Developer Contributions, CIL, Viability: Are We Nearly There Yet?

Bookends to this last week:
On Monday 5 March 2018 the draft revised NPPF , accompanying consultation proposals document and the Government’s response to the housing white paper consultation were all published, as well as the two documents I’ll focus on in this blog post:
Supporting housing delivery through developer contributions: Reforming developer contributions to affordable housing and infrastructure (which also addresses proposed reform to CIL); and 

Draft Planning Practice Guidance for Viability 
On Friday 9 March 2018 Draft Planning Practice Guidance: Draft updates to planning guidance which will form part of the Government’s online Planning Practice Guidance was published. 

The draft revised NPPF itself says very little on developer contributions, CIL and viability. 
On contributions, paragraph 34 of the draft (headed, in contrast to the “developer contributions” document, “development contributions” – consistency of terminology would be good!) states:
Plans should set out the contributions expected in association with particular sites and types of development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, green and digital infrastructure). Such policies should not make development unviable, and should be supported by evidence to demonstrate this. Plans should also set out any circumstances in which further viability assessment may be required in determining individual applications.”

On viability:

58. Where proposals for development accord with all the relevant policies in an up-to- date development plan, no viability assessment should be required to accompany the application. Where a viability assessment is needed, it should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”
The Developer Contributions consultation document (responses sought by 10 May) addresses both contributions by way of section 106 planning obligations and by way of CIL. The document is accompanied by a research report commissioned from the University of Liverpool, The Incidence, Value and Delivery of Planning Obligations and Community Infrastructure Levy in England in 2016-17 which has some interesting statistics, underlining for me the scale of monies already being secured from development, over £6bn in 2016/2017:

It is clear from the consultation document that we are still on a journey to an unknown destination:
“The reforms set out in this document could provide a springboard for going further, and the Government will continue to explore options to create a clearer and more robust developer contribution system that really delivers for prospective homeowners and communities accommodating new development. 

One option could be for developer contributions [towards affordable housing as well as infrastructure] to be set nationally and made non negotiable. We recognise that we will need to engage and consult more widely on any new developer contribution system and provide appropriate transitions. This would allow developers to take account of reforms and reflect the contributions as they secure sites for development. 

The proposals in this consultation are an important first step in this conversation and towards ensuring that developers are clear about their commitments, local authorities are empowered to hold them to account and communities feel confident that their needs will be met.”
First step in a conversation??
Contributions via section 106 planning obligations
The document sets out perceived disadvantages of relying on section 106 planning obligations, including:
– delays (but there is no mention of how these could easily be reduced by prescriptive use of template drafts and more robust guidance and the Government’s previous proposal for an adjudication process to resolve logjams in negotiations has been dropped)
– the frequency of renegotiations, most frequently changing the type or amount of affordable housing (but with no analysis of why this is so – often in my experience for wholly necessary reasons, often linked to scheme changes or reflection of changed government affordable housing priorities or funding arrangements)

– a concern that they may “only have captured a small proportion of the increase in value” that has occurred over the time period covered by the University of Liverpool research report (but, aside from where the scale of contributions has been depressed from a policy compliant position due to lack of viability, why is this relevant? Planning obligations should be about necessary mitigation of the impacts from development, not about capture of uplifts in land value ). 

– lack of transparency. 

– lack of support for cross boundary planning. 

Despite these criticisms, the document does not propose significant changes to the section 106 process (or provide any timescale for the further review it alludes to) save for proposing to remove the pooling restriction (Regulation 123 of the CIL Regulations 2010) in areas:

* “that have adopted CIL; 

* where authorities fall under a threshold based on the tenth percentile of 
average new build house prices, meaning CIL cannot feasibly charged; 

* or where development is planned on several strategic sites

The Government is consulting on what approach should be taken to strategic sites for this purpose, the two options being stated as:
“a) remove the pooling restriction in a limited number of authorities, and across the whole authority area, when a set percentage of homes, set out in a plan, are being delivered through a limited number of large strategic sites. For example, where a plan is reliant on ten sites or fewer to deliver 50% or more of their homes; 

b) amend the restriction across England but only for large strategic sites (identified in plans) so that all planning obligations from a strategic site count as one planning obligation. It may be necessary to define large strategic sites in legislation.”
I would prefer to see the pooling restriction dropped across the board. If authorities choose not to adopt a CIL charging schedule but to rely on section 106 planning obligations to make contributions towards infrastructure then why not let them, subject to the usual Regulation 122 test? I thought we wanted a simpler system?
There are sensible proposals for summaries of section 106 agreements to be provided in standard form (although we do not yet have the template), so that information as to planning obligations can be more easily made available to the public, collated and monitored. 
Contributions via CIL
The Government’s thinking on CIL continues along the lines set out alongside the Autumn 2017 budget and summarised in my 24 November 2017 blog post CIL: Haven’t Found What I’m Looking For ie wandering dangerously away from the CIL review panel’s ideas of a simpler, more uniform but lower charge regime. The proposed ability for authorities to set different CIL rates based on the existing use of land is inevitably going to make an overly complex system even worse, introducing another uncertainty, namely how the existing use of the land is to be categorised. The Government recognises that risk:

Some complex sites for development may have multiple existing uses. This could create significant additional complexity in assessing how different CIL rates should be apportioned within a site, if a charging authority has chosen to set rates based on the existing use of land. 

In these circumstances, the Government proposes to simplify the charging of CIL on complex sites, by: 

* encouraging the use of specific rates for large strategic sites (i.e. with a single rate set for the entire site) 

* charging on the basis of the majority use where 80% of the site is in a single existing use, or where the site is particularly small; and 

* other complex sites could be charged at a generic rate, set without reference to the existing use of the land, or have charges apportioned between the different existing uses.”

One wonders how this would play out in practice. 

It seems that the requirement for regulation 123 lists (of the infrastructure projects or types of infrastructure which the authority intends to fund via CIL – and which therefore cannot be secured via section 106) is to be removed, which is of concern since regulation 123 lists (the use of which should be tightened rather than loosened) serve at least some degree of protection for developers from being double-charged. 
 The Government is proposing to address one of the most draconian aspects of the CIL process – the current absolute requirement for a commencement notice to be served ahead of commencement of development, if exemptions and the right to make phased payments (where allowed by the authority) are not to be lost, is to be replaced by a two months’ grace period. However, this does not avoid all current problems as any exemptions would still need to be secured prior to commencement.

A specific problem as to the application of abatement provisions to pre-CIL phased planning permissions is to be fixed. These flaws in the legislation continue to emerge, a function of the complexity and artificiality of the whole edifice, which the panel’s proposals would significantly have reduced. In the meantime, we are some way away from actual improvements to the system we are all grappling with day by day, with no firm timescale for the next set of amending Regulations. 
The thrust of the draft planning practice guidance for viability is understood and reflects what had been heralded in the September 2017 Planning for the right homes in the right places consultation document – focus viability consideration at allocation stage, standardise, make more transparent – but there are some surprising/interesting passages:
– Is the Government contemplating review mechanisms that don’t just ratchet upwards? Good if so:
It is important that local authorities are sufficiently flexible to prevent planned development being stalled in the context of significant changes in costs and values that occur after a plan is adopted. Including policies in plans that set out when and how review mechanisms may be included in section 106 agreements will help to provide more certainty through economic cycles. 

