of the same project in the same place, the Directive would seem to go beyond that narrow approach and demand a more comprehensive analysis of alternatives. • Arguably the inclusion of the word “reasonable” could invite disagreement and potential challenge as between applicants, LPAs, and consultees as to whether the developer has done enough; assessments where they embarked on will undoubtedly have to be more thorough in future.
• However, there is no indication that the requirement is mandatory despite proposals that it should be, and thus developers may still choose to omit an assessment of alternatives, reasonable or otherwise. Given the detail that now has to be included, it is likely that more
14 applicants will choose to avoid discussion of alternatives altogether, and so it is difficult to see how this particular amendment leads to better environmental decision taking.
Article 5 – Scoping
• It remains voluntary – the proposal for mandatory scoping was rejected.
• The 2014 Directive retains the provision for a developer to seek a scoping opinion if they choose. It now provides that the competent authority must issue an opinion on the scope and level of detail of the information required in the statement, taking into account the information provided by the developer on the specific characteristics of the project and its likely impact on the environment. Importantly it also introduces the requirement that where a scoping opinion has been requested, the environmental statement should be “based on” that opinion.
• Applicants should therefore be sure when producing an ES that all those matters referred to in the scoping opinion are covered, albeit in practice that is likely to be the case now. In accordance with the rest of the Directive, the focus should be on “likely significant impacts” rather than any potential impacts. It is of benefit to applicants, the LPA and consultees to have a focused ES in terms of producing and assessing the information.
Article 5 – Competent experts and access to sufficient expertise
• The 2014 Directive includes a new Article 5(3). This requires the
15 developer to ensure that the environmental statement is prepared by competent experts, while the competent authority must ensure that it has, or has access as necessary to sufficient expertise to examine the environmental statement.
• The Government proposes to include a requirement in the regulations that the environmental statement must be prepared by persons who in the opinion of the competent authority, have sufficient expertise to ensure the completeness and quality of the environmental statement. The consultation paper explains that this will be supported by a requirement for the environmental statement to include a statement setting out how the requirement for sufficient expertise has been met. The Draft Regulations do not seek to define “competent expert” any further, both because it is considered to be a sufficiently clear term, but also because it is likely to depend on the individual circumstance of each case. Views are sought in the Consultation Paper on this approach.
Article 6 and electronic communication;
• The 2014 Directive adds the requirement that the public should be informed about an application and the matters set out in Article 6(2) electronically through “at least a central portal or easily accessible points of access‟. The rationale is to ensure the effective participation of the public concerned. The amendment acknowledges the increased use of the internet and electronic forms of communication as a way in which people participate in the planning system.
• There are already provisions requiring local planning authorities to publish certain information relating to planning applications on their websites (see regulation 15(7) of the Town and Country Planning (Development Management) Procedure Order 2015 and so in practice,
16 it is thought that environmental statements are generally made available on authorities’ websites.
• In the case of nationally significant infrastructure projects of course, the Planning Inspectorate already publishes notices and environmental statements on their websites.
• Practically both applicants and local authorities will have to ensure there is a way of disseminating and displaying the information electronically. That can be challenging where for example, visual assessments are contained in very large files, but dedicated developer website can often be useful as a tool to overcome the potential shortcomings of LPA websites.
Article 6 and the Consultation Timeframe
• Article 6(7) sets a new minimum timeframe for public consultations on the environment statement. This should be no shorter than 30 days. The existing minimum period for consultation is 21 days.
Article 8a Monitoring and Article 10a
• Article 8a(1)(b) requires that in addition to any environmental conditions attached to the decision, competent authorities must also ensure that any mitigation measures and, where appropriate, monitoring measures are identified in the consent.
• It is for Member States to determine the procedures regarding the monitoring of significant adverse environmental effects. The type of parameters to be monitored and the duration of the monitoring should be proportionate to the nature, location and size of the project and the
17 significance of its effects on the environment. Existing monitoring arrangements may be used if appropriate, with a view to avoiding duplication. The Government’s view as expressed through the Consultation Paper is that existing mechanisms such as planning conditions and planning obligations provide an appropriate way to monitor mitigation.
• Similarly, a new Article 10a requires that Member States must lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive.
• However, the Consultation Papers again explains that existing mechanics relating to enforcement are sufficient to meet with the requirements of the Directive. Nonetheless a new Regulation is proposed to place an explicit duty on local planning authorities to have regard, when exercising their enforcement functions (as described in regulation 36 of the draft Town and Country Planning regulations), to the need to secure compliance with the requirements and objectives of the Directive.
Article 8 – Up-to-date information
• Article 8a(6) requires that the competent authority’s reasoned conclusion on the significant impacts on a proposal is still “up-to-date‟ at the time a final decision is taken.
• That will be important where there is a significant time delay between the submission of an ES and determination for example where planning permission is refused by the LPA and the developer appeals. In practice, most applicants do update baseline environmental information where there is delay in the determination process, but this is certainly a change to be aware of.
18 Article 9a – Conflicts of Interest
• The new Article 9a will be important where an organisation is both the developer and the consultation body and/or competent authority. In such instances, there must be an appropriate separation between functions. The competent authority or authorities must perform their duties arising from the Directive in an objective manner and not find themselves in a situation giving rise to a conflict of interest.
• The Consultation Paper says the following:
“64. We do not consider at this stage that this will have any new effects in practice. Bias is already a ground for judicial review.
The Town and Country General Planning General Regulations include provision in the case of a local planning authority making an application to itself to avoid conflicts of interest (see regulation 10). In practice, authorities will normally ensure an administrative separation to help ensure that conflicts of interest do not arise. The requirements have been transposed through a new regulation dealing with ‘objectivity and bias’ – see regulation 65 of the Town and Country Planning regulations and regulation 34 of the Infrastructure Planning regulations.”
• The Draft Regulations provide for function separation where the developer / decision taker is the Secretary of State, but probably for practical reasons, does not impose the same burden on LPAs or indeed any other bodies. LPAs and other bodies might consider putting codes of practice in place where the situation arises, albeit the Regulations do not require it.
Thea Osmund-Smith No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
19
Paul Cairnes QC Planning & Environment
Paul Cairnes was called to the Bar in 1980. His practice initially focussed upon chancery and civil litigation but he now specialises in planning & environmental work. Paul acts for developers and local authorities throughout England and Wales and he has considerable High Court experience with regard to planning and environmental issues.
As part of the No.5 Planning and Environmental Group Paul makes an Silk: 2016 active contribution to its seminar programme. He also provides in-house Year of Call: 1980 training on planning and environmental matters to Planning Consultancies and LPAs. Clerks Senior Practice Manager He is regularly instructed to appear and advise in high profile and large Andrew Bisbey scale development proposals, recent examples of which include:
Chief Executive & Housing and Mixed Use Director of Clerking • The successful promotion of rural residential scheme in North Tony McDaid Dorset and consequential discharge of existing planning obligations (PINS Refs: APP/N2515/W/15/3128761 & Contact a Clerk APP/N1215/Q/15/3131182). Tel: +44 (0) 845 210 5555 • The successful promotion of major residential development Fax: +44 (0) 121 606 1501 scheme in West Sussex despite the existence of a 5-year [email protected] housing land supply (PINS Ref: APP/L3815/W/15/3003656). • The successful promotion of a residential development scheme in Feniton, Devon. This was the only successful appeal in 4 conjoined planning appeals heard together in a “super inquiry” (PINS Ref: APP/U1105/A/13/2191905). • The successful opposition to a residential housing scheme in the Forest of Deane despite the absence of a 5 year housing land supply (PINS Ref: APP/P1615/A/13/2204158). • The successful promotion of a mixed-use development comprising 173 residential units, office buildings and retail outlet with associated infrastructure in Weymouth, Dorset (PINS Ref: APP/P1235/A/13/2198549). • The successful promotion of a residential development of 277 dwellings with associated public open space, affordable housing, recreational facilities, landscaping and access at the former Fremington Army Camp, Devon (PINS Ref: APP/X1118/A/12/2188898). • The successful promotion of a mixed used development comprising some 51 dwellings plus retail units in Bournemouth (PINS Ref: APP/G1250/A/12/2189589). • The successful promotion of a mixed-use urban extension to south of Gloucester comprising some 1750 homes and associated community infrastructure (Hunts Grove – PINS Ref: APP/C1625/V/07/1202058)). • Successfully opposing a proposed development comprising some 137 dwellings and medical centre in Bidford-on-Avon, Alcester, Stratford on Avon despite the absence of a 5 year housing land supply (PINS Ref: APP/J3720/A/12/2176743). • Successfully opposing a proposed mixed use urban extension to the north of Gloucester comprising some 1750 homes and associated community infrastructure (Land at Innsworth Lane – PINS Ref: APP/G1630/A/09/2097181)). • Advising on potential major residential development in Cornwall within historically sensitive locations. • Numerous Gypsy appeals concerning unlawful development in the Green Belt, AONBs and sensitive sites. • Numerous appeals concerning residential, commercial and Wind Farm development proposals in the Green Belt, AONBs, the setting of listed Buildings and other sensitive sites.
Commercial • The successful promotion of a large-scale low-energy industrial park adjacent to Canford Heath, Poole, Dorset. The appeal was opposed by Natural England in view of contested ecological concerns over the potential adverse impacts upon the European protected Dorset Heathlands (PINS Ref: APP/Q1225/A/13/2204098).
Minerals and Waste • Securing district-wide permanent injunctive relief concerning unlawful waste transfer sites in Rotherham. • Representing Gloucestershire County Council in challenge to minerals extractions permission in Cotswold Water Park • Promotion of Waste Transfer and linked Employment sites in the SE Dorset conurbation
Recent significant cases include: R (on the application of Egerton) v Taunton Borough Council [2008] EWHC 2752 (Admin): The meaning of ‘curtilage’ in the context of the listed buildings legislation.
Wiltshire Council v (1) Secretary of State for Communities & Local Government and (2) Robert Hitchins Ltd [2010] EWHC 1009 (Admin): Disaggregation of housing land supply and the potential use of summary judgment in s.288 appeals.
Stratford on Avon District Council v David Wilson Homes and Others (2011): Successful enforcement of s106 obligation to provide financial contribution to community facilities.
Jenkins v Gloucestershire County Council and Ors [2012] EWHC 292 (Admin): Opposing challenge to grant of planning permission in the Cotswold Water Park.
Stratford-on-Avon District Council v Secretary of State & Ors [2013] EWHC 2074 (Admin): Challenge to grant of planning permission formulated on consultation rights as contained in the Aarhus Convention.
Wingrove v Stratford-on-Avon District Council [2015] EWHC 287 (Admin): Successful resistance to challenge of use by LPA of s.70C TCPA 1990 (introduced by Localism Act 2011) to decline to determine retrospective application for planning permission where enforcement notice in place.
RECOMMENDATIONS Paul Cairnes is recommended in Legal 500 and has been variously described as: “He has strength of character, good judgement and strong client-handling skills” (2016); “very thorough in his research and insightful in his advice” (2015); “An approachable and supportive practitioner, who is superb in cross-examination” (2014); “an excellent advocate, and superb in cross-examination” (2013); ‘very able and very knowledgeable on planning matters’ (2010); and “Paul Cairnes…is part of No5 Chambers exceptional planning and environmental law team” (2011). He also featured as a top rated junior in Planning magazine (2013 - 2015) before taking Silk in 2016.
MEMBERSHIPS& QUALIFICATIONS
LLB (U.C.W. Aberystwyth) LLM in Public Law (Bristol University) Accredited Mediator (BSPC Regent’s Park College)
MEMBERSHIPS
Planning and Environmental Bar Association The Bar European Group
Air Quality – an unnecessary European brake on development? What are the implications for plan-making and development management?
1. Introduction
1.1 For the purposes of this paper I will concentrate on Nitrogen Dioxide (NO2)
emissions have upon Air Quality and its implications in a planning context. NO2 is produced by the burning of fossil fuels in the presence of oxygen. It poses significant risks to public health. The Committee on the Medical Effects of Air Pollutants (‘COMEAP’) has previously estimated that it has an effect on mortality equivalent to 23,500 deaths annually in the UK1.
1.2 Recommended limits for exposure have been set in the UK taking into account guidelines published by the WHO and EU Directives. As demonstrated by the
case law to which I will refer, the impact on public health as result of NO2 emissions cannot be ignored and government “whatever its political complexion, should be left in no doubt as to the need for immediate action to address this issue”2.
1.3 In this paper I explore the relevant legislative and policy framework and the recent ClientEarth litigation. I also look at the practical implications for the planning process.
2. Legislative and Policy Framework 2.1 Section 80(1) of the Environment Act 1995 placed an obligation upon the Secretary of State to prepare and publish the National Air Quality Strategy (‘NAQS’)3 following appropriate consultations4. In discharging this obligation the NAQS must include statements with respect to5: (a) standards relating to the quality of air;
1 COMEAP (2009) ‘The Mortality Effects of Long-Term Exposure to Particulate Air Pollution in the UK’. PM was estimated to have an even greater effect, namely 29,000 deaths. 2 Per Lord Carnwath (ClientEarth v SSE, FRA & Ors– ante). 3 The legislative framework for the National Air Quality Strategy is to be found in Part IV of the Environment Act 1995 (which, surprisingly, is not reproduced in the Planning Encyclopaedia). 4 ss.80(6)-(7). 5 s.80(5). (b) objectives for the restriction of the levels at which particular substances are present in the air; and (c) measures which are to be taken by local authorities and other persons for the purpose of achieving those objectives.
2.2 In March 1997 the UK National Air Quality Strategy (NAQS) was published. This was in discharge of its obligations pursuant to s.80 of the Environment Act 1995. The NAQS set objectives for eight pollutants that were recognised as
harmful to public health including Nitrogen Dioxide (NO2), Sulpher Dioxide and
Fine Particulates (PM10). This followed on from the first EU Air Quality Directive of 19966 which set out the basic principles of a common strategy including, inter alia, the following obligations on Member States: • Define and establish objectives for ambient air quality in the EU. • Assess ambient air quality on the basis of common methods and criteria. • Obtain adequate information on ambient air quality and ensure it is made available to the public. • Maintain good ambient air quality and improve in other cases. The 1996 Directive contained key definitions including the ‘air quality plans’, ‘limit value’, ‘target value’, ‘margin of tolerance’, the relevant ‘zone’ or ‘agglomeration’ and the requirement for ‘action plans’.
2.3 A further Directive (‘the First Daughter Directive’) in 19997 contained the details of the limit values, margins of tolerance, and deadlines for compliance for the 8 various pollutants. The Directive imposed two limit values for NO2: • an hourly limit value (a maximum of 18 hours in a calendar year in which hourly mean concentrations can exceed 200 micrograms per cubic metre); and • an annual mean limit value (mean concentrations must not exceed 40 mg pcm averaged over a year).
6 Air Quality Framework Directive (96/62/EU) 7 Directive 1999/30/EC. 8 See Annex II. 2.4 In 2008 Directive 2008/50 (the Air Quality Directive) was adopted. This was both a consolidating and amending measure. The preamble to the Directive explains its purpose in the following terms: In order to protect human health and the environment as a whole, it is particularly important to combat emissions of pollutants at source and to identify and implement the most effective emission reduction measures at local, national and Community level. Therefore, emissions of harmful air pollutants should be avoided, prevented or reduced and appropriate objectives set for ambient air quality taking into account relevant World Health Organisation standards, guidelines and programmes.
2.5 The same obligations to comply with the limit values, margins of tolerance “for the protection of human health” and deadlines from the First Daughter Directive were reproduced through Article 13 of the 2008 Directive9. The deadline for achieving these limit values was 1 January 201010, although Article 22 did permit a postponement11 to a maximum of five years subject to the establishment of an Air Quality Plan (‘AQP’) pursuant to Article 23. Section A of Annex XV to the Directive indicates the information requirements of the AQP. The obligations in the Directive to, inter alia, establish AQPs have been transposed into English law through Regulation 26 and Schedule 8 of the AQS Regulations 201012. Article 23 includes the following: 1. Where, in given zones or agglomerations, the levels of pollutants in ambient air exceed any limit value or target value, plus any relevant margin of tolerance in each case, Member States shall ensure that air quality plans are established for those zones and agglomerations in order to achieve the related limit value or target value specified in Annexes XI and XIV.
