Everyone Knows This Is Nowhere: Devolution

The prospect of devolution can perhaps cause people to get too excited (Brexit; Catalonia) or perhaps not excited enough (the last Labour Government’s experiment with regional assemblies; the current roll-out of combined authorities). Predictably, this blog post focuses on the latter category. 
First of all, in order to understand planning in Great Britain you need to understand its post-devolution administrative structure, following the enormous changes of the last 20 years. 
It is now 20 years since referendums in Scotland and Wales led to the creation of the Scottish Parliament and National Assembly for Wales, with the Good Friday Agreement and Northern Ireland Act 1998 following a year later, leading to the creation of the Northern Ireland Assembly. 
Slowly but surely, four different planning systems have developed, summarised in a January 2016 House of Commons library briefing paper, Comparison of the planning systems in the four UK countries.
In relation to English devolution issues, perhaps dull is good, with arguments often focusing on worthy but dull questions of efficiency of administration and decision making, and the unlocking of funding streams. 

Directly elected regional administration of London was reintroduced in 2000 following a referendum in May 1998, in which there was a 72% majority vote (out of a 34% turnout) for the establishment of the Greater London Authority, to be led by an elected Mayor. Despite the low turnout, the size of the “yes” vote did seem to recognise the need for a unified voice for London that had been missing since the abolition of the Greater London Council in 1986. 
The Labour Government of the time attempted to use elements of the London model to introduce directly-elected regional assemblies across England. However, it became plain that there simply was not the public appetite. Voters rejected the proposal for a regional assembly for the North East 77.9% to 22.1%, on a turnout of 48% in November 2004 and other proposed referendums for the North West and for Yorkshire and the Humber were then dropped. Whilst there is still some nostalgic harking back to the regional planning of the time, the ridiculously complicated structure in the Planning and Compulsory Purchase Act 2004 took the form of regional spatial strategies, prepared by ‘regional planning bodies’, comprising regional assemblies of co-opted local authority members. The process was closely overseen by central Government and indeed each final regional spatial strategy was published by the Government. So, hardly devolution – and with regional boundaries that often had no historic or emotional basis – although a potentially helpful administrative structure for coordinating local authorities and determining local authority housing targets.
Regional spatial strategies, along with all mentions of the “r” word including the regional planning boards, regional assemblies and regional development agencies (save for the London Development Agency, which survived a little longer) were swept away following the coalition Government coming into power in 2010. The new mantra of localism dictated the removal of top-down targets in favour of the bottom-up idea that it would be more effective for local authorities to determine how to meet their and their neighbours’ housing needs via the Localism Act 2011’s “duty to cooperate”, a Cheshire cat’s smile if ever one there was. Coordinated investment into the regions, including application of EU structural funds, became more difficult following the abolition of the regional development agencies, a vacuum only partly filled by LEPs (voluntary local economic partnerships between local politicians and business people). 
But local politicians (the public? I’m not so sure) continued to press for greater devolution of powers to the regions, particularly against the background of the greater autonomy given to Scotland in particular in the run-up to the 2014 Scottish independence referendum (where there was a 55% vote against independence on an 85% turnout – that was clearly a vote that clearly did matter to its electorate). The Government embarked on negotiating a series of ‘devolution deals’ with groups of local authorities. The first deal, to create the Greater Manchester Combined Authority, was announced in November 2014. 
The Cities and Local Government Devolution Act 2016 was, as set out its explanatory notes, “intended to support delivery of the Government’s [2015] manifesto commitment to “devolve powers and budgets to boost local growth in England”, in particular to “devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors” and “legislate to deliver the historic deal for Greater Manchester”. The Act takes forward a number of reforms which are intended to allow for the implementation of devolution agreements with combined authority areas and with other areas. It is enabling legislation which provides a legislative framework which can be applied flexibly to different areas by secondary legislation.” 

The devolution deals to date are listed on the Local Government Association’s website. The powers agreed to be devolved have been different in each case. The position is well summarised in a House of Commons library briefing paper, Devolution to local government in England (23 November 2016):


It will be seen that some deals include the power to create a spatial plan for the area, and/or the power to establish Mayoral Development Corporations. Some deals will also permit the combined authority to use compulsory purchase orders, with the consent of the local authority in which the land or property is located.

