HS2: The Very Select Committee

The Parliamentary Hybrid Bill procedure will be used for Crossrail 2 and for the second phase of HS2 so it’s right that we look at the process is faring as the Bill for phase 1 of HS2 carries on through its House of Lords Select Committee stage. 
When compared to planning inquiries under the Town and Country Planning Act 1990 or Transport and Works Act 1992 and to the examination of NSIPs under the Planning Act 2008 it is a very strange beast, particularly in the breadth of discretion given to the Select Committees in each House that hear “petitions” (“objections” in real world language) in relation to aspects of the Bill (although not its principle) and the narrow rules as to locus standi (standing). 
The members of the Lords Select Committee were appointed on 5 May and the hearing started on 19 May. The Committee is chaired by Lord Walker of Gestingthorpe, who was a member of the Supreme Court until 2013. 
The Committee has made some far reaching decisions both in relation to locus standi and as to the breadth or otherwise of its role in hearing petitions that seek Additional Provisions, ie amendments to the Bill that may require for example additional powers to acquire land. 
Locus standi

Petitioners must demonstrate that they are directly and specially affected by provisions of the Bill. It is open to the promoter, in this case HS2 Ltd, to challenge a petitioner’s locus standi, in which case the Select Committee reaches its determination as to whether the objector should be heard. 

There is no right of appeal from the decision of the Committee on locus standi. 

Before the Commons Select Committee, HS2 Ltd only challenged 24 out of 1,918 petitions in relation to the deposited Bill (there were challenges later on in relation to petitions in relation to Additional Provisions). On Crossrail, there were no challenges at all. 

In the Commons Select Committee’s final report dated 22 February 2016 the Committee made some recommendations in relation to rights of audience:

“394. With the benefit of nearly two years’ experience, we believe that there should be a stricter approach to locus standi. Past convention has been that hybrid bill committees should make their own determinations on locus. (This is different from the practice in relation to private bills, where a separate committee, the Court of Referees, makes such decisions.) The current method could be retained, or replaced by a different mechanism. We believe that it is a priority that strong guidelines on acceptable locus should be set out before the establishment of the Committee and before petitioning starts.”

No doubt buoyed up by that statement, when the Bill entered the Lords, HS2 Ltd made no fewer than 414 locus standi challenges in relation to the 820 petitions lodged.

Standing orders 114 to 118 which govern locus standi are extremely general, have not been reviewed in the light of modern principles of public participation in decision making and are subject to interpretation by reference to decisions reached by previous Committees, albeit with each Committee having a wide discretion and a variety of political and personal backgrounds and influences.  

Locus standi hearings started on 7 June  with opening submissions by James Strachan QC for HS2 Ltd, drawing heavily on previous rulings, and urging a robust approach by the Committee. I had the misfortune to follow on immediately after James, for Conserve the Chilterns and Countryside. 

The first tranche of locus standi decisions was made on 13 June 2016  None of various campaign and amenity groups was successful in asserting locus standi save for HS2 Action Alliance and a group concerned by the proposals at Euston. 

The locus standi hearings carried on for a number of weeks, with similar rulings on 21 June and 28 June . Some interesting comments from 28 June:

“It is clear to us that there are many petitioners who find it difficult to accept the limited scope which parliamentary practice allows to the expression, ‘their property or interests are directly and specially affected by a hybrid Bill’. Other petitioners understand its limited scope but find it unacceptable and have said so in forthright terms. The point was made eloquently by Mrs Emma Davies of Coombe Avenue, Wendover, one of the youngest petitioners from whom we have heard. She said that the HS2 railway is a new world and that it calls for a new approach to parliamentary practice on Hybrid Bills. We agree with that view.

3. The present system began to evolve in a piecemeal way in the Victorian age when there were many more Private Bills, but far fewer petitioners, no motor vehicles and very much less regard for environmental and ecological concerns. A start has been made towards a new approach. Following the unprecedented period of two years for which this Bill occupied the House of Commons Select Committee, the Chairman of Committees of the two Houses has established a review of Hybrid Bill procedure. We hope that it will be radical and extend not only to the form in which the principles of locus standi are expressed but also to the substantive content of those principles.

4. This Select Committee may be the last to operate under the present system but this Committee has no power to change that system. That is a matter for Parliament as a whole after the review has been completed and its recommendations considered. We must, in the meantime, apply the existing rules. “
Again the hearings continued, with more rulings on 5 July which this time excluded various local councillors as well as a London Assembly member. 

“6. We heard three petitions, 279, 552 and 584, from small groups of councillors elected to represent different wards, the Camden Town with Primrose Hill ward, the Regent’s Park ward, and the Kilburn ward, respectively, within the London Borough of Camden. Camden is itself an unchallenged petitioner, but has, as noted in our first ruling, a degree of inhibition because of its different statutory functions and responsibilities. The councillors who addressed us on 28 June spoke eloquently about the social and economic deprivation of parts of their wards, and the linguistic and cultural difficulties that many of their residents encounter in trying to respond effectively to the Bill. 