In the event of exceedances of those limit values for which the attainment deadline is already expired, the air quality plans shall set out
9 See Article 13 ‘Limit values and alert thresholds for the protection of human health’; and Annex XI. 10 An earlier deadline of 1 January 2005 was set for other pollutants (sulphur dioxide and particulates. 11 Also in respect of Benzene. 12 SI 2010 No.1001 (which came into force on 11 June 2010). There are separate sets of Regulations for each of the home nations. appropriate measures, so that the exceedance period can be kept as short as possible. The air quality plans may additionally include specific measures aiming at the protection of sensitive population groups, including children…
Annex XI sets out the limit values. Annex XV details the information to be included in local, regional or national AQPs for improvement in ambient air quality. This includes details of the projects or measures, a timetable for implementation and an estimate of when compliance will be achieved.
2.6 Where compliance by the deadline, even if extended, was not possible then the AQP was required to set out ‘appropriate measures’ designed to keep the exceedances period as short as possible. Section B of Annex XV indicates the information requirements in these circumstances.
2.7 For the purposes of assessing and managing air quality, the UK is divided into 43 ‘zones and agglomerations’. In addition, local authorities are required from time to time to conduct reviews of “the quality for the time being, and the likely future quality within the relevant period, of air within the authority's area.”13 These air quality reviews must assess whether air quality standards and objectives are being, or are likely to be, achieved14. The local authority must also identify those areas where those standards and objectives are not being, or are unlikely to be, achieved15.
2.8 Where an air quality review indicates an area where those standards and objectives are not being, or are unlikely to be, achieved then the area is to be designated as an Air Quality Management Area (AQMA)16.
13 EA s.82(1). The ‘relevant period’ and other phrases are defined in the interpretations section (s.91) and are essentially determined by reference to the prescribed NAQS. 14 EA s.82(2). 15 EA s.82(3). 16 EA s.83(1). 2.9 Once an AQMA has been designated then the Act imposes a number of specific duties upon the local authority, namely17: (a) To monitor and report on the air quality within the AQMA. (b) To prepare a written action plan in pursuit of the achievement of air quality standards and objectives in the AQMA. (c) The action plan shall include a timetable for the implementation of its proposed measures18.
3. Relevant Case Law 3.1 By 2010 it was apparent that 40 of these zones and agglomerations were in
breach of one or more of the limit values for NO2. In July 2011 an application for JR was brought by ClientEarth (an environmental law organisation) seeking a declaration that the UK was in breach of Article 13. The application was refused by the High Court and the Court of Appeal. Before the High Court Mitting J held19: “…such a mandatory order, like the imposition of an obligation on the Government to submit a plan under Article 22 to bring the United Kingdom within limit values by 1 January 2015, would raise serious political and economic questions which are not for this court. It is clear from all I have seen that any practical requirement on the United Kingdom to achieve limit values in its major agglomerations, in particular in London, would impose upon taxpayers and individuals a heavy burden of expenditure which would require difficult political choices to be made. It would be likely to have a significant economic impact. The courts have traditionally been wary of entering this area of political debate for good reason.”
17 EA ss.84(1)-(5). 18 The action plan may be revised from time to time. There is also provision for referring a proposed action plan or revision thereof to the SoS if the AQMA is within both a District and County Council and they disagree over its proposals. 19 R(ClientEarth) v SSEFRA [2011] EWHC 3623 (Admin) at para 15. His approach was endorsed by Laws LJ in the Court of Appeal20, who also opined that the request for a postponement pursuant to Article 22 was discretionary and enforcement was a matter for the Commission21.
3.2 The Supreme Court took a different view. It granted the declaration sought that the UK was in breach of its obligations pursuant to Article 13, but then referred questions to the CJEU on the scope of the obligations under Articles 22 and 23 of the Directive. The Commission’s submissions to the CJEU expressly disavowed the “impossibility” approach taken by Mitting J and endorsed by the CA. It had rejected such arguments made by Italy and, by analogy, an earlier series of cases relating to the bathing water Directive. The judgment of the CJEU was clear: “Where a member state has failed to comply with the requirements of the second subparagraph of article 13(1) of Directive 2008/50 and has not applied for a postponement of the deadline as provided for by article 22 of the Directive, it is for the national court having jurisdiction, should any case be brought before it, to take, with regard to the national authority, any necessary measure, such as an order in the appropriate terms, so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter.”
3.3 Lord Carnwath’s subsequent judgment in the SC on the impossibility argument that had prevailed in the High Court and the Court of Appeal included the following: 28. …That position is clearly untenable in the light of the CJEU’s answer to the fourth question. That makes clear that, regardless of any action taken by the Commission, enforcement is the responsibility of the national courts.
20 [2012] EWCA Civ 897. 21 Article 258 of TFEU (The Treaty on the Functioning of the European Union’). 29. …The critical breach is of article 13, not of article 22 or 23 which are supplemental in nature. The CJEU judgment, supported by the Commission’s observations, leaves no doubt as to the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility of the national court for securing compliance…
30. Furthermore, during the five years of breach the prospects of early compliance have become worse, not better. It is rightly accepted by the Secretary of State that new measures have to be consideredand a new plan prepared. In those circumstances, we clearly have jurisdiction to make an order…
In addition to the declaration the SC also made a mandatory order requiring the SoS to prepare new Air Quality Plans under Article 23(1) in accordance with a defined timetable to end with delivery of the revised plans to the Commission not later than 31 December 2015.
3.4 This ultimately resulted in DEFRA publishing the UK Air Quality Plan entitled “Improving air quality in the UK – Tackling nitrogen dioxide in our towns and cities” (December 2015)22. The plan was produced by DEFRA, the DfT and HM Treasury and contained the following information: • That 34 out of the 43 zones were expected to meet the limit values by 2020. Nine zones were not expected to meet the limit value by that date without additional measures. • Future projections of emissions were modelled at five-yearly intervals. • In modelling future air quality, DEFRA relied on a model called the Pollution Climate Mapping model which had been developed by Ricardo23. • That model relied upon estimates generated by the “computer programme to calculate emissions from road transport” (‘COPERT’). • Potential measures had been considered including: o mandatory low emissions zones (LEZs)
22 In association with the DoE and the devolved governments of Wales and Scotland) 23 ‘Ricardo Energy and Environment’ Consultants. o ultra-low emission zones (ULEZs) o nationally targeted retro-fit schemes for buses o scrappage schemes for diesel cars o retro-fit schemes for HGVs o voluntary LEZs and ULEZs o nationally targeted scrappage schemes for HGVs. • Low emission or Clean Air Zones (CAZs) of different classes were considered. o Class A included buses, coaches and taxis only. o Class B included those vehicles together with HGVs. o Class C added LGVs. o Class D included all of the above classes plus cars. • The CAZs would operate by charging a fee to those vehicles in the identified classes that do not meet specified emissions standards. • Ultimately it was decided that the plan would implement voluntary Clean Air Zones (CAZs) in Leeds, Southampton, Derby, Birmingham and Nottingham. • An ULEZ was proposed for London to be implemented in 2020 along with a tightening of the current London wide LEZ to Class B by 2025.
3.5 Annex 2 of the AQP concerned infrastructure and land use planning. It indicated that air quality should be considered early in any development so that mitigation measures can be developed where necessary24. Reference wa s then made to the NPPF25 and that the planning system should contribute to and enhance the natural and local environment by preventing both new and existing development from contributing to, or being put at unacceptable risk from, or being adversely affected by, unacceptable levels of air pollution. Further references to the NPPF highlight its policies promoting sustainable transport along with a commitment to update the NPPG on air quality.
3.6 The adequacy of this AQP was tested in the High Court26. The Claimant submitted that DEFRA had erred in its approach to article 23(1) of the Directive
24 Para 7.1 (231). 25 Paras 7.1.1-7.1.3 (232-236). 26 ClientEarth v (1) SoSEFRA and (2) Mayor of London & Ors [2016] EWHC 2740 (Admin), Garnham J. that periods of exceedance should be kept "as short as possible". In particular, disproportionate weight had been given to considerations such as costs, political sensitivity and administrative difficulties. It argued that the adoption of five-yearly intervals for emission projections was arbitrary, that the compliance dates were too distant and that the modelling method chosen, in particular reliance on the COPERT emission factors, was mistaken. This was in the factual context the air pollution limits are regularly exceeded in 16 CAZs in the UK: Greater London, the West Midlands, Greater Manchester, West Yorkshire, Teesside, the Potteries, Hull, Southampton, Glasgow, the East, the South East, the East Midlands, Merseyside, Yorkshire & Humberside and the North East.
3.7 In giving the judgment of the Court, Garnham J held as follows27: • Although Article 23 gave Member States some discretion to select the necessary measures for compliance, that discretion was narrow and greatly constrained. • Member States were obliged to ensure that the plans were devised so as to meet the limits in the shortest possible time. • Although they could determine the measures to be adopted, the measures selected had to be effective in achieving the objective. • There could be no objection to a Member State having regard to cost when choosing between equally effective measures, or when deciding which organ of government should pay. • However, no regard could be had to cost when fixing the target date for compliance, or in determining the route by which compliance could be achieved where one route produced results quicker than another. In those respects, the determining consideration had to be the efficacy of the measure in question. That flowed inevitably from the requirements in Article 23 to keep the exceedance period as short as possible. • The measures adopted should be proportionate, in the sense of being no more than was required to meet the target. To do more might impact adversely on other entirely proper and reasonable interests. DEFRA had to
27 See paras 42-54. therefore achieve compliance by the soonest date possible and to choose a route to that objective which reduced exposure as quickly as possible.
3.8 Applying those principles to the methodology adopted by the UK when preparing its AQP Garnham held28: • Although the use of five-yearly emission forecasts was reasonable for routine air quality monitoring that was not consistent with the need to achieve compliance in the shortest possible time. • DEFRA should have been identifying what measures quickly effected the necessary reductions in emissions, calculating when they could be introduced and then modelling the likely reduction achieved so as to assess what more needed to be done. That would have enabled it to assess whether compliance earlier than 2020 was possible. That flaw in its approach tainted the whole exercise. • The evidence demonstrated that clean air zones, the measure identified in the plan as the primary means of reducing emissions, could be introduced before 2020. There was also evidence that a principal driving factor in selecting 2020 was because that date was the earliest the EU would begin infraction proceedings, and that it would be helpful to spread the costs of implementing the plan. • The problem of reducing nitrogen dioxide levels was an urgent one and the plan to do so should have been aimed at achieving compliance in the shortest possible time, regardless of administrative inconvenience or the costs of making the necessary investigations. • DEFRA had erred in fixing, for what was little more than administrative convenience, on a projected compliance date of 2020, and had therefore deprived itself of the opportunity to discover what was necessary to effect compliance by some earlier date, and whether a faster route to lower emissions might be devised. • It was apparent that DEFRA had recognised that they were adopting an optimistic forecast regarding the foundation for its modelling. By the time the plan was introduced, the assumptions underlying the assessment of the
28 Paras 57-86. extent of likely future non-compliance had already been shown to be markedly optimistic. Simply because others were ignoring the obvious weakenesses of the data (reliance on the COPERT model was widely used in Europe) was of no assistance to DEFRA. • The plan did not identify measures which would ensure that the exceedance period would be kept as short as possible. Instead, it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions breached the Directive and the Regulations.
3.9 As a result of the above Garnham J concluded: (i) that the proper construction of Article 23 means that the Secretary of State must aim to achieve compliance by the soonest date possible, that she must choose a route to that objective which reduces exposure as quickly as possible, and that she must take steps which mean meeting the value limits is not just possible, but likely. (ii) that the Secretary of State fell into error in fixing on a projected compliance date of 2020 (and 2025 for London); (iii) that the Secretary of State fell into error by adopting too optimistic a model for future emissions; and (iv) that it would be appropriate to make a declaration that the 2015 AQP fails to comply with Article 23(1) of the Directive and Regulation 26(2) of the Air Quality Standards Regulations 2010, and an order quashing the plan.
3. EU Infringement proceedings 3.1 The Commission may start ‘infringement proceedings’ if it considers that e.g. a Member State has not transposed an EU directive correctly or on time. Infringement proceedings only start when the Commission sends a ‘letter of formal notice’ to the Member State in question. 3.2 On 15 February 2017 the Commission announced that it will pursue infringement proceedings aginst the UK (and France, Germany, Italy and Spain) for having failed to protect their citizens’ health against dangerous levels of air pollution.
3.3 This followed the latest Environmental Implementation Review published by the 29 Commission on 3 February 2017 . That review indicated that NO2 concentrations were responsible for some 68,000 premature deaths annually in the EU and it expressed concern at the overall pace of progress in achieving the limit values set by the 2008 Directive. It indicated, inter alia, that measures
to achieve NO2 compliance have to target diesel vehicles in particular e.g. by introducing progressively stringent low in addition zones in inner city areas or by phasing out preferential tax treatment. Transport demands in general should be addressed through the implementation of strategic urban mobility plans.
4. The Planning Policy Dimension 4.1 The NPPF addresses air pollution in Chapter 11 ‘Conserving and enhancing the natural environment’. The following paragraphs directly concern air pollution impacts:
120. To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or landowner.
124. Planning policies should sustain compliance with and contribute towards EU limit values or national objectives for pollutants,
29 The EU Environmental Implementation Review: Common challenges and how to combine efforts to deliver better results {SWD(2017) 33 – 60 final}. taking into account the presence of Air Quality Management Areas and the cumulative impacts on air quality from individual sites in local areas. Planning decisions should ensure that any new development in Air Quality Management Areas is consistent with the local air quality action plan.
4.2 Guidance on the implementation of these national policies is provided in the NPPG. In plan making the guidance explains that it is important to take into account air quality management areas and other areas where there could be specific requirements or limitations on new development because of air quality, and that air quality is a consideration in Strategic Environmental Assessment and sustainability appraisals. Furthermore, consideration may need to be given to, inter alia, cumulative impacts and the need to identify measures so as not to give rise to unacceptable risks from pollution30.
4.3 In terms of development management decisions the NPPG indicates that the relevance of air quality will depend upon the proposed development and its location. Identified concerns include the adverse impacts upon the implementation of air quality strategies and action plans and/or breaches of EU legislation. The NPPG provides a flow diagram31 to assist LPAs to decide whether air quality is relevant to a planning application. Potential considerations include whether the development would:32 • Significantly affect traffic in the immediate vicinity of the proposed development site or further afield. • Introduce new point sources of air pollution. • Expose people to existing sources of air pollutants. This could be by building new homes, workplaces or other development in places with poor air quality. • Give rise to potentially unacceptable impact (such as dust) during construction for nearby sensitive locations. • Affect biodiversity.
30 Paragraph: 002 Reference ID: 32-002-20140306. 31 Paragraph: 009 Reference ID: 32-009-20140306. 32 Paragraph: 005 Reference ID: 32-005-20140306. 4.4 The NPPG explains that mitrigation measures where necessary will be locationally specific and should be proportionate to to the likely impact33. Various examples of potential mitigation measures are provided, including: • Design. • GI. • Promotion of modes of transport with low impact on air quality. • Contributions to funding measures identified in air quality action plans and low emission strategies.
4.5 The policies in the NPPF and the guidance in the NPPF seem very general and diffuse (excuse the pun) when considered against the ClientEarth litigation and
the Directive obligations to reduce exposure to NO2 “as quickly as possible”. In this context it is perhaps notable that the NPPF (March 2012) and the relevant NPPG (June 2014) significantly predate both the now quashed AQP (Dec 2015).
4.6 The very real problem is the ability to demonstrate that the impacts on air quality arising from the development proposals, particuarly housing, can be adequately mitigated. The prinicipal cause of air pollution is traffic and residential development will almost inevitably result in further vehicles on the road. Air pollution will only reduce through less traffic (unlikely) and improved emissions standards for vehicles of all types34 (we are presently on Euro 6 standards). Guidance has been produced by Environmental Protection UK and the Institute of Air Quality Management ‘Land-use Planning & Development Control: Planning for Air Quality’ (May 2015). This is the principal guidance that has been used, particularly the application of a costs calculator (‘the Costs Calculator’) to fund measures to mitigate the adverse impacts of development proposals. However, the contributions have been calculated using the DEFRA Emission Factors Toolkit. As indicated above, the ClientEarth litigation has
33 Paragraph: 008 Reference ID: 32-008-20140306.
34 The existing standards are Euro 6 but the rate of reduction has slowed (not least because some vehicle manufacturers’ emission figures have not been replicated in normal use). determined that the COPERT modelling used by DEFRA was over-optimistic in
terms of its assumed rate of further future reductions in NO2 emissions.