I looked specifically at the West Midlands Combined Authority in my blog post Devo West Mids (24 October 2016). 
So far we have had mayoral elections for six combined authorities, which all took place in May 2017. Turnouts were all very low indeed:

Whilst regional devolution may not capture the attention of voters (in fact I’m sure it is utterly confusing to most), undoubtedly it presently brings the promise of significant funding streams from Government. Professor Janice Morphet has also pointed in her 2016 book Infrastructure Delivery Planning to the work of economist Paul Krugman in showing the growth in national GDP that can result from investment decisions being made at a sub-national level. More practically, big personalities are important. That has been the experience in London – and Greater Manchester and the West Midlands both now have strong Mayors, in the shape of Andy Burnham and Andy Street respectively, who will undoubtedly drive those great city regions in an equivalent way. 

A further election, in the Sheffield City Region, is due to be held in May 2018. Why the delay in Sheffield? The city region, which will control additional spending of £30m a year over the next 30 years, was originally going to include Chesterfield and Bassetlaw (which authorities would thereby be able to participate in the significant government funding available). However, Derbyshire County Council (which would automatically thereby be drawn into the arrangement and which opposed “powers for key services in the town being handed to a Sheffield City Region Mayor”) successfully judicially reviewed the process, alleging consultation flaws in R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority, Secretary of State and Chesterfield Borough Council (Ouseley J, 21 December 2016). Chesterfield is in the county of Derbyshire and Bassetlaw is in the county of Nottinghamshire. Ouseley J accepted that the views of the public should have been, but were not, specifically sought as to whether Chesterfield Borough Council should be a part of the combined authority. The case led first to the Sheffield City Region mayoral election being delayed by a year and then to Chesterfield and Bassetlaw withdrawing their applications for full membership (in the case of Chesterfield after Derbyshire had resolved in June 2017 to carry out a full referendum of all Chesterfield residents). 
The momentum generally appears to have paused. Section 1 of the Cities and Local Government Devolution Act 2016 places a duty on the Secretary of State to provide annual reports to Parliament setting out progress on devolution across England as soon as practicable after 31 March each year. The Local Government Association is concerned that this year’s report has not yet been published.   
We are at an interesting point. 

First, am I being too downbeat about the benefits of further devolution? I see that Lord Heseltine and Ben Rogers are speaking on Giving Power to the People: The Future of Devolution at the Future City Festival on 19 October 2017. Is there currently the political, or public, will?
Secondly, what now for London? In my view, the devolution of power to London (including reducing to an extent the powers of individual boroughs) has been a success. The moves towards greater powers for the Mayor of London have continued, which is welcome, but should there be more? Ben Rogers wrote an interesting FT piece Would more independence for London benefit the nation? on 3 October 2017.

Thirdly, and most importantly, what changes will Brexit bring? For a start we will see an end to EU structural funding, much of which was to be passed to local areas, although the Government has guaranteed any spending of these funds that is agreed before the UK leaves the EU. But more fundamentally, as again Professor Janice Morphet has pointed out, in her 2017 paper (not yet published) to the Oxford Joint Planning Law Conference we risk losing part of the drive towards devolution that arises from the EU’s principles of subsidiarity and fairness, which translate into for instance the application of structural funds and the development of the Trans European Networks which have been an impetus for transport infrastructure investment. 
Ultimately, might it be the case that some devolution is ruled by the heart and some by the head? English devolution may be in the latter category, described indeed this week in EG this week by Jackie Sadek as a “fragile flower”. Let’s hope it’s not trampled upon by politicians with only a March 2019 deadline in mind. 
Simon Ricketts, 6.10.17
Personal views, et cetera

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NIMBY v YIMBY

“Good Grief… anything but address the elephant… the illogical Nimbys” (comment on my last blog post, received via twitter)
I’ve been struggling with “not in my back yard” for a while, almost as bad as the “elephant in the room”.
The Times reported this week a speech by Shelter’s Polly Neate: “Ugly new homes breed nimbys, builders told“.
Canada’s Globe and Mail tells us “Margaret Atwood is a NIMBY – and so are most of us“.

It got me wondering when we all started this absurd Americanised name calling. Wikipedia identifies its first use as in 1980, corroborating a google ngram viewer search which traced its published use back to 1980…

These searches are addictive by the way…


The next morning I was sitting on the train to work, reading John Grindrod’s Outskirts book (buy it) and turned the page to find this passage…


So the derogatory phrase was created by the PR department of a chemical company responsible for the Love Canal pollution scandal that practically singlehandedly led to modern US environmental law in relation to land contamination. Smell a rat?