7. We have no doubt that these councillors are conscientiously working as hard as they can in the interests of their residents, but there is an important point of principle that arises here. Their status as councillors is as elected members of a local government corporation, which, whether or not it has a cabinet system, can act only by properly passed resolutions and properly delegated authority. Individual councillors or groups of councillors acting without the authority of the council cannot claim the special preference accorded to local authorities. Mr Mould referred us to several petitions which raised the same concerns, including one, Connor and others, 391, which is focused on the Alexandra Road vent shaft. We uphold the challenge to these petitions. This does not of course prevent these dedicated councillors from continuing to assist their residents by advising them, by cooperating with other petitioners, and perhaps by giving evidence in support of other petitions. For similar reasons we also uphold the challenge to the petition of Mr Andrew Dismore, assembly member for Barnet and Camden.”

And still the locus standi hearings continued with eight MPs ruled as not having locus standi on 18 July 2016 .

“6. Mrs Gillan is the member for Chesham and Amersham, and the others (from north to south along the route) are Craig Tracey MP (North Warwickshire), the Rt Hon Caroline Spelman MP (Meriden), Jeremy Wright MP (Kenilworth and Southam), Andrea Leadsom MP (South Northamptonshire), the Rt Hon John Bercow MP (Buckingham), David Lidington MP (Aylesbury) and Nick Hurd MP (Ruislip, Northwood and Pinner).

 7. We conclude that neither parliamentary practice, nor standing orders, confers locus standi as of right on a Member of Parliament petitioning on behalf of his or her constituents, and we do not feel able to stretch the language of SO 118 so as to confer a discretionary locus standi

 …Our conclusion will be considered by the review of procedure on hybrid bills now being undertaken by officials of both houses at the joint request of the two Chairmen of Committees. It is most desirable that the position should be clarified so that there will in future be no doubt as to the position…

Mrs Gillan has been outstandingly energetic and committed for many years in her advice and assistance to opponents of the HS2 bill and its effect on residents in or near the Chilterns AONB. As a further mark of our respect we are prepared to hear her again, not as a petitioner, but to give us her reflections on the bill and generally on hybrid bill procedure, towards the end of our sittings.”

Is there anyone who isn’t concerned by this narrow approach – which had not been flagged at all by HS2 Limited or by Parliament before the deadline for petitioning? Imagine the outcry if an equivalent approach were taken by a planning inspector….

Additional Provisions

The position in relation to Additional Provisions has been similarly difficult. The House of Lords’ standing orders do not directly address the question of Additional Provisions in Hybrid, as opposed to Private, Bills. The Government has taken the position that the Committee has no remit to consider the question of whether there should be any Additional Provision without a specific instruction from the House. This is clearly a significant issue for those petiomers, who seek, for example additional tunnelling to provide additional environmental protection for their areas, two examples being the London Borough of Hillingdon in west London and various Buckinghamshire authorities and groups in the Chilterns AONB.
Legal submissions were made on the issue on 30 June . George Laurence QC appeared for London Borough of Hillingdon; Martin Kingston QC appeared for Buckinghamshire County Council, Chiltern District Council and Aylesbury Vale District Council. Tim Mould QC appeared for HS2 Ltd.

The Committee made its ruling on 7 July , rejecting the petitioners’ arguments. 

“16. We return to the realities of the situation. The changes sought by Hillingdon and the Chiltern councils could hardly be more momentous, in terms of their implications for cost, redesign work and delay. There are no economies of scale in long bored tunnels. On the contrary, the unit cost per kilometre of tunnel increases with the length, because of the need for extra vent shafts and intervention gaps, and above all because of the ever increasing cost of moving excavated spoil over longer and longer distances. In view of recent warnings from the National Audit Office and the financial fallout at the recent referendum, it seems in the highest degree unlikely that the House of Lords will see fit to give an instruction contrary to the settled practice for additional provision for either of these new tunnels. The degree of improbability would be reduced in the case of Colne Valley if the working group were to recommend a course which the promoter was willing to accept, although there would still be many difficulties. Additional provision for either tunnel would produce a blizzard of new petitions, as AP4 did before the House of Commons.”

Whilst of course it will be said that the petitioners did have the ability to raise their arguments before the Commons Committee, there is no Parliamentary principle that rules out arguments being made in one House which have already been made in the other House – that after all is one of the checks and balances of our Parliamentary system. It will also said by the petitioners that the Select Committee process, with its time constraints and without a forum used to assessing forensic arguments and technical evidence, is not built for determining disputes on issues such as costs assumptions and the economic value to be attributed to landscape.

And again a decision which on any conventional basis is unchallengeable under domestic legislation. 

The Committee returned to the issue on a statement on procedure on 20 July 2016  before rising until 6 September:
“In the light of our ruling on additional provisions given on Thursday 7 July, we wish to make it absolutely clear that, in the absence of an instruction from the House, we will not hear argument for measures which would require an additional provision, that is, measures which would amount to significant changes to the scheme. In preparing their cases, petitioners should be extremely mindful of our limited powers. They will be squandering their time if they choose to present proposals which would require an additional provision, just as they will if they present proposals which go against the principle of the Bill. Instead, they would be wise to focus on issues and solutions over which the Committee does have power to intervene.

3. The Committee also wishes to re-emphasise the merits of succinct and cogent presentations from petitioners and the desirability of petitioners grouping together to present a single case. Groups of petitioners from the same area are encouraged to appoint a lead petitioner to outline their case, with other petitioners from the group adding local detail where appropriate, instead of repeating the case. It is our clear view that there is no relationship between repetition and persuasiveness. “

This is a Committee with its destination in sight. 