4.7 This has potential consequences on development proposals where AQ is impacted as evidenced in the recent London Road, Newington appeals35. The LPA had not objected on the grounds of air pollution and had accepted that appropriate mitigation could be provided through a financial contribution determined by the use of the Costs Calculator36. Despite this, Inspector Roger
Clews considered that he had no firm data on the rate by which NO2 emissions from traffic would reduce and therefore whether the mitigation modelling was reliable - a view that was reinforced by the findings of the High Court in the ClientEarth litigation37. He concluded, inter alia, that he could not be sure of the likely effectiveness of the proposed travel measures in reducing the use of
private petrol and diesel vehicles and hence in reducing forecast NO2 emissions. Inspector Clews considered the proposals would have a significant adverse impact on human health notwithstanding the proposed mitigation measures. He therefore dimissed the appeals because the proposals would conflict with paragraph 124 of the NPPF38. His decision is now being challenged.
4.8 The approach taken by Inspector Clews identifies a particular problem with air quality issues in both the plan-making and development management contexts. The national policy imperative to boost significantly the supply of housing is due to a legacy of undersupply over generations and will not disappear. This necessarily creates a tension because development proposals generate traffic. This will inevitably exacerbate air pollution with significant adverse impacts upon public health.
4.9 DEFRA has primary responsibility for the UK AQP but it has now to address the implications of the ClientEarth litigation. However, the previously accepted
35 London Road, Newington, Kent. The inquiry considered two conjoined appeals: APP/V2255/W/15?306755 & APP/V2255/W/16/3148140. 36 The same approach had also been taken by the neighbouring LPA in another development scheme. 37 DL para 99. 38 DL, paras 128143. ‘industry standard’ for modelling emissions impacts (COPERT) has been discredited by the Hign Court. This creates difficulties for LPAs and Developers alike to demonstrate adequate mitigation through any financial contributions and/or the use of the ‘Cost Calculator’. This will be the case for specific applications and/or proposed allocations.
4.10 Awareness of the impacts of air pollution has steadily increased over the last 12 months. No longer is it associated with Chinese cities or London in the 1950s – it is here and it will not go away until traffic is reduced and/or emissions are significantly reduced through replacement of the national fleet with cleaner vehicles and other mitigation methods39.
4.11 Pending the UK’s review of the AQP, where air pollution is a material issue then LPAs and Developers alike will still have to demonstrate effective modelling and mitigation measures. The COPERT modelling (on which the quashed AQP had been laregely based) had adopted unduly optimistic forecasts of emission improvements. However, alternative modelling inputs could address those shortcomings and the effectiveness of proposed mitigation measures for individual development proposals. This will require greater detail and more careful assessment of the impacts on air quality generated by development proposals that has generally been undertaken hitherto. It may also be a relevant factor to consider when assessing allocations and assumed trajectories if the impacts on air quality have not been properly examined and/or assessed.
4.12 I suggest it unlikely that the UK will abandon the objectives of the 2008 Directive irrespective of Brexit. As indicated above, the various limits etc in the Directive are based upon WHO guidelines and to abandon the existing guidelines simply for the expediency of development proposals is unlikely to be politically acceptable. In the meantime, it is a material consideration which must be
39 A recent report in the Lancet indicated that ‘compact cities’ that support a modal shift away from private motor vehicles towards walking, cycling and low emission public transport (as opposed to motorised cities such as London) may be one way forward: ‘Land use, transport, and population health: estimating the health benefits of compact cities’: the Lancet, Volume 388, issue 10062, Dec 2016, pp.2925-2935. demonstrably addressed from the outset in both the plan making process and individual applications.
Paul Cairnes QC No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
Richard Humphreys QC Planning & Environment
Wide-ranging practice in Public Law including Town and Country Planning, Compulsory Purchase, Environmental, and Local Government Law, with extensive experience in litigation, public inquiries and advisory work. Cited as a Leading Silk in the Chambers and Partners and Legal 500 Directories
Practice Areas Planning practice includes involvement in substantial regeneration(1) Year of Silk: 2006 and infrastructure projects(2), development plan processes(3), Year of Call: 1986 industrial/office(4), agriculture(5), minerals(6) and waste(7), retail(8), housing(9), leisure(10), conservation(11) and highways work(12), as well as Clerks certificates of lawfulness(13) and enforcement(14). Advisory work includes affordable housing, section 106 obligations(15) and advice on community Senior Practice Manager infrastructure levy. Court cases at all levels including High Andrew Bisbey Court(16),Court of Appeal(17) and House of Lords(18) (Supreme Court). Compulsory purchase work includes section 17 inquiries(19) (certificates (20) Chief Executive & of appropriate alternative development), section 226 (TCPA 1990 Director of Clerking inquiries/compulsory acquisition for development/planning purposes), Tony McDaid compensation, section 84 Law of Property Act 1925 applications (restrictive covenants), and Lands Tribunal(21) (Lands Chamber of the Upper Tribunal) cases. Contact a Clerk Environmental work includes hazardous substances regulations(22), Tel: +44 (0) 845 210 5555 environmental protection(23) (prescribed processes and substances) Fax: +44 (0) 121 606 1501 regulations, statutory and public nuisances(24), waste directive(25). [email protected] Local government includes powers, constitution of committees, Code of Conduct, EU procurement, freedom of information, emergency powers, affordable housing, markets(26), hackney carriage licences (and related human rights issues(27)).
Publications Contributor, Halsbury's Laws (Local Government) (2001) A former editor of Crown Office Digest Contributor to Anti-Social Behaviour Law (publ. Jordans) Contributor to RICS online guidance 3 articles published in Journal of Planning Law (2011) "Interpreting planning permissions after Stevenage - the primacy of the plans?" "Material Change in use - what's character got to do with it?" "20 years of the 10 year period for enforcement: time for reform?
Memberships Administrative Law Bar Association, Planning and Environment Bar Association
Recommendations Richard Humphreys is "Recommended for litigation, public inquiries and advisory work" Legal 500 UK 2014
Qualifications Nottingham University LLB (1981-1984) Cambridge University LLM (1984-1985) Pupillages with John Laws (Treasury Counsel) and Clive Newberry Footnotes
1 Regeneration: e.g. Western sector, High Wycombe CPO (2000); Central Sunderland redevelopment and Vaux brewery site (2006), West of Stevenage urban extension (2005), Camborne-Pool-Redruth urban regeneration (2007). Shirley town centre regeneration (2011) 2 Infrastructure: e.g. Thames Gateway Bridge Inquiry (2006), City of London heliport (1991); Redhill Aerodrome redevelopment (1993), Manchester Second Runway (1995), Heathrow Terminal 5 (1997) inquiries. Various telecommunication mast cases (2003-2010); crematorium. London Gateway (Shellhaven) container port development (2007). Camborne, Cornwall - promotion of new crematorium (2009); Wind turbine inquiries e.g. Daventry District, Northamptonshire (2011), Carlisle City Council (2012), London Oxford Airport (2013) and various pending (2013/14). NSIP advisory work Carlisle Airport (2012). Paper and powerpoint presentation on Development Consent Orders (2012). 3 Development Plan: e.g. Darlington BC (1998), Stevenage BC (2003), Harlow DC (2004), Basingstoke and Deane BC (2004), Sunderland City Council (2007), Carlisle City Council (2007). Also objections for Cavanna Homes, Wimpey Homes, Somerfield Stores Ltd. Recent: Wiltshire Core Strategy (2013) for Wiltshire Council, Lichfield Core Strategy (2013) for Lichfield Council. Advisory work re Cheshire East Local Plan (2013). Defence of High Court challenge to West Lancashire Local Plan (2014) and Stafford Local Plan (2014-15) 4 Industrial/office: e.g. Quinn Glass, Ellesmere Port, Europe's largest bottle making and filling factory (2006). office development in the grounds of a listed building in Penzance for Walker Moyle (Stephen Bott Planning). 5 Agriculture: e.g. Poultry sheds development, Banham Poultry (Broadland District Council); Poultry processing operation, Hevingham (Broadland District Council); Pig farm, Woolpit (Mid Suffolk District Council). Gabbons Nursery, Penryn (2009). 6 Minerals: e.g. advising industry (e.g. Atlantic Aggregates) and mineral planning authorities (e.g. Powys County Council - whether need for EIA - R v. Powys CC ex p. Idris Andrew; Warwickshire County Council - South-West Warwick housing development; Cornwall County Council - South Crofty Tin Mine/proposed mixed-use surface redevelopment). Issues concerning interpretation of permissions and conditions, review of minerals permissions, reliance on permitted development rights (e.g. Part 19 of the GPDO 1995), environmental impact assessments requirements, viability of extraction, compatibility with residential development, sterilisation of minerals, assessment of reserves and resources, the sale of mineral product, the meaning of waste, the interpretation of supply agreements. Former Fullers’ Earth site, Bath (Bath and North-East Somerset Council (2013-2015); ROMP and review of mineral permissions call-in inquiry, Cornelly Quarries near Bridgend (acting for Tarmac Ltd) 2015-16. 7 Waste: e.g. Cheshire Replacement Waste Local Plan representing Ellesmere Port and Neston BC; inquiries concerning waste proposals. Bath and North-East Somerset Council – Former Fullers Earth site, Bath (2012-2015) 8 Retail: For Safeway, Asda, Tesco (2013), Aldi (2015-6) and B&Q, for various retail park owners, and for numerous local authorities since 1992, including Dacorum BC, Peterborough City Council, Epping Forest DC, London Borough of Enfield, Middlesbrough BC, Carrick DC, Bedfordshire County Council, Darlington BC, Wycombe DC, Westminster City Council, Three Rivers DC , Carlisle City Council (2008), Milton Keynes Council (2010), London Thames Gateway Development Corporation (2010), Stevenage BC (1999, 2004, 2010), Telford and Wrekin Council (2012), Rother DC (2012), Wycombe DC (2012 -13); Shirley regeneration (2012) (Birchwood Developments/Asda); Sunderland City Council (2006, 2012-13, 2015); acted for Aldi for new store at Fletton Close, Leicester on business park (2015-6); convenience and comparison goods, retail warehousing, warehouse clubs, certificates of lawful use. 9 Housing: e.g. West of Stevenage urban extension (2005), South Crofty, Camborne (2006), a substantial housing-led surface development at South Crofty Tin Mine; housing inquiry in North Weald for Crest Nicholson (2007); housing inquiry in Hinckley for Crest Nicholson (Pegasus Planning); housing inquiry, St Margarets Hotel, Carbis Bay - construction of apartments (2008) (appellant); housing inquiry, Udimore Road, Rye - construction of 135 dwellings (Rother DC) (2008); housing/B1 inquiry, Robertsbridge Mill - B1 and 66 residential units (Rother DC) (2008); housing inquiry, Gabbons Nursery, Penryn, - 148 dwellings (appellant) (2009). Trub Farm, Castleton, Rochdale inquiry – 199 dwellings (2013), Enderby, Leicestershire residential development inquiry (2013); Cheshire East Council 12 residential development inquiries (2013-2014) with issues including 5 year housing land supply, green gap, landscape, conservation/listed building setting, historic hedgerows, agricultural land, highways;; Maldon residential development for Linden Homes (120 dwellings) (2014). ; Farnsfield (for Newark and Sherwood Council), 2015; Farnsfield (for Newark and Sherwood Council), 2015; Manchester City Council CPO (Brunswick) 2015 10 Leisure: e.g. Stax multisports complex, nr Farnham (DTZ/Cannons) (2008); Waterside Park, Weymouth (2008); extended opening hours for Walkabout (Regent Inns plc), in Watford (Planning Potential). 11 Conservation: e.g. Nutfield, West Sussex inquiry/enabling development against Horsham District Council; Works affecting listed buildings, Dunstable and Eaton Bray (South Bedfordshire District Council);Enforcement inquiry against Daventry District Council;St John's Wood Robert Adam residential development (Westminster City Council);Extension of listed building, St John's Wood (Westminster City Council); Water Research Company office redevelopment, Medmenham (Wycombe District Council); West Walls of Carlisle (Tesco retail inquiry) (2007). Milton Keynes Council – Tesco, Wolverton redevelopment (2010). Weston Lane, Shavington (Cheshire East Council) (2014) (setting of listed building) 12 Highways: e.g. Mayfield Bypass Inquiry; A13 road improvement inquiry (British Railways Board); Promotion of second crossing of River Severn in Newtown (Powys County Council); Brooklands Inquiry, Surrey (Woking Borough Council); Promotion of footbridge/CPO inquiry, Leeds (Leeds Development Corporation); Stopping up/ diversion of highways orders relating to Western Sector development, High Wycombe (Wycombe District Council); North-facing slip road, Junction 5, M11 inquiry (Epping District Council); London Gateway (Shellhaven) new container port (Essex County Council). 2 M40 Motorway Service Areas - respectively for Mobil Oil and Wycombe DC. 13 Certificates of Lawfulness: e.g. Court cases include R. v. Thanet DC ex p. Tapp and Britton (2001) for Thanet District Council - Certificates of Proposed Lawful Development. Whether authority has power to modify the description of proposed development in a section 192 application; Childs v. First Secretary of State (2005) certificate of lawfulness as base for material change; Stevenage BC v. Secretary of State for Communities and Local Government (2010) proper interpretation of planning permissions. Substantial advisory work for developers and local authorities on retail certificates (2010-2013). 14 Enforcement: e.g. Court cases include R. v. Wicks (HL) (1997) (1997) 2 WLR 876 (HL) Counsel for respondent Thanet District Council. Whether open to a Defendant to challenge an enforcement notice, when prosecuted, on the ground of bad faith. Wycombe DC – (1) The Lodge, Marsh (2011) and (2) Babs Park, Bourne End (2011), Bath and North-East Somerset Council – Former Fullers Earth site, Bath (2012 -14) 15 London Borough of Waltham Forest v. Oakmesh (2009) 2009] EWHC 1688 (Ch). Counsel for Family. whether validity of section 106 obligation open to question in injunctive proceedings pursuant to section 106(5) notwithstanding previous appeal to discharge obligation. 16 High Court: e.g. R v Thurrock Borough Council, ex parte Tesco Stores and Others (1991) (1994) JPL 328 Counsel for First Respondent - Whether Costco operation retail, wholesale or sui generis; R. v. King's Lynn & West Norfolk D.C. ex p. Bolam (1994)Counsel for respondent District Council. Planning permission for chicken sheds; planning committee bias, perversity; R. v. Powys C.C. Assessment Regulations; New Forest D.C. v. SSE and Shorefield Holidays Limited (1996) JPL 935 Counsel for Shorefield Holidays Limited. Fall-back test - whether a real (as opposed to theoretical) possibility that hotel permission implemented in early 1970s might be developed if chalet development not permitted in Green Belt; R v. Oldham MBC ex p. Bentley (1996) JPL B119 Counsel to respondent Borough Council. Whether permission "implemented" in breach of condition; R. v. East Dorset D.C. ex p. de Mattos (1997) Counsel to the District Council. Whether grant of planning permission for Council- owned land flawed for bias; Alfred McAlpine Ltd v. Darlington B.C. (1998) Counsel to Darlington BC. Challenge to lpa's reasons for rejecting local plan inspector's recommendations; Petursson v. Hutchison 3G UK Ltd (High Court, Technology and Construction Court, Birmingham) (2006) JPL 554 Counsel for Hutchison (Freshfields Bruckhaus Deringer). Paragraph 17, Schedule 2 to Telecommunications Act 1984 objection to mast. Review of all current evidence concerning risk to human health; R (Corbett) v. First Secretary of State (High Court) (2006) JPL 505 Counsel for applicant. Judicial review by third party of decision of FSS to reinstate withdrawn appeal. Whether power to reinstate; London Borough of Waltham Forest v. Oakmesh Ltd and Family Mosaic [2009] EWHC 1688 (Ch). Counsel for Family. whether validity of section 106 obligation open to question in injunctive proceedings pursuant to section 106(5) notwithstanding previous appeal to discharge obligation; Stevenage BC v. Secretary of State for Communities and Local Government (2010) proper interpretation of planning permissions. R(Brown) v. Carlisle City Council (2013-14) validity of permission for enabling development at Carlisle Airport. 17 Court of Appeal: e.g. R. v. Thanet DC ex p. Tapp and Britton (2001); Lloyd-Jones v. T-Mobile UK Ltd (CA) (2003) Counsel for T-Mobile (Freshfields Bruckhaus Deringer). Paragraph 17, Schedule 2 to telecommunications act 1984 objection to mast. Whether notice of installation needs to be visible to members of public and whether failure, if not visible, stops time for objection running. Redrow Homes v. First Secretary of State (2005) [2005] JPL 502, Junior Counsel for South Gloucestershire Council - ability of FSS to retrict use of access permitted in 1957 outline permission to buses. Persimmon Homes (Thames Valley) Ltd and others v. Stevenage Borough Council (2005) NPC 136. Junior Counsel for Stevenage Borough Council. Meaning of requirement for "general conformity" between structure and local plans. 18 House of Lords: Griffiths v. Jenkins (1992) (1992) 2 WLR 28 (HL) power of High Court to order to complete rehearing when hearing a criminal appeal by way of Case Stated. Counsel for prosecuting water company (Appellant); R. v. Wicks (1998)2 AC 92. 19 Compulsory Purchase/section 17: e.g. Ibstock Brick, South Gloucestershire inquiry. 20 Compulsory Purchase/section 226: e.g. Western Sector, High Wycombe CPO; Dacorum/Tring/Cow Roast CPO. Manchester (Brunswick) CPO 2015 for Manchester City Council. 21 Compulsory Purchase/Lands Tribunal: e.g. Frisby and Small, Leicester; South Norwich Ring Road. 22 Hazardous Substances: e.g. Ellesmere Port and Neston BC (2007); Dacorum BC (2011) 23 Environmental processes: e.g. Hull and Goole Port Health Authority 24 Nuisance: e.g. Mid Suffolk DC v. Clarke (1992-1996) (Magistrates' Court abatement notice appeal, High Court injunction and contempt proceedings). Cank Farm, Tanworth-in-Arden (2011, 2014-2016). 25 Waste: e.g. IPMM v. Kent County Council (2009) (inspector's decision). Bath and North-East Somerset Council – Former Fullers Earth site, Bath (2012 -14) 26 Markets: e.g. Delyn BC v. Solitaire (Liverpool) Ltd 93 LGR 614 27 Human Rights: e.g. R (Royden) v. Wirral Metropolitan Borough Council (2002) EWHC 2484 Article 1 of the First Protocol did not apply to the premium value of an existing hackney carriage licence which had accrued due to the local authority restriction on number of licences. The implications of Brexit for Environmental Regulations
Introduction
"Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end."
nd (Theresa May, 2 October 2016, speech to the Conservative Party Conference)
What is proposed? - the Great Repeal Bill
§ There is no draft Bill yet
§ Repeal of what?
