What Happened To The Beautiful Jigsaw? Government Policy v The Plan-Led System

“If we are doing things in parallel, it does mean when we get towards the summer we can make sure these things are knitting together properly and actually bring them together, with those pieces of the jigsaw starting to come together as one whole piece—hopefully, one whole beautiful piece as well” – Brandon Lewis, then minister for housing and planning, 24 February 2016, in evidence to the Commons CLG Select Committee – responding to concerns as to the various changes to the planning system then (and still) underway, including proposed changes to the NPPF, LPEG review and the Housing and Planning Bill (now an Act but still inchoate). (And he was referring to summer 2016…)
Of course a few other things happened to knock summer 2016 off course. But still we wait for the full picture and hence the growing frustration over continued delays to the Housing White Paper and speculation as to its contents.
“OK, that’s politics”, we may say, but is there a more fundamental, longterm, problem to be tackled?
“[M]inisters cannot frustrate the purpose of a statute or a statutory provision, for example by emptying it of content or preventing its effectual operation” (Supreme Court in R (Miller) v Secretary of State for Exiting the European Union 24 January 2017, para 51). 
On reading this, it struck me that there is a logical disconnect at the heart of the modern planning system. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that decisions be taken in accordance with the statutory development plan “unless material considerations indicate otherwise”. However, the Government’s non-statutory NPPF, despite an amorphous status as a “material consideration”, somehow often ends up trumping the statutory plan (for example – currently – by way of para 49 deeming policies for the supply of housing to be regarded as out of date in defined circumstances, triggering the para 14 presumption and – under the changes consulted upon last year – by way of the proposed housing delivery test). From where does the NPPF gain its authority in our statutory plan-led system? What is to prevent an LPA from deciding to give its policies little weight and how does the resultant uncertainty help anyone?
The Court of Appeal in Suffolk Coastal District Council v Hopkins Homes, Richborough Estates v Cheshire East Borough Council  (Court of Appeal, 16 March 2016) set out the position as follows:
“The NPPF is a policy document. It ought not to be treated as if it had the force of statute. It does not, and could not, displace the statutory “presumption in favour of the development plan”, as Lord Hope described it in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 at 1450B-G). Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, government policy in the NPPF is a material consideration external to the development plan. Policies in the NPPF, including those relating to the “presumption in favour of sustainable development”, do not modify the statutory framework for the making of decisions on applications for planning permission. They operate within that framework – as the NPPF itself acknowledges, for example, in paragraph 12 (see paragraph 12 above). It is for the decision-maker to decide what weight should be given to NPPF policies in so far as they are relevant to the proposal. Because this is government policy, it is likely always to merit significant weight. But the court will not intervene unless the weight given to it by the decision-maker can be said to be unreasonable in the Wednesbury sense”
Whilst the statutory role of government guidance is clear in relation to plan-making (section 19 of the Planning and Compulsory Purchase Act 2004 provides that “in preparing a local development document the local planning authority must have regard to…national policies and advice contained in guidance issued by the Secretary of State”) there is no such statutory signposting in relation to decision-making. 
It didn’t have to be this way. Consideration was indeed given to giving the NPPF statutory status as the Localism Act went through Parliament. The then minister of state for decentralisation Greg Clark stated in Public Bill Committee on 15 February 2011:
“There are some suggestions that a reference to the significance of the NPPF would be helpful. Against that, however, I have heard some concerns in our discussions that link to the points made by the right hon. Gentleman the Member for Greenwich and Woolwich about not taking a year zero approach to things and completely designing the system from scratch. One of the features of the present regime with which the right hon. Gentleman is familiar is the importance of section 38(6) of the Planning and Compulsory Purchase Act 2004. That provision establishes the primacy of the development plan, which obviously needs to be consistent with national policy. If we were to establish in the Bill a new primacy for national policy that is different from how we have managed in recent decades, I would want to be cautious that we did not introduce something, albeit with the best of intentions, that changed the accepted understanding of the importance of the primacy of the development plan and that, in effect, interferes with section 38(6) without good purpose. If there is a balance of advantage in the approach, I think we can contemplate it, but it behoves us to reflect carefully on the representations that have been made, which I undertake to do.