A review of Hybrid Bill procedures is underway. It is important that we get the balance right between speed and justice.
Simon Ricketts 30.7.16
Personal views, et cetera

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Sequential Test: Still Testing

The  “town centres first” sequential test in paragraph 24 of the NPPF still leads to much uncertainty as to its practical application. This post briefly summarises (largely just by cutting and pasting the relevant passages) the recent Warners and Aldergate court rulings and the Secretary of State’s Exeter decision letter, all from the last month alone.

But first, the paragraph:

“Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate exibility on issues such as format and scale

A little, but not much more, guidance is set out in the NPPG:

“It is for the applicant to demonstrate compliance with the sequential test (and failure to undertake a sequential assessment could in itself constitute a reason for refusing permission). Wherever possible, the local planning authority should support the applicant in undertaking the sequential test, including sharing any relevant information. The application of the test should be proportionate and appropriate for the given proposal. Where appropriate, the potential suitability of alternative sites should be discussed between the developer and local planning authority at the earliest opportunity.The checklist below sets out the considerations that should be taken into account in determining whether a proposal complies with the sequential test:

  • with due regard to the requirement to demonstrate flexibility, has the suitability of more central sites to accommodate the proposal been considered? Where the proposal would be located in an edge of centre or out of centre location, preference should be given to accessible sites that are well connected to the town centre. Any associated reasoning should be set out clearly.
  • is there scope for flexibility in the format and/or scale of the proposal? It is not necessary to demonstrate that a potential town centre or edge of centre site can accommodate precisely the scale and form of development being proposed, but rather to consider what contribution more central sites are able to make individually to accommodate the proposal.
  • if there are no suitable sequentially preferable locations, the sequential test is passed.”

This replaced more detailed practice guidance  which was withdrawn on 7 March 2014.

Warners Retail (Moreton) Ltd v Cotswold District Council & Ors [2016] EWCA Civ 606 (24 June 2016)

The Court of Appeal rejected a claim for judicial review brought by the owner of a Budgens store in Moreton-in-Marsh, seeking to quash a planning permission granted for an out of town food store. The arguments were around whether the applicant had been sufficiently flexible before rejecting as sequentially preferable an extension to the Budgens. (The permission was granted when the more detailed practice guidance was in place, hence references in the passages below).

Lindblom LJ:

“Under paragraph 24 of the NPPF both applicants and local planning authorities are expected to “demonstrate flexibility on issues such as format and scale”. What bounds can reasonably be set on an applicant’s preference and intentions as to “format and scale” in any individual case will always, and necessarily, depend on the facts and circumstances of that particular case. The policy in paragraph 24 of the NPPF should not be seen as prescriptive in this respect. It plainly is not.

Flexibility was also called for under the practice guidance, in somewhat more elaborate terms. It is very clear from paragraphs 6.42 and 6.45 that the identification of a relevant “need” or “need/demand” for the purposes of the sequential approach was not intended to be merely a self-serving exercise on the part of the developer himself. As paragraph 6.45 made plain, sites were not to be rejected on the strength of the “self imposed requirements or preferences of a single operator …”. Otherwise, the sequential approach would likely become a merely self-fulfilling activity, divorced from the public interest. It is also clear, however, that the authors of the practice guidance regarded the developer’s own intentions as generally having some bearing on the application of the sequential test. One sees this, for example, in paragraph 6.37 – in the reference to “the need or demand which the proposal is intended to meet”; in paragraph 6.42 – in the concept of “what aspect(s) of the need are intended to be met by the site(s)”, the recognition that a more central site does not have to be able to “accommodate precisely the scale and form of development being proposed”, and the need to consider what contribution such a site might make to “meeting the same requirements”; in paragraph 6.45 – in the reference to the “need/demand [the applicant’s] proposal is intended to serve”; and also in paragraph 6.46 – in the reference to “the scale/form of town centre uses proposed …” (my emphasis).

The only site said to have been a sequentially preferable alternative to Minton’s is the site of the Budgens store. It is not suggested that that site could have accommodated an additional food store of the kind assumed by Minton for the purposes of the sequential test, even if the permitted extension to the Budgens store were not built. In essence, Mr Warren’s argument was that the members should have asked themselves, but did not, whether the extended Budgens store could meet the identified need, and, if the answer was that it could, should have found that Minton’s proposal for an additional food store must fail the sequential test because there was no need for it. 

In my view that argument is untenable. It does not reflect the national planning policy and guidance bearing upon the council’s decision on the Minton proposal. In effect, it seeks to restore to national planning policy for retail development a test of need that has not been there since PPS4 replaced PPS6 in December 2009. That, of course, is not possible. Minton’s proposal did not have to be justified by a demonstration of need.

One of the grounds for the challenge was that the officer had wrongly treated the Supreme Court’s ruling in the Tesco v Dundee City Council  case on suitability as directly applicable to the NPPF notwithstanding differences in the language of the guidance north and south of the border.