- The European Communities Act 1972 (as amended)
- ECA drafted under the guidance of the then Solicitor General, Sir Geoffrey Howe QC
- 12 sections, 4 Schedules
§ Section 2
“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, … as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” …shall be read as referring to one to which this subsection applies.”
What is likely to happen when the GRA is enacted?
§ GRA is likely only to take effect on Brexit day (article 50 trigger date plus 2 years)
1 Why?
- any implementation pre Brexit would place the UK in breach of its EU Treaty obligations (the obligations would cease only on Brexit)
§ though the Great Repeal Act will repeal the ECA, it is unlikely to remove EU law – i.e. directives and regulations - from UK law.
Why?
- after 4 decades, a huge task to disentangle EU law, many thousands of provisions
e.g. TCPA 1990 s.336 (1) defines ‘waste’ only by reference to 2006/8 EU Waste Directives - so unless Directive is replaced or permitted to continue to have legal force, there will be a vacuum. The word ‘waste’ appears, for example, in s.55, the section which provides the definition of ‘development’.
§ So it is likely that EU law will all become UK law on Brexit day and then, over time, relevant parts will gradually be repealed.
Precedent?
Government of Ireland Act 1920 (UK statute re the then proposed Home Rule in Ireland)
“All existing laws in Ireland … shall, except as otherwise provided by this Act, continue as if this Act had not passed …”
Will there be a change, however, in the approach taken by the Courts?
§ E.g. Regulation 61 (1) of The Conservation of Habitats and Species Regulations 2010 (as amended) – implementing Directives on Habitats and Wild Birds
“A competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which—
2 (a) is likely to have a significant effect on a European site or a European offshore marine site (either alone or in combination with other plans or projects), ….
- “Likely to have a significant effect”?
- Will the Courts interpret “likely” as meaning:
(i) “probable” or “more likely than not” (conventional English court interpretation); or
(ii) “a risk” of significant effects which “cannot be excluded on the basis of objective information”: Waddenzee (ECJ [2004] ECR I- 7495)?
Conclusion
§ Environmental regulations will continue unless and until repealed. No immediate “bonfire”.
§ Environmental Impact Assessments, Habitat Regulations Appropriate Assessments will not immediately cease to be required.
§ Little immediate change to planning expected.
§ Queries re interpretation of EU derived regulations.
§ May be modifications over time:
e.g. will Great Crested Newts continue to be a protected species in the UK?
Richard Humphreys QC No5 Barristers’ Chambers + 44 (0) 845 210 5555 [email protected]
3
Celina Colquhoun Planning & Environment Celina Colquhoun was called to the Bar in 1990 and specialises in all aspects of Planning, Environmental and Compulsory Purchase Law; Highways, Local Government & Public and Administrative Law as well as Licensing Law. She is a member of PEBA, ALBA, CPA and the UKELA. She has extensive experience appearing as an advocate in public inquiries and hearings as well as in the High Court and Court of Appeal.
Year of Call: 1990 Celina acts for and advises a wide range of public bodies and private Position: Head of Licensing parties. Her career had a significant grounding in large infrastructure planning and highways projects and in particular represented the Clerks Highways Agency and the Government’s Airports Policy Division at the 1995-99 Heathrow Terminal 5 inquiry Thereafter her practice expanded Senior Practice Manager considerably and she covers a wide variety of property and Andrew Bisbey environmental matters as diverse as CPOs, Highways Orders, Local Development Plans, Waste Management & Pollution, Commons and Chief Executive & Director of Town & Village Greens and Sewers & Drains. Her practice also covers Clerking Licensing and of which group in chambers she is head. Celina is Tony McDaid regularly instructed on a public access basis.
Contact a Clerk Her recent work significantly includes the first appointment under s.101 Tel: +44 (0) 845 210 5555 of the Planning Act 2008 by the Planning Inspectorate together with Fax: +44 (0) 121 606 1501 Martin Kingston QC and Ian Dove QC from No5 to provide legal advice [email protected] and assistance to the Examining authority appointed to examine the NSIP Thames Tunnel Tideway application for development consent. She advised the examining authority throughout the examination itself and during the reporting period.
In addition she is currently advising a number of parties in respect of compensation related issues in respect of HS2 and is due to appear on behalf of a petitioner against HS2.
As an example of her wider work, she advised a number of a highway authorities upon the submission and drafting of the London Permit Scheme for Road Work and Street Works (LoPS). This received the Secretary of State’s approval in October 2009 and came into operation in early 2010. In Summer 2012 it became a London wide scheme, operational in every London borough. Celina continues to advise.
In line with her experience in infrastructure Celina has been assisting the Infrastructure Planning Commission now the National Infrastructure Planning arm of the Planning Inspectorate set up under the 2008 Planning Act as amended by the Localism Act 2011 in providing training for the Commissioners and now Examining Inspectors.
Are there Real Opportunities for other developments to ‘piggy-back’ onto NSIP development?
Introduction
1. The short answer to the above question is “Yes” the slightly longer one which raise a question of its own “Yes but why would you?”.
2. What I intend to provide in this paper is a short summary of the NSIP regime and the schemes to which it applies and hopefully some helpful references, thereafter I shall concentrate on what has happened recently as a consequence of the changes brought about by the 2016 to the Planning Act 2008 enabling “related housing development” now to be included as part of an application for a DCO.
3. Thereafter I shall try to address the “why would you?”.
NSIP Regime
4. The alternative planning consent regime brought about by the Planning Act 2008 had at its core was the notion of the ‘one stop shop’ process whereby the consideration of proposed major or national nationally significant infrastructure projects and the relevant consenting statutory regimes could be subject to what to be a simpler more streamlined legal process than before (in particular the CPO or compulsory acquisition process).
5. The types of large scale developments identified in the 2008 Act (see s.14) relate both to onshore and offshore proposal, such as new harbours, roads, railways, power stations (including wind farms), and electricity transmission lines. The 2008 Act sets out the thresholds above which certain types of infrastructure development are considered to be nationally significant and in
1 relation to which developers must seek development consent under the Act (see Ss 15-30).
6. Part of the streamlining is the emphasis on a front loaded process where the developer consults on a proposed project before submitting an application for a Development Consent Order which will become a statutory instrument if granted. There is no time limit to the pre-application stage and no limitation to the amount of consultations to be carried out. The aim of it however is to help ensure that what finally is the subject of further debate at an examination of the DCO and scheme has been refined by the consultations.
7. The application, once accepted, is examined by a single inspector or a panel of inspectors from the Planning Inspectorate (“the Examining Authority “or ExA). The examination is required to be carried out within the space of 6 months from the time of the trigger which is the day after a Preliminary Hearing is held. On completion of the examination, the ExA must write a report and make recommendations to the Secretary of State within the space of 3 months and then ultimately the Secretary of State decides whether consent should be given.
8. The legal tests for granting consent under the 2008 Act are provided by Ss 104 (when a relevant National Policy Statement has been designated and has effect) and 105 (when there is no such NPS). Under s.104 the SofS must have regard to not only to the NPS but any Local Impact Report submitted by a relevant local planning authority and any relevant NPS, marine policy documents; a prescribed matter and “any other matters which the SofS thinks are both important and relevant to the decision”.
2 9. In particular, the SofS can grant or refuse (or grant subject to modifications – these are not the same as material changes). Under s.104 the NPS guides the decision process and the decision must be in accordance with any relevant NPS except to the extent that one or more of 5 exceptions ss (4) to (8) applies:
“(4) if the SofS is satisfied that deciding the application in accordance with any relevant NPS would lead to the UK being in breach of any of its international obligations.
(5) if the SofS is satisfied that deciding the application in accordance with any relevant NPS would lead to the SofS being in breach of any duty imposed on the SofS by or under any enactment.
(6) if the SofS is satisfied that deciding the application in accordance with any relevant NPS would be unlawful by virtue of any enactment.
(7) if the SofS is satisfied that the adverse impact of the proposed development would outweigh its benefits.
(8) if the SofS is satisfied that any condition prescribed for deciding an application otherwise than in accordance with a NPS is met.”
10. Local development plan policy and national planning policy other than reflected in an NPS is not what guides the process and conflicts therewith do not have the same statutory recognition as they do under the PCPA 2004.
11. The SofS has a duty to make the decision within 3 months of receipt of the report (s.107).
Types of NSIP – Commercial & Business opt in and Associated Development
12. Other than the NSIPs identified under s.14 of the PA 2008 s.115 provides that development that requires development consent includes any projects that the
3 Secretary of State directs into the regime. This includes Commercial & Business projects which can ‘opt in’ to the regime and which came about through changes wrought to s.35 of the 2008 Act by the Growth and Infrastructure Act 2013.
13. These changes mean that the SofS may give a direction for development to be treated as DCO development only if—
“(a) the development is or forms part of—
(i) a project (or proposed project) in the field of energy, transport, water, waste water or waste, or
(ii) a business or commercial project (or proposed project) of a prescribed description,
(b) the development will (when completed) be wholly in one or more of the areas specified in subsection (3), and
(c) the Secretary of State thinks the project (or proposed project) is of national significance, either by itself or when considered with—
(i) in a case within paragraph (a)(i), one or more other projects (or proposed projects) in the same field;
(ii) in a case within paragraph (a)(ii), one or more other business or commercial projects (or proposed projects) of a description prescribed under paragraph (a)(ii).
14. S.35(5) makes it clear that these directions can be made in respect of a” project which includes the construction of one or more dwellings”.
4 15. NSIPS are broadly defined in S.14 the Planning Act 2008 as projects falling with the fields of Energy; Transport; Water; Waste water; and Waste. S.14 however goes also into more precise detail but which I do not propose to set out.
16. S.115 also provides that a DCO may be granted for “associated development” which is defined in the 2008 Act as “development which is associated with” the principal development, which is carried out in England (and Wales now); offshore waters adjacent to England; an REZ if in Scotland and if in Wales is the carrying out or construction of surface works, boreholes or pipes, and the principal development with which it is associated is underground gas storage. In particular, however reflecting s.35 s.115(2) makes it clear that associated development “is not the construction or extension of one or more dwellings”.
Associated Development Core Principles
17. Guidance issued by the SofS in respect of Associated Development sets out a number of Core Principles in identifying what is or is not Associated Development [G5]:
“It is for the Secretary of State to decide on a case by case basis whether or not development should be treated as associated development. In making this decision the Secretary of State will take into account the following core principles:
(i) The definition of associated development…requires a direct relationship between associated development and the principal development. Associated development should therefore either support the construction or operation of the principal development, or help address its impacts.
(ii) Associated development should not be an aim in itself but should be subordinate to the principal development.
5 (iii) Development should not be treated as associated development if it is only necessary as a source of additional revenue for the applicant, in order to cross-subsidise the cost of the principal development. This does not mean that the applicant cannot cross-subsidise, but if part of a proposal is only necessary as a means of cross-subsidising the principal development then that part should not be treated as associated development.
(iv)Associated development should be proportionate to the nature and scale of the principal development. However, this core principle should not be read as excluding associated infrastructure development (such as a network connection) that is on a larger scale than is necessary to serve the principal development if that associated infrastructure provides capacity that is likely to be required for another proposed major infrastructure project. When deciding whether it is appropriate for infrastructure which is on a larger scale than is necessary to serve a project to be treated as associated development, each application will have to be assessed on its own merits. For example, the Secretary of State will have regard to all relevant matters including whether a future application is proposed to be made by the same or related developer as the current application, the degree of physical proximity of the proposed application to the current application, and the time period in which a future application is proposed to be submitted.
18. In addition, at [G6] it states “It is expected that associated development will, in most cases, be typical of development brought forward alongside the relevant type of principal development or of a kind that is usually necessary to support a particular type of project, for example (where consistent with the core principles above), a grid connection for a commercial power station.”
6 19. In addition, a series of examples of associated development is set out in the 2 Annexes to the Guidance.
Associated Development and Dwellings
20. A particular issue arose in the context of the Hinkley Point C pre-application process in R (oao Innovia Cellophane Ltd) v Infrastructure Planning Commission [2011] EWHC 2883 (Admin). NNB Generation Company Ltd required access onto the Claimant’s land in order to carry out surveys and, following resistance by the C, had sought consent formally under s.53 from the then IPC to enter C’s land. The land was proposed as part of the forthcoming DCO for the development of temporary accommodate for workers. The C not challenged the decision inter alia on the basis that this accommodation fell within the specific exclusion of the construction or extension of one or more dwellings from the definition of associated development. Cranston J held the dwellings exclusion did not preclude a proposal involving temporary accommodation for workers.
21. The Guidance on Associated Development recognises the above and notes “ In principle, therefore, temporary accommodation for workers engaged in the construction or operation of infrastructure may be applied for as associated development if consistent with the core principles.”
Housing related development – amendment to s.115
22. Back in 2015 when the Housing and Planning Act 2016 was at Bill stage made it clear that it was proposed to change the 2008 Act allow for an ‘element of housing’ in DCO applications for a NSIPs. A briefing note together with draft guidance was published in October 2015.
7 23. There were originally two types of housing that the clause addressed. The first was housing that is ‘required as part of the NSIP’. The second was housing that is “on the same site as, next to or close to, any part of the NSIP development”. It was also made plain that a limit to the number of units (a maximum of 500) would be expected but it would not be reflected in legislation only the guidance.
24. Section 160 of Housing and Planning Act 2016 (which comes into effect on 6 April 2017) amends s.115 (4B). It is described as enabling the SofS to grant development consent for “associated or related housing development alongside a nationally significant infrastructure project in England".
25. Related housing development is defined with ss4B as development which –
“(a) consists of or includes the construction of one or more dwellings,
(b) is on the same site as, or is next to or close to, any part of the development within subsection (1)(a), or is otherwise associated with that development (or any part of it), (c) is to be carried out wholly in England, and (d) meets the condition in subsection (4C).”
26. Ss4C allows related housing development in cases where the development for which the infrastructure project itself is to be carried out in England and/or in waters adjacent to England up to the seaward limits of the territorial sea.
27. Guidance on Nationally Significant Infrastructure Projects and Housing was published on 21 March 2017. The SofS is required to into account any matters set out in guidance “when determining whether to grant development consent for development that includes related housing development” (new s.115(7))
28. The Guidance largely reflects the guidance in October 2015.
29. The essential matters to be aware of are that there are two specific circumstances which in effect expand upon the statutory description and also sets a maximum number.