When someone is objecting to or protesting about something happening in their area, how tempting is it to disregard the objection by labelling it as “nimby” but it’s an ugly blunderbuss of an expression. What if the objection or protest is justified? Who is going to stand up for an area if it isn’t those who live there? Was Jane Jacobs a nimby then? Why does the European Convention on Human Rights protect rights to property (paragraph 1 of the 1st protocol) and to private and family life (article 8)?
The answer is in the respective qualifications to those rights:
– nothing in the right to property “shall impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”

– the right to private and family life is subject to such interference “as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Of course we know where the finger is being legitimately pointed when people are called out as nimbys – at those who are motivated by overly selfish motives – tranquility and wealth for the few, regardless of the wider public interest. However, are attitudes in fact changing when it comes to housing? A February 2017 report by the National Housing Federation, Demise of the NIMBY: changing attitudes to building new homes, would appear to suggest so.
Predictably, ministers have been on the bandwagon:

Sajid Javid in his speech to Conservative party conference in 2016:

“Everyone agrees we need to build more homes.  

But too many of us object to them being built next to us.  

We’ve got to change that attitude.  

So my message today is very clear: it’s time to get building.

He doesn’t use the “n” word but the reporting of the speech picks up the signalling, because the word is so populist – we all know (or think we know) what it means:
Sajid Javid declares war on ‘Nimbys’ who stand in the way of badly-needed new homes (The Independent)

Sajid Javid attacks ‘nimbyism’ as he calls for 1m new homes (BBC website)

Gavin Barwell was more direct in his speech to the CPRE on 20 February 2017:
“…there are some people who claim the CPRE is merely a respectable front for nimbyism – that behind your public objectives is a private and unrelenting refusal to accept any kind of new development in rural areas.

Of course I know that’s nonsense.

You recognise that well-designed new settlements in sustainable locations can take the pressure off the green belt and you have an unparalleled legacy in influencing the planning system, particularly in the years after the war.

Your vision for garden cities, towns and villages has been adopted by the government. So has your preference for community-design, with extra power and resources for local areas to make this happen.

So now you have got the government behind your ideas I would challenge you to go a step further and prove your detractors wrong.

Support local communities in their quest for good design and actively seek out and champion the best-designed developments – so no one can say your words are not backed up by deeds.”

Is the CPRE a nimby organisation? Well it is certainly depressing to see that members have at their disposal on the CPRE website a copy-and-paste draft letter of objection.
Note the passage in the draft letter that suggests that the objector should draw where relevant on any relevant neighbourhood plan. The Government is of course anxious to distance neighbourhood plans from neighbourhood protectionism. For instance, this is John Howell MP speaking in a debate on neighbourhood planning on 3 July 2017 about those who promote neighbourhood plans:
“I should say at this point that in the main we are not talking about communities who are anti-development; we are talking of communities who want to embrace new housing for the long-term sake of their communities and to ensure that facilities such as pubs and sports clubs do not fall into disuse. They also want new housing above all to cater for younger people and families. There is nothing for the Government to fear here about being in the world of the nimby; neighbourhood plans have allocated some 10% more housing than it was originally suggested they should provide by their district or borough councils. From that point of view, they have been a great success.

This is an assertion which is difficult to square with experience. Time and again development is being delayed or thwarted by neighbourhood plans that have been made following the most light touch of examination procedures. 

Yimbyism is of course the self-referential counter-balance to anti-housing development interests. 

London YIMBY’s report “Yes In My Back Yard: How To End The Housing Crisis, Boost The Economy And Win More Votes was published by the Adam Smith Institute in August 2017. It is disappointing that their proposed solutions would entail further disruptive legislative change (not going to happen) and don’t to me at least (disclosure, I’m presumably part of the problem as one of the “armies of planning lawyers and consultants” on which “billions of pounds” are apparently spent, referred to in the report) seem to be practical in the sense of delivering a simpler, more effective, fairer system:
We propose three policies that would hand power back to residents; ways of solving the housing crisis that will also win political parties votes. Each would make a huge difference alone; together they could have a transformative effect on the housing situation in Britain: 

    1. Allowing individual streets to vote on giving themselves permitted development rights, to build upwards to a maximum of six storeys and take up more of their plots. 


    2. Allowing local parishes to ‘green’ their green belts, by developing ugly or low amenity sections of green belt, and getting other benefits for the community in turn. 

3. Devolving some planning laws to the new city-region mayors including the Mayor of London. Cities could then decide for themselves if they want to expand and grow and permit extra housing, or maintain their current size and character.”