“I think one must be careful here. The Government’s policy for the sequential approach in paragraph 24 of the NPPF and the practice guidance are not in all respects the same as the NPPG8 and development plan policies construed by the Supreme Court in Tesco v Dundee City Council. They are similar in broad intent, but they are not in identical terms. An obvious similarity, though the language is different, lies in the concept of “flexibility”. The requirement in the final sentence of paragraph 24 of the NPPF for both applicants and local planning authorities to “demonstrate flexibility on issues such as format and scale”, as amplified by the advice in paragraphs 6.42 to 6.46 of the practice guidance, bears some similarity to the requirements for “flexibility and realism” on the part of both developers and retailers and planning authorities in paragraph 13 of NPPG8 and the requirement for planning authorities to be responsive to the needs for retailers in paragraph 14. That much is clear. But one should not simply read across the Supreme Court’s interpretation of the Scottish policies in Tesco v Dundee City Council as if it were the construction of the differently worded policy in paragraph 24 of the NPPF and the corresponding parts of the practice guidance. It is not.”

Aldergate Properties v Mansfield District Council and another [2016] EWHC 1670 (Admin) (8 July 2016)

The High Court quashed planning permission for a proposed out of town Aldi foodstore, following a challenge by the owner of a site in Mansfield town centre. The town centre had been ruled out by the applicant as a potential location, partly because there is already an Aldi store near to the centre and planning permission for another.

Ouseley J summarises parts of the planning committee report that, led to approval of the application, as follows:

“The Report continued, saying that as the application site was out of centre, a sequential assessment had to be carried out. The Report referred to the agreement that the exercise did not need to include sites covered by the catchment areas of the existing store on Nottingham Road or the recently permitted store at Leeming Lane South, to the south and north respectively of Mansfield town centre, because it was “unrealistic that Aldi would operate a store in close proximity to these existing and committed stores, and it would therefore be unreasonable to require a search for sites that would not make commercial sense for the operator”. 

The Report noted the centres and sites considered, and the reasons why they were not suitable. In order to be suitable for Aldi, sites needed to be at least 0.6 ha in size. The applicant was thought to have been fairly flexible in terms of more central sites, and in format and scale by looking for sites “which are slightly smaller than the application site”. Aldi’s reasoning for not being more flexible was based on Tesco Stores Limited v Dundee City Council, (dealt with below), set out in the Planning and Retail Statement with particular reference to paragraph 38 of the judgment, which focussed suitability on the developer’s proposals, not on some alternative scheme which might be suggested by the authority. The question, said the Report, was whether an alternative site was suitable for the development proposed, not whether the proposed development could be altered to fit an alternative site. The sequential test was thus passed and the principle of retail development acceptable. There was no separate discussion of impact.”

Ouseley J ruled that it was inappropriate to rule out the town centre as a potentially more suitable location, purely due to the identity of the proposed retailer:

“[…] In my judgment, “suitable” and “available” generally mean “suitable” and “available” for the broad type of development which is proposed in the application by approximate size, type, and range of goods. This incorporates the requirement for flexibility in [24] NPPF, and excludes, generally, the identity and personal or corporate attitudes of an individual retailer. The area and sites covered by the sequential test search should not vary from applicant to applicant according to their identity, but from application to application based on their content. Nothing in Tesco v Dundee City Council, properly understood, holds that the application of the sequential test depends on the individual corporate personality of the applicant or intended operator.

[…] NPPF [24] positively “requires” retail investment in the first place to locate in town centres rather than elsewhere. Its thrust is rather more emphatic than policies which advise developers and retailers to have regard to the circumstances of town centres, as in Tesco v Dundee [28]. It is the purpose of the planning system to control development, that is to permit, prevent, encourage, inhibit or limit and condition it, so that the individual private or commercial interest and the broader public interest meet in reconciliation however uneasily. NPPF [24] cannot therefore be interpreted as requiring “suitability” and “availability” simply to be judged from the retailer’s or developer’s perspective, with a degree of flexibility from the retailer, and responsiveness from the authority.

Third, and of critical importance here, still less can it be interpreted as envisaging that the requirement or preferences of an individual retailer’s trading style, commercial attitudes, site preferences, competitive preferences whether against itself or greater competition should dictate what sites are “suitable” or “available” subject only to a degree of flexibility. NPPF [23] and [24] are simply not couched in terms of an individual retailer’s corporate requirements or limitations. That would be the antithesis of planning for land uses and here, its default policies. It would take very clear language for such an odd result to be achieved.”

The applicant had accepted a condition that made the permission personal to Aldi. However, the judge held:

“This is not solved by the imposition at the end of the process of a condition restricting occupation to a particular retailer. That may be necessary for consistency of approach but it would reinforce the error of approach; instructively though it was opposed here by Aldi which had benefited from an approach unique to Aldi. The town centre remains where development is required; the out of centre development may inhibit or prevent a store coming forward in the town centre, and draw away town centre trade, trips, expenditure and vitality.

Fourth, there is a further reason why the identity of the applicant, as opposed to the sort of development it proposes, is not generally relevant to the sequential test. The sequential test in the NPPF is not just one of suitability; it covers availability: “only if suitable sites are not available, should out of centre sites be considered.” A town centre site may be owned by a retailer already, to use itself for retailing, who is not going to make it available to another retailer. It is plainly available for retailing, though only to one retailer. That does not mean that another retailer can thus satisfy the sequential test and so go straight to sites outside the town centre. “Available” cannot mean available to a particular retailer but must mean available for the type of retail use for which permission is sought.”