8 30. The two circumstances are:
1) where there is a functional need for the housing in terms of the construction or operation of a project
and
(2) where there is no functional link, but it is in geographical proximity to the infrastructure project.
31. In each case the maximum “set” is no more than 500 dwellings although at [ G40] the Guidance states it is only “highly unlikely” that PINS would accept DCO application for more than 500.
32. The example given for a “functional need” is housing needed for construction workers which is then converted to or retained as permanent dwellings once construction of an infrastructure project is complete. “In such cases, accommodation for more than 500 workers may be consented for the construction phase of the project as long as this is subsequently converted so that the number of permanent dwellings after any conversion is 500 or less.”
33. It is to be noted that the Guidance reminds us that there is no limit on temporary accommodation which fits within the associated development category. In addition, the Guidance does not suggest that the functional need test needs to be applied to the housing that is to become permanent.
34. In addition, note also that whilst the geographical proximity category appears to be an alternative the Guidance nevertheless states that where a “large
9 amount of housing” is proposed there is expectation than it will be “close to” the NSIP project [G25].
35. With regard to geographical proximity, “on the same site as, or is next to” the NSIP is not further defined however “ close to” any part of the NSIP is to be considered to be “up to 1 mile away from any part of the infrastructure (excluding any associated development)” [G24] but there is no specific definition of what is to be considered “part of the infrastructure” other than this.
36. It should be noted that there is no limit on the type of NSIP with which the housing should be related however it is clear that housing is not an NSIP in its own right.
37. Of particular note is that a percentage of affordable housing is expected [G23] but only where it is geographical proximity housing not functional need.
Basis for examination and decision
38. With regard to the approach that the Examining authority (ExA) will take the Guidance states that this will be up to the ExA but that any housing element is “likely to need careful examination in its own right to ensure that the housing proposed is acceptable in planning terms” [G 27].
39. Importantly (given the basis for decisions under the PA 2008 is principally governed by NPS and any “important and relevant matter for the Secretary of State” (see Ss.104 &105) and not by reference to development plan policy, the Guidance confirms that the ExA will “need to assess” [G29] the housing against the NPPF and which is “likely to be an important and relevant matter” as well
10 as development plan policies. In addition, where footnote 9 policies apply a lower number of dwellings, or no housing at all, is likely to be appropriate.
40. As a minimum, the Guidance states that it is likely that the ExA will want to consider “the justification for any housing where it is being provided to meet a functional need; the amount of housing being proposed (irrespective of whether it is being proposed on the basis of functional need or is being provided on the basis of geographic proximity); and its location” [G28].
41. Authorities are always entitled to set out any impact from a proposed NSIP in representations to the examination and in particular by means of a Local Impact Report (which is a specific matter to which the SofS is directed under s.104 or 105) however the Guidance specifically makes reference to “impacts on local housing markets and supply” as a matter that ExA’s may consider necessary and which they can request.
How housing will sit within the DCO
42. The detail of how Applicants may reflect such housing elements within a DCO application will be for the Applicants although advice can always be sought from the Inspectorate prior to the application (see s.51 PA 08) however the Guidance suggests that ““many matters relating to housing are likely to be points of detail that are better suited to being requirements for subsequent agreement with the relevant local authority”[G35].
11 The decision on housing element
43. The Guidance states that if the SofS decides to refuse consent for the NSIP itself then the housing element cannot be permitted [G 42] and also states that the SofS may grant consent for the infrastructure, but refuse consent for some or all of the housing [G44].
44. To the extent that the ExA can recommend, based on the evidence, and SofS can agree, to grant consent on the basis of modifications, the Guidance does not address the question of whether a DCO which removes all of the housing or a large part of the housing is to be treated as such a modification.
Implications
45. There are of course a number of questions that arise from all of this and the legal implications in particular of how one identifies being ‘close to’ the NSIP in particular where one is supposed to measure the 1 mile from and to i.e. is it edge to edge of the DCO or the ‘kit’ (as long as it is not associated development) and how one might address this question with a linear scheme and the question of how removing the housing element from a DCO at decision stage might fit within the Wheatcroft principles.
46. I do not suggest for a moment that these are insuperable issues or problems but the legislation and the Guidance do not in my view make it straightforward.
12 47. In terms of the policy implications it is interesting that the NPPF and local plan are now seemingly brought into the process more openly. It has always been relevant to look at local plan policy but any conflict of an NSIP with such policy has never been the basis for a DCO decision for obvious reasons. The reason for setting a maximum of 500 houses is said to be in order to ensure that there is flexibility and importantly that the DCO does not “undermine the local planning process and the wider responsibilities for local authorities to plan for housing needs in their area” [ G 16]. The importance for any scheme therefore that of having such a position agreed prior to the application if not at examination is clear. The weight to be accorded to the NPPF and the presumption in favour of sustainable development as well as the all too familiar debate about NPPF 49 and 14 will be an interesting one for ExA’s to grapple with.
Piggy backing, why would you?
48. By “you” I have directed my considerations towards principally non- NSIP developers (other than those who have opted in to a commercial NSIP scheme) and local authorities.
49. Clearly there are benefits to be gained from the relative speed of the DCO system. In addition, there are overall benefits to be seen from certain infrastructure schemes (rail road telecoms even) in providing housing along with it. In addition, many NSIP developers are keen to ensure they have a positive legacy which housing can provide and which would be welcomed by the authorities and residents in the area.
50. The question whether a housing developer would be attracted to signing up with the NSIP applicant to the PA 08 process where no more than 500 units is likely (although it is not set in stone) and where the potential for the housing to
13 fail if the NSIP fails is perhaps moot but the circumstances may present themselves of course and it is clearly an option.
51. For local authorities needing to supplement their housing land supply with or without the need to absorb the consequences of the future operation of the NSIP such piggy backing again presents something that ought to be encouraged and which they can encourage the NSIP developer to address. The question of affordable housing not being required for functional need housing is notable however this is ‘only’ guidance. It is not an NPS.
52. On the one hand, there will be circumstances where such piggy backing will make clear sense politically and practically as well as beneficial in overall terms for any side of the equation. On the other hand, there are questions to be asked and the NSIP system is often not an obvious or familiar fit for housing developers or indeed LPAs – there are a number of legal implications and questions as well which adds to the absence of familiar fit. The DCO consenting regime is of it nature very lawyer heavy.
53. So, I suspect it really is more of a question for typical housing developers currently of ‘why would you?’ however it is an option to keep in mind depending obviously on the given circumstances.
Celina Colquhoun No5 Barristers’ Chambers +44 (0) 845 210 5555 [email protected]
14 Richard Kimblin QC Planning & Environment Richard Kimblin QC is described in the Legal 500 as a ‘Tier 1’ silk: “An exceptional talent with a formidable intellect.” His practice focuses upon:
(i) Planning appeals in England and Wales, principally in respect of residential schemes of significant size, particularly where technical and environmental issues are in play; (ii) Planning and environmental litigation in the Planning Court and Court Year of Silk: 2016 of Appeal. His work in the Court of Appeal and the Supreme Court is Year of Call: 1998 regular, very frequent and concerned with the full range of key issues which affect planning and environmental law, eg.: Green Belt – Redhill Clerks Aerodrome, Turner, Timmins; Operation of S38(6) & NPPF – Barwood Land and Estates; BDW; Daventry DC; Policy issues: Watermead PC Senior Practice Manager (flood risk, Footnote 9); Cotswold DC (5YLS); Wealden (AONB); Andrew Bisbey Compensation – Bloor v HCA; DCOs – Gate; Environmental liability – Seiont Anglers; Planning enforcement – Challinor, Allsop; Chief Executive & (iii) Infrastructure projects, having recently obtained consent for a Director of Clerking windfarm in mid-Wales. Tony McDaid Public Inquiries and Infrastructure Contact a Clerk Richard Kimblin appears at inquiry throughout England and Wales. He Tel: +44 (0) 845 210 5555 knows the Welsh jurisdiction very well – recently obtaining a residential Fax: +44 (0) 121 606 1501 permission at appeal (APP/A6835/A/15/3137719). During 2016 he has [email protected] appeared at lengthy Inquiries for residential and infrastructure proposals from Stockton-on-Tees to Redruth, from Pembroke to Cardiff to Holt in Norfolk. He has been instructed in cases both for and against the Mayor of London. In the last few months, Main Issues at Inquiry and Examination include, generally in respect of schemes of 100 - 200 dwellings: • Viability (including affordable housing revenues: APP/P3420/W/15/3138033 and APP/K1128/W/15/3039104 also on residual land flat values) • Neighbourhood Plan Policies in the context of a §49 shortfall in land supply • The role of Green Gap policies • Impact on radio astronomy/pulsar research (admittedly a specialist topic) • World Heritage Site • SAMS (earthworks, cairns, fortifications, monuments) • L&V impact on a National Park • Appropriate Assessment (birds) • Odour impact on future residents arising from proximate landfill operation In recent years Richard Kimblin has appeared at Inquiries and Examinations of all scales, including the largest/longest recent Inquiry into the Mid-Wales renewables schemes. His clients have included the national house builders, some of the main supermarkets and major minerals and waste operators.
Planning Litigation He was appointed Junior Counsel to the Crown (London C, B and A Panels), advising on and appearing on many issues and cases which are now leading cases in their area. In 2016/17 he completed 12 cases in the Court of Appeal, and one in the Supreme Court, for defendants, claimants and interested parties. Some cases of note, all in the Court of Appeal or Supreme Court include:
• R (oao) Watermead Parish Council v Aylesbury Vale DC [2017] in which he appeared for the Claimant in a case dealing with flood risk policy and the presumption in favour of sustainable development.
• Save Britain’s Heritage v Liverpool CC and Neptune Developments [2016] EWCA Civ 806 – World Heritage Sites; National Planning Practice Guidance; successfully appearing for the interested party, the developer • BDW v Secretary of State for Communities and Local Government [2016] – an important Court of Appeal summary and explanation of the practical application of s38(6) Planning and Compulsory Purchase Act 2004 • Turner v Secretary of State for Communities and Local Government [2016] – a key Court of Appeal judgment on Green Belt policy, particularly as to the definition and assessment of ‘openness’ • Daventry District Council v Secretary of State for Communities and Local Government and Gladman Developments [2016] – in which he appeared for the interested party in a case on the weight to be given to policies for the supply of housing land; para 215 NPPF; paras 47 and 49 NPPF. • Distinctive Properties v Secretary of State for Communities and Local Government [2016] – Tree Replacement Notices, meaning of ‘tree’ – in which he appeared for the Secretary of State at first instance and in the Court of Appeal
• R(oao) Hampton Bishop Parish Council v Herefordshire Council & Bloor Homes Limited [2014] EWCA Civ 878 – a leading case in the Court of Appeal on the application of Section 38(6) of the 2004 Act in which he appeared for the local authority.
Planning Enforcement • Allsop v Derbyshire Dales DC [2013] EWHC 3562 Div Court (the only decided case on s215 notices) • R (oao) Altunkaynak v Northamptonshire Justices [2012] EWHC 174 (A3 unrestricted permission; breach of EN; abuse of process) • Staffordshire County Council v Challinor & Anr [2008] JPL,. 392 (effect of certificate of lawful use in subsequent enforcement proceedings)
Infrastructure/DCOs Richard Kimblin has long experience of major infrastructure schemes from canals to motorways, including significant DCO work and Parliamentary drafting: • Power stations • Wind farms and related infrastructure (onshore & offshore) • Gas storage • Minerals schemes including ROMPS, extensions. Examples of recent work include: • Whitby v Secretary of State for Transport [2016] EWCA Civ 444 – Northern Hub, Transport and Works Act Orders; Ordsall Chord between Manchester Stations; heritage effects; • Mid-Wales - a 27 turbine scheme in the context of conjoined s36 Electricity Act inquiries in respect of 5 sites and related grid connection works. This was the largest and longest such inquiry for many years; • R (oao) Gate v Secretary of State for Transport [2013] EWHC 2973 – the first JR re an NSIP consent; the M6-Heysham link road: development consent orders; highways; nationally significant infrastructure; habitats; protected species; alternatives; • MYG – a DCO in Wales, with a positive recommendation from the Inspector, refusal from the Secretary of State and subsequent judicial review on habitats regulations issues; • Hemswell - the first scheme dismissed on the basis of the WMS on onshore wind; • Dorset wind farm (Silton) - 4 turbines in the setting of an AONB; 4 week inquiry covering significant landscape, cultural heritage, noise and socio-economic evidence (APP/N1215/A/11/2160839); • Dugeon grid connection - onshore 45 km cable route and substation inquiries for 560 MW of renewable energy(APP/Y2620/A/12/2170245) – see also Dudgeon Offshore Wind v Secretary of State for Energy and Climate Change and Secretary of State for Communities and Local Government (infrastructure; wind energy; alternatives) [2012] EWHC 861; • FCC Environment v Secretary of State for Communities and Local Government [2014] EWHC 2035 (Admin) Error of fact; Local authorities; Planning inspectors; Planning permission; Wind turbines; • R (oao) Holder v Gedling Borough Council [2014] EWCA Civ 599 - material considerations in energy proposals; • Jarrett v Secretary of State for Communities and Local Government [2012] EWHC 3642 - onshore wind energy; development plan policies for renewable energy; • R (oao) Webb v Herefordshire Council [2013] EWHC 1850 - onshore wind energy; protected species; EIA
Environmental Litigation Richard has been instructed in more than 100 environmental and planning prosecutions. He advises on all aspects of litigation in planning, environmental and regulatory contexts. He is also called upon to advise in several niche areas: mines working facilities and support act matters; Part IIA EPA; WIA 1991 infrastructure issues for developers and undertakers. Prior to his call to the bar, Richard researched the use of groundwater storage for London (which is now an operational scheme and the basis of his PhD thesis), undertook EIA work on schemes such as the channel tunnel rail link and did comparative study of domestic European laws for the European Commission. • Friends of the Earth v DEFRA [2015] – neonicitinoids; bees; Commission Regulations on plant protection products; • Seiont etc Anglers v Natural Resources Wales [2015] – Environmental Liability Directive, waste water discharge; appeal to be heard on 25/26 May 2016 • Ashdown Forest LLP v Secretary of State for Communities and Local Government & Wealden DC [2014] EWHC 406 (Admin) - lawfulness of development plans affected by SAC/SPA and the uncertainty in assessing those impacts; • Abbottskerswell PC v Teignbrigdge DC & SSCLG [2014] EWHC 4166 (Admin). • Walker and Son (Hauliers) Ltd v Environment Agency Court of Appeal (Criminal Division) [2014] EWCA Crim 100 [2014] 4 All E.R. 825; [2014] P.T.S.R. 929; [2014] 1 Cr. App. R. 30; [2014] Env. L.R. 22; [2014] L.L.R. 625 Criminal law; Environment; Burden of proof; Environmental offences; Environmental permits; Knowledge; Sufficiency of evidence; • R (oao) Gilbert v Secretary of State for Communities and Local Government [2014] EWHC 1952 (Admin) Environmental impact assessments; Noise; Precautionary principle; Screening directions; • R (oao) Enstone Society v West Oxon District Council [2009] EWCA Civ 1555 (noise; motor sport; Court of Appeal) • R (oao) Wye Valley Action Group ex p Herefordshire Council [2010] Env LR 18 (polytunnels EIA; Habitats Regulations) [2009]; Court of Appeal [2011] EWCA Civ 20
Compulsory Purchase • JS Bloor (Wilmslow) Ltd v Homes & Communities Agency [2013] UKUT 231 • Taff v Secretary of State for Transport [2010] UKUT 128; [2010] JPL, 2, 264-268 • Numerous CPO inquiries (road schemes such as M42 Longbridge; Tollbar Island; canals and light rail)
Other Cases of Interest • Vicente v Secretary of State for Communities and Local Government [2014] EWCA Civ 1555: Local planning authorities; Local plans; Planning inspectors; Planning permission; Procedural irregularity; Unfair conduct • San Vicente v Secretary of State for Communities and Local Government [2012] EWHC 3585; [2013] EWHC 2713; [2013] EWCA Civ 817 - procedure in appeals by hearing; amendment of statements of case; civil procedure rules • Valentino Plus Ltd v Secretary of State for Communities and Local Government [2015] EWHC 19 (Admin): Certificates of lawful use or development; Flats; Local government; Mixed use premises • R (oao) Dry v West Oxon District Council [2010] EWHC 1758; [2010] EWCA – when to take a case back to committee • Dinedor v Herefordshire Council and Bloor Homes [2009] 1 P&CR 4 (role of RS in grant of permission) • Matthews v Tamworth BC [2008] JPL 1180 (modification of LP; interpretation of SP & RSS policies) • Johnson Brothers v SSCLG [2008] EWHC 580; [2010] EWCA Civ 254 (interpretation of planning policy) • R (oao) Altunkaynak v Northamptonshire Magistrates Court and Kettering Borough Council [2012] EWHC 174 (Divisional Court); 2012 PTSR D27 • Poole v. SSCLG [2008] JPL 1774 (fairness in public inquiries)
Example Publications: The Interpretation of Planning Policy after Tesco [2012], 9, 1045 – 1052, - Journal of Planning and Environmental Law (Richard Kimblin, Ian Dove QC, Kaitlin Davies)
QUALIFICATIONS
• BSc • PhD • Royal Society Western European Fellow
MEMBERSHIPS
• 2013/15 Chair of the United Kingdom Environmental Law Association • The Planning and Environmental Bar Association • The Administrative Law Bar Association • The Compulsory Purchase Association • The Bar European Group
RECOMMENDATIONS
"He is absolutely brilliant. He has been very helpful in navigating the politics of the planning system from a legal perspective. He goes the extra mile to make sure his advice and its consequences are understood by the client." "He is an approachable and amiable barrister whose style of advocacy is cool and calm. Technically he is very good and hones in on important details very quickly." "He is pragmatic, sensible, and gets to the heart of the problem." Chambers UK 2016
Handles a range of environmental cases, with expertise in matters involving waste, water, energy and infrastructure. In addition to his strong litigation work, he also has a flourishing inquiry and advisory practice. "He's a thoroughly respected barrister who is approachable and amiable. His style of advocacy is cool and calm." Chambers UK 2015 Enjoys an enviable reputation for his experience in major energy, commercial and residential sector developments. He is praised by sources for his advocacy and his written work, with an impressive reputation for practical and clear-sighted advice. "Great fun to work with. He doesn't get bogged down in the peripheral detail. He sees the issue and he's on it, and he's very good with the clients." "He's razor- sharp. On the ball, to the point and very good in court - he tells you how it is." Chambers UK 2015
"His scientific background gives him a unique insight into environmental issues" Legal 500 2014
"He is knowledgeable, but down-to-earth, and an excellent advocate." adding "He is very expert and does a nice job in terms of advocacy. He doesn't bully; he is not bombastic; just straight, clear and down the line, which clients and courts like." Chamber UK 2014
Richard Kimblin is ‘always available and gives sound practical advice’. Legal500 2013
Recommended in planning, environment and energy, stating that Richard Kimblin “continues to go from strength to strength” and has “vast experience”. Chambers UK 2013
Richard Kimblin is ‘an excellent advocate and can deal with people at all levels’. Legal500 2012
Scott Stemp Planning & Environment
Scott is a nationally recognised practitioner in Planning Law. Scott regularly advises and represents developers and Local Planning Authorities on a broad range of planning matters and at all stages from pre-application advice, through any appeal processes and to the Court of Appeal. He is regularly invited to speak at a range of RTPI (Royal Town Planning Institute) and related events; each year the RTPI hosts their eight highest rated papers (as rated by delegates). Scott’s seminar on ‘planning and the proceeds of crime’ has been rated by delegates as being within the eight highest rate of each season Year of Call: 2000 since 2014/15.