Scotland’s National Planning Framework has statutory effect pursuant to section 1 of the Planning etc (Scotland) Act 2006
In relation to infrastructure, we of course have a statutory regime of national policy statements  to set the framework for decisions in relation to development consent orders, with ten NPSs having been prepared so far pursuant to section 5 of the Planning Act 2008.
In contrast to these regimes, the NPPF can be amended with little Parliamentary scrutiny. 
The position is even worse in relation to written ministerial statements on planning policy matters, when one recalls, for example:
– Eric Pickles’ 20 May 2010 statement that the then intended abolition of regional strategies was to be a material planning consideration in decision-making, which led to Cala Homes (South) Limited v Secretary of State  (Court of Appeal, 27 May 2011). The court concluded that “…it would not be safe for the Court to assume that at this stage there are no circumstances in which any decision-maker could rationally give some weight to the proposed abolition of regional strategies. In view of the uncertainty created by the legal obstacles…[the need for Parliamentary process to be undergone and SEA]… and any decision-maker who does think it appropriate to give some weight to the Government’s proposal when determining an application or an appeal would be well-advised to give very clear and cogent reasons for reaching that conclusion, but that does not mean that there could be no case whatsoever in which any decision-maker might be able to give such reasons.

– Eric Pickles’ 28 November 2014 statement introducing the vacant building credit and small sites affordable housing threshold, which led to West Berkshire Council v Secretary of State  (Court of Appeal, 11 May 2016). Despite the absolute wording of the statement, it was interpreted by the court as necessarily admitting of exceptions, leading now to a mess of conflicting appeal decisions by inspectors, well documented by Planning magazine (27 January 2017 issue).
– Gavin Barwell’s 12 December 2016 statement amending (without prior consultation) the five year housing land supply threshold in para 49 of the NPPF, which has recently led to a judicial review being brought by a group of no fewer than 25 housebuilders and developers. 
Brandon Lewis’ statement at the outset of this post is quoted in the Commons CLG Select Committee’s review of consultation on national planning policy  published on 1 April 2016. The Committee responded to his optimism as follows:
“We welcome the Minister’s indication that any changes to the NPPF resulting from this consultation will be made during summer 2016, and that he intends to draw together the outcomes of the consultation with those of the other changes affecting the sector“. 

The Committee’s formal recommendations included: 

“As a priority the Department should publish clear timescales for the next steps for this consultation, including timescales for the Government’s response, implementation, and suitable transitional arrangements. If the changes to the NPPF are delayed beyond summer 2016, we expect the Minister to write to us to explain the reasons and provide updated timescales”

” As a matter of principle, we believe that when changes are made to the wording of a key policy framework such as the NPPF, there should be a two-stage consultation process: first on the overall policy, and subsequently on the precise wording which will give effect to the change. If there is no further consultation on the specific wording of the consultation proposals, it is essential that the Department listens carefully to concerns about ambiguity or lack of clarity in the revised NPPF, and provides clarification where required”

“To ensure that proper consideration is given to the impact of changes resulting from this consultation, and from other developments in the housing and planning sector, the Department should carry out a comprehensive review of the operation of the NPPF before the end of this Parliament. The review must include sufficient opportunity for appropriate consultation with stakeholders, and should follow a two-stage approach to consulting, first on general principles, and subsequently on precise wording.”
All sensible, but what a waste of energy. Nine months after the report there has been no Government response!