The judge had delayed handing down the judgment so as to be able to take into account the Court of Appeal’s ruling in Warners but found nothing in that to change the approach he was taking.
The Secretary of State’s decision letter dated 30 June 2016 in relation to the north of Honiton Road and west of Fitzroy Road, Exeter, site 

This was a recovered appeal in relation to a proposed district centre. The Secretary of State dismissed the appeal, partly because he agreed with his inspector that the more centrally located bus and coach station site was sequentially preferable and had been wrongly discarded.

The Secretary of State agreed that it was wrong to argue that the core strategy was “inconsistent with the NPPF, or out of date on the grounds that whether development is acceptable is now only to be determined by reference to the sequential and impact tests”. He agreed that the NPPF expects local plans to “fill the gaps” by meeting the criteria set out in paragraph 23 of the NPPF for policy making, including a network and hierarchy of centres. The core strategy defined local centres and the proposal would go beyond any reasonable of local centre for the purposes of the core strategy.

The inspector goes into an interesting analysis of the previous decision of the Secretary of State in Rushden Lakes dated 11 June 2014  distinguishing it on the basis that in that case the local plan’s settlement hierarchy policies were found to be out of date.

On the suitability of a potentially preferable site and whether sufficient flexibility had been shown, the Secretary of State says this:
“For the reasons set out at IR11.30-11.37, the Secretary of State agrees with the Inspector that given no more than reasonable flexibility, the Bus and Coach Station site would be suitable for the town centre uses proposed for the appeal site (IR11.37). The Secretary of State has taken into account the Inspector’s reasoning at IR11.38-11.40. He agrees that there is no rationale for concluding that the site must be on the open market to any developer, and that the new retail floorspace would be marketed to traders who would occupy it regardless of who developed or owned the scheme (IR11.39). He further agrees that the requirement for a bus station and a leisure outlet on another part of the Bus and Coach Station site does not mean that the area earmarked for retail development is not available (IR40). Overall he considers that the Bus and Coach Station site is available.”

The inspector:

11.32 Tesco v Dundee looked at how the policy should be interpreted including flexibility. As above, it found that the question of suitability does require judgement but also that the purpose of flexibility is not to require the application to be transformed into something significantly different. Here, the proposed retail elements could be accommodated without disaggregation but the configuration of floorspace would need to be different to take account of the relative size of adjacent properties (their scale) and the floorspace would most likely need to be concentrated nearest to the existing PSA for commercial reasons. This would be no more than showing reasonable flexibility. 

11.33 To insist on the same requirement for parking and access in a town centre, which has ample existing parking, service roads and excellent links to public transport, would be unreasonable. Drive-through restaurants do feature within the definition of a town centre and so, to be suitable, it must be possible for these to be accommodated. Nevertheless, as with general access requirements for servicing and other vehicular needs, it would be no more than showing reasonable flexibility to accept that existing streets and access arrangements could provide part of the drive element of such a proposal if not the restaurant area. Moreover, drive-through restaurants are not fixed elements of the proposals as they do not feature specifically in the description of development, would not be a requirement of the suggested conditions, and could easily be varied to another use. The scheme would also include a gym which would fall within the health and fitness centres part of the NPPF definition. However, the Council’s contribution to the PHL as a whole includes a leisure centre. It was not suggested that an operator who might occupy the gym proposed for the appeal site would not be interested in a City Centre location, and there are already other gyms in Exeter.

11.38 The NPPF and the PPG both refer to availability with regard to the sequential test but neither clarifies how this should be defined. The appellant argued that the BCS is not available since CEH and the Council have agreed on a way forward and are unlikely to allow other developers a look in. The purpose of retail policy in NPPF 23 is to promote competitive town centre environments and manage the growth of centres. The NPPF test should not be used to prevent development unless a sequentially preferable site could actually deliver the proposals. 

11.39 However, there is no sound basis for finding that the BCS site is not available to traders and no rationale for concluding that the site must be on the open market to any developer. Providing PHL goes ahead, the new retail floorspace would be marketed to traders who would occupy it regardless of who developed or owned the scheme. The need for flexibility in the Judgment in Tesco v Dundee refers to retailers as well as developers and this strengthens the conclusion that available means for the development proposed not for the landowner hoping to carry out the development. Although on the separate point of specific locational requirements, the PPG does state that land ownership does not provide a justification for excluding a site. 

11.40 In the absence of any clearer interpretation, the preference in NPPF 24 should refer to availability to traders. It follows that it doesn’t matter who develops the site so long as it can provide the proposed level of shop floorspace. As above, the requirement for a bus station and a leisure outlet on another part of the BCS site does not mean that the area earmarked for retail development is not available. On this point as well, the BCS would be sequentially preferable.

Simon Ricketts 23.7.16

Personal views, et cetera

What has our new Housing & Planning Minister said about planning?

What do we know about Gavin Barwell MP, our new housing and planning minister (and minister for London)? This is his official biography.
His own website is interesting, featuring a youtube video where he is objecting to a local Croydon housing proposal on green belt land.

I also carried out a quick search on the They Work For You website of his recent speeches in the Commons on planning issues. Some snippets:

16 March 2013 :

“In the 1980s, the previous Conservative Government made a mistake on out-of-town planning policy. In Croydon, there have been major developments along the Purley Way, which drew people away from the town centre.

[…]
The scheme will create thousands of jobs. One thing I hope the council will do as part of the planning permission is try to ensure that as many construction and subsequent retail jobs as possible go to local people. I hope that Westfield and Hammerson take control of parking provision so that we can have sensible parking prices. I am a great believer in public transport, and I want improved public transport access so that those who can come by public transport do. However, the reality is that when some people go shopping—particularly if they buy a lot—they want to take their car. If our parking policy penalises them for doing that, we will be shooting ourselves in the foot.”
I also want to make a point about mixed use. The development scheme is not just a retail transformation; it will provide hundreds of new homes and leisure opportunities. We want Croydon’s major town centre to be an active destination not just during shopping hours but pretty much around the clock.
The scheme will not just be good on its own terms, but catalyse other development around the town centre. A number of schemes have been consented, but they are not being developed, because of the current economic climate. The new scheme will clearly bring them closer to fruition.”
2 September 2012:

“I warmly welcome what the Secretary of State said about the green belt, town centres and the temporary waiver of unrealistic section 106 agreements. However, if we have done everything we can to remove developers’ excuses for not developing, why does it make sense to allow them to extend the duration of existing planning permissions?”
15 February 2011:

“Let me take the right hon. Gentleman back a couple of minutes. He made a point that I hope all members of the Committee recognise as important, about the tension between need and local wishes that the planning system has to manage. Studies on human behaviour show that if we want to convince people to do something, trying to compel them is not the most effective way to do it. Does he recognise that? Incentivising people is much more effective in getting people to move in the required direction. Does he not see that there is a fundamental flaw in our planning system, in that it tends to work through compulsion rather than incentives?”
20 January 2011:
“I want to pick up a comment made by Mr Whitaker on regional spatial strategies and the current planning system. He said that he does not accept that it is top-down and centrist. I find those remarks very difficult to square with the experience of the community that I represent.
I shall give the example of a place in my constituency, Shirley. Over the past 10 years, it has seen a whole series of back-land developments on the main road—townhouses and blocks of flats completely out of character with the properties that were there beforehand. For a number of years, the council approved those applications. The council was then changed, and it started to turn down such applications. It has found that the applications can be referred to the Planning Inspectorate in Bristol. Officials who do not know the area and never bother to come to look at it have overturned decisions made by the local council.
How do you justify that statement? If you are right that it is a bottom-up system at the moment, what have my constituents been doing wrong that they have ended up with a whole series of developments that they hate?”
18 November 2010:
“Most people are concerned not about race or skin colour, but about population growth, jobs and the pressure on local public services. Many of those issues have been addressed today so I shall keep my comments brief. On population growth, the latest projections from 2008, which are based on the assumption of net migration to this country of 180,000 people a year, predict that the population will increase to 71.6 million by 2033, an increase of 10.2 million people. Of those 10.2 million people, about 7 million will be accounted for by net migration.
My right hon. Friend referred to housing projections in Hertfordshire, and I am sure that every Member can tell a similar story. My local authority is a growth area under the London plan, but the plans for significant housing growth cause real concern. Bizarrely, very few people live in our town centre, so there is an opportunity to build significantly more housing there, but large parts of my constituency have suffered in recent years from overdevelopment, which has changed the character of residential areas. There has been lot of backbone development, with detached or semi-detached houses replaced by blocks of flats, and that has caused real concerns for constituents. Indeed, the pattern of net migration has driven much of that change.”
I am sure we all wish Mr Barwell well in such a vital role – and look forward to engaging on the issues.
Simon Ricketts 17.7.16
Personal views, et cetera

Unpacking UseItOrLoseIt

This “use it or lose it” catchphrase has appeared again this past week in the House of Lords Economic Affairs Committee’s report, Building More Homes. Paragraphs 129 to 139 of the report’s section on Planning Reform set out the “criticism made of the large house builders…that they hold land suitable and with permission for building, yet build at a slow pace and thus maximise the profit from each development”.

The conclusion is arrived at:

“139.We recommend that local authorities are granted the power to levy council tax on developments that are not completed within a set time period. This time period should be negotiated when planning consent is sought and be varied according to the size and complexity of a development. To ensure that the local authority also has an incentive to accelerate the process, the clock should start to run only when the local authority has signed off all conditions and obligations“.

But how would this possibly work or help? Let’s go back to the start (copyright, Coldplay).

Permission deadlines

Since the Town and Planning Act 1968, permissions have had deadlines for implementation (and, in the case of outline planning permissions, for submission of reserved matters applications), so as to give some certainty after a defined period of time as to whether a development that has been approved is going to take place or not. The statutory default deadline for implementation was five years, but in England (not Wales) this was reduced to three years by the Planning and Compulsory Purchase Act 2004. If a deadline is missed, the permission lapses and development cannot proceed without a fresh planning permission being obtained (bringing with it large expenditure of time and cost and often a high degree of political risk).

Developers will not acquire a site with the benefit of planning permission if they are not comfortable that the permission will not lapse before they are in a position to carry out their development. Similarly, what funder would fund a purchase, or pre-development activity, if there is a risk that the permission will lapse?

In practice longer deadlines are routinely negotiated in the case of larger developments.

Extending the life of permission

The ability to extend the life of planning permissions by way of section 73 was removed by the Planning and Compulsory Purchase Act 2004 (from 24 August 2005).