Clerks Recent Instructions to Scott have included:
Senior Practice Manager • A number of multi-week Inquiries on sizeable Andrew Bisbey residential developments (including sheltered accommodation) and the interaction with five year housing land supply considerations and heritage Chief Executive & impacts (including Listed Buildings, Conservation Areas Director of Clerking and non-designated heritage assets); Tony McDaid • No.94 dwellings and 60-bed care home appeal centred Contact a Clerk on the legal basis for financial contributions and CIL Tel: +44 (0) 845 210 5555 compliance of the same; Fax: +44 (0) 121 606 1501 [email protected] • A number of Inquiries concerning the interaction of protective ‘loss of employment’ land plan policies and viability;
• No.90 residential units converted under GPDO Class O and associated matters;
• Advisory work on and representation at Inquiry on conversions under GPDO Class Q (agriculture to residential) and associated matters;
• Matters concerning the Habitats Regulations;
• Residential development within National Parks, AONBs, Green Belts, gypsy and traveller matters and Listed Building/Conservation Area controls;
• Advising on the redrawing of CIL Regulation 123 lists and enforceability of contributions sought under previous and revised Regulation 123 lists.
Scott also advises on and acts in matters (pre-application through to appeal and beyond) concerning County planning matters on waste or minerals developments and appeals. Planning Enforcement, Injunctions and Regulatory Prosecutions
Scott advises on and acts in various planning enforcement matters including current and prospective enforcement appeals, planning injunctions (and breaches of the same) and other enforcement controls such as tree preservation orders, s215 Notices and Breach of Condition Notices. Scott is regularly invited to speak and give workshops as NAPE (the National Association for Planning Enforcement) and SEOG (the Southern Enforcement Officers Group) and has done so for many consecutive years now. Recent successful enforcement matters and planning prosecutions include: • Successfully resisting an attempt by a planning authority to obtain a Planning Enforcement Order to extend the time for taking enforcement action, including costs;
• R. v. DB and LB: successful prosecution of multiple count charges of breach of enforcement notices by running unauthorised businesses;
• R. v. FA, FY, QQ and MK: a four-defendant, six-week trial which commenced as a ‘beds-in-sheds’ enforcement investigation – acceptable guilty pleas entered, restraint and confiscation orders made;
• Obtaining a planning injunction to restrain the unauthorised residential use of sites within a National Park and enforcement in relation to breach of the same;
• Representing a County planning authority pursuing multiple breaches of a planning injunction prohibiting the importation of waste materials on to land (second breach of Order).
With a strong background in criminal law and advocacy, Scott has a thorough grasp of matters relating to confiscation and restraint orders under the Proceeds of Crime Act 2002, having acted in many cases (and appeared in the Court of Appeal on the same) and delivered many seminars on the same and having helped develop training and awareness programmes on the subject of planning and proceeds of crime.
Highways, Rights of Way, boundaries and land disputes
Scott advises and represents parties in relation to all matters pertaining to highways and rights of way, including the implications of these on development potential and rights of way modification. Recent instructions have included: • The seeking of injunctions to enforce highways rights and ensure the safety of the highway for users;
• Multi-day hearings before the Tribunal (Property Chamber) on disputed ownership of land and erroneous Land Registry entries;
• Advisory work on potential challenges to private rights of way and the effects of easements on land
Assets of Community Value and Village Greens
Advice and representation in relation to the listing of Assets of Community Value under the Localism Act 2011, including strategic advice on listing of ACVs, representation at Review Hearings and further challenge where needed and the interaction of ACVs and Compulsory Purchase powers. Scott also advises on all matters pertaining to applications for registration including evidential sufficiency and legal restrictions arising from registration – recent instructions include defending a claim for Village Green status over land with residential development; also the effects of Village Green registration on the ability of a Local Authority to provide or improve equipped areas of play. Direct Access
Scott is qualified to receive Direct Access instructions and is often instructed directly by individuals, businesses or groups without the need for a solicitor or other intermediary on the full spectrum of work he undertakes (see above) including advisory work and (where appropriate) representation before courts or tribunals.
QUALIFICATIONS
LLB Hons (First Class) Southampton
MEMBERSHIPS
Western Circuit Criminal Bar Association UK Environmental Law Association
NOTABLE CASES
Kestrel Hydro v. Secretary of State CLG and Spelthorne Borough Council [2016] EWCA Civ 784 (leading Leanne Buckley-Thomson of Chambers) – successful defence on appeal of the Local Planning Authority’s pursuit of enforcement action; the juridical basis for Murfitt and Somak Travel; the extent of Bowring and also compliance of ground (F) appeals with Article 1 Protocol 1;
Wellington Pub Company v Royal Borough of Kensington and Chelsea and The Norland Conservation Society 2015 WL 10321737 (First Tier Tribunal General Regulatory Chamber) – representing The Norland Conservation Society on the applicability of ‘planning units’ to Assets of Community Value, definition of a ‘building’ for the same;
Atkins (and others) v Tandridge District Council (and others) [2015] EWHC 1947 (Admin) – successful defence of the Local Planning Authority’s enforcement and planning position on two claims for judicial review, against the Council’s failure to enforce and against the Council’s grant of planning permission for motocross activities;
Tandridge District Council v Secretary of State CLG and Syrett [2015] EWHC 2503 (Admin) – representing the Local Planning Authority on interpretation of the ‘replacement building’ exception to Green Belt development in the NPPF;
Elmbridge Borough Council v Secretary of State CLG and Giggs Hill Green Homes Ltd [2015] EWHC 1367 (Admin) – the limits of a ground (F) appeal against an enforcement notice in the absence of a ground (A) appeal, considering Ahmed and Ioannou.
Scott additionally has a broad background practicing in fraud, regulatory criminal and quasi-criminal matters including matters under: • Fraud Act and Theft Acts • Environment Protection Act; • Food Safety Act (and regulations thereunder) • Trading Standards (including copyright/trademarks matters, the Enterprise Act and Consumer Protection from Unfair Trading Regulations) • Animal Welfare Act (including animal by-products regulations); and • Health and Safety at Work Act (and associated regulations).
Legal Update – Fairness, Farm Buildings, The Framework
Introduction
1. In considering the topics for the notes and presentation, we have had regard to 207 cases decided in the Planning Court and Court of Appeal which are all planning cases. We have had further regard to 35 cases which are environmental in nature. It follows, necessarily, that our notes are highly selective. The criteria for selection are twofold: (i) important to the planning system generally, and (ii) practical significance for day to day planning. This means that the very large bulk of decided cases go entirely unmentioned in this review. That does not matter. A large proportion of the cases which one may read turn on well-established principles and the cases do not develop those principles nor do they give rise to any particular new practical feature. However, there are some cases which do not establish a new principle but which are of practical importance. One example is Engbers which deals with fairness in public inquiries and draws attention to the sorts of signals which one must, in practice, have regard to in addressing the necessary evidence to be called.
2. We have drawn attention to issues of fairness, farm building and the Framework. The first two points turn only on two particular cases. However, the Framework has given rise to many cases in the Planning Court and the Court of Appeal. There will be more, and there will be a judgment in Suffolk Coastal/Cheshire East during the course of this year which will develop that issue and understanding still further.
3. Last year you heard in detail about the judgment in the High Court in West Berkshire DC v Secretary of State for Communities and Local Government [2016] EWHC 267. Shortly after last year’s Annual Planning Seminar, the Court of Appeal reversed that decision in an important and wide ranging review of the approach to planning policy and the application of Section 38(6)
1 of the Planning and Compulsory Purchase Act 2004. While it is some little time since that judgment in the Court of Appeal was handed down, we nevertheless address it.
4. So far as the Framework is concerned, we highlight those cases which inform the approach to: (i) Paragraph 14; (ii) Green Belt issues; (iii) The housing chapter – Chapter 6; (iv) Flood risk; and (v) AONB.
Fairness
5. The Court of Appeal in Secretary of State for Communities and Local Government (and another) v. Engbers [2016] EWCA Civ 1183 establishes no new principle in the area of fairness, but illustrates the application of the same in a manner which those at a hearing or Inquiry would do well to heed. The matter concerns the question of procedural fairness and the manner in which an Inspector – and the main parties – approach an issue which is agreed between the main parties, but pursued by other interested parties.
6. The Court in Engbers endorsed the review and distillation of the underlying principles of procedural fairness as set out by Jackson LJ in Hopkins Developments Ltd v. Secretary of State for Communities and Local Government [2014] EWCA Civ 470, namely:
“(1) Any party to a planning inquiry is entitled (i) to know the case which he has to meet and (ii) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case.
2 (2) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the inspector's decision.
(3) The 2000 Rules are designed to assist in achieving objective (1)(i), avoiding pitfall (1)(ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness.
(4) A rule 7 statement or a rule 16 statement identifies what the inspector regards as the main issues at the time of his statement. Such a statement is likely to assist the parties, but it does not bind the inspector to disregard evidence on other issues. Nor does it oblige him to give the parties regular updates about his thinking as the Inquiry proceeds.
(5) The inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the inspector expressly states that they need not do so.
(6) If a main party resiles from a matter agreed in the statement of common ground prepared pursuant to rule 15, the inspector must give the other party a reasonable opportunity to deal with the new issue which has emerged.” (emphasis added)
7. It is the application of these principles in hearing or at Inquiry which is worth paying attention to. The facts of Engbers are not dissimilar in many ways to those often faced by developers at appeal – highway safety issues were agreed as between the Council and the developer, being agreed both in the main Statement of Common Ground and then later were the subject of a
3 Highways Statement of Common Ground. Notwithstanding this, local residents and the Parish Council made a number of representations to the Inspectorate prior to the appeal on highway safety issues.
8. In a pre-inquiry statement the Inspector identified as an issue “the safety and convenience of users of the highway and other public rights of way”, expressly identifying later in the same statement that he would have regard to “…all written representations as well as the evidence heard at the Inquiry.”. However despite this the developer chose not to produce a proof of evidence from their highway consultant, nor to have them attend the Inquiry,
9. On opening the Inquiry the Inspector repeated orally his description of the main issues which, once again, included the safety and convenience of highway users. The inspector also said that he had some questions about highway matters and was told to put them to the Council's witness in the first instance; latterly it transpired that the Council’s witness “could give no answer”. Eventually the Inspector called for the developer to produce their highway consultant to the Inquiry and heard evidence from him, with the Inspector asking a number of detailed questions of that witness. The decision of the Inspector was to refuse the appeal on highway safety grounds.
10. As the Court noted, in accordance with Hopkins, if a third party raises an issue which is at variance with the agreed stance of the appellant and the local planning authority, the inspector is duty bound to consider it. The question in the case, the Court asked, was whether on the facts the third parties' representations and evidence, coupled with the inspector's own conduct and questions, meant that the developer (or her team) ought reasonably to have been aware of the significance of the question of road safety. Unsurprisingly (you may think) the Court had little difficulty finding that the developer should have known that ‘highway safety’ issues were on the mind of the Inspector and “That this was an issue cannot be said to have come as a bolt from the blue.”
4 11. On the facts of the matter, short of putting a marching band in front of the topic of road safety, or a neon flashing light, we wonder quite what it was that the Inspector or third parties might have otherwise done to flag for the developer and the Council that this was a live issue in the appeal and not simply agreed as per the Statements of Common Ground. The practical take- away point for appellants being to be alive to what the Inspector is signalling in any pre-inquiry statements, opening comments and/or questions being put and to be (and to be prepared to be) appropriately reactive to the same, including deploying more or different resources at appeal, even if as between the developer and the Council the matter is agreed and uncontentious.
Farm buildings
12. The vexing question of PD conversions of agricultural buildings to a residential use (and specifically the extent of building works permitted under Class Q) came before the High Court in the case of Hibbitt and Another v Secretary of State for Communities and Local Government (and another) [2016] EWHC 2853 (Admin).
13. The matter before the Court was the tension as between the limitation at Class Q.1(i) and the Guidance (NPPG ID: 13–105–20150305) which under the heading “Are any building works allowed when changing to residential use?” provides that “…The permitted development right under Class Q assumes that the agricultural building is capable of functioning as a dwelling…It is not the intention of the permitted development right to include the construction of new structural elements for the building. Therefore it is only where the existing building is structurally strong enough to take the loading which comes from the external works to provide for residential use that the building would be considered to have the permitted development right” and whether the proposed ‘conversion’ of the agricultural building in fact amounted to a ‘rebuild’ (and if it did, whether that is relevant).
5 14. The Court determined that a ‘conversion’ was conceptually different to a ‘rebuild’ and that it is conversions only which are permitted, not rebuilds. Because the Guidance clarified that it was not the intention to permit new structural elements, any such proposals involving the same were likely therefore to be ‘rebuild’ rather than a ‘conversion’ – whilst observing that the extent of the works was relevant but not dispositive. Ultimately the dividing line between ‘conversion’ and ‘rebuild’ is a matter of legitimate planning judgment and the test is one of substance, not form. The Court ruled that there was “…no need for the concept formally to be defined and the lack of a definition is not an indication that the concept lacks substantive meaning or content. The Order is directed towards a professional audience and the persons who have to make an assessment of whether works amounted to a conversion are experts, such as inspectors, who are well able to understand what the term means in a planning context.”.
15. Where does this leave an applicant though? We suspect not very much further on than before. The Court’s application of the Guidance provides a steer for applicants that if their proposals require structural elements then, notwithstanding the limitations at Class Q.1(i) they are at risk of falling outside of Class Q for being a ‘rebuild’ rather than a ‘conversion’. Extensive amounts of works (as opposed to more fundamental structural works) need not necessarily take matters outside of works for ‘conversion’; the overall drawing of the line being a matter of planning judgment however means that works for ‘conversion’ rather than ‘rebuild’ may remain as much of an elephant as they were before – perhaps somewhat easier to identify when seen, rather than define or describe through details.
Framework
Paragraph 14
16. The present situation is little short of incredible. The Framework was drafted in order to simplify planning policy and to make it more accessible to the users of the planning system. The Framework alighted upon a long-established
6 concept, namely a presumption which favours development and added to it. The result is paragraph 14. Five years on from March 2012, it appears that nobody really understands how paragraph 14 works and how it interacts with Section 38(6). The topic occupied seven Justices of the Supreme Court, three Leading Counsel and five junior barristers for two days during the course of February in Suffolk Coastal. We await the outcome.
17. Similarly, in Watermead Parish Council v. Aylesbury Vale District Council [2016] EWCA …, the Court of Appeal declined to address the interaction of paragraph 14 with other policies in the Framework. This was an issue which arose out of Footnote 9 to paragraph 14. The Court of Appeal said this:
“Though the parties are distinctly at odds on the meaning of the policy in paragraph 14 of the NPPF, I do not think our decision on this appeal requires us to resolve what the correct construction actually is, and I would prefer to leave that question to an appeal in which it does have to be resolved. As a question of policy interpretation, it will be, in the end, a matter for the court (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 19). It is an obviously important question. Does the exception for “specific policies” in the NPPF which “indicate development should be restricted” simply require a relevant restrictive policy to be in play if the presumption is to be shut out? Or does it require the restrictive policy, once identified, actually to be applied before the decision-maker can ascertain whether the presumption is available to the proposal being considered? How is the presumption intended to work? This is an issue of some significance for the operation of the planning system in England. It has already been the subject of discussion at first instance (not only in this case and in Forest of Dean District Council, but also, for example, in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 571 (Admin), Wychavon District Council v Secretary of State for Communities and Local Government [2016] EWHC 592 (Admin), East Staffordshire Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 2973 (Admin), Trustees of the Barker Mill Estate v Test Valley Borough Council [2016] EWHC 3028
7 (Admin) and Thorpe-Smith v Secretary of State for Communities and Local Government [2017] EWHC 356 (Admin)). Because it arises from planning policy produced and published by the Government, and because it bears on decision-making not only by local planning authorities but also by the Secretary of State and his inspectors, it is, I think, an issue on which this court would undoubtedly benefit from having submissions on behalf of the Secretary of State. This is not to suggest that the court might adopt an interpretation of planning policy urged upon it by the author of that policy if it is not the correct interpretation. It is simply to recognize the advantage the court would have in being told what the Secretary of State understands his own department’s policy to mean, and how he intends it to operate, not least because he is the minister responsible for overseeing and managing the planning system in this country.” 1
18. How is one to deal with the present situation, in practice? It seems to us that it is important not to overcomplicate most routine development management decisions. Where there is a policy which is, in the natural sense of the phrase, restrictive, a planning application will often turn on whether or not the particular provisions of that restrictive policy are overcome, or not. So, in a Green Belt case, if a proposal is able to pass the very special circumstances test, then that may very well, in any particular case, be determinative. That is not to say that as a matter of law it is determinative, but as a matter of practice it is going to give a very strong indication as to the likely outcome in the case. There may of course be other significant issues which require that a proposal is refused.
19. Moreover, in a straightforward and common case in which there are a range of matters which weigh against a proposal, but likewise a range of matters which weigh in favour of a proposal but none of those issues arise from any of the specified restrictive policies cited in Footnote 9, one applies paragraph 14 in the usual way in which there is either a tilted balance or there is not.
1 See paragraph 45 of the judgment of Lindblom LJ, with whom Patton LJ agreed.
8
20. Hence, we would encourage practitioners not to become overly obsessed with a review of the ever-growing case law in this area. We anticipate that the decision making framework (relationship between paragraph 14 and s38(6) of the 2004 Act) will be clarified to a degree during the course of 2017 as a result of amendment and decisions in the Supreme Court and Court of Appeal.
Green Belt
21. The previous stark separation of Church and State that was impact on openness and impact on visual amenity is now, as a result of the Court of Appeal’s ruling in Turner v. Secretary of State for Communities and Local Government (and another) [2016] EWCA Civ 466, not so stark.
22. Practitioners have long understood the previously drawn distinction from PPG2 between impacts of development in the Green Belt on the openness of the Green Belt and impacts on visual amenity. Indeed the conceptual distinction between the two is something which, post-NPPF, has been recognised and upheld in the courts – for example in Regina (oao Timmins) v. Gedling Borough Council [2014] EWHC 654 (Admin).
23. The Court of Appeal however thought the approach adopted towards openness, visual impact and the Green Belt in Timmins to be wrong for applying too much weight, post-NPPF, to the statement of planning policy in PPG2 as addressed in earlier authorities instead of focussing on the “coherent and self-contained statement of national planning policy which the NPPF is intended to be.”. The Court of Appeal went on to say that the NPPF did not simply repeat PPG2 but should be interpreted objectively in accordance with the language used and read in its proper context. Having so said, the Court went on to observe that the NPPF did not repeat the explicit distinction between impacts on openness and visual impacts – a distinction which was explicitly drawn in PPG2.
9 24. The somewhat surprising conclusion of the Court was then that the question of visual impact is implicitly part of the concept of “openness of the Green Belt” as a matter of the natural meaning of the language used in para. 89 of the NPPF. Even more surprisingly the Court observed that “Greenness is a visual quality: part of the idea of the Green Belt is that the eye and the spirit should be relieved from the prospect of unrelenting urban sprawl” and that it was clear that “…the visual dimension of the Green Belt is an important part of the point of designating land as Green Belt.”.
25. We appreciate that ‘greenness’ and ‘visual dimension being an important part of the point of designating land as Green Belt’ might be startling, if not downright shocking things to say for those who are familiar with some of the more…utilitarian…elements of various Green Belts around the country, but the consequence of the Court of Appeal’s ruling (and the takeaway point for practitioners) is that the previously sharp distinction between openness and visual impact has now gone. Visual impact is no longer a standalone point with bright lines between it and openness, but is now to be treated as allided to and overlapping with openness. Accordingly the extent and degree of visual impact (or lack thereof) can, and should, inform an assessment of the impact on openness of development proposals.
26. By way of slight contrast in terms of assessing impacts on openness, the Court of Appeal in R (oao Lee Valley Regional Park Authority) v. Epping Forest DC [2016] EWCA Civ 404 provided a timely reminder that, looking at the precise wording of the NPPF, the first bullet of NPPF 89 (buildings for agriculture and forestry) is an entirely unqualified exception from Green Belt policy. Accordingly all such buildings are, in principle, appropriate development in the Green Belt, regardless of their effect on the openness of the Green Belt and the purposes of including land in the Green Belt, and regardless of their size and location. In abstract this sounds as if it presents no issue. In practice, the glasshouse in Lee Valley was some 92,000sqm in area – and all of that ‘not inappropriate’ development in terms of national Green Belt policy, because of the unqualified exception to Green Belt policy in
10 the first bullet of NPPF 89 resulting in the deemed acceptability in openness terms of agricultural buildings.
Chapter 6 - Housing
27. A well-known decision in this area is Daventry DC v Secretary of State for Communities and Local Government [2016] EWCA 1146 (‘Daventry’). This is a case concerned with a proposal for residential development on an area of land in the open countryside, immediately outside the development boundary of Weedon Bec.
28. The Inspector dealt with eight Main Issues [DL 6]. He then reached his ‘Conclusions on the development plan’. The Inspector concluded “…that the proposals would accord with the development plan as a whole.” [DL71].
29. In doing so, he had to consider the weight to be given to the policies in the development plan which were particularly in play before him. This is what he did in DL 65-70. This case focussed on the third of the three sentences in paragraph 68, namely (emphasis added):
"68. The Council acknowledged, as it must, that saved LP policies HS22 and HS24 are both policies for the supply of housing. However, given that the Council can demonstrate a 5 year [Housing Land Supply], albeit only just, these policies are not excluded by NPPF 49. Nevertheless, given the age of the policies and their lack of consistency with the thrust of NPPF 47 towards boosting significantly the supply of housing, I give the conflict with these policies and GN1(E) and (F), reduced weight."
30. Neither party contended that policies HS22 and HS24 should be given full weight. The Respondent called evidence that the policies should be given
11 ‘significant’ weight. The Appellant maintained that the policies should be given ‘very limited weight’ because:
a. The Plan period was 1991 to 2006, adopted in 1997 b. The DDLP was in conformity with the Northamptonshire Structure Plan 1989 c. The Northamptonshire Structure Plan 1989 was amended by alternation No1 (1996-2016), adopted in 2001 d. The Northamptonshire Structure Plan 2001 was superseded by the East Midlands Regional Strategy e. The DDLP was therefore in conformity with a plan which pre-dated the 1990 Act, and which had been superseded, twice f. Consequently, the DDLP policies were drafted and adopted in a national policy context from the 1980’s, the ethos of which has wholly altered g. Further, the policies of the plan which provided for housing land were out of date on expiry of the plan in 2006 h. In saving these policies, the Secretary of State expressly stated that they should be brought up to date promptly.
31. The discussion in the judgment is in two parts. At [§§ 35-37] the Court agrees with the judge below and says this is sufficient to dismiss the appeal. At [§§38-50] the Court addresses several matters of principle and approach which arose in the case:
§40(i) mere age of a policy is irrelevant. It remains part of the development plan; §40(ii) the weight to be given to a policy in the development plan may vary as circumstances change; §40(iii) the Framework may be a significant material consideration. Paragraph 215 sets out the approach to deal with old policies; §40(iv) policies which encourage plan-led development are important; significant weight should be given to plan-led decisions, rather than no
12 coherent plan-led approach at all; the SoS’s saving in 2007 remained important; §40(v) Paragraph 49 may deem policies to be out-of-date, failing which policies may still be out of date for other reasons; §42 Policies HS22 and HS24 were saved in 2007 as part of a coherent set of policies which were appropriate for the area, pending up to date policies. They remain relevant and consistency with NPPF is to be assessed §§43 & 44 The plan is not ‘broken’. It is irrelevant that the Council may have granted permission for sites which breach HS22 and HS24 and then relies upon those sites as part of its five year land supply. The fact of a five year land supply tends to show that the policies need not be overridden; §§45-49 The bullet points in paragraph 47 NPPF are concerned with plan making, not decision making, save for the second bullet point but only if there is no five year land supply so the introductory statement of paragraph 47 (“To significantly boost the supply of housing,…”), which would therefore be irrelevant in this case when conducting the paragraph 215 NPPF exercise.
32. The practical implications which arise from Daventry are wide-ranging and significant. While the Court of Appeal reversed the High Court on the application of parts of paragraph 47 of the Framework to decision making, the Court of Appeal took a very strict approach to the Development Plan, holding that even where a Development Plan policy for housing is very much out of date so far as it is a tool for the proper planning of an area, it should nevertheless attract full weight.
33. The Court of Appeal’s judgment in Daventry is the subject of an application to the Supreme Court for permission to appeal.
Flood Risk
34. Returning to the case of Watermead, this is a case in which the Court of Appeal reversed the judgment in the High Court and upheld the Parish Council’s complaint that the Officer’s report had mishandled and misunderstood the policy as to flood risk in the Framework. This was because
13 the Officer’s report conflated the two key tests, namely the sequential test and the exception test. Rather, the committee was advised that it was possible to jump straight to the exception test without undertaking the sequential test. This was a basic misunderstanding.
35. In giving the judgment of the Court, Lindblom LJ held:
“The relevant passages in the judgment of Lloyd Jones J., as he then was, in Tonbridge and Malling Borough Council, which seem to me to be very much in point here, were these (in paragraphs 52, 67 and 68):
“52. So the Council was … maintaining that the sequential test [in PPG25, “Development and Flood Risk”] can have no application in reality to the redevelopment of existing sites because it is beyond the Council’s control. However it is now accepted by the Council that this is incorrect as a matter of law and that it is a misconception that PPG25 and the sequential test in PPG25 apply only to greenfield sites.
…
67. There is in any event a more fundamental flaw in the process by which the Committee arrived at its decision to grant planning permission in this case. It gives rise to a further reason why I am unable to conclude the Committee may be taken to have applied the sequential test. Reference has been made above to the opinion held by the Council that the sequential test in PPG25 applies only to applications for the development of Greenfield sites and has no application to previously developed land where there are historic use rights. This view was propounded by the Council in the Urban Capacity Study. It is now accepted by the Council that that view is erroneous … . There was no attempt in the hearing before me to justify that previously held view.
14 68. However, it is clear that at the date of the grant of the planning permission with which we are concerned that erroneous view was held by the planning officials within the Council. Accordingly, they considered that the sequential test was simply not applicable to the decision before the Planning Committee in relation to this site. … .”
For the parish council, Mr Richard Kimblin Q.C. submitted that the district council had misunderstood and failed to apply NPPF policy for the sequential test. Under that policy a sequential assessment was required in this case, but had not been carried out. The purpose of applying the sequential test, as the NPPF makes clear, is not to compare the existing risk of flooding with the risk of flooding after the development has been carried out, but to direct development away from areas where the risk is highest, always subject to the developer demonstrating that his development is “necessary”. In this case there was no doubt that policy for the sequential test applied. The proposal was for development in an area “at risk of flooding”. Some of the development would be within Flood Zone 3a and 3b – the highest category of flood risk. Not only that; as the district council had accepted, flood compensation measures would be necessary for it. The site had not been allocated for the development of a crematorium in the development plan through the application of the sequential test. And the proposal was not for “minor development” or for a change of use. In their letter to Mr Onions dated 2 April 2014 the Environment Agency had made it clear that in their view the sequential test applied to the proposed development, and was a matter for the district council as local planning authority to deal with. They were right. The withdrawal of their objection depended on their being satisfied with the proposed flood compensation measures. But satisfying them that those measures were adequate and effective was not to discharge the sequential test. Under NPPF policy, the flood compensation works had no bearing on the requirement for the sequential test to be applied. They would fall to be considered under the exception test, which is a separate exercise. Mr Kimblin submitted that the judge’s conclusions – based largely on the concept of “betterment” – did not recognize this.
15 …..
I see no reason to think that the officer did not mean exactly what he said. He did not say that NPPF policy for the sequential test applied to the proposal, but that in his view the policy should be departed from – in effect, disapplied – in the particular circumstances of this case, and for the particular reasons he gave. His advice was that the sequential test in NPPF policy did not apply in this case because the proposal was for a site that already had development on it. The site was “already developed”, and “therefore”, he said, a “sequential assessment is unnecessary”. …
If my understanding of the advice the officer gave on the sequential test is correct, I think that advice was not a true reflection of government policy for development in “areas at risk of flooding” in paragraphs 99 to 104 of the NPPF. The sequential test is distinct from, and is to be applied prior to, the exception test, which involves a different exercise (see paragraphs 4 and 5 above). The aim of the sequential test, as paragraph 101 explains, is to “steer new development to areas with the lowest probability of flooding”. Where it applies, it involves an assessment of the availability of “sites appropriate for the proposed development in areas with a lower probability of flooding”. It is required not only for “new development” proposed on sites which have not previously been developed but also for “new development” on land that is already developed (see paragraphs 52, 67 and 68 of Lloyd Jones J.’s judgment in Tonbridge and Malling Borough Council, quoted in paragraph 19 above). And it is not said to be inapplicable to development that would reduce flood risk. The Government provided expressly for exemptions from it, in paragraph 104. There is a general exemption for developments “on sites allocated in development plans through the Sequential Test”, and two specific exemptions – for “minor development” and for “changes of use”. None of those exemptions applied here. It follows that if – as I think – the officer’s advice in the fourth sentence of paragraph 9.41 of his report was that under NPPF policy a sequential test was unnecessary in this case because the proposal was for “an already developed site”, that advice was based on a misinterpretation of the policy. This was an error of law.”
