England planning news, July 2021

On 18 June, the Housing, Communities and Local Government Committee published a report on the Government’s proposed reforms to the planning system, following a period of evidence gathering with key stakeholders and the public last year.

Speaking in Parliament that same week, the chair of the committee, Clive Betts, said: “The government’s aim of developing a planning system that enables buildings to be built more quickly and with greater input from local communities is welcome, but it is far from clear how the current proposals will achieve this”.

The Committee were critical of the Government’s proposed changes to the system of local plans, which would see land divided into one of three categories, growth, renew, and protect. Reflecting concerns from some developers, it was considered that the different allocations were unlikely to include enough detail in order to provide certainty for developers, particularly with renew areas, while it wasn’t clear the level of protection that would be afforded to protect areas.

The Committee also highlighted comments made by some metropolitan councils, that the designations may be inappropriate in urban areas; it was not wholly clear what the purpose of renewal areas would be and how permission in principle might work for larger more complex sites.

In order to address these points, the Committee has recommended that the Government include provisions for sub-areas to be used within ‘renewal area’, where permission in principle would not apply and individual planning permission would be required. The proposals may also benefit from the inclusion of a ‘highly protected’ category which could also sit alongside the ‘protected’ area category, so as to better distinguish where some forms of development may be acceptable.

It highlighted that there has been support for a statutory requirement for authorities to keep plans up to date, and that plans should be more focused and shorter than at present. The Committee did not agree that the 30-month timeframe proposed for the production of Local Plans would be sufficient in order to ensure plans were prepared in a satisfactory manner.

The Committee’s report also acknowledged the current defectiveness of the Duty to Cooperate; Government should give combined authorities the statutory powers to oversee the cooperation of local authorities in their area. It suggested that any longer-term reforms should seek to build upon the success of strategic plans devised by local authorities in certain parts of the country. This could include greater use of joint plans, or plans overseen by mayors and combined authorities.

On the Standard Method for calculating housing need, the Committee supports the Government’s decision to abandon its proposed formula for determining housing need is the correct decision which was announced in December 2020. However, it called for additional information regarding the Government’s alternative approach, including an explanation of what criteria were used by the Government to identify the 20 urban centres that would be subject to the uplift, and how the 35% increase was decided.  It was also noted that the increase should be reconsidered in London, “in light of its lack of feasibility”.

Following much criticism of the planning reforms the Shadow Communities Secretary secured a debate on local involvement in planning decisions. Responding to the 21 June 2021 debate the Communities Secretary said:

With regard to Green Belt, the Committee received evidence from a number of parties, criticising the Government for not suggesting any review of existing Green Belt policy as part of its package of reforms. The Committee noted that there was still relatively widespread misunderstanding amongst the public over the purpose and designation criteria for the Green Belt. As such, it recommended that the Government should undertake a review into the effectiveness of existing policy.

The Housing Minister, Christopher Pincher, was quick to dismiss this suggestion in Parliament, however:

“We are committed not only to protecting the green belt but to enhancing it, and those protections will remain in force when we bring in planning reforms. I can assure you, that we will not be taking the advice of the Select Committee, which suggested that we should undertake a wholesale reform of the green belt.

The Housing Minister has subsequently stated that the Government will continue to give local people and their elected representatives a say over the detailed applications, not just at the plan making stage.

On design quality, the Committee commented on the widespread criticisms of the Government’s focus on beauty, noting the problems of attempting to define this.  So as to ensure a broader and more holistic approach to good design, it recommended that the Government should drop its proposals for a “fast track for beauty”.

In terms of public engagement, the Committee were supportive of the Government’s plans to improve the levels of public engagement at the plan-making stage, but highlighted concerns that local communities and other consultees would not be given the opportunity to comment on the detailed aspects of development proposals thereafter. It also recommended that any shift towards greater digitisation and use of technology for publicity and engagement of planning applications and plans should be done alongside more traditional methods, such as the use of site notices on lamp posts, keeping physical documents available for inspection, and allowing the public to attend committee meetings in person.

The improved use of digital tools for planning can proceed outside of wider reforms and indeed are doing so; on 1 June the Government announced the ten councils from across England that would look at the digital transformation of local plans.