A power to renew permissions was then introduced on 1 October 2009 (for permissions granted before that date, later extended by a year) in the wake of the financial crisis. The Planning Practice Guidance is silent on the point, simply saying that section 73 cannot be used to extend time limits, but in fact renewal is still possible for very limited categories of pre 1 October 2010 permissions (see Article 20, Town and Country Planning (Development Management Procedure) (England) Order 2015).

(Incidentally, some LPAs, including Westminster City Council, use a format for section 73 permissions that automatically repeats the standard time limit conditions, referring to a deadline that runs from the date of the permission – at best confusing if intended to refer back to the date of the original permissions, at worst ineffective if a reference to the date of the section 73 permission).

Preserving the life of permissions

Frequently, a developer perceives a risk that he will not be ready to carry out development by the planning permission deadline, which may be for all manner of reasons. The accusation raised is often of “landbanking” (to which Barratt’s Philip Barnes has provided a riposte in an interesting March 2016 blog post.

The works required under section 56(4) of the Town and Country Planning Act 1990 to implement a planning permission need not be very significant at all:

“(a) any work of construction in the course of the erection of a building;

(aa)any work of demolition of a building;

(b)the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c)the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d)any operation in the course of laying out or constructing a road or part of a road;

(e)any change in the use of any land which constitutes material development

The courts have long held (reversing a previous judge-made concept) that “colourable” intent is irrelevant. You can be open with the world that you are simply digging the trench to carry out a “material operation” for the proposes of section 56.

The greater problem often arises from a separate judge-made concept: with limited exceptions, you need first to have complied with all relevant pre-commencement planning conditions. I commented in my blog post Let’s Talk About Conditions on the Government’s proposal to discourage further LPAs from imposing unnecessary pre-commencement conditions.

Complications and misunderstandings also often arise in that where section 106 obligations are expressed to be conditional on commencement of development, preliminary works such as site clearance, remediation and demolition are commonly excluded from the definition of commencement of development – rightly because otherwise contributions would be paid unnecessarily early – before the effects arise from the development that are to be mitigated by way of the contributions. So it can be possible to keep a permission alive by carrying out limited works of implementation that do not amount to commencing the development for the purposes of the section 106 agreement (no such flexibility of course with CIL).

There is also unnecessary uncertainty arising from the fact that the LPA cannot certify (in a way that is legally binding) that the works carried out were sufficient to keep the permission alive until the deadline for implementation has passed, by which time it is too late if the works were in fact insufficient. This arises because the only useful certificate would be a CLOPUD under section 192, certifying that the balance of the development authorised by the permission can be lawfully carried out without the need for further permission and until the implementation deadline has passed this would necessarily be the case in any event regardless of the purported works of implementation.

It’s not just about the start

One disconnect at the moment is that of course it is not the first trench being dug that is important – it’s the creation of homes and jobs. It is very rare indeed to see any planning conditions or section 106 obligations that require development to have reached defined milestones within particular time periods or to be completed with any particular timescale. That would be anathema to any funder. What if there is a collapse in demand or development suddenly becomes unviable? In the downturn we saw many projects mothballed after a start on site.

The most that we see is occasionally the inclusion of review mechanisms that kick in if development hasn’t been carried out by a particular deadline (a three year completion deadline, following which the approved affordable housing abatement would fall away, was indeed included in the late lamented section 106BC).

The only statutory remedy for LPAs is that, at least in theory, they can serve a completion notice under section 94 of the Town and Country Planning Act 1990. However, the completion notice procedure is almost never used (has anyone had any recent experience of it?). It is long (at least 12 months’ notice needs to be given), cumbersome (confirmation by the Secretary of State) and only erases planning permission for those parts of the development that have not yet been carried out, which doesn’t really help anybody. An unwieldy stick.

Use it or lose it

So what if we make it even harder for developers to extend or preserve the life of permissions, or penalise developers who don’t proceed?

1. Developers will think hard before making an application for permission that exposes themselves to the risk of penalties or that will be so transient that it will have little value – there will be fewer applications in the first place. Some people may say “good – cut out the time wasters”. However, it is in the nature of the commercial development process that many schemes will only become “real” once the application is made and funders/end-users are secured. So you would be seeing off at the start a number of schemes that would otherwise proceed in due course to deliver homes and jobs.

2. We will need to work out who we are actually looking to penalise/encourage – which means understanding the various permutations of arrangements between land owners, developers (whether under a development agreement, promotion agreement, agreement for sale conditional on planning or under an option) and funders.

3. We will need to work out how any penalty is actually to be triggered and quantified. Looking at the Lords Committee’s recommendation:

– how to negotiate the length that development will take? On a large mixed use development it could well be a decade or more.

– what is “completed”?

– what is to stop the developer going slow in achieving reserved matters approvals and discharge of conditions if the clock doesn’t start ticking till then?

– how is the level of notional council tax to be calculated, prior to reserved matters approval and years before the mechanism is actually triggered? Why council tax? Is this only of concern for housing development?

– what if a development is altered or abandoned?

Some tentative suggestions

1. Consider ensuring, by way of policy guidance, that in relation to any phased planning permission there be a separate implementation deadline for each phase. Implementation deadlines should be realistic – three years is tight for all but the simplest of schemes (the standard “permission in principle” three years and five years deadlines in section 150 of the Housing and Planning Act 2016 are likely to be unrealistic in many instances).

2. Consider enabling LPAs to certify, when implementation works are carried out, that they are legally sufficient to preserve the life of the permission

3. Encourage, by way of policy guidance, that LPAs secure in section 106 agreements a review of the section 106 obligations after a reasonable period, if the development hasn’t been completed, so as to ensure that they remain consistent with current circumstances (with disputes referred to an independent expert), or only allow derogations from full policy requirements where specified numbers of dwellings are ready for occupation by an agreed deadline (fair enough when the case made for permission in the first place will often have been the urgent unmet need for housing in the area). Potentially could the CIL regime also be adapted to provide time-related carrots and sticks?

4. Review the completion notice procedure to see whether it can be made fit for purpose.

5. Do all we can to make the planning application process in the first place as straight-forward as possible, so that we don’t have to spend quite so much time finding ways around the horror of having to embark on a fresh planning application.

6. Provide a policy and economic climate where permissions are granted for development that is likely to be, and remain viable, and where therefore there should be no need for prevarication on the part of a developer.
No EU law was used in the writing of this blog post.
Simon Ricketts 16.7.16
Personal views, et cetera

Time To Review The “C” Use Classes?

Isn’t it time to update the Use Classes Order, in particular its categorisation of residential and quasi-residential uses?

Until replaced in 1987 following a 1985 review, the 1972 Order reflected another age. Those lists of specific special industrial uses (blood boiling, bone burning, maggot breeding…) have been jettisoned. Since 1987 use class A1 has no longer explicitly excluded cats-meat shops or the sale of tripe. Since 1987 office, R&D and light industrial uses have been amalgamated into B1 (notwithstanding the government’s and LPAs’ continuing attempts to this day to maintain distinctions between the respective sub-classes).

Subsequently the 1987 Order has been tinkered with endlessly (13 separate revisions) but never again subjected to a root and branch review. Outside of legal subscriber-only websites, the Planning Jungle’s website probably has the best summary of its current, increasingly convoluted, status.

Three decades on, don’t we need to take a step back and reassess the ways in which we use property and how uses should be categorised so as to reduce uncertainty when it comes to determining whether changes should engage the planning system and as to how policies are to be applied?

The “C” classes in particular continue to pose problems. There are in reality many permutations and gradations of residential use.

The current “C” classes

We need to consider whether 2016 reality slots easily into the following pigeon holes:

Use class C1 is defined as “hotels, boarding and guest houses where no significant element of care is provided”, specifically excluding hostels, which are “sui generis” (not in any use class).

Use class C2 is defined as use as “residential care homes, hospitals, nursing homes, boarding schools, residential colleges and training centres”. Secure residential institutions are in a separate class, C2A.

Use class C3 is defined as use “as a dwellinghouse (whether or not as a sole or main residence) by—

(a) a single person or by people to be regarded as forming a single household

(b) not more than six residents living together as a single household where care is provided for residents; or

(c) not more than six residents living together as a single household where no care is provided to residents (other than a use within class C4)

Use class C4 is defined as small shared houses “occupied by between three and six unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom”, otherwise known as homes in multiple occupation (HMOs) although use as an HMO occupied by more than six individuals is sui generis.

The reality

However the spectrum in the real world includes:
– dwellings occupied on a longterm basis by a single household up to six residents where no care is provided (slam dunk C3 whether or not owner-occupied, PRS or in any affordable housing tenure, or indeed whether left empty for much of the year)

– serviced apartments (section 25 of the Greater London Council (General Powers) Act 1973 provides that in Greater London, the use as temporary sleeping accommodation, for 90 days or less, of any residential premises involves a material change of use – so C1 not C3 if the occupation is relatively short-term, otherwise possibly sui generis, but then again, increasingly, high end apartments come with significant concierge, cleaning and other services, so where is the boundary between serviced apartment use and C3?)

– aparthotels – just a clunky word denoting a block of serviced apartments, or is there a distinction?

– longterm occupation of hotel rooms (how longterm would the occupation have to be for the use to fall outside C1? The 1975 case Mayflower Cambridge Limited v Secretary of State for the Environment and Cambridge City Council 73 L.G.R. 517 talks of hotels serving a “transient population” with no indication of what that translates to in terms of weeks or months. A season could be said to be transient. What about a year?)

-purpose-built student housing (probably sui generis but differing approaches are taken by LPAs, illustrated by a recent NLP blog post)

– co-living in purpose-built blocks with a high degree of communal facilities, more akin in many ways to a student hall of residence than traditional C3 (again sui generis?)

– hostels/HMOs with more than six individuals staying (sui generis but often difficult to draw a boundary line with C1 applying criteria set out in Panayi v Secretary of State for the Environment [1985] J.P.L. 783 and R. (on the application of Westminster City Council) v Secretary of State for Communities and Local Government [2015] EWCA Civ 482)

– extra-care accommodation (either C2 or C3 depending on the level of care and self-containment)

– airbnb type short term lets (not now jeopardising C3 use of the dwelling if the short-term lets are for no more than 90 days of the year, following section 25A of the Greater London Council (General Powers) Act 1973, introduced by section 44 of the Deregulation Act 2015, otherwise probably sui generis?)

Good for the lawyers, as they say. Not good at all for ensuring that schemes can come forward to meet modern housing (and funders’) needs or to reflect what modern policy priorities may be.

Simon Ricketts 1.7.16

Personal views, et cetera