For all development where review mechanisms are appropriate they can be used to amend developer contributions to help to account for significant changes in costs and values over the lifetime of a development. Review mechanisms can be used to re- apportion or change the timing of contributions towards different items of infrastructure and affordable housing. This can help to deliver sites that would otherwise stall as a result of significant changes in costs and values of the lifetime of a development.”
– Review mechanisms are appropriate for “large or multi phased development” in contrast to the ten homes threshold in draft London Plan policy H6 (which threshold is surely too low). 
– The document advises that in arriving at a benchmark land value, the EUV+ approach (ie existing use value plus premium) should be used. The London Mayor will have been pleased to see that but will then have choked on his cornflakes when the Government’s definition of EUV+ is set out. According to the Government, EUV is not only “the value of the land in its existing use” (reflecting the GLA approach) but also “the right to implement any development for which there are extant planning consents, including realistic deemed consents, but without regard to other possible uses that require planning consent, technical consent or unrealistic permitted development” (which is more like the GLA’s approach to Alternative Use Value!). 
Then when it comes to assessing the premium, market comparables are introduced:
When undertaking any viability assessment, an appropriate minimum premium to the landowner can be established by looking at data from comparable sites of the same site type that have recently been granted planning consent in accordance with relevant policies. The EUV of those comparable sites should then be established. 

The price paid for those comparable sites should then be established, having regard to outliers in market transactions, the quality of land, expectations of local landowners and different site scales. This evidence of the price paid on top of existing use value should then be used to inform a judgement on an appropriate minimum premium to the landowner.”

I am struggling to interpret the document as tightening the methodologies that are currently followed, or indeed introducing any material standardisation of approach. 

The EUV+ position is covered in more detail by George Venning in an excellent blog post.
– There is a gesture towards standardisation in the indication that for “the purpose of plan making an assumption of 20% of Gross Development Value (GDV) may be considered a suitable return to developers in order to establish viability of the plan policies. A lower figure of 6% of GDV may be more appropriate in consideration of delivery of affordable housing in circumstances where this guarantees an end sale at a known value and reduces the risk.” However, there is no certainty: “Alternative figures may be appropriate for different development types e.g. build to rent. Plan makers may choose to apply alternative figures where there is evidence to support this according to the type, scale and risk profile of planned development.
More fundamentally, I am sceptical that viability-testing allocations at plan-making stage is going to deliver. At that stage the work is inevitably broad-brush, based on typologies rather than site specific factors, often without the detailed input at that stage of a development team such that values and costs can be properly interrogated and without an understanding of any public sector funding that may be available. If the approach did actually deliver, significantly reducing policy requirements, so much the better, but that isn’t going to happen without viability arguments swamping the current, already swamped, local plan examination process.
Indeed, as was always going to be the case with the understandable drive towards greater transparency, the process is becoming increasingly theoretical (think retail impact assessment) and further away from developers opening their books to demonstrate what the commercial tipping point for them is in reality, given business models, funding arrangements, actual projected costs (save for land), and actual projected values. “Information used in viability assessment is not usually specific to that developer and thereby need not contain commercially sensitive data“. 
The document contains more wishful thinking:
A range of other sector led guidance on viability is widely available which practitioners may wish to refer to.”
Excellent. Such as?
Topically, this week, on 6 and 7 March, Holgate J heard Parkhurst Road Limited’s challenge to the Parkhurst Road decision letter that I referred to in my 24 June 2017 blog post Viability & Affordable Housing: Update. The challenge turns on the inspector’s conclusions on viability. Judgment is reserved. 

We also should watch out for Holgate J’s hearing on 1 and 2 May of McCarthy and Stone & others v Mayor of London, the judicial review you will recall that various retirement living companies have brought of the Mayor of London’s affordable housing and viability SPG. 
The great thing about about writing a planning law blog is that the well never runs dry, that’s for sure. (Nothing else is). 
Simon Ricketts, 10 March 2018
Personal views, et cetera


Through A Glass Darkly: To BRE Or Not To BRE

How to determine whether the impact from a proposed development on the daylight and sunlight enjoyed by neighbours, or to be enjoyed by future occupiers of the scheme, is appropriate? That is the question. 
The problems are multi-layered:
– There is no practical guidance in the NPPF or NPPG as the approach to be taken.
– Many local planning authorities default in their policies to requiring compliance with a guide to good practice published by the Building Research Establishment in 2011: “site layout planning for daylight and sunlight: a guide to good practice” (BR 209) by Paul Littlefair (a document incidentally not freely available but available for purchase from the BRE for £55). 

– The document has various numerical criteria and calculations to determine acceptability. Whilst the need for flexibility in application is acknowledged in the document itself (“Although it gives numerical guidelines, these should be interpreted flexibly because natural lighting is only one of many factors in site layout design“) in practice this is often overlooked. 

– The document has not been updated to reflect changes in our understanding of what makes great places or indeed nuanced to reflect the very different expectations of those living in urban environments, and London in particular. 
The Government signalled in its February 2017 housing white paper that a new approach may be needed: “the Government intends to amend national planning guidance to highlight planning approaches that can be used to help support higher densities, and to set out ways in which daylight considerations can be addressed in a pragmatic way that does not inhibit dense, high- quality development.”
I will be disappointed if we do not see this in the draft revised NPPF (likely to be published on 5 March). 
Disappointingly, the Mayor of London has omitted specific guidance from the draft London Plan (2 March representations deadline looming). The opportunity has been missed to stress the need for flexibility and appreciation of context. Given the loss of the previous density matrices, daylighting and sunlighting issues will continue to be relied upon by objectors seeking to resist higher density schemes, which are inevitable if the housing targets in the plan are to be achieved. 
Against this context it is fascinating to read the inspector’s decision letter dated 21 February 2018 allowing an appeal by Londonewcastle for their Whitechapel Estate development, which comprises “demolition of all existing buildings and redevelopment to provide 12 buildings ranging from ground plus 2-23 storeys (a maximum 94m AOD height), comprising 343 residential dwellings (Class C3), 168 specialist accommodation units (Class C2), office floorspace (Class B1), flexible office and non-residential institution floorspace (Class B1/D1), retail floorspace (Class A1-A3), car parking, cycle parking, hard and soft landscaping and other associated works.” The site falls within the City Fringe Opportunity Area Planning Framework.
The inspector summarised the main issues as:
* “The quality of design of the appeal proposal and its effect on the character and appearance of the area and on the wider townscape;

* The effect on heritage assets and their settings; 

* The effect on living conditions of neighbouring residents, having regard in 
particular to daylight and sunlight, outlook and privacy; 

* The quality of living conditions for future residents of the development, having regard in particular to daylight and sunlight, overshadowing, outlook and privacy. ”

The inspector’s approach to daylight and sunlight is particularly interesting, given that it follows detailed evidence from, for the London Borough of Tower Hamlets, none other than Paul Littlefair, author of the BRE guide, and, for the appellant, leading consultant Gordon Ingram of GIA, proponent of a more nuanced, contextual, assessment approach. 

It is plain from the decision letter that the inspector preferred the GIA methodology:
107. It is agreed that the starting point in the assessment of the effect on residents’ living conditions arising from daylight and sunlight should be the Building Research Establishment 2011 publication Site layout planning for daylight and sunlight: A guide to good practice, (‘the BRE guide’) whose author gave evidence at the Inquiry on behalf of the Council. Use of this methodology is demanded by the supporting text to MDD Policy DM2539 and by the Mayor of London’s Housing SPG of March 2016. 

108. The BRE document offers guidance on generally acceptable standards of daylight and sunlight, but advises that numerical values are not to be rigidly applied and recognises the importance of the specific circumstances of each case. Inner city development is one of the examples where a different approach might be justified. This is specifically endorsed by the Housing SPG, which calls for guidelines to be applied sensitively to higher density developments, especially in (among others) opportunity areas and accessible locations, taking into account local circumstances, the need to optimise housing capacity, and the scope for the character and form of an area to change over time. This approach is clearly relevant to the appeal site. The area’s identification for transformation through high density housing development indicates high scope for its form and character to change over the short and longer term. I agree with the appellants that blanket application of the BRE guide optimum standards, which are best achieved in relatively low-rise well spaced layouts, is not appropriate in this instance.
112. The figures show that a proportion of residual Vertical Sky Component (‘VSC’) values in the mid-teens have been found acceptable in major developments across London. This echoes the Mayor’s endorsement in the pre- SPG decision at Monmouth House, Islington that VSC values in the mid-teens are acceptable in an inner urban environment. They also show a smaller proportion in the bands below 15%. Even if there were some discrepancy in the appellants’ figures for this lower band at Whitechapel Central, which is disputed, the VSC outcomes for the appeal proposal would in general be very similar to those of the other major schemes. The appeal proposal would therefore appear to be in compliance with the LP as amplified by the SPG and as it is being interpreted by the Mayor. The GLA responses to the planning application did not raise any concern about neighbours’ amenity. 

113. I acknowledge that a focus on overall residual levels could risk losing sight of individual problem areas. It is accepted that light is only one factor in assessing overall levels of amenity, but I consider that the trade-off with other factors, such as access to public transport or green space, is likely to be of more relevance to an occupier of new development than to an existing neighbour whose long-enjoyed living conditions would be adversely affected by new buildings. However, I also consider that Inner London is an area where there should generally be a high expectation of development taking place. This is particularly so in the case of the appeal site, where the WVM and the OAPF have flagged the desirability of high density development. Existing residents would in my view be prepared for change and would not necessarily expect existing standards of daylight and sunlight to persist after development.”
121. As in the matter of daylight, the guidance on loss of annual and winter sunlight is not to be rigidly applied. Emphasis on the level of retained sunlight rather than degree of change would be justified. On balance, I accept the appellants’ conclusion the proposal’s overall effect on sunlight would not be significantly adverse.”
As to the effect of the scheme on living conditions for neighbouring residents:
125. I conclude that the proposal would result in some significant individual reductions in daylight and sunlight levels, but that this is almost unavoidable in achieving the policy requirement for high density development in a confined urban setting. The new buildings would for the most part be comparable in height with the existing and would re-define traditional street frontages. Retained levels of daylight and sunlight would be adequate and comparable with existing and emerging urban conditions. The effects would appear very comparable with those recently allowed by the Council at Whitechapel Central. There would be minimal adverse losses of outlook and increases in overlooking. Taken as a whole, the proposal would not result in unacceptably harmful effects on living conditions and would comply with the development plan in this respect. ”
Whilst of course individual decisions of inspectors are not formal precedents, and every scheme is dependent on its individual circumstances and the relevant local policy background, this decision is undoubtedly important and surely fully in line with what the Government was flagging in the housing white paper. 
The BRE guidance in part draws upon British Standard BS 8206-2 (2008) Lighting for Buildings – Part 2: Code of Practice for Daylighting. I am wondering whether one reason that the 2011 guidance has not been updated is that the British Standards Institute has been working with other EU member states’ standards institutes on a new voluntary set of standards for natural daylight, via the European Committee for Standardisation. During this process, revisions of the relevant standard at a domestic level must be placed on hold. Following consultation, a new ECS standard was ratified on 8 February 2018 and will be formally available from 25 April 2018. More information as to the tighter criteria that the new standard will introduce is set out in a useful (subscription-only I am afraid) Planning Resource piece by Gregory Francis of GVA Schatunowski Brooks. 
So, on the one hand, are we at last seeing a move towards more flexible application of daylighting and sunlighting standards? On the other hand, are we are likely in due course to see a tightening of the standards themselves? I find it disappointing that the extent to which there is domestic oversight of the BRE (since 1997 not a governmental body but an independent charitable organisation) is opaque to say the least, before we even get to the complexities of the workings of the European Committee for Standardisation. The Government, and London Mayor, really do need shine a light on all of this.
Simon Ricketts, 24 February 2018
Personal views, et cetera

Expletive Deleted: Revising Policy

I learned today from an Independent piece (27 January 2018) that “an “expletive” originally meant any unnecessary word or phrase used to fill out a sentence. It comes from the Latin ex-, out, and plere, fill, and came to mean a swear word only in the 19th century.”
This coincides with what I was going to cover in this blog post, namely the need for more precise drafting of policy, particularly in relation to the NPPF, and particularly if the courts continue with their present approach to policy interpretation disputes.  

When the Commons CLG Select Committee reported in 2011 on its inquiry into the draft of what became the current NPPF, its conclusions included this passage:
Brevity and simplicity are to be applauded in any document. However, we consider that the NPPF does not achieve clarity by its brevity; critical wording has been lost and what remains is often unhelpfully vague. If the NPPF is to be a document that assists with practical decision-making, rather than a lawyers’ charter or an easy-to-read guide to the planning system, its drafting must be more precise and consistent, and sufficiently detailed to enable local authorities to write their own Local Plans. The Government should carefully consider the alternative drafts, submitted by many organisations as part of DCLG’s consultation, in order to produce a tighter, clearer document, and should not make a fetish of how many pages it is. Examples of such words and phrases needing tighter definitions in the NPPF include: ‘significant weight’; ‘great weight’; ‘substantial weight’; ‘considerable weight’; ‘significant flexibility’; ‘a high degree of certainty’; ‘sustainable economic growth’; ‘absent’; ‘silent’; ‘indeterminate’; ‘out-of-date’; ‘certificate of conformity’, ‘where practical’; and ‘where reasonable‘.”
Whilst changes were made in the final 2012 document, too much was left loose. In retrospect, there was an obvious reason: the one document was trying to provide at least three separate things:
– political advocacy as to policy outcomes sought by the Government

– a precise framework for local authority policy making and decision taking

– a significantly condensed version of numerous previous policy documents

It may be fine and convenient to use loose, sometimes emotive (“the golden thread”) or purely exhorting language for a document with solely that first role, but certainly not the second or third, where precise words matter.  
It is also a mistake to imagine that, in order to be more precise, a document has to be longer. In fact there are far too many adjectives and adverbs in the current NPPF and I would be red-pen brutal. Is each necessary? For instance, what is the difference between “evidence” and “compelling evidence” (para 48), “positively seek” vs “seek” (para 14) or “significantly and demonstrably outweigh” vs “significantly outweigh” (also para 14)?
If the word is necessary, is its meaning sufficiently defined or calibrated? By this I mean, what precisely is meant by, for instance, “substantial” (used 11 times), or “significant”/”significantly” (used 27 times) or “exceptional” (used 9 times)? If the answer is that this is for the LPA to determine, say that. However, I am not sure that this is often what is meant and the participants descend into trying to weigh the indeterminate presumption in favour of the plan in section 38(6) of the 2004 as against various matters which are either given an uncertain degree of additional weight by national policy or by statute (for instance the unhelpfully differing terminology in relation to specific duties on decision makers in relation to listed buildings, conservation areas and AONBs in sections 66(1) – “special regard” – and 72(1) – “special attention” – of the Listed Buildings Act 1990 and section 85(1) – “regard” – of the Countryside and Rights of Way Act 2000 respectively). 
Apples with pears perhaps but contrast the analysis of proposals as against policy with the more methodical and internally consistent categorisation of effects in the environmental impact assessment process. Through the good work of IEMA and others, standardised terms have recognised meanings. We need to work towards that in relation to for example judging harm to designated heritage assets for the purposes of paragraphs 132 to 134 of the current NPPF – practical consequences flow from whether there is likely to be “harm” and whether any harm is likely to be “substantial” or “less than substantial”, with practitioners recognising different degrees of harm within those policy categories. 
This doesn’t just matter to lawyers. Jonathan Edis and Elizabeth Stephen in A Consultant’s view of the NPPF (Papers from the Institute of Archaeology, 2013):

The problem is that we know there is harm, but we are not given the words to describe it and convert it into a form where it can be put into the planning balance consistently. We know from recent appeal decisions that less than substantial harm can include levels of impact that are also described as significant and considerable, which concentrates a disconcerting number of similar adjectives in a small conceptual space. Lower down the scale we also know that less than substantial harm can accommodate effects which are described as minor, which is easier to swallow. However, the NPPF provides no framework within which to rank these terms, and there is no indication of how to describe the lowest level of harm to be considered under paragraph 134 of the NPPF

Definition doesn’t necessarily mean greater length or making the document less readable. The existing glossary could be expanded, or there could be a clearer read-through to the relevant passages in the Planning Practice Guidance (with hyper-text links in the NPPF to all defined terms). But in some instances, the policy wording in the NPPF could itself be made more specific. Indeed this is what the Government has consulted upon in relation to the relevant test for amending green belt boundaries: the guidance in paragraph 83 that “Green Belt boundaries should only be altered in exceptional circumstances, through the preparation or review of the Local Plan” is proposed (see paragraph 1.39 of the Government’s February 2017 Housing White Paper) to be replaced with specific criteria that are to be applied. 
The problems arising from loose wording are evident from the extent of litigation that has revolved around specific words and phrases of the NPPF, litigation which has obvious costs, both direct (for the participants) and indirect (for society and the economy). 
In Suffolk Coastal (see my 5 May 2017 blog post NPPF Paras 49 & 14: So What Is The Supreme Court Really Saying?), Lord Carnwath described the NPPF as “a simplification of national policy guidance, designed for the lay-reader“, but it can’t just be that. (Indeed for the lay-reader I suspect it is hopelessly confusing and raises all sorts of unjustified expectations). It does need to have some legal precision if it is intended to have practical effects. Lord Reed in Tesco Stores Limited v Dundee City Council states that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context“. This is an interpretative role that the courts cannot step back from, although being careful to recognise that, as stated by Lord Carnwath in Suffolk Coastal, “the judges are entitled to look to applicants, seeking to rely on matters of planning policy in applications to quash planning decisions (at local or appellate level), to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy; and not to elide the two.”

Does Government analyse the extent to which litigation could have been reduced by clearer policy wording? Why for instance was the Suffolk Coastal saga not stopped well before the Supreme Court by a ministerial clarification of how paragraphs 14 and 49 are intended to work?

The courts are also placed in a bind. They are rightly turned to for resolution of disputes as to what the words actually mean, but they strain against overlaying their own interpretation upon the words themselves and from interfering with the application, as opposed to interpretation, of policy. Challenges are routinely being knocked back on the basis of “excessive legalism” but the disputes arising are often not in truth “legalistic”, they are (in line with the Tesco case) disputes as to what the policy in question actually means, which surely matters. Is it acceptable (from the perspective of fairness and predictability) or sensible (from the perspective of the Government achieving its desired policy outcomes and reducing delays caused by appeals) to have vague statements in policy that can be read in different ways (and which the courts will refrain from defining)?
The distinction between policy interpretation and policy application can be difficult to make. It often flows only from a decision by the court as to whether the decision-maker’s interpretation was correct, for which the applicant first has to litigate. For instance, this week the Court of Appeal in Jelson Limited v Secretary of State (19 January 2018) declined to quash an inspector’s decision on the basis of an alleged incorrect approach to arriving at a figure for objectively assessed housing needs in the relevant area. Christopher Lockhart-Mummery QC on behalf of Jelson pointed to various alleged mistakes in the inspector’s approach as against the requirements of the NPPF. 

As a result, Mr Lockhart-Mummery submitted, the inspector failed to approach her assessment of the “full need” for affordable housing as she should have done, and failed to identify, with “clarity and precision”, a robust figure for the “full, objectively assessed needs” for housing in the council’s area. 

I cannot accept those submissions. They collide with the most basic principle in the court’s jurisdiction to review planning decisions, which is that matters of planning judgment are not for the court, but for the decision-maker – here an inspector appointed by the Secretary of State – and that the decision-maker’s exercise of planning judgment will not be overturned except on clearly demonstrated public law grounds.”
The court held that the inspector had not misunderstood the approach to be taken and that her conclusions were therefore beyond challenge. 
Paragraphs 23 and 24 of Lindblom LJ’s judgment are important:
“As this court has emphasized in Oadby and Wigston Borough Council, against the background of its earlier decisions in Hunston Properties Ltd.and Gallagher Estates Ltd., national policy and guidance does not dictate, for decision-making on applications for planning permission and appeals, exactly how a decision-maker is to go about identifying a realistic and reliable figure for housing need against which to test the relevant supply (see paragraphs 35 and 36 of my judgment). In this respect, government policy, though elaborated at length in the guidance in the PPG, is not prescriptive. Where the Government wanted to be more specific in the parameters it set for decision-makers considering whether a local planning authority could demonstrate the required five-year supply of housing land, it was – in laying down the approach to calculating the supply of deliverable housing sites in paragraphs 47 and 49 of the NPPF, and, in particular, in carefully defining the concept of a “deliverable” site (see my judgment in St Modwen Developments Ltd. v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, at paragraph 36). 

Responsibility for the assessment of housing need lies with the decision-maker, and is no part of the court’s role in reviewing the decision. Although the decision-maker is clearly expected to establish, at least to a reasonable level of accuracy and reliability, a level of housing need that represents the “full, objectively assessed needs” as a basis for determining whether a five-year supply exists, this is not an “exact science” (the expression used in paragraph 2a-014-20140306 of the PPG). It is an evaluation that involves the decision-maker’s exercise of planning judgment on the available material, which may not be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Stratford-on-Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), at paragraph 43). Often there may be no single correct figure representing the “full, objectively assessed needs” for housing in the relevant area. More than one figure may be reasonable to use. It may well be sensible to adopt a range, rather than trying to identify a single figure. Unless relevant policy in the NPPF or guidance in the PPG has plainly been misunderstood or misapplied, the crucial question will always be whether planning judgment has been exercised lawfully, on the relevant material, in assessing housing need in the relevant area (see paragraphs 32 to 38 of my judgment in Oadby and Wigston Borough Council). A legalistic approach is more likely to obscure the answer to this question than reveal it (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council).”

This reflects what Lindblom LJ stressed in Mansell v Tonbridge and Malling Borough Counci (Court of Appeal, 8 September 2017):

The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court (see paragraph 50 of my judgment in Barwood v East Staffordshire Borough Council). The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but – at local level – to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and – on appeal – to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning. A particular policy, or even a particular phrase or word in a policy, will sometimes provide planning lawyers with a “doctrinal controversy”. But even when the higher courts disagree as to the meaning of the words in dispute, and even when the policy-maker’s own understanding of the policy has not been accepted, the debate in which lawyers have engaged may turn out to have been in vain – because, when a planning decision has to be made, the effect of the relevant policies, taken together, may be exactly the same whichever construction is right (see paragraph 22 of my judgment in Barwood v East Staffordshire Borough Council). That of course may not always be so. One thing, however, is certain, and ought to be stressed. Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also – however well or badly a policy is expressed – that the court’s interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect – in every case – good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

But “excessive legalism” is in itself a value-laden term. What is an acceptable level of “legalism”? What is the difference between correct legal interpretation and unacceptable legalism? Is legalism sometimes excessive even if it is based on a correct legal interpretation?
We have seen a similar approach by the courts in the retail planning area, where there is still much genuine uncertainty as to the proper application of the sequential test and specifically as to the flexibility required of the applicant in looking for potentially more central locations (NPPF, paragraph 24). I referred in my blog post Town Centres First? Two Recent Decisions (22 December 2017) to words of caution by Ouseley J, in refusing permission in relation to the Tollgate Colchester challenge) as to the dangers of relying too heavily on judicial interpretation of policy. We have now obtained a transcript of his judgment (contact me if you would like a copy). It includes this passage:

“I simply make this word of warning in the light of the decision I have come to, which I will shortly reveal, that what I said in Aldergate Properties also comes with a warning I gave in Aldergate Properties, that the language that the court uses to explain what a policy means in a particular context is not a substitute for the words of the policy itself, which fall to be construed and then applied in relation to the particular circumstances at issue. The words of para.24 are very simple but are intended, however, for application in a wide variety of circumstances, and no one phrase is necessarily apt for application, still less as a substitute, in all the circumstances. I had also intended by the use of the word “broad” and “approximate” something a little more flexible than the word “closely similar” as a substitute might have indicated.”

That may sound sensible, but the words of the policy allow for differing interpretations. How does one determine the appropriate interpretation for the specific circumstances and is the applicant and local community alike in the hands largely of the decision-maker? Is that the latitude the Government intended to give?
Whatever emerges as the draft revised NPPF really needs to be stress-tested and amended accordingly. Which are the words and phrases over which we will all inevitably fall out and how to lance those disputes now by a bit more clarity, rather than in court or at planning appeal? What is the Government willing to leave to authorities and inspectors to work out? I am not necessarily suggesting a longer document but certainly delineation between supporting explanatory test and policy; a more rigorous approach to defined terms, and an adjectival haircut. 
Simon Ricketts, 27 January 2018
Personal views, et cetera

Sajid Javid: Agent Of Change?

Sajid Javid’s statement Strengthened planning rules to protect music venues and their neighbours on 18 January 2018, confirming that the “agent of change” principle would be included in the revised NPPF, was widely supported. 
But this was hardly news was it? Go back to the February 2017 housing white paper:

Noise and other impacts on new developments 

A.140 The National Planning Policy Framework, supported by planning guidance, already incorporates elements of the ‘agent of change’ principle (this provides that the person or business responsible for the change should be responsible for managing the impact of that change) in relation to noise, by being clear that existing businesses wanting to grow should not have unreasonable restrictions put on them because of changes in nearby land uses since they were established. 

A.141 We propose to amend the Framework to emphasise that planning policies and decisions should take account of existing businesses and other organisations, such as churches, community pubs, music venues and sports clubs, when locating new development nearby and, where necessary, to mitigate the impact of noise and other potential nuisances arising from existing development. This will help mitigate the risk of restrictions or possible closure of existing businesses and other organisations due to noise and other complaints from occupiers of new developments.

The latest statement takes this further forward not one jot. I was blogging about the agent of change principle back in October 2016 in my post Noise Annoys.

The prod for the 18 January announcement was the introduction into the House of Commons on 10 January 2018 of a private members’ bill, the Planning (Agent of Change) Bill, by Labour MP John Spellar. Following the debate on 10 January, the Bill (which has not actually been published at this stage, as is often the case with private members’ bills of this nature which are largely intended just intended to draw attention to an issue) was due to receive a second reading on 19 January but this has now been postponed until 16 March. Presumably the intention of the bill was simply to keep the Government focused on what it had already indicated to do. If this is how politicians have to spend their time but it all seems odd to this outsider. 
The agent of change concept really now does have momentum, with a strong campaign run by the Music Venue Trust and supported by the Local Government Association. It is frustrating that even such an apparently simple change to policy (oversold in Javid’s statement as a new “rule”) takes so long to introduce. 
The Welsh Assembly was able to move rather faster, introducing an equivalent policy change by its letter letter Supporting the Night Time Economy and the Agent of Change Principle (26 May 2017):
Existing policy in Planning Policy Wales already says new uses should not be introduced into an area without considering the nature of existing uses. Under the agent of change principle, if new developments or uses are to be introduced near a pre-existing business, such as a live music venue, it is the responsibility of the developer to ensure solutions to address and mitigate noise are put forward as part of proposals and are capable of being implemented. 

PPW also encourages local planning authorities to consider the compatibility of uses in areas and afford appropriate protection where they consider it necessary, as part of their development plans. The revisions to PPW will add to this and allow for the designation of areas of cultural significance for music through development plans.”

The letter advises Welsh planning authorities that they “should begin to apply this principle, where it is a relevant consideration, with immediate effect.” Javid could have taken this approach with his 18 January announcement and it is a disappointment that he did not.  
The Mayor of London has also of course introduced a policy into the draft London plan. 

There has also been coverage this week of the supposed news of further slippage in the publication of the draft NPPF, which would cause further delay to the final document. Senior MCHLG servant Melanie Dawes was reported in Planning magazine as saying to the CLG Commons Select Committee that it would be “ready for consultation in the next few months – I hope just before Easter or thereabouts”, meaning that we should assume it may be at the end of March (“or thereabouts”!). But again, this wasn’t news, given that Government chief planner Steve Quartermain’s 21 December 2017 letter to local authorities had promised the draft “early” in 2018. The letter states that the final version of the revised NPPF would be “before the end of the summer“. In my view this is careful wording: we should not necessarily assume that we will see it this side of the Parliamentary recess (which starts on 20 July). Which of course has an immediate influence on those authorities who had either been rushing to submit their local plans by the end of March 2018 or waiting until after that deadline, depending on their tactical judgment as to how they would be affected by the proposed standardised methodology for assessing housing needs – that end of March deadline is now a late summer deadline. 

Honestly, it would be enough to make one scream, if it wasn’t for the neighbours. 
Simon Ricketts, 19.1.18
Personal views, et cetera

Dear Mr Raab, This Case Illustrates Much Of What Is Wrong With Planning

Spare a thought for Dominic Raab, who was appointed minister for housing on 9 January 2018. (Is he also minister for planning as his predecessors were? Who knows?). Linklaters-trained lawyer, he may have thought that the EU was byzantine in its tiers of policy making but that is surely as nothing compared to the English planning system. 
I do hope that Mr Raab sits down to read Dove J’s judgment in Richborough Estates Limited (and 24 other co-claimants) v Secretary of State (12 January 2018). This is of course the challenge by various land promoters and house-builders to the written ministerial statement made on 12 December 2016 (without prior consultation) by Mr Raab’s predecessor but one, Gavin Barwell. I blogged about the WMS at the time (That Written Ministerial Statement, 29 December 2016). 
For me the case illustrates the unnecessary policy complexities arising from unclear statements, ad hoc glosses to previous policies and the unclear inter-relationship between the NPPF, PPG and written ministerial statements. It also evidences the obvious tension between on the one hand the Government’s desire to increase housing land supply by ensuring that failure by authorities to provide adequately has real consequences and on the other hand the Government’s desperation to retain public confidence in neighbourhood planning. If that wasn’t enough, you have within it the attempt by policy makers to take into account the implications of the Supreme Court’s ruling in Suffolk Coastal – that one should also definitely be on Mr Raab’s reading list. 
You will recall that, despite the policy in paragraph 49 of the NPPF that relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (triggering the presumption in favour of sustainable development in paragraph 14), the WMS provided that relevant policies for the supply of housing in a neighbourhood plan should not be deemed to be ‘out-of-date’ where the WMS is less than two years old or the neighbourhood plan has been part of the development plan for two years or less; the neighbourhood plan allocates sites for housing; and the local planning authority can demonstrate a three-year supply of deliverable housing sites.
Effectively the five year housing land supply target was being significantly watered down, to a three year target, where an up to date neighbourhood plan, allocating sites for housing (however few) was in place. The policies in that plan would still have full effect. Following the Supreme Court’s ruling in Suffolk Coastal, which clarified the operation of paragraphs 14 and 49, the Government changed its PPG but policies in neighbourhood plans which met the criteria in the WMS were still to be given ‘significant weight’ notwithstanding there not being a five years’ housing supply. 

Richborough and the other claimants sought to quash the WMS on various grounds. They argued:

– the WMS was inconsistent with paragraphs 14 and 49 of the NPPF and in having the effect of amending paragraph 49 without explicitly doing so represented an approach which was irrational and unlawful;

– the Government had made errors of fact in the research that was relied upon in formulating the policy;

– the WMS was invalid for uncertainty and confused given a lack of clarity as to how the three years’ supply was to be calculated;

– irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“;

– breach of legitimate expectation that there would be public consultation before planning policy for housing was changed by the WMS. 

Dove J found for the Government on all grounds. He found that the Government has a very wide discretion in the way that it brings forward planning policy:
Provided […] that the policy produced does not frustrate the operation of planning legislation, or introduce matters which are not properly planning considerations at all, and is not irrational, the matters which the defendant regards as material or immaterial to the determination of the policy being issued is [sic] a matter entirely for the defendant“. 
The policy was capable of “sensible interpretation“: three years’ housing land supply was to be calculated using the same methodology as for calculating five years’ supply. 
The judge did not interpret the WMS, with the subsequent addition of the guidance in the PPG, as amending paragraph 49 or 14 of the NPPF, albeit that it did “change national policy in relation to housing applications in areas with a recently made [neighbourhood plan]“. I am still struggling with this one – undoubtedly the WMS has changed the application of the NPPF in areas with a neighbourhood plan that meets the NPPF criteria. Even if this is not unlawful, surely this approach to policy making is to be discouraged – the NPPF does not now mean what it says. 
The judge found that there was an adequate evidential basis for the WMS and errors of fact had not been made. The bar was low given that the WMS had only stated that ‘recent analysis suggests…“. 
As regards the suggestion of irrationality in the face of the stated intention of the NPPF to “boost significantly the supply of housing“, the judge noted that this “is not an objective which exists on its own and isolated from the other interests addressed by the Framework…Amongst the other concerns for which the Framework has specific policies is, of course, Neighbourhood Planning...”
The judge set out the circumstances in which a legitimate expectation to consultation arises and found that such an expectation did not arise because a limited number of other policy announcements in relation to housing and planning matters had not been preceded by consultation. I understand that the claimants are likely to seek permission to appeal on this last ground. 
So, there is disappointment for those of us who saw Gavin Barwell’s WMS as an inappropriate attempt to rewrite (without the consultation which would have been so helpful in arriving at a workable policy) a key protection that is within the NPPF against authorities that fail properly to plan for housing. The disappointment is reduced since the Suffolk Coastal ruling and the change to the PPG which followed (no doubt largely because the Government was faced with this litigation) where the Government sought to clarify that the WMS did not change the operation of paragraph 49, although “significant weight” should be given to the neighbourhood plan. 
But, stepping back, the planning system has become as tangled again as it was at the time of the great bonfire of the previous planning policy statements and circulars in 2012 – we are having to pick uncertainly through unclear passages in the NPPF, the PPG and the WMS, reliant on regular revelations from the courts as to what the documents actually mean; decision-makers are having to ascertain the relative weight to be applied to various, often inconsistent, policies at national, local and neighbourhood level, and in the meantime the Government apparently has carte blanche to change its policies without prior consultation (policies were meant to be just in the NPPF, guidance in the PPG if you remember…).
There is a heavy burden on the shoulders of those drafting the new NPPF, that’s for sure! And a massive and important job to do for our new housing minister.
Simon Ricketts, 12 January 2018
Personal views, et cetera

Town Centres First? Two Recent Decisions

I blogged in Sequential Test: Still Testing (23 September 2016) on the uncertainties of the “town centres first” sequential test in the NPPF and in particular how much flexibility needs to be shown by a prospective developer in looking for more central sites before being granted permission in an edge or out of town centre location. At the time I wrote, the most recent judgment was that of Ouseley J in the Aldergate case. I included in my blog post extensive quotes from the judgment where he set out his views on the flexibility required in determining whether a site would be suitable. 
The issue is seldom easy. If too little flexibility is required, it is too easy for the promoter of an out of centre scheme to demonstrate that the scheme can’t fit anywhere more central. On the other hand, if too much flexibility is required, economic activity, often generated by specific trading models or retailer requirements, that would not be likely to take place in a more central location can end up being unnecessarily stifled. And what does flexibility mean? How similar would the scheme on the town centre site need to be? What if the scheme could be split (“disaggregated”) onto more than one site? How immediately available does the town centre site need to be?

The issue has come to the fore again in two recent planning appeals. 

Kingswood, Hull
By his decision letter dated 20 December 2017 inspector Robert Mellor dismissed an appeal in relation to a proposed retail development on an edge of centre site in Kingswood, Hull. He found that the proposal failed both the sequential and impact tests in the development plan (which had been adopted during the course of the inquiry) and in the NPPF, supplemented by the PPG. He also found that the proposed development would be inconsistent with the site’s allocation for employment and community uses in a 2016 area action plan. The decision letter is interesting for the analysis that the inspector gives to each of these issues but in this blog post I want to continue to focus on the question of how the sequential test is to be applied. 
The inspector was faced with an outline proposal for the erection of class A1 and class A3/A5 units totalling 11,148 sq m together with associated works on a greenfield site. The site would allow for large retail units and there was to be provision for “ample surface car parking which is likely to be free to use and which would take up a large proportion of the site“. There were two candidate alternative sites to be considered in Hull city centre, namely the Albion Square and Myton Street sites.  
First the inspector considered what flexibility was required: “there is dispute as to how alike the sites and schemes need to be for the in-centre site or sites to be considered suitable. In particular there is dispute as to the interpretation of the Framework phrase: ‘demonstrate flexibility on issues such as format and scale’, as that wording does not itself explain what degree of flexibility is appropriate.”
The appellants argued for “the use of wording which would require the development to be implemented only on one site and which would require the development, in that and other regards, to be ‘closely similar’ to the appeal proposal. In effect this could mean seeking to insert a retail park style of development with on- site parking and a main road frontage into only one city centre site.”
The inspector did not consider “that the term ‘closely similar’ provides a useful and readily applicable definition of the limits of flexibility that is capable of wider application. In particular it is difficult to distinguish its meaning from the term ‘not precisely similar’ which is the approach that the PPG expressly seeks to exclude. Moreover the strict application of such a term as ‘closely similar’ would risk making the sequential approach unworkable for the same reasons as set out in the Tesco v Dundee case.”

He noted that the scheme was speculative without identified occupiers. “Thus the question of an individual retailer or corporate personality does not arise.” He noted that “whilst the appeal scheme is for a single terraced building, the Appellants’ witnesses did not object to the subdivision of the development into separate buildings and there is no obvious reason why those would not be suitable for the intended occupiers“. He noted that the appellants maintained that a 10% overall reduction in floorspace would provide adequate flexibility but did not justify that figure and he assumed that it could be achieved in various ways, whether by for instance removing at least one unit or generally reducing their size. He noted that flexibility by way of form or format could include “whether the proposal can be provided in one or more buildings: whether space is on one or more levels; how individual units are laid out; and how and where parking and servicing provision is made.”
The inspector then turned to the two potentially sequentially preferable sites.

He concluded that the Albion Square site “would have the capacity to accommodate all, or most, of the retail floorspace and food and beverage units sought in the appeal proposal together with on-site parking. However this would be likely to require some revisions to the layout in order to create all the large retail units on 2 levels which the appeal scheme proposes and to optimise the scheme’s attractiveness to potential occupiers. That in turn could affect how and where the residential and ice arena elements of the Council’s most recent proposals are accommodated and how much car parking could be provided. However a city centre site would be attractive to retail occupiers seeking a range of unit sizes. Some flexibility should be expected in unit scale and format. A 929sqm minimum size for all units would not be necessary on a city centre site. The Appellants had previously been satisfied with a smaller minimum unit size at Kingswood.”

He concluded that the Myton Street site was “not of sufficient size to provide all of the floorspace in the appeal scheme together with full on-site surface parking. It could provide much of the floorspace if reliance were to be placed on use of the adjacent multi-storey car park. However it would then be less attractive to retailers than the Albion Square site due to its weaker pedestrian links to the rest of the Primary Shopping Area.”
The inspector then went on to consider whether the floorspace in the appeal scheme should be disaggregated for the purposes of determining whether it could be accommodated more centrally. He concluded yes:
In this case there is no particular evidence that it would be commercially or functionally necessary to accommodate a variety of individual and as yet unidentified comparison goods retailers either in only one building or on only one site in the City Centre. I therefore conclude that in addition to the option to accommodate all of the appeal proposal on the Albion Square site, they could all be readily accommodated in the city centre, and at the same unit size, if the development were to be sub-divided with approximately half of the floorspace at The Albion Square site and half at the Myton Street site. In that event there would also be the possibility of more generous surface parking provision at Myton Street if that was considered necessary to make that scheme more attractive to some types of retailer.”
Then the inspector considered whether the alternative sites could be said to be available:
“I consider it would be unreasonable to exclude sites as non-available where there is a reasonable prospect that they will be both vacant and in single ownership within a matter of months.”
He accordingly concluded that the scheme had failed the sequential test. 

Tollgate, Colchester
The appellant’s submissions in Hull that development on a town centre on town centre site would have to be “closely similar” in order to be sequentially preferable were based on the conclusions of an inspector in relation to a partly edge of centre retail scheme at Tollgate, Colchester, accepted in a decision letter from the Secretary of State dated 4 August 2017. The inspector put it like this: 
The sequential test therefore means that whilst a sequentially preferable site need not be capable of accommodating exactly the same as what is proposed, it must be capable of accommodating development which is closely similar to what is proposed“. 
(This conclusion was perhaps strange given that it followed an earlier passage:
In this case there is no evidence that the proposed format is necessary or fundamental to the proposal. Whilst the proposal is in outline, not a single retailer has been identified, and the size and location of units within the site has not been established and there is no defined timescale or phasing. It is difficult to conceive of a more open ended proposal. The parameters established by plans show a greater level of gross floor space than permission has been sought for. Most importantly the Appellants have themselves disaggregated within the appeal site with three distinct zones. DZ1 and DZ3 are some distance apart. In these circumstances disaggregation within the sequential test would be justified.”)
The inspector found that the town centre sites put forward by the council and objectors were not suitable or available. The appeal was allowed. 

But surely, as the inspector identified in Hull, a test of “closely similar” would risk making the sequential test unworkable? The main objectors to the Tollgate appeal challenged the Secretary of State’s decision to allow the appeal. Permission was first refused on the papers by Lang J, who commented that “closely similar” was a fair summary of Ouseley J’s guidance in the Aldergate case. The objectors then renewed their challenge at a hearing on 19 December 2017 before none other than Ouseley J. Whilst Ouseley J also refused permission, his reasoning should be noted by anyone dealing with the sequential approach. His judgment was ex tempore and there is not yet an official transcript but, according to colleagues’ notes, his comments during the course of the hearing included the following:
* “If I had meant ‘closely similar’ I would have said ‘closely similar’.”
* If the developer has committed to no specific details in its scheme, then the sequential test should not require the sequential sites to meet a test which the application scheme itself could not pass.

* With reference to his statement in Aldergate, Ouseley said: judges may use particular language, but this language is not a substitute for the policy itself. Instead, the language is applying the policy in a particular context. There is a danger that people think that judges are providing a substitute for policy.

* The words of NPPF 24 are simple and meant for application in a wide range of circumstances.

* “In Aldergate, I had in mind something broader than ‘closely similar’.”


I draw a few conclusions from this tangle:
– There are real conceptual difficulties in being too specific about the necessary elements of a scheme which is speculative without, for instance, retailers on board with specific requirements.
– Without a requirement to show ‘need’, the only constraint on the scale of an out of centre or edge of centre scheme is the risk of being refused permission on the basis that there would be an unacceptable impact to nearby centres – aside from that, the bigger the scheme, the less likely there are to be sequentially preferable sites if there is not allowed to be a significant degree of flexibility.

– There are dangers in rigidly applying case law or previous appeal decisions across the board. Each case turns on its circumstances. Equally there are dangers in relying on paraphrasing by courts or inspectors of what policies say – go back to the wording of the policy itself. 

– In particular, take care over relying on the Colchester decision. 

– The guidance could be clearer (indeed it used to be!)

Simon Ricketts, 22 December 2017

Personal views, et cetera

(Town acted for separate groups of town centre investors in relation to the Hull and Colchester appeals. Thank you to Town colleague Ricky Gama in particular for his work on those cases and for his notes quoted above). 

How Much Weight Does The Draft London Plan Have In Decision-Making?

There’s a facetious answer, a political answer, a legal answer and a practical answer. 
The facetious answer? 

2 kg. (It’s a whopper). 

The political answer?
I’ve heard Deputy Mayor Jules Pipe confirm at a London First event that the Mayor will immediately take it into account. The Mayor’s website says:
The current 2016 consolidation Plan is still the adopted Development Plan. However the Draft London Plan is a material consideration in planning decisions.  It gains more weight as it moves through the process to adoption, however the weight given to it is a matter for the decision maker.”
The legal answer?
It’s not totally totally up to the decision maker. That statement suggests that the Mayor or the boroughs could give controversial new policies in the plan (for instance increased restrictions in relation to student housing schemes) significant weight even at this stage, before the outcome of the consultation process which runs to 2 March 2018 or before the inspector has reported following the examination in public anticipated for Autumn 2018. That is not quite right. 
In my view, paragraph 216 of the NPPF undoubtedly applies to the London Plan as a statutory development plan:

 “From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:

•the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);

•the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and

•the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given).”

The application of paragraph 216 was closely examined by the High Court in Woodcock Holdings Limited v Secretary of State (Holgate J, 1 May 2015). A decision by the Secretary of State to dismiss (against his inspector’s recommendations) an appeal for 120 homes and related development in West Sussex was quashed. One of the grounds relied upon by the court was that the Secretary of State, in deciding to place significant weight on an emerging neighbourhood plan which had not undergone examination had not considered the second and third criteria within paragraph 216:
In my judgment, the policy in paragraph 216 of the NPPF should be read as a whole. It is not a policy which simply makes the trite point that decision-makers may give weight to relevant policies in emerging plans. Rather it is a policy that they may do so “according to” the three criteria or factors which follow. The policy clearly stipulates that the three criteria are relevant in each case. Of course, when dealing with a particular planning proposal it may be the case that the relevant policies in a draft plan have not attracted any objections and so it would not be necessary to consider the second criterion beyond that initial stage. But plainly the second criterion is material in each case in order to ascertain whether a relevant draft policy has attracted any objections and if so, their nature, before going on to make an assessment of the significance of any such objections.”
(As an aside, following the quashing the Secretary of State redetermined the appeal, dismissing it again. That second decision was again challenged and the Secretary of State consented to judgment. Lo and behold, third time round the Secretary of State has now finally allowed the appeal in a decision letter dated 7 December 2017. Never give up!)
Applying Woodcock, I do not see how a decision maker can apply significant weight to the draft London Plan’s policies before knowing what objections have been made to them. It is presently a wish list (although of course, unlike with for instance local plans, the Mayor can reject the recommendations of the inspector who examines the plan, meaning that if he is sufficiently determined, those wishes are likely to be granted). 
The practical answer?

Aside from being able to reject the plan examiner’s recommendations, the Mayor holds another trump card: time. Given the current delays on the part of the Planning Inspectorate, if he directs refusal of a scheme that is referable to him, on the basis of inconsistency with the draft plan, by the time any appeal is heard the plan is likely to have at least reached the examination stage. 
The Planning Inspectorate’s most recently published stats make depressing reading:

You can add to that the further delays that often happen with appeals recovered for the Secretary of State’s own determination. 
When it comes to challenging decision makers’ reliance on emerging draft policies, justice delayed is justice denied. 
Notwithstanding the likely timing difficulty facing anyone seeking to challenge formally the Mayor’s approach, we should surely not accept assertions that the emerging London Plan should be accorded significant weight in decision making, particularly when inconsistent with the current statutory development plan (namely the current London Plan, any adopted borough plan and any made neighbourhood plan). Otherwise, will people feel that it is worthwhile investing time and resources in the examination process? What will be the point of the examination?
Simon Ricketts, 15 December 2017
Personal views, et cetera