Furthermore, on 30 June the Government announced that two planning apps are being piloted. There is an app for applicants called RIPA – Reducing Invalid Planning Applications, which “asks a series of questions, and determines whether the plans meet local and national requirements. Users can then apply within the app for the certificate they need to show their plans are permitted development, allowing building to go ahead”.

Another app, Back office Planning System or BoPS is for local planning authorities to use to track permitted development applications, focusing on the data submitted, rather than the documents. They will also speed up consultation. The apps have been designed by Buckinghamshire Council and the London Borough of Southwark and are now being tested by them.

The Government is looking at fees and resourcing in the context of digitalisation, believing that a less bureaucratic and administrative system will free up resources. When giving evidence on to the Housing, Communities and Local Government Committee on permitted development rights, the Housing Minister said that the digitalisation programme underpins the entire reform programme and that they are working with local authorities that are already good at digitalisation in order to leverage their skills in order to assess what sort of resourcing approach to take.

It recommended that the Government sets up a programme for delivery of First Homes, which should not adversely affect other tenures. Related to this, the Committee recommended that local authorities should have discretion over what proportion of affordable houses must be First Homes.

The Committee concluded that action is required to “quicken the pace” of completing planning permissions, in order to meet the Government target of building 300,000 homes per year, by the mid-2020s.

It has recommended that the Government:

• Prepares a strategy “for increasing the extent of multi-tenure construction on large sites in line with the Letwin Review’s recommendations”.
  
  
• Explore the greater use of Development Corporations while incentivising the use of smaller sites and SME builders.
  
  
• Time limits for the completion of construction and non-financial penalties where those limits are exceeded without good cause.
  
  
• Sets a limit of 18 months following discharge of planning conditions for work to commence on site, with planning permission to be revoked if work has not progressed to the satisfaction of the LPA by that time. And then allows a further 18 months for development completion, after which levying full council tax for each housing unit which has not been completed should be considered by the LPA, taking into account site complexity.
  
  
• The Committee also concluded that greater clarity is needed on why and how the 300,00 home target must be delivered, with a view to securing more public support. Similarly, an explanation of why brownfield sites alone cannot be relied upon, is needed.
• The concerns about “land banking” are not new. Potential “use it or lose it” policy approaches are considered by Matthew Spry in Use it or lose it: the taxing problem of undelivered homes
  
  
• “Taking Stock” a Lichfields’ report commissioned by the Land Promoters and Developers Federation and the Home Builders Federation explores how the pipeline of sites for housing development compares with what might be needed to meet the Government’s ambitions to deliver 300,000 net additional homes per year, taking into account how delivery varies across different parts of England.

In terms of the Government’s response, during a Land Banking debate shortly prior to the publication of the Report, the Housing Minister said:

“[…] we are exploring further options to support a prompt and faster build out as part of our proposed planning reforms […] I was interested to listen to my hon. Friend and hear ideas raised such as charging council tax on unbuilt permissions. It is an idea that has been mentioned previously, too. That will require some careful thinking because council tax is levied on properties and paid by the residents. Who would pay council tax on a permission? Would it be the developer, the land owner or the promoter? Those are questions we need to address if that option were to be further pursued”.

And in a debate on local involvement in planning decisions shortly after the report was published, the Minister referred to planning reforms and said:

“If people know that there are some up-front rules that they have to adhere to in order to build, there will be no necessity to land-bank. […] we are looking closely at ways in which we can incentivise developers to continue to work closely with local authorities and with landowners to make sure that permissions are built out as rapidly as possible”.

And in the same debate the Housing Secretary said:

If the Bill were to fail, it is the big-volume house builders who would be celebrating. They would be opening the champagne bottles, and the hon. Member for Croydon North (Steve Reed) knows that perfectly well. The current system is stacked in favour of the big boys and we are going to change that.

 

The High Court has concluded that the London Borough of Islington’s decision to revoke a certification of lawfulness for an existing use or development (CLEUD) was well-founded.

Ocado was in the process of refurbishing a building comprised of four units, A-D, on an industrial estate in North London. Immediately to the south east of the industrial estate is a primary school.#

In 1984, planning permission was granted for a building comprising four units, on an industrial estate in North London. The use was limited to general and light industrial by condition, and the units were built out and first used by British Telecom for workshops. In 2002 Telereal acquired the site and leased it back to BT, who continued to occupy the units until late 2013. Royal Mail used the site as a Parcelforce warehouse for three years, from January 2014.

In 2018, Ocado entered negotiations to occupy the property and a CLEUD was sought by Telereal to confirm unrestricted B8 use, on the basis that the condition controlling the use had been breached for more than ten years, starting in 1992. Documents submitted with the CLEUD application included a one page statutory declaration from a chartered surveyor, Mr Molony, who had some responsibility for the site. Other supporting documents included a site plan showing a 1.9ha site.

The CLEUD application said that units A-D were used as a single planning unit and for B8 purposes by BT from 1992 to 2013, albeit not at full capacity for the latter part of the period. Royal Mail had leased the premises for the same use and they had been marketed for B8 after BT gave up their lease. Telereal argued that once the B8 use had accrued, by breaching the condition for more than ten years, that use did not have to be taking place on site at the time of the application. The CLEUD was granted in November 2019 and shortly afterwards Ocado sought planning permission for improvements to the site. The consultation associated with this application made the community aware of the CLEUD, including the Concerned Residents of Tufnell Park (CTRP), who sought legal advice.

In April 2020 CTRP and sent the LB Islington documents regarding the planning history of the site and seeking revocation of the CLEUD, “on the grounds that Telereal's application had contained statements which had been "false in a material particular" or that "material information" had been "withheld."”.

Section 193(7) says:

In June LB Islington wrote to Telereal and Ocado, advising that there appeared to be grounds to revoke the CLEUD. Both Telereal and Ocado contended there were no ground for revocation. Telereal responded with a second statutory declaration from Mr Molony, which revealed that he had not visited the site during Royal Mail’s lease. Telereal’s correspondence also said that £2.3 million had been spent refurbishing and fitting out the premises. Further representation were sought and supplied in August 2020.

The LB Islington report setting out the basis for the revocation of the CLEUD found (inter alia):

• Telereal’s application did not mention that units B and C were not interconnected, meaning the correct planning unit had not been identified
  
  
• No reference to a 2011 planning statement said that units C and D were unused at that time and had been marketed since 2006 as a separate unit;
  
  
• Telereal had not produced photos showing those units empty in 2011, but relied on a 2006 photograph, contrasting with false statements in the CLEUD application that units A-D were fully operational from 1992-2013
  
  
• The statutory declaration had been false in stating that since 1992 the whole site had been in use as a warehousing/storage depot, that the use had been continuous throughout, and that the photographs submitted were "typical of the uses"
  
  
• the statutory declaration withheld the fact the Mr Molony had not visited the site during Royal Mail’s lease.
  
  
• The application did not refer to Royal Mail ceasing to use the premises by 2015
  
  
• A false assertion about the interlinked nature of A-D, combined with lack of use and marketing C and D separately was relevant to the identification of the planning unit
  
  
• The legislation assumes the provision of correct and complete material information. A different decision would have been reached if false statements had not been made

The CLEUD was revoked in October 2020 and in November 2020 Ocado issued its claim for judicial review of that decision.

The judgment provides a very useful resource regarding the approach to applications for certificates of lawfulness and considerations of the planning unit. We have drawn out some key points:

• The withholding of information when seeking a CLEUD (a reason for revoking a CLEUD under s193(7)), need not be deliberate
  
  
• When considering whether to revoke a CLEUD, the LPA does not have to be satisfied that if false statements had not been made or information withheld, it would have refused to grant the certificate applied for.
  
  
• Minimalist approach taken to the s.191 application meant Islington's conclusion that inquiries needed to be made which could have resulted in a different decision on the planning unit and on the grant of the CLEUD could not possibly be called into question as irrational.
  
  
• There is a clear risk that a CLEUD may be revoked in the future if the conditions in section 193(7) are met.
  
  
• An LPA does not need to search through its register of planning applications looking for something that might undermine the CLEUD application, this would be an “unjustifiable burden”
  
  
• The power to revoke a CLEUD may be exercised at any time without giving rise to any right to compensation. It is unlike the making of a revocation order or a discontinuance order under s.97 or s.102 of the Town and Country Planning Act 1990 A decision to revoke a CLEUD is not subