How To Predict, How To Advise

Don’t believe anyone today who confidently predicts what any particular political outcome will be. There are currently too many variables. What does this mean for planners, and planning lawyers, whose roles largely entail predicting and helping  to influence the future? Practical outcomes flow from our advice. Our collective success rate is usually fair to middling at best (although it’s usually difficult to envisage the counter-factual so thankfully who can say!?) and the political and economic uncertainties are obviously currently heightened.

In the short-term, what will be the outcome of any particular decision that is before the Government or any Secretary of State? What will be the trajectory of previously announced changes (for example the forthcoming Neighbourhood Planning and Infrastructure Bill, the Regulations to give life to the Housing and Planning Act, changes to the NPPF) and those anticipated, for example the reform of CIL? What appetite will there be for call-ins or local plan interventions? All valuable information. Wouldn’t we love to be able to advise!
In the longer-term, will we see a Government with a changed policy agenda? Will the populist appetite for localism on a national scale mean greater emphasis over time on the rather different localism espoused by the Localism Act? What now for devolution? How soon will we see changes that water down environmental or competition law protections? Again, a big temptation to jump right in with answers.
Maybe we can. Hopefully in the short-term the changes for planning will be minimal – development activity has a way of going forward whatever the political climate. But that’s my emotional response, partly based on experience, partly based on the need to be positive – after all let’s not talk ourselves into a negative situation.
However, before we give any prediction or advice that is to be relied upon, a few principles:
– the more controversial the political decision the more unpredictable its outcome is (as minds will need to be engaged that are currently applied elsewhere) and the more likely it is to be postponed, but (to add to the uncertainty) always with the counter possibility that it may be announced quickly to be “got out of the way” in all the hubbub, if the real work has already been done (Heathrow anyone? The reality is that we are all guessing, but surely it would take a Cabinet meeting and can we see that on the agenda in coming weeks? My guess is no).

– the more longer-term the question, the more difficult it is to answer, because the uncertainties increase exponentially.

– don’t underestimate the random element in politics: for example, people (who will the decision maker actually turn out to be?); something that happens; something that goes viral and expresses a mood; interactions with economics and markets.

So how to advise and predict? I would suggest that some fundamental rules apply:
– gather all relevant current information and use it to arrive at, rather than corroborate, your conclusions.

– advise based on the facts and as to what constraints there are to political and legal procedures – believe in the rule of law and uphold it. Predictions as to court outcomes are likely to be more reliable (because there are narrower tramlines), although see also the next point.

– be careful not to oversell as to the certainty of anything (I’ve heard QCs advise there’s an 80% prospect of a particular court outcome, when even with a legally ‘certain’ position I would guess that the litigation risk of something completely unpredicted happening is always at least 20%) – the more experienced we are, the more compelling we can sound to others as well as to ourselves.

– don’t be afraid to postulate alternative outcomes and to sensitivity-test (“What if I’m wrong and x happens?”).

– ignore your personal wishes or fears and those of the person asking the question: sub-consciously we all want to reassure. There’s always a positive way of saying “no”.

– don’t assume that things will happen in the way that they usually do: the past is an uncertain predictor of the future and there are fewer reliable patterns “in the moment” than with the benefit of hindsight.

– don’t be a sheep/lemming – the consensus view isn’t necessarily the correct one.

– be clear: unclear advice is no advice; waffled advice is wasting someone’s time and (probably) hiding the fact that the answer is that…you don’t know the answer.

These thoughts were partly sparked by Dan Gardner’s brilliant and unwittingly topical 2011 book, Future Babble (see this Guardian review).
Simon Ricketts 26.6.16
Personal views, et cetera

Short-term implications for planning of that vote

This blog post was going to be about class C of the Use Classes Order.Instead here’s my personal take on the short-term implications for planning of that referendum vote. The most immediate implications are nothing about planning or planning law at all.

1. Obviously market volatility and uncertainty. Many investors and developers will batten down the hatches and proceed with extreme caution. But planning is a long-term activity and sensible investment in the planning process will continue

2. Others with appropriate funding may see pricing opportunities due to the strength of the immediate market reaction. So there will be some quick transactions.

3. Viability on many schemes will have changed overnight although we need to get over the initial shock wave.

4. LPAs may wish to grasp those schemes that will proceed notwithstanding the market disruption – they will be at a premium.

5. Mayor Sadiq Khan has a huge role to play. His mandate in London has been reinforced and he will represent stability in contrast to the confusion and chaos of central government, which will be distracted away from the big planning law issues.

6. A question mark now against at least the timing of some major infrastructure projects, including HS2, until we see the new Cabinet and until the economic implications of the referendum decision play out.

7. Delays to current planning law reforms where any significant ministerial thinking is required. Brains are otherwise engaged.

8. Ages until those big picture changes in relation to EU environmental and competition law – but discussion, debate and speculation on all that will be a continung distraction.

Simon Ricketts 24.6.16

Personal views, et cetera

Valuing Starter Homes

The sound-bites from chapter 1 of the Housing and Planning Act 2016 make it sound so simple. Starter homes will have be sold at a discount of at least 20% to market value, with a price cap of £450,000 in London and £250,000 elsewhere.
That much is baked into the Act (subject to change via a subsequent statutory instrument). But most of the necessary detail is to follow in the Regulations that we expect to see this Autumn following the Government’s technical consultation in March. A busy summer ahead within DCLG.

I was speaking on a Westminster Briefing conference panel this morning alongside Jennifer Bourne from the Council of Mortgage Lenders and Chris Buckle from Savills. The mix of private sector and public sector delegates had a series of interesting and thought-provoking questions for us but more particularly (if they had been in the room) for those busy ministers and civil servants. I came away with a series of thoughts swirling around as to the particular difficulties in arriving at a valuation process that will work without introducing unnecessary extra complexity, delay or uncertainty into development (an already hazardous adventure):

– What will be the precise mechanism for having starter home valuations signed off? We expect some standardised section 106 agreement clauses – presumably they will require the developer (and home owner on any prospective re-sale within the restricted period) to submit a valuation for the LPA’s sign off but how can we ensure that processes won’t be elongated if there is disagreement? Who will pay for the LPA’s valuation sign-off or will this be centrally managed via the HCA or any other body? Who is to oversee the process to avoid any lack of rigour as between developer and LPA?

– How to deal with the uncertainties inherent in valuing any new home, with the premium that newness initially attracts, such uncertainties being particularly accentuated in the case of larger developments where local comparables may be less relevant?

– Is the valuation to exclude the “starter home” nature of the property, given that purchasers may well be prepared to pay more than 80% of that valuation (or, where relevant, more than the price cap) thereby increasing the valuation of the property? This premium will increase on potential re-sales during the restricted period (even allowing for any tapering).

– How to ensure that there are no side deals between developer and purchaser, particularly where there are more potential purchasers than potential starter homes or where the starter home seems a particularly good deal, for example where the price cap works so as to lead to a reduction of much more than 20% (as it will in parts of central London and the home counties)? Indeed how is the developer in practice to choose between different buyers, faced with that price cap?

– How to take into account any reduction in value of the balance of the private market housing within a scheme if it turns out that starter homes are cannibalising private market sales?

– where off-site contributions are negotiated in lieu of on site provision, how is the level of those contributions to be set?

This is the Council for Mortgage Lenders’ detailed and measured response to the Government’s technical consultation on the proposed Regulations.

Lastly, Savills have an interesting slide showing the likely viable mix of starter homes and other affordable housing – figure 1 in their April 2016 briefing note . However starter homes are valued, they come at a price.
Simon Ricketts 21.6.16
Personal views, et cetera

How Does Your Garden Village Grow?

It is encouraging to see the practical encouragement that the Government is giving for local authorities and promoters jointly to bring forward high quality proposals for new communities.

Expressions of interest are sought by 31 July 2016 for “garden village” projects defined by the Government as developments of between 1,500 and 10,000 homes that meet specified criteria. Up to 12 proposals are to be supported. The list of information required has now been published.

This follows DCLG’s March 2016 prospectus that covered both garden villages and garden towns/cities (10,000 homes plus).

Key criteria include:
– backing from the relevant local authorities

– engagement with the local community

– embedding of “garden city principles” (how strictly, one wonders, given the lack of many developments to adhere to all of those principles articulated by the TCPA.

The prize for selected applicants is a package of government support that could include:

– delivery enabling funding (ie funding for the local authority for staff or consultancy work)

– support from ATLAS

– “brokerage across government” to unblock cross-departmental issues

– access to government housing funding streams (eg the starter homes fund and affordable housing funding)

– “financial flexibilities” to improve viability and cashflow (TIF-type mechanisms perhaps?)

– planning freedoms (presumably eg the potential to be a “planning freedom zone” under section 154 of the Housing and Planning Act 2016)

– dedicated delivery vehicles (eg public-private sector JVs or even development corporations, made easier to create by sections 166 and 167 of the Housing and Planning Act 2016).

The Government has learned from the failings of the previous eco-towns initiative, where schemes that were selected achieved an unfair policy advantage, short-circuiting the then regional planning process, and failed to live up to promises made to promoters and the public alike as to consultation and assessment processes. Whilst the legal challenge to the lawfulness of that process failed (the Bard Campaign v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin), public unpopularity ran the process into touch in the lead up to the 2010 General Election.

Instead, this time round there is no explicit shortcut through the planning process – expressions of interest must set out how the proposed garden village fits with the “strategic growth plans for the area”.

Alongside the prospectus, the Government has been refining its policy stance on new settlements, in DCLG’s December 2015 consultation paper on proposed changes to national planning policy.

The NPPF currently says this:
“52. The supply of new homes can sometimes be best achieved through planning for larger scale development, such as new settlements or extensions to existing villages and towns that follow the principles of Garden Cities. Working with the support of their communities, local planning authorities should consider whether such opportunities provide the best way of achieving sustainable development. In doing so, they should consider whether it is appropriate to establish Green Belt around or adjoining any such new development”
The consultation paper proposes the following:
“20. We propose to strengthen national planning policy to provide a more supportive approach for new settlements, within locally led plans. We consider that local planning authorities should take a proactive approach to planning for new settlements where they can meet the sustainable development objectives of national policy, including taking account of the need to provide an adequate supply of new homes. In doing so local planning authorities should work proactively with developers coming forward with proposals for new settlements in their area.”

If you have a scheme that meets the criteria in the prospectus, there is little time to be lost.

Simon Ricketts 17.6.16

Personal views et cetera

Permitted Development: What Next?

This Government loves permitted development rights. Two of their most ambitious ones so far have yet to be reflected in legislation. I’m not holding my breath as to when they will emerge or how workable and/or significant they will turn out to be.

Office demolition and residential rebuild



Brandon Lewis announced way back on 13 October 2015 that there would be a new development right to “allow the demolition of office buildings and new building for residential use”.
I assume that the delay has been caused by the need for an amendment to section 60 of the Town and Country Planning Act 1990, now achieved by section 152 of the Housing and Planning Act 2016, because section 60 limited (in relation to permitted development rights for the erection, extension or alteration of any building) the matters that may be dealt with by way of prior approval, to “the design or external appearance of the building”. Section 152 extends this, with immediate effect, to “any matters that relate to those operations…and are specified in the order”.
That additional flexibility will be necessary because surely all manner of issues will need to be controlled, not least the issues dealt with by way of prior approval in relation to office to residential use permitted development use changes: highways and transportation, flood risk, contamination and issues in relation to noise from nearby commercial premises.

However there are bigger unanswered questions:
– what scale of redevelopment will be possible?

– will the height, floorspace quantum or development envelope be pegged to that of the existing building?

– what of mixed uses (for example commercial uses at the ground floor)?

– presumably no starter homes or affordable housing requirements?

In London, the Government is also going to come up against London Mayor Sadiq Khan’s well publicised concern as to the loss of office space by way of permitted development rights. This is his 3 June 2016 press statement.
Upward extensions in London



The February 2016 DCLG/Mayor of London consultation paper sought views on proposals “to increase housing supply in the capital by allowing a limited number of additional storeys to be built up to the roofline of an adjoining building through permitted development rights, local development orders or development plan policies”.
The key components of a new permitted development right would be
– requirement that the additional space be used to provide self-contained additional housing units

– upwards constraint of one or two additional storeys, “up to the level of an adjoining roofline”. The right could not be used incrementally on premises adjacent to those where the right has been exercised. Confusingly, it is said that the right “would apply to premises within a single terrace, where the premises at either end of the terrace have a higher roofline than the rest of the terrace”. This is pretty specific!

– neighbour consultation scheme equivalent to that introduced in May 2013 for larger single storey rear extensions to homes and only where neighbours raise objections would the LPA have to consider the impact of the proposed development on their amenity

– prior approval requirement to allow for consideration of other issues, including space standards and method and hours of construction

– some locations to be excluded eg within the curtilage of listed buildings. The paper indicates that the right would not necessarily be excluded from conservation areas or from protected view corridors but “an additional prior approval could require the local planning authority to consider the impacts of the proposed development on a conservation area or a protected view. London boroughs would determine whether further storeys are appropriate in specific conservation areas or protected views and apply local design codes…”

Sadiq Khan has expressed no view yet on the upward extension initiative. Assuming it goes forward to legislation, do we really think that there are many sites that meet the criteria and which would either not have proceeded smoothly anyway via a traditional planning application or which would not have been stymied in any event due to landlord and tenant, rights of light or viability concerns?

Simon Ricketts 15.6.16

Personal views etc

7 Questions About Permission In Principle

Despite its 217 sections and 20 schedules, the Housing and Planning Act 2016 is in places the merest of sketches – nowhere more so than the illusive idea of “permission in principle” in sections 150 and 151. Here are just some of the things we don’t know:

1. What does “housing-led development” mean?

2. What types of land will be able to be included in the new register envisaged, promised by the Act’s explanatory notes to be a register of brownfield land suitable for housing, but without any such constraint in the Act itself?

3. What procedures will govern the process for selecting land for the register, allowing both proponents and opponents a fair hearing? The Act simply refers to “consultation and other procedures”. In which ways will the procedure be any speedier than any development plan process whilst complying with the European Convention on Human Rights and SEA Directive?

4. Categories of land on the register, or designated in other plans, will have automatic permission in principle for development by way of a general development order but what will be the categories and in relation to what categories of land will specific applications for permission in principle be needed? The explanatory notes suggesting that applications will be limited to minor development (ie fewer than ten dwellings) but presumably the general development order will allow for much larger development to have automatic permission in principle (with EIA, where necessary, being carried out at some undetermined stage in the process?)?

5. How detailed will be the development parameters set out in the permission in principle, given that LPAs will only be to take into account limited criteria in determining subsequent applications for technical details consent? The explanatory notes suggest that “the parameters that can be granted permission in principle are limited to location, the uses (which must be housing-led) and the amount of development”. Will that be enough to give developers something bankable in terms of predictable value/cost? The explanatory notes suggest that permission in principle cannot be subject to conditions, so how will the parameters be documented in a way which sufficiently precise?

6. In practice, will LPAs require land owners and developers to make all the running as at present, justifying that development would be acceptable with necessary supporting information and technical work, or will land owners be able to sit back, let the LPA take the local flak and wait for permission in principle to pop out of the sausage machine in place of getting a developer on board to secure planning permission? Will land owners accordingly retain more land value gain?

7. Are matters that go directly to value and viability, such as social and physical infrastructure requirements and affordable housing numbers and tenure, to be determined at permission in principle stage or technical details approval stage? The explanatory notes simply suggest that “the Secretary of State may also specify in the regulations, certain types of information for inclusion into the register alongside the entries …. For example, the site reference, address, size, an estimate of the maximum number of dwellings that the site would be likely to support, and its planning status.”

More generally, is there an Act with such blatant Henry VIII clauses, ie Parliament passing an Act with its fingers crossed behind its back so that it can amend the provisions in the statute without primary legislation? Section 2(10) takes the biscuit (“Regulations under this section may amend this chapter”), giving future Governments carte blanche to mutate the Act’s starter homes provisions in whichever way they choose. (Read “Why Henry VIII clauses should be consigned to the dustbin of history” by Richard Gordon).

Simon Ricketts 11.6.16

Personal views et cetera

Brownfield Thinking

“Brownfield land” is right up there with “hard-working families” in terms of the political buttons that it presses. But what is it and what are the implications of land being “brownfield”?
There is no planning law definition other than the definition of “previously developed land” in the glossary to the NPPF:

“Land which is or was occupied by a permanent structure, including the curtilage of the developed land (although it should not be assumed that the whole of the curtilage should be developed) and any associated fixed surface infrastructure. This excludes: land that is or has been occupied by agricultural or forestry buildings; land that has been developed for minerals extraction or waste disposal by landfill purposes where provision for restoration has been made through development control procedures; land in built-up areas such as private residential gardens, parks, recreation grounds and allotments; and land that was previously-developed but where the remains of the permanent structure or fixed surface structure have blended into the landscape in the process of time”.

It may be a surprise to some that there is nothing in the definition that connotes “under-used”, “vacant” or “derelict” – the definition does not exclude land which is currently in occupation (save occupation by agricultural or forestry buildings).

It may also be a surprise to some that (just as large parts of the green belt are anything but green) brownfield land is often anything but brown. The definition only excludes “private residential gardens, parks, recreation grounds and allotments” to the extent that they comprise “land in built-up areas”. The High Court recently confirmed (although it’s obvious on the wording of the definition) that land used as private residential gardens, parks, recreation grounds and allotments in the countryside as opposed to “in built-up areas” comprises brownfield land (Dartford v Secretary of State, 21 January 2016).

The Government has set as a policy objective that 90% of brownfield land “suitable for housing” should have planning permission by 2020. It is seeking to achieve this by a number of policy initiatives, which include:

Housing and Planning Act: permission in principle

The Act provides for the establishment of a register (which the explanatory notes to the Act, rather than the Act itself, explains is intended by the Secretary of State to be a register of brownfield land which is suitable for housing development). Local authorities will be able to place land on the register if it meets criteria which the Secretary of State will set down. The Explanatory Notes accompanying the Act state that “the criteria prescribed by the Secretary of State could for example include that the land must be available already or in the near future for housing development, that it must not be affected by physical or environmental constraints that cannot be mitigated and that it must be capable of supporting 5 dwellings or more“.

The effect of being on the brownfield land register is that, by a general development order, the Government will give automatic permission in principle for certain specified types of site suitable for housing which are on the register, or which have been allocated for that purpose in other local plan documents. The details of what the criteria will be are left for the general development order. The detailed procedure that authorities have to follow in deciding what land goes on the register is also left for later regulations.

Strengthened NPPF policies

The Government has consulted on changes to the NPPF, which would:

– provide that “substantial weight should be given to the benefits of using brownfield land for housing (in effect, a form of ‘presumption’ in favour of brownfield land). We propose to make it clear that development proposals for housing on brownfield sites should be supported, unless overriding conflicts with the Local Plan or the National Planning Policy Framework can be demonstrated and cannot be mitigated” (paragraph 22)

– include an even stronger presumption for starter homes on unviable or underused brownfield land – “Alongside these proposals, we propose to widen the scope of the current exception site policy for starter homes to incorporate other forms of unviable or underused brownfield land, such as land which was previously in use for retail, leisure and non-residential institutional uses (such as former health and educational sites). This will provide clarity about the scope of the exception site policy for applicants and local planning authorities, and release more land for starter homes.” (Paragraph 40)

strengthen the starter homes exception sites policy – “To ensure there is greater certainty that planning permission will be granted for suitable proposals for starter homes on exception sites, we propose to be clearer about the grounds on which development might be refused, and to ensure that this is fully embedded in national planning policy. Specifically, we propose to amend the exception site policy to make it clearer that planning applications can only be rejected if there are overriding design, infrastructure and local environmental (such as flood risk) considerations that cannot be mitigated.” (Paragraph 42)

– support development of brownfield land in the green belt if it “contributes to the delivery of starter homes” (weaselly word, “contributes”!) as long as there is no substantial harm to the openness of the green belt. (Paragraph 53)

The consultation period has closed and we await what emerges…

PS ask a tax lawyer about brownfield land and you will get a very different answer based on its use as shorthand for reliefs available for remediation of contaminated land.
Simon Ricketts 8.6.16

Personal views et cetera