16 36. In practical terms, it follows from this judgment that the utmost care needs to be taken to properly understand the functioning of this policy. It has been around for some considerable time because it has not changed in overall structure since the days of PPG25. The approach is not some wide-ranging and broad-brush balancing exercise, rather the approach is to properly undertake a sequential assessment and then address the results of that, so far as necessary, in the context of an exception test. Plainly, the function of flood risk policy is to address the extremely serious consequences of development in areas of flood risk.
AONB
37. Returning to the decision of the Court of Appeal in Wealden DC v Secretary of State for Communities and Local Government [2016] EWHC 247; [2016] Env LR 19, this is a decision which reverses the approach of the High Court as to the test for major development in an AONB. In that regard, the Court of Appeal said:
“In the section of the NPPF headed “Conserving and enhancing the natural environment”, paragraph 115 says that “[great] weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty”. Paragraph 116 states:
“Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:
• the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
17 • the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and • any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”
The inspector noted that “[some] 60% of Wealden District is designated as AONB” (paragraph 34 of the decision letter). He found “on balance” that the proposed development “would have a neutral effect on the contribution that the appeal site makes to the landscape and scenic beauty of the AONB”, that it “would not harm the important characteristics of the AONB” protected in development plan policy, and that it “would accord with the requirement in [paragraph 115 of the NPPF] to give great weight to conserving landscape and scenic beauty in AONBs” (paragraph 40). The parties had agreed that this would be “major” development within the policy in paragraph 116 of the NPPF (paragraph 41). Later in the decision letter, under the heading “Benefits”, the inspector concluded that the proposed development “would provide housing towards the unmet full [objectively assessed needs]”. The council had conceded that there was a “large need” for affordable housing. The strategic sites local plan (“SSLP”) had proposed housing provision at Pine Grove in central Crowborough. But the SSLP inspector had recommended against this, and now that the SSLP had been withdrawn “the need for housing in Crowborough” was “likely to be even greater” (paragraph 83).
The inspector came back to the policy in paragraph 116 of the NPPF in paragraphs 88 to 91 of the decision letter. Having quoted the policy (in paragraph 88), he went on to say:
“89. While housing, and [affordable housing (“AH”)], could theoretically be developed elsewhere, most of the district is within the AONB and so there are few alternatives that are not equally constrained.
18 The Council put forward the Pine Grove and South East Crowborough (SEC) emerging allocations. However[,] … the Pine Grove allocation was not endorsed by the SSLP Inspector and SEC has potential highway problems. Even if the latter can be resolved, and it appeared to me that they could, this does not alter the fact that there is a need for more housing as well as at SEC. Even if the search for alternative sites is taken wider than Crowborough, there is a lack of housing land to meet the full OAN and one alternative being considered when preparing the draft [core strategy] would itself be in the AONB. The existence of other sites, which collectively still fall short of the full OAN, does not amount to an alternative and there are no plans, through the duty to cooperate or otherwise, for neighbouring districts to provide for the shortfall.
90. Moreover, the withdrawal of the SSLP makes it less likely that more sites will come forward and strengthens the case that housing can amount to exceptional circumstances. This applies particularly to the AH which would amount to 40% of the proposed dwellings. In the absence of adequate housing land to meet the full OAN, let alone the AH requirements, I find that there is a need for the development. Moreover, taken with the lack of harm that would be caused to its landscape and scenic beauty, I find that this need amounts to exceptional circumstances to justify development in the AONB.
91. As set out above, mitigation would be put in place to deal with the detrimental effects. For all these reasons, I find that exceptional circumstances do exist and that the proposals would accord with [paragraph 116 of the NPPF]. I note that at Heathfield and Wadhurst the Council also found that the need for housing, and AH, amounted to the exceptional circumstances with regard to [paragraph 116 of the NPPF]. I find that this analysis should also apply to the appeal proposals and that no precedent would be set by allowing this appeal.”
19
The inspector then returned to housing need in the context of planning policy. He said the core strategy had been found to be sound “with a housing requirement well below that of the full [objectively assessed need] for the area based on the constraints of the AONB and [Ashdown Forest]”. There was “still a demonstrable need for housing and [affordable housing] in the area”. Although there were “sound reasons for the requirement to be constrained, including the AONB and [Ashdown Forest]”, neither of those constraints should apply here (paragraph 92).
The judge rejected the council’s criticisms of the inspector’s treatment of the issue of need (paragraph 112 of the judgment). But she accepted the argument that he did not adequately assess alternative sites for the proposed development. He had made a “mistake of fact” in paragraph 89 of his decision letter; the SSLP inspector had not concluded that the Pine Grove site should not be developed – merely that the number of dwellings allocated on that site should be reduced (paragraph 114). Apart from the South East Crowborough site, he had made no findings about the availability and suitability of other sites in Crowborough put forward as alternatives by the council (paragraphs 116 and 117). He seems to have rejected other sites as alternatives, said the judge, “not because they were unsuitable, but because taken cumulatively they fell short of meeting the full objective assessed need for housing in the area” (paragraph 118). The judge recognized that “possible alternative sites are only one of a number of factors to be considered” under the policy in paragraph 116 of the NPPF. But, she said, “the use of the word “should” indicates that it is a mandatory consideration” (paragraph 120). The inspector had not adequately investigated or assessed alternative sites, either in Crowborough or in the district as a whole, and so he had not properly applied the policy in paragraph 116 of the NPPF. This was, said the judge, “a significant failure, given the high level of protection afforded to AONBs under national planning policy” (paragraph 121).
Those conclusions of the judge were attacked by Mr Kimblin and Mr Maurici. They submitted that the inspector had properly dealt with the matters referred
20 to in the three bullet points in paragraph 116 of the NPPF, and had concluded, in the exercise of his planning judgment, that “exceptional circumstances” had been demonstrated, “in the public interest”, for this development in the AONB to be approved. That conclusion was set in the inspector’s broader assessment of housing needs in the district. In considering the factors referred to in the second bullet point, he was entitled to take into account the objectively assessed needs for market and affordable housing. Mr Maurici also submitted that the inspector was right to concentrate on housing needs in Crowborough – consistently with the council’s own approach when considering proposals for housing development in Heathfield and Wadhurst. But he had not confined his assessment of alternative sites to those in Crowborough. He had also considered the availability of sites throughout the district. The judge was wrong to find that Knight Developments had not challenged the availability or suitability of sites beyond Crowborough. Its evidence at the inquiry, through its witness Mr Roland Bolton, was that there were not enough sites in the district to provide a five-year supply of housing to meet relevant housing need. In Crowborough, the council’s own evidence had suggested a need for more than 1,500 affordable dwellings in the 20 year plan period, which implied a requirement for sites to accommodate some 4,500 dwellings. And the council’s witness Mr Christopher Bending had accepted that in Crowborough there was land only for some 1,400 dwellings.
Mr Price Lewis defended the judge’s conclusions. The council’s case at the inquiry had been that there was no good reason to limit the search for alternative sites to Crowborough, given that there were areas of land outside the AONB elsewhere in the district which could accommodate housing development, but that even if the search were restricted to Crowborough there were sites capable of accommodating more than 1,400 dwellings. The inspector did not grapple with that evidence. He was not in a position to conclude that if the full objectively assessed need for housing in the district were to be met it would be necessary for sites in the AONB to be developed. But the more fundamental error in his consideration of alternative sites was that it was based on the false concept that he could properly take into account unconstrained housing need.
21
In my view the inspector’s treatment of alternative sites does not display any error of law. I therefore disagree with the judge’s conclusion on this issue.
One must start with the words of the policy itself, read properly in context (see the judgment of Lord Reed in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13, at paragraphs 17 to 19). The context here includes the familiar and important policies of the NPPF directed to the identification and meeting of housing needs. The policy in paragraph 116 of the NPPF is a policy for development control. It applies to development of all kinds. Where the proposal in question is a proposal for housing development, it must be read together with the policies for housing need and supply in paragraphs 47 and 49 of the NPPF. The inspector was clearly well aware of those policies, and their importance.
The policy requires the exercise of planning judgment. The decision-maker must consider whether there are “exceptional circumstances” justifying the granting of planning permission for the development in question, and whether granting permission would be “in the public interest”. The three bullet points do not exclude other considerations relevant to those questions. The first requires the decision-maker to consider the “need for the development”, including “any national considerations” – for example, the considerations of national policy for housing need and supply. The second bullet point does not refer specifically to alternative sites. It refers to the “cost” and “scope” for development “elsewhere outside the designated area”, and to the possibility of meeting of the need for the development “in some other way”. In many cases, this will involve the consideration of alternative sites. But the policy does not prescribe for the decision-maker how alternative sites are to be assessed in any particular case. It does not say that this exercise must relate to the whole of a local planning authority’s administrative area, or to an area larger or smaller than that. This will always depend on the circumstances of the case in hand. The third bullet point requires the decision-maker to consider potential harm in the three respects referred to – again, always a matter of planning judgment.
22
If this understanding of the policy in paragraph 116 is correct, I do not think the inspector can be said to have misconstrued or misapplied it in this case. The policy allowed him a broad discretion in making each of the planning judgments required, in the particular context in which those judgments had to be made. In my view, he made each of those planning judgments lawfully, on the evidence before him.
There is, and can be, no challenge to inspector’s conclusion on the effect the development would have upon “the landscape and scenic beauty of the AONB”, which, he said, would be “neutral” (paragraph 40 of the decision letter). Nor is there now any challenge to his conclusions on housing need – that, both in Crowborough and in the district as a whole, there was a need for additional housing and additional affordable housing, an identified planning need which the proposed development would help to meet (paragraph 83). It was with those two conclusions in mind that he came to consider the availability and suitability of alternative sites.
The relevant need in this case was not for a particular kind of development such as a new supermarket, school or sewage treatment works, for which only a very small number of potential sites might be available or suitable. It was a general need for housing and affordable housing. But because most of the district was within the AONB, there were few alternative sites suitable for housing development that were “not equally constrained” (paragraph 89 of the decision letter) – that is, in the language of the second bullet point in paragraph 116 of the NPPF, few such sites “outside the designated area”. This was a matter of fact, as found by the inspector. His conclusion that there was “a lack of housing land to meet the full [objectively assessed need]” was not limited to Crowborough; it was explicitly a conclusion on the basis of a “search for alternative sites taken wider than Crowborough”. He was not satisfied that such other sites as were available for housing development in the district would be sufficient to meet the need, or that the shortfall would be made up by development elsewhere. This was a matter of planning judgment for him. He also found that those other sites would “collectively still fall short of
23 the full [objectively assessed need]”, so they “[did] not amount to an alternative”. This too was a matter of planning judgment. He was also entitled to take into account the fact that “the withdrawal of the SSLP makes it less likely that more sites will come forward”, particularly for affordable housing: yet again, a matter of planning judgment.
These were all relevant considerations, indeed obviously powerful considerations, which the inspector was entitled to take into account and give weight in making the judgment he did on the questions arising from the second bullet point in paragraph 116. They informed his broader conclusion that there were, in this case, “exceptional circumstances” justifying approval of the development in the AONB, and that the appeal proposal was therefore in accordance with the policy.
I do not think the policy in paragraph 116 of the NPPF obliged the inspector to deal in his decision letter with every potential site for housing in the district, one by one. And on a fair reading of paragraphs 89 to 91 of the decision letter, his conclusions in those paragraphs are not undone by the error he made in what he said about the allocation of the Pine Grove site. The decisive consideration was, clearly, the remaining need for market and affordable housing both in Crowborough and in the district as a whole.
I do not accept, therefore, that the inspector’s consideration of alternative sites demonstrated either a misunderstanding of the policy in paragraph 116 of the NPPF or an unlawful misapplication of that policy, or that it was otherwise legally unsound.”
Other matters
38. In West Berkshire DC v Secretary of State for Communities and Local Government [2016] EWHC 267 the Planning Court quashed the Secretary of States’ policy, produced by a Written Ministerial Statement, to adjust the approach to affordable housing provision on small site. The Court of appeal reversed the Planning Court: EWCA Civ 441; [2016] J.P.L. 1034.
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39. That Court of Appeal held that the question was whether the written ministerial statement on its face sought to countermand or frustrate the effective operation of the Planning and Compulsory Purchase Act 2004 s.38(6) and the Town and Country Planning Act 1990 s.70(2); or if it merely expressed the secretary of state's substantive planning policy in unqualified though trenchant terms. It was the language of the policy that counted. Once it was accepted that the articulation of planning policy in unqualified or absolute terms was not in principle repugnant to the proper operation of s.38(6) of the 2004 Act, that use of language was unobjectionable. The ministerial statement was in mandatory terms. The policy outlined in the ministerial statement was not to be faulted on the grounds that it did not use language which indicated that it was not to be applied in a blanket fashion, or that its place in the statutory scheme of things was as a material consideration for the purposes of s.38(6) of the 2004 Act and s.70(2) of the 1990 Act, and no more. It did not countermand or frustrate the effective operation of those provisions. The judge conflated what the policy said with how it could lawfully be deployed (see paras 24-25, 30 of judgment).
40. Bloor Homes (Wilmslow) Ltd v HCA [2017] UKSC 12 is about the planning status of land, the scheme for which it is acquired under a CPO, and the disregard of increases and decreases in value arising from that scheme. The Supreme Court upheld the Upper Tribunal’s decision in favour of Bloor Homes, reversing the Court of Appeal’s judgment.
41. Determination of compensation on compulsory acquisition is founded in assumptions and assessment of the planning status of the land and the “no- scheme” rule: that is, the rule that compensation for compulsory acquisition is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority.
25 42. Section 14(3) of the Land Compensation Act 1961 makes clear that these provisions are not to be construed as requiring it to be assumed that planning permission would necessarily be refused for development not covered by the statutory assumptions. The Supreme Court reversed the Court of Appeal which had reasoned that the underlying planning policies in support of the Kingsway Business Park, near Rochdale, would have prevented the grant of planning permission for residential development on the reference land, at the valuation date. Contrary to that view, the Supreme Court upheld the Upper Tribunal’s assessment of the planning status of the reference land in circumstances where it was to be assumed that there was to be no Kingsway Business Park. The Upper Tribunal spoke of the consequent need for them to consider “life in at least two parallel universes: the ‘cancellation assumption’ universe and the ‘disregard the scheme’ universe (called ‘no KBP’ for short)”. That analysis was, so the Supreme Court held, exemplary.
43. ClientEarth v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 will be covered by Paul Cairnes QC. We nevertheless draw attention to it as a significant case. The Court Quashed an Air Quality ban issued by the government which was intended to reduce nitrogen dioxide emissions, which represented a breach of Directive 2008/50 art. 13. However it was concluded that the proposed ban was insufficient to reduce nitrogen dioxide emissions at the necessary pace and therefore failed to comply with art.23(1) and the Air Quality Standards Regulations 2010 reg.26(2). The Grounds of Challenge were firstly that the Government’s Air Quality Plan to deal with Nitrogen Dioxide emissions failed to comply with EU and domestic law. The court held that although art.23 allowed some discretion to member states, all were obliged to ensure that plans were devised to meet the limits in the shortest possible time frame and therefore cost could only be a consideration when the methods in question were equally as effective. DEFRA was thus required to achieve compliance with art.23 without delay by selecting a method which reduced exposure post-haste.
26 44. Secondly, it was argued that whilst creating the Air Quality Plan, DEFRA had erred in its understanding of the requirements of art.23(1) and had accorded a disproportionate weight to considerations such as costs, political sensitivity and administrative difficulties. It was held that whilst the use of five-yearly emissions forecasts were acceptable for routine air quality monitoring, there was insufficient evidence to support such a method proving sufficient in this context given the urgent nature of the task to reduce nitrogen dioxide emissions to within the limits of the directive. It was concluded that DEFRA had chosen 2020 as a date of administrative convenience (as it was the earliest date that the EU may begin infraction proceedings) and had erred in doing so. As a consequence DEFRA had not fully explored all the potential options and had deprived itself of the potential to find a method which could ensure compliance with the required rapidity. The Government’s plans were based on highly optimistic forecasts and in order for such forecasts to be proved correct, a number of the emerging date would also have to be proved wrong. To adopt a plan based on such optimistic assumptions was, in itself, a breach of the Directive and Regulations.
Richard Kimblin QC Scott Stemp No5 Barristers’ Chambers No5 Barristers’ Chambers
+44 (0) 845 210 5555 +44 (0) 845 210 5555
[email protected] [email protected]
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