London planning news, March 2020

Secretary of State’s decision on new London Plan delayed

On 17 February, the Secretary of State (SoS) issued a letter to the Mayor confirming that he requires a further four weeks to make a decision on the “Intend to Publish” version of the new London Plan. The Secretary of State will now be expected to make a decision on or before Monday 16 March 2020.

The Mayor had already laid the draft new London Plan before the Assembly for formal consultation on 6 February; the Assembly approved the Plan by 10 votes to 11. A majority of two thirds against would have been needed to stop the Plan from being adopted.

This is the second time the SoS has pushed the back the date, with the SoS having previously confirmed a 4 week extension on 23 December 2019.

The letter states: “You will appreciate that this has been a very busy period for the Government”, likely in reference to the Cabinet Reshuffle, compounding the previous delays in relation to the December General Election.

This final statutory step of the Plan’s progress grants the SoS the opportunity to intervene if he considers that the Plan fails to comply with national policy or would be to the detriment of areas outside of London. This would allow him to place a holding direction on the Plan until further changes were made to his satisfaction.

The Secretary of State has already noted that the Mayor had proposed not to follow either in part or in full a significant number of the EiP Panel’s recommendations.

Given that pre-election period ahead of the elections for the future Mayor of London is expected to begin during the week after the SoS’s response is expected, timing is of particular interest. The publication of the new London Plan may be in question, given that pre-election period rules would prohibit the Mayor from making any public announcement in the run up to elections. Will the Mayor concede to key changes in order to get the Plan adopted – which might be after the election, and only if Mr Khan is re-elected?

 

The Mayor has published a pre-consultation version of its draft Supplementary Policy Guidance (SPG), ‘Good Quality Homes for all Londoners’.

The draft SPG has been formulated to support the Mayor’s design-led approach to delivering growth and optimising density, as set out in the draft new London Plan.  It has been prepared, in part, following the removal of the sustainable residential quality density matrix in the current London Plan; whilst also providing guidance on delivering quality design and responding to standards set out in policy.

The guidance is split in to four different “Modules”:

• Module A sets out a design-led methodology for assessing a site’s suitability for development and how capacity can be optimised at the plan-making stage;
• Module B provides guidance for preparing design codes to increase housing supply from small sites, and indicates how the design quality of small site development can be assessed;
• Module C sets out the housing design standards for use when designing or assessing new housing, provides example codes for how to optimise housing delivery across a variety of site contexts; and
• Module D provides detailed case studies which exemplify best practice in recent schemes.

The suite of guidance also includes a new calculation tool which allows users to experiment with building typology, Gross External Area, and number of floors, in order to determine the indicative site capacity of a given development, whilst complying with the design requirements set out in the draft London Plan.

This is also supplemented with a number of CAD models (using Sketchup’s .SKP format) which demonstrate (according to the guidance) a range of well designed, policy compliant building typologies, including urban villas, terraced houses, linear blocks and towers.

A draft version of the Good Quality Homes for all Londoners SPG will be formally consulted on post publication of the London Plan.

Overturning the decision of the High Court, the Court of Appeal has ruled that the Government’s Airports National Policy Statement (ANPS) is unlawful, having determined that it had failed to take into account its commitment to the provisions set out in the Paris climate change agreement.

Approved in 2018, the ANPS provides the primary basis for determining development consent applications for the planned north-west runway at Heathrow Airport (amongst other airport proposals). However, multiple challenges were subsequently brought against the NPS, from Friends of the Earth, Plan B, the Mayor of London, alongside several London boroughs and the Mayor of London.

The High Court had previously dismissed the challenges, determining that the provisions set out in the Paris agreement were not relevant when preparing the NPS as they were yet to be incorporated into UK law, concluding that the Government was entitled to follow the less ambitious environmental requirements set out in the Climate Change Act 2008.

However, noting that the Planning Act 2008 requires that policies set out in an NPS must demonstrate how they have taken “account of government policy relating to the mitigation of, and adaptation to, climate change”, the Court of Appeal resolved that the term “Government policy” did not have any specific technical meaning and should be applied in their ordinary sense to the facts of a given situation:

“In particular, we can find no warrant in the legislation for limiting the phrase “Government policy” to mean only the legal requirements of the Climate Change Act. The concept of policy is necessarily broader than legislation.”

In light of this, it found that the Government’s commitment to the Paris Agreement plainly formed Government policy prior to the designation of the ANPS. As the Judgement says:

“[…] this followed from the solemn act of the United Kingdom’s ratification of that international agreement in November 2016. Secondly, as we have explained, there were firm statements re-iterating Government policy of adherence to the Paris Agreement by relevant Ministers, for example the Rt. Hon. Andrea Leadsom MP and the Rt. Hon. Amber Rudd MP in March 2016.”

A number of other challenges were also made against the decision, relating to the operation of the Habitats Directive, and also on all but one of the issues concerning the operation of the SEA Directive, however, the Court of Appeal confirmed the High Court’s dismissal of these challenges.

The Government says it will not appeal the decision, but it will now need to decide whether to amend the NPS so as to bring it in line with the Paris agreement or whether to re-draft the ANPS completely. A statement from Heathrow Airports Limited says that they will appeal to the Supreme Court and are ready to work with the Government to address the issue raised by the Court.