How are decision-makers meant to balance non-statutory, unstructured interventions from ministers with the outcomes pointed to by statutory planning policies? This surely a very difficult task for decision-makers and with the constant risk of unwelcome surprises for those at the sharp end. Personally, I would go further than the Select Committee’s recommendations and instil basic, legally binding, procedural discipline into ministers’ approach to policy making, given the risk that the statutory planning system is otherwise frustrated, emptied of content or prevented from effective operation (to use the words of the Supreme Court). 
Simon Ricketts 28.1.17
Personal views, et cetera

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The Unfortunate Case Of The Council’s Sports Hub

It’s easy for a planning lawyer to summarise R (Boot) v Elmbridge Borough Council  (Supperstone J, 16 January 2017). The High Court confirmed what we already know from paragraph 89 of the NPPF – that “the provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it” is not inappropriate development, but that conversely, if harm is caused to the openness of the Green Belt, even limited harm, the development is inappropriate and permission should be refused save in very special circumstances.
The court duly quashed a planning permission granted on 26 January 2016 for the “Elmbridge Sports Hub” – a proposed athletics stadium, ‘league’ football pitch and training pitches (grass and artificial) for Walton Casuals FC, Walton and Hersham FC and Walton Athletics club to replace their current facilities, on a former landfill site in Waterside Drive, Walton-on-Thames.

However, scratch beneath the surface of any case and there are usually some interesting factors. 

This is not a developer-led proposal. It’s being promoted by Elmbridge Borough Council, on land that it owns. The development is proposed to be funded by the sale by the Council, for the development of 52 homes, of Walton and Hersham FC’s present ground at Stompond Lane. 
Most developers would not take the risk of starting construction work ahead of their permission being free from legal challenge. However, Elmbridge embarked on construction on 21 March 2016, despite the scheme already at that stage having become significantly controversial. Indeed the claimant’s solicitors, renowned claimant firm Richard Buxton & Co, were already on board for objectors and had previously scored an early blow by securing an EIA screening direction from the Secretary of State in July 2015, when the application had already initially gone to committee, requiring environmental impact assessment to be carried out. The Secretary of State ruled:
“Whilst this is a finely balanced case, the proposal does raise concerns to suggest the potential for significant environmental impacts through surface disturbance of the former landfill site, uncertainty about the extent of the contamination of the site and the potential for gas migration to both the River Thames and nearby residential properties.”
Why did development start when the permission was still at risk, presumably when proceedings had already been served, or at least a pre-action protocol letter? I don’t know any of the details but I do note that the local elections took place a little afterwards in May 2016. Was this at all relevant?
Rolling ahead to 2017, by the time that the permission was quashed, the construction project was significantly advanced. With the developer a local planning authority, responsible for planning enforcement, this is surely hardly a comfortable position.  

Image from Get Surrey website

Elmbridge had tried unsuccessfully to delay the court hearing, fixed for 6 December 2016, to allow a second planning application to be determined, for a revised version of the scheme, a request that was rejected by Ouseley J in November.  
The second application eventually went to committee on 17 January 2017, the day after the first permission was quashed and on the basis of a detailed officers’ report, resolved to approve it (perhaps no surprise there). Having delayed the scheme first on an EIA point and secondly on the council’s flawed approach to green belt policy, no doubt objectors will be looking for their next line of attack. 
So a straight-forward ruling by Supperstone J but the situation on the ground is plainly a mess. How does a local planning authority get itself into this sort of position? To what extent is this about financial or political imperatives and, against the backdrop of a construction project in mid flow (one dreads to think of the financial consequences under its construction contract if the authority now pauses or abandons the project), how easy was it for members to determine the second application with open minds but on the contrary how difficult it may be for objectors to prove to a court that minds were already made up?
Simon Ricketts 21 January 2017
Personal views, et cetera

The Rest Of The Iceberg: Delegated Decisions

What percentage of planning decisions would you say were made by officers, acting under delegated powers, rather than by members?
Back in 2002 the then Labour Government introduced a target that 90% of planning decisions should be delegated to officers but in recent times ministers appear to have gone quiet on the issue, despite greater use of delegated powers plainly leading to faster determination of applications. And if (big if) an LPA has an up to date local plan and/or neighbourhood plan, one of the benefits should be that decision-making on planning applications should be more straight-forward. 