It’s a new movement, originating a couple of years ago in San Francisco but gaining real traction. The New York Times reported in July on its second annual conference: California Today: A Spreading ‘Yimby’ Movement.
Yimbyism is good to see, as long it remains positive and is genuinely springing from communities rather than political activists. But we really need to avoid getting entrenched in “brexiteer”/”remoaner” style tribalism. As with Brexit, the underlying public policy issues are complex and often down to difficult political choices to be made against an impossibly complex economic, environmental and legal background. In a climate where simple messages, right or wrong, have greater potency to influence democracy than ever via social media and elements of the traditional media (and certainly greater potency than what the scorned “experts” may say) the message as to the need for housing and for essential infrastructure must be as clear and non-partisan as possible but at the same time we must treat those with opposing views with respect, winning the intellectual argument with the evidence. How to go about winning hearts and minds? There’s a lot of good sense in Shelter’s March 2015 report Addressing Our Housing Shortage: Engaging the Silent Majority. Labelling people as selfish and insular isn’t going to win any argument. QRED*

*quod referendum erat demonstratum

Simon Ricketts, 2 September 2017
Personal views, et cetera

What The EU (Withdrawal) Bill Would Mean For (eg) EIA

So now we have, without any great surprises, what was first to be the Great Repeal Bill, then the Repeal Bill and now is the European Union (Withdrawal) Bill. It comes alongside extensive Explanatory Notes as well as a Memorandum justifying the use of delegated powers in the Bill .
This is a very narrowly defined blog post, asking myself one question: What does the Bill tell us in England about what will happen to EU law based legislation such as the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 once we reach the “exit date” (defined in the Bill as a date to be appointed by a minister but in practice to be 29 March 2019 or earlier, due to service by the Government of its Article 50 notice on 29 March 2017)? I have confined myself to England: there are additional complexities ahead for the devolved administrations. 
The EIA Regulations are EU-derived domestic legislation, as defined in the Bill, deriving as they do from the EIA Directive ie Directive 2011/92/EU as amended in 2014 by Directive 2014/52/EU. 
Clause 2(1) of the Bill provides:
“EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day.

So the Regulations will remain in force unchanged post exit day.   
For the avoidance of doubt clause 5(1) provides:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

So any change to environmental protection that is made following exit date cannot be challenged on the basis that it is contrary to EU law. Legislation excluding say the construction of a specific infrastructure project or type of infrastructure from EIA, or weakening its operation? There would no longer be any recourse to the Court of Justice of the EU (CJEU). But that would be the effect of leaving the EU in any event, so hardly needs to be spelt out. 
(Of course, the Government will need to ensure that any such legislation did not breach other international obligations such as the Espoo Convention and Aarhus Convention – where breaches are far more difficult to challenge by a complainant, whether in the domestic courts or in any international forum)
At present, in interpreting EU-derived legislation, our domestic courts have to apply EU law principles, having regard to decisions of the CJEU. After exit day, this will no longer be the case, in that there will be no requirement to have regard to post exit day decisions. Clause 6(1) provides:
“A court or tribunal

(a)  is not bound by any principles laid down, or any decisions made, on or after exit day by the European Court, and 

(b)  cannot refer any matter to the European Court on or after exit day.

Clause 6(2) makes it clear that a court may do “if it considers it appropriate to do so” but does not have to. So, (1) there will be uncertainty as to whether to bring post exit day CJEU rulings or advocate-general opinions before the domestic court to assist with interpretation (and so in practice they will be trawled out) and (2) CJEU jurisprudence is likely slowly to take a different direction to that of our domestic courts. Not straight-forward!
For a period from the coming into law of the Bill and two years after exit day, the Government will be going through all EU-law derived legislation, with the objective of making it continue to work post Brexit. Clause 7(1) provides:
A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— 

(a)  any failure of retained EU law to operate effectively, or 


(b)  any other deficiency in retained EU law, 


arising from the withdrawal of the United Kingdom from the EU. “

The justification in the accompanying memorandum: “Retained EU law will contain thousands of failures and deficiencies. This power enables UK ministers and the devolved authorities to make corrections in time for exit to ensure a functioning statute book.

Clause 7(6) contains some protections:
But regulations under this section may not— 

(a)  impose or increase taxation,

(b)  make retrospective provision, 


(c)  create a relevant criminal offence, 


(d)  be made to implement the withdrawal agreement, 


(e)  amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or 


(f)  amend or repeal the Northern Ireland Act 1998 (unless the regulations
 are made by virtue of paragraph 13(b) of Schedule 7 to this Act or are amending or repealing paragraph 38 of Schedule 3 to the Northern Ireland Act 1998 or any provision of that Act which modifies another enactment). “


The memorandum says this by way of example: “The impact of not making such changes would include inadvertently removing environmental protections. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 require an environmental impact assessment of certain applications for planning permission. They refer to “other EEA States” in a number of places, mainly in the context of development likely to have significant transboundary environmental effects. A correction amending the references to “other EEA States” to “EEA States”, would make it clear that the requirement on transboundary consultation continues to function on exit as it does now. This would remove uncertainty and help ensure that an important piece of environmental protection law continues to operate effectively. “

I referred to obligations arising under other international obligations. Clause 8(1) provides:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent or remedy any breach, arising from 
the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom.