The Planning Practice Guidance simply says: “The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.”  
So I was ready to write a blog post suggesting that perhaps there should be greater encouragement for delegation arrangements, whereby applications only need to go to committee unless there is genuine uncertainty as to the application of policy. After all there is a certain logic to a model where politicians arrive at the detailed plan for their area and then officers make depoliticised decisions in accordance with that plan.
However, the statistics are interesting. When one looks at the latest DCLG figures for England, for July to September 2016  published on 15 December 2016, 94% of decisions were taken by officers over the quarter. (There were 115,800 decisions in the quarter of which 108,500 were delegated). This is the same percentage as for the same quarter in 2015 and 2014, prior to which the proportion was significantly lower. 
94%! So the more major applications that many of us focus on are the tip of a very large iceberg. Do people think that there is scope for this proportion to go even higher?
The criteria for selection of applications that are to be determined by officers are of course set out in the LPA’s scheme of delegation, within its constitution. There can be significant differences as between the approaches of authorities. So long as the decision as whether an application is to go to committee or is to be determined by an officer is made within a valid scheme of delegation there is little scope for legal challenge – see for example R (Technoprint) v Leeds City Council (Wyn Williams J, 24 March 2010). 
However, nowadays the delegated decision-making process itself is more transparent. Regulation 7 of the Openness of Local Government Bodies Regulations 2014 (made under section 40(3) of the equally catchily titled Local Audit and Accountability Act 2014) provides as follows:
“(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2). 


(2) A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either—


(a) under a specific express authorisation; or



(b) under a general authorisation to officers to take such decisions and, the effect of the decision is to—

(i) grant a permission or licence; 


(ii) affect the rights of an individual; or


 (iii) award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.




(3) The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information—


(a) the date the decision was taken;


(b) a record of the decision taken along with reasons for the decision;



(c) details of alternative options, if any, considered and rejected; and



(d) where the decision falls under paragraph (2)(a), the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.”
The High Court in R (Shasha) v Westminster City Council  (Deputy High Court Judge John Howell QC, 19 December 2016) recently held that this means that there is a duty to provide reasons where a decision is taken under delegated powers. He quashed a planning permission granted by Westminster City Council for development of a site at Portman Mansions, Chiltern Street on the basis that the officer’s report did not adequately deal with a number of material considerations. 
Of course this may be seen as strange given that, since 25 June 2013, LPAs are generally no longer required to give reasons for granting planning permission. The deputy judge dealt with that argument as follows:
“The suggestion that imposing a requirement to give reasons for the decision to grant planning permission under delegated powers with effect from August 6th 2014 under the 2014 Regulations sits ill with the earlier removal of the requirement in all cases to give summary reasons for the grant of planning permission on June 25th 2013 provides no reason to construe regulation 7 of the 2014 Regulations other than in accordance with its terms. The Explanatory Memorandum to Order which removed the requirement, the Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2013, explained the change on the basis that officer reports typically provided more detail on the logic and reasoning behind a particular decision to grant planning permission than the decision notice and that the requirement to provide summary reasons for that decision added little to the transparency and quality of the decision making process but that it did add to the burdens on local planning authorities. It is at least consistent with such reasons for that change that reasons should nonetheless be required to be provided for delegated decisions. Whereas officer reports are almost invariably produced when decisions are taken by members of planning authorities, an equivalent document or one with the content that regulation 7(3) requires need not be produced when an officer takes a decision to grant planning permission. But, whether or not that provides an explanation for regulation 7 of the 2014 Regulations and whether or not the requirement it imposes may be thought anomolous given the removal of the requirement to give summary reasons in all cases, in my judgment there is no basis for reading the words “other than a planning permission” into regulation 7(2)(b)(i), where they do not appear, or to exclude decisions to grant planning permission from those falling within section 7(2)(a) or 7(2)(b)(ii) if they would also otherwise fall within those provisions.
Is it just me or is there an element of “I know it’s crazy, but…” about that explanation?
Whilst it must be right that we should know the reasoning for a decision to grant planning permission, is Shasha going to lead to a more cautious approach on the part of LPAs, with the length of officers’ delegated powers reports extending to the length of reports to committee, so as to guard against similar challenges, in turn leading to longer lead-in periods and greater calls on officer time (like the rest of the iceberg, surely they are going to be underwater)? And what about that reference in regulation 7(3)(c) to “details of alternative options, if any, considered and rejected“?  Now that would be an interesting case….


Simon Ricketts 13.1.17
Personal views, et cetera

Level Playing Fields: Football Stadia & Planning

Professional football throws up such planning dilemmas. Stadia developments, usually now accompanied by a panoply of other uses, are space-hungry beasts, with extreme peaks in terms of traffic movements and noise. Football clubs are powerful institutions, often not driven by rational economic considerations, able to generate letters of support for their proposals from around the globe and with inevitably strong local political connections. And each club is effectively a monopoly: if a club says it needs to move or expand, what is a council to do? Who is going to blow the whistle?
It’s a particularly interesting week ahead for sports planning fans:

Chelsea


Chelsea FC’s proposed redevelopment of Stamford Bridge to create a new 60,000 seat stadium, with a direct link to Fulham Broadway tube station, is to be considered by the London Borough of Hammersmith and Fulham’s Planning and Development Control Committee on 11 January 2017 with a recommendation for approval. Whilst there are a variety of objections from local residents and groups as well as objections from the Royal Borough of Kensington and Chelsea and the Royal Parks, 12,000 people signed and sent in standard form postcards supporting the development, including 6,449 from outside London as well as 2,481 from outside the UK – how much weight should be given to this sort of managed process?

Luton Town
Now here’s a curious situation. Luton Council’s submission version of its local plan, currently under examination, allocated a site just off junction 10 of the M1 for the relocation of league division 2 Luton Town FC from its Kenilworth Road Stadium. The site known as south of Stockwood Park, has been the club’s favoured relocation choice for many years. The club acquired it in 2015. There is a separate site in Luton town centre, known as the Power Court site, which is allocated for retail led development (although at submission stage the council made a modification to introduce the possibility of an element of use class D2 assembly and leisure). 
The club has now decided that it does not wish to build a 15,000 seat stadium on the south of Stockwood Park site and instead wishes to build a 17,500 (rising ultimately to to 22,500) seat stadium on the Power Court site. In August 2016 it made planning applications  for a stadium and associated development at the Power Court site and for retail and mixed use development at its out of town south of Stockwood Park site. The applications have not yet been determined.  
Luton Council wrote to the local plan inspector on 22 November 2016 to indicate that, as it has “clear and unequivocal statements from the landowner to the effect that a stadium will not be developed” at the junction 10 site it had decided at a council meeting on 15 November 2016 to remove from the south of Stockwood Park allocation references to a 15,000 seater stadium and related facilities. 
The local plan inspector is holding hearing sessions on 10 and 11 January 2017 to pick his way through the position and has issued supplementary questions for the sessions in the light of the turn of events. 

Millwall
The land surrounding Millwall’s New Den is the subject of a planning permission for the New Bermondsey mixed use development project, being promoted by Renewal Limited, which owns most but not all of the site. Renewal has been working with Lewisham Council to bring the scheme, which includes 2,400 new homes, community sports facilities, health centre, premises for a local church, business space and studios and enhanced public realm, to fruition. Renewal and Lewisham assert that the scheme will complement and support the club’s activities at the stadium. 

However, the club and its supporters oppose elements of the Renewal scheme, asserting that the proposals would jeopardise the status of its youth academy which would in turn jeopardise the future of the club at the New Den. The Council’s Mayor and Cabinet decided on 7 September 2016 that a CPO should be made but, following pressure (including the 27,000 signature Defend Our Den campaign), the decision was called in under the Council’s internal procedures and the Council’s cabinet is due to reconsider the decision at a meeting on 11 January 2017, albeit with, again, a recommendation that the Council should use its CPO powers. 
The issue has reached the national press, with a Guardian story  on 5 January breathlessly headlined “Millwall admit council scheme could force club to leave Lewisham”. The Council has published its own Questions and Answers  document.
Three different stories, from three different leagues. But familiar themes. How can clubs’ reasonable needs and the aspirations of their fans be mediated as against other planning objectives? And who determines need?
Simon Ricketts 7.1.17
Personal comments, et cetera