The memorandum more generally seeks to justify the breadth of use of delegated ministerial powers under the Bill:
“i. Time: The two year timetable for exit is provided for in Article 50 of the Treaty on the European Union. Therefore, the UK needs to be in a position to control its own laws from March 2019, which is why the UK Government and devolved administrations need to take a power so they can act quickly and flexibly to provide a functioning statute book. The complexity of identifying and making appropriate amendments to the converted and preserved body of law should not be underestimated. There is over 40 years of EU law to consider and amend to ensure that our statute book functions properly on our exit from the EU. According to EUR- Lex, the EU’s legal database, there are currently over 12,000 EU regulations and over 6,000 EU directives in force across the EU.2 We are not yet in a position to set out in primary legislation how each failure and deficiency should be addressed, nor would it be practical to do so…”

“ii. Practicality: The power will be exercised by UK ministers and the devolved authorities, enabling them to make the necessary corrections to the statute book required to make the law function effectively in their own field of expertise and competence. Making all corrections on the face of the Bill, at this stage, would not be practical. 

iii. Flexibility: Many of the potential deficiencies or failures in law arise in areas in which the UK is considering pursuing a negotiated outcome with the EU. The UK must be ready to respond to all eventualities as we negotiate with the EU. Whatever the outcome, the UK Government and devolved authorities, with the appropriate scrutiny by Parliament and the devolved legislatures, must be able to deliver a functioning statute book for day one post-exit.”

So in the case of environmental impact assessment, are we likely to see any early substantive changes? In my view we won’t. What we will see is amendments made so as to seek to ensue that the Regulations still work in legal terms post exit day and there may be arguments as to whether some of those amendments go beyond what is required to achieve that aim. But the substantive changes (which I’m sure will come) will be for a later stage. The explanatory notes to the Bill say this: “The Bill does not aim to make major changes to policy or establish new legal frameworks in the UK beyond those which are necessary to ensure the law continues to function properly from day one. The Government will introduce separate primary legislation to make such policy changes which will establish new legal frameworks.” (para 14). 
This is a commitment that we need to keep the Government to. No changes beyond what is necessary without primary legislation. 

Simon Ricketts, 13.7.17

Personal views, et cetera

Elsewhere In Kensington

Last weekend’s blog post was written in different times. 
As predicted given May’s weak majority, Sajid Javid stayed in position as Secretary of State for Communities and Local Government. The announcement of Alok Sharma as housing and planning minister on 13 June was frankly a disappointment. No doubt he is a capable politician, but the task of planning for housing should be a critical priority for the government and to appoint again a junior minister without experience at a senior level of government, without a cabinet role and without previous planning or housing experience was not a good sign. The appalling fire in the Grenfell tower in the early hours of 14 June and the anger that followed was an immediate reality check as to why we need to get a grip on the seriousness of what we face. Come back Lord Heseltine. 
This country has a housing crisis. Not enough homes are being built, there is a need for housing which is affordable for those of low means (including social housing with fixed rents) and we must ensure that what is occupied, new or old, is safe. 
If, as the housing white paper trumpeted on its cover, we have a broken housing market, who is going to fix it, when and how?
Who is also going to make sure that the Building Regulations remain fit for purpose and that, crucially, local authorities have the powers and resources properly to enforce them? What is the bulwark against those inevitably lobbying for another “red tape challenge” or “one in two out” rule? This is wider than about the Grenfell tragedy, whatever its causes turn out to be. The next tragedy may well not be a fire but another lapse or loophole, where we will be told, again, that “lessons will need to be learned”, that there will be a “full public inquiry” and all of the other usual platitudes. 
It is truly depressing that the present government (as well indeed as the Labour party) has Brexit (a riddle, wrapped in a mystery, inside an enigma) as its main policy focus rather than something as urgent and important as providing sufficient and safe housing. And more widely, to what extent has one reason for Brexit been to allow the UK government greater freedom to relax regulations that were designed to protect us or our environment? The government’s continued prevarication on air quality (largely pushing compliance down to local authorities) and the disdain for EU environmental protections expressed by our new Secretary of State for the Environment, Food and Rural Affairs bring this into clear and immediate focus. But do we agree with these priorities? Housing, safety and security are fundamental human rights. Where do the objectives of Brexit (whatever they may be) appear on Maslow’s hierarchy of needs for any of us?
But this is meant to be a planning law blog. I had intended this week to look at a recent inspector’s decision letter in relation to a planning appeal, as well as two recent rulings from the Court of Appeal. By coincidence, the local planning authority for all of them is the Royal Borough of Kensington and Chelsea. 
On 12 June 2017, an inspector, David Nicolson, dismissed an appeal by Notting Hill Gate KCS Limited for planning permission for the demolition of the existing buildings on a large site at the junction of Notting Hill Gate and Kensington Church Street and redevelopment to provide office, residential, and retail uses, and a flexible surgery/office use, across six buildings (ranging from ground plus two storeys to ground plus 17 storeys), together with landscaping to provide a new public square, ancillary parking and associated works. 
On the site at present are a number of buildings, including the ugly and tired 12 storey office block known as Newcombe House; a linear block along Kensington Church Street with shops and restaurants, and Royston Court, a 5 storey building with ground floor retail and 20 self-contained studio units on the upper floors owned and managed by Notting Hill Housing Trust. The studios are occupied by former rough sleepers, in accordance with the grant conditions for its acquisition and refurbishment from the Rough Sleepers Initiative, although this is not secured at present by any section 106 obligation. The site is surrounded by four conservation areas but is outside all of them. There are listed buildings in the area, including Kensington Palace, listed grade 1. 
Notting Hill Housing Trust proposed to compensate the Borough for the loss of nominations to Royston Court through the provision of 10 two-bed homes outside the Borough and committed that proceeds from the sale would be invested in the provision of new family homes in lower value areas.
The inspector identified the main issues in this appeal as “the effects of the proposals on: 

a)  the character and appearance of the area with particular regard to the relative height, scale and massing of the proposed tower and the architectural quality of its design; 


b)  the settings of nearby conservation areas and listed buildings; 


c)  the availability of social rented floorspace within the Borough.”

The inspector was satisfied on the first issue. On the second issue he found that there would in some instances be less than substantial harm, but that (subject to the scheme including sufficient affordable housing) this would be outweighed by the public benefits arising. However, the appeal was dismissed on the final, affordable housing, issue, for two reasons:
– There would therefore be a loss of social rented housing floorspace within the borough contrary to its policy CH3b which resists the net loss of both social rented and intermediate affordable housing floorspace and units throughout the borough
– The inspector considered that the site value of £33m within the appellant’s viability appraisal was too high and he consequently did not accept the appellant’s position that affordable housing “could not be provided on site or, more importantly, that there needs to be a loss of all the existing 20 social housing bed spaces on the site or a net loss in the borough“.

With a compliant affordable housing offer, or adjusted viability appraisal, the door is now open to the appellant to reapply. No doubt it is disappointing for all concerned that after such a slow and expensive process, appeal procedures are not such as to allow the appellant to respond to an inspector’s conclusions, perhaps by increasing its affordable housing commitment, before the formal decision was issued. Would that in some instances speed things up, or simply lead to additional brinksmanship?

Now turning to the two Court of Appeal rulings. In both cases our haphazard planning legislation, with its layers of amendments and its practical failings/ambiguities, has again been found wanting, although in neither case of any assistance to the claimant: 

– In Republic of France v Royal Borough of Kensington & Chelsea (16 June 2017) the Court of Appeal unsurprisingly found that section 26H of the Planning (Listed Buildings and Conservation Areas) Act 1990 (a provision inserted by the Enterprise and Regulatory Reform Act 2013) is of no use as a procedure for certifying that sufficient works have been carried out so as to keep a listed building consent alive – it simply exists to certify that specific works would not require consent on the basis that they would not affect the character of the listed building as a special architectural or historic interest. There is therefore still no procedure for listed building consents, analogous to section 192 of the Town and Country Planning Act in the case of planning permissions. Nor is there a definition of “material operation” in the Listed Buildings Act. The court found that equivalent works may suffice as for planning permissions but the position remains unsatisfactorily uncertain for all concerned – in that case on one side of the grandest of neighbourly disputes Jon Hunt seeking to keep alive consents for a five storey super-basement scheme at 10 Kensington Park Gardens, on the other side the French Ambassador’s residence at 11 Kensington Park Gardens and, trying to adjudicate between competing interests, RBKC (I previously blogged on 6 December 2016 as to the extent to which the borough is particularly beleaguered by these types of cases in First World Problems: Basements).
– In R (Khodari) v Royal Borough of Kensington & Chelsea (11 May 2017), the Court of Appeal held that obligations to requiring dwellings within a development to be “permit free”, ensuring that no one who occupied the additional units would apply for a resident’s parking permit, could not be secured by way of section 106 of the Town and Country Planning Act, given that the obligation did not fall within the restrictive list in section 106(1) of the types of obligation that may be secured (ie (a) restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land; (c) requiring the land to be used in any specified way; or (d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically). In London the issue is academic only as the wider powers within section 16 of the Greater London Council (General Powers) Act 1974 can be recited but outside of London it is certainly an unnecessary headache. (The claimant, Mr Khodari, wasn’t even really concerned about the “permit free” issue – he was simply looking for a technicality to quash the permission as the permission was being relied upon by his landlord in proceedings being taken to end his tenancy).

Both cases currently seem an unnecessary distraction and examples of the disputes that increasingly occupy too much time for planners – certainly first world problems in contrast to the more fundamental challenges those affected by the Grenfell disaster now face. Donations to the British Red Cross London Fire Relief Fund may be made here.

Simon Ricketts 18.6.17
Personal views, et cetera

Nightmare On Marsham Street: What Now?

So much for fixing the broken housing market. Those poor DCLG civil servants. Here we are again in wholly uncertain territory – anathema to planning, anathema to business. In the aftermath of the Brexit vote I wrote a blog post on how we can possibly give any useful advice in these sorts of situations, How To Predict; How To Advise.
This blog post simply sets out various questions, to which I do not know the answer. 
First, how long will May stay as PM? Will we see a Conservative leadership challenge, will we have an early election (again)?
Secondly, will May lead a minority government, dependent vote by vote, issue by issue on the DUP and/or common positions with other parties, or will this be a true coalition government with a formal coalition agreement? In either case, what terms will the DUP extract? This will certainly be an early test for the PM of her negotiating skills, ahead of the start of Brexit talks that start on 19 June (the same day as the Queen’s Speech – the future comes at you fast doesn’t it…) and indeed ahead of the resumption of Parliament on 13 June. Will she be able to bring her own party to the table with the DUP given the DUP’s stance on LGBT, abortion and climate change (on the last of which, see this 9 June 2017 Greenpeace summary)? Will an alliance with the DUP be consistent with the Northern Ireland power-sharing arrangements within the Good Friday Agreement? Are they a competent partner, given for instance the “cash for ash” debacle that has cost all of us dear (see i-news 17 May 2017 )?
Thirdly, specifically in relation to planning matters in England, does a minority government matter, given a Conservative majority within England itself? After all, when it comes to planning and other devolved matters, the EVEL (English Votes For English Laws) amendments made in 2015 to Parliamentary standing orders come into play. As with matters of Northern Irish politics, the detailed operation of EVEL is far from my special subject, but basically if provision in legislative business is certified by the Speaker as only affecting England, or England and Wales, and within devolved legislative competence, only the members of Parliament within the relevant administrations have a vote. This is all explained in more detail in a House of Commons Library research paper  (2 December 2015). In fact the Housing and Planning Bill was the first to have its provisions certified, on 28 October 2015, under the new standing orders. Short of legislation, many other planning functions of the Secretary of State can of course be conducted without the need for a vote in Parliament, although necessarily only by proceeding with extreme caution given the political vulnerability. Two other thoughts on this issue: (1) the standing orders can be changed by a simple majority – a minority government will be vulnerable to that, so for how long will EVEL survive? and (2) EVEL of course means that DUP votes count for nothing in relation to English and Welsh devolved matters.  
Fourthly, who will the ministerial team be? Former housing and planning minister Gavin Barwell of course lost his seat and it will be tough to replace him with someone with an equivalent grasp of the detail (although it does seem like yesterday that I wrote my 17 July 2016 blog post when his appointment was first announced). Whilst Secretary of State Sajid Javid retained his seat, he has long been rumoured as out of favour with the PM (eg Conservative Home piece  8 February 2017) but, with the new mantra of ‘stability’, will he stay in position?
Fifthly, what of the current policy agenda, with so many pieces of unfinished business? I set out where things were left in my 21.4.17 blog post, Parliament, Purdah, Planning. Is it realistic to expect a new incumbent to make quick progress, simply accepting the previous agenda and direction? Surely not. Save for the most technical, least politically sensitive matters, a delay surely is to be expected. Whether that matters in most areas is another question – on the one hand we have all been using that ‘stability’ mantra for a long time but on the other hand, if the repeated Conservative manifesto commitment on housing numbers is to be achieved, we can’t carry on as we are. As Einstein may or may not have said, doing the same thing over and over again and expecting different results = insanity. 
Sixthly, is there the political capacity at the moment for more far-reaching reforms? Surely, faced the unique challenge of the Article 50 negotiations (with their fixed March 2019 deadline) and a precarious hold on power, the prospects of radical thinking in any other area, including planning and infrastructure, have significantly receded. In practice, how much time will the cabinet have for CIL reform let alone more radical land value capture/compulsory purchase compensation law changes; or for HS2 phase 2, let alone Crossail 2?
Nightmarish? Possibly. Fascinating? Absolutely!!
Simon Ricketts 10.6.17
Personal views, et cetera

(EIA + SEA) – EU = ?

Deadlines, deadlines. 
The EU’s 2014 amending directive on environmental impact assessment  has to be transposed by member states into domestic law by 16 May 2017. 
Given that Theresa May has announced that Article 50 of the Lisbon Treaty will be invoked by the UK government by the end of March 2017, which would see us out of the EU by the end of March 2019, does the 16 May 2017 deadline matter?
The Scottish Government is currently consulting  on transposition, with a consultation deadline of 31 October 2016. The Welsh Government is consulting  with a consultation deadline of 11 November 2016. 
I have seen no signs of any equivalent work underway for England or Northern Ireland, despite the lengthy lead-in period to the transposition process if it is to be done in accordance with the UK government’s own guidance .

This can only be deliberate but is going to lead to problems for developers and LPAs alike. 
What does the amending Directive change?
The changes are significant. For instance:
– More information is to be provided with requests for screening opinions, requiring more analysis and work at an earlier stage

– Mitigation measures considered at the screening stage need to be specified and retained in the final development proposals

– Reasoning for screening opinions and directions are expressly required

– If a scoping opinion is obtained, the ES must comply with it

– The Environmental Statement becomes an ‘EIA Report’

– It will need to be prepared by ‘accredited and technically competent experts’

– Decision makers in reaching decisions will need to decide whether the environmental information is up to date or whether further updated information is required

– The decision maker will need to decide whether to impose monitoring obligations to cover the implementation and management of the project

– The minimum public consultation period in relation to the EIA report will be 30 days (whereas the UK minimum period is of course 21 days).

It is not of course unknown for a member state to be late in transposing a Directive, but there are real consequences. The state can be fined for its failure to transpose. But, of more specific relevance to developers and LPAs, the failure to transpose the Directive by the deadline can in some circumstances lead to grounds of challenge for a claimant when, for instance, seeking to challenge a planning permission on the basis that the LPA has not complied with the requirements of the Directive. The Directive applies where projects have not been screened or scoped – or the subject of an ES submitted – by 16 May 2017. 
So, pre 16 May 2017, the 2011 Regulations will continue to apply (as long as you have screened, scoped or submitted) and post 16 May 2017 it would be prudent to comply with the substance of the amending Directive. 
But what will happen once we have left the EU? Well of course we have been promised the ‘Great Reform Bill’ which seems designed to retain UK legislation that transposes EU legislation in some holding pen, from which laws will be taken out individually over time to be amended or repealed. Accordingly, even after March 2019 (or whenever our exit from the EU turns out to be) the 2011 EIA Regulations (as amended from time to time) will continue to apply until further notice.
In my view it would be a mistake to envisage any substantial repeal of environmental impact assessment legislation, as opposed to attempts no doubt at streamlining. 
Accordingly, the stream of EIA case law will undoubtedly continue. Some 2016 highlights:
R (XY) v Maidstone Borough Council  (Deputy High Court Judge Rhodri Price-Lewis QC) – held that negative screening opinion was lawful – on the facts no requirement to treat proposal for gypsy site as inevitably part of a larger development proposal given other similar proposals in the area. 
R (Jedwell) v Denbighshire County Council  (Hickinbottom J, 16 March 2016) – reasons for negative screening opinion not given within a reasonable period of time but permission not quashed. 
R (Licensed Taxi Drivers Association) v Transport for London  (Patterson J, 10 February 2016) – challenge to London’s east-west cycle superhighway failed – determination of adverse environmental effects was for the LPA.
SEA
The SEA Directive  is fully transposed into law in England by the Environmental Assessment of Plans and Programmes Regulations 2004  – also destined for the Great Repeal Bill holding pen. 
In the meantime the cases continue. According to a Landmark Chambers update  we await the outcome of R (RTE Built Environment Limited) v Cornwall Council in relation to the St Ives Neighbourhood Plan, with its proposed second homes ban, following a hearing on 6 October 2016. 
More selfishly, a number of us who have contributed chapters to the forthcoming book by Greg Jones QC and Eloise Scotford, The Strategic Environmental Directive: A Plan For Success?  are hoping that it has a long and relevant shelf-life….

Simon Ricketts 8.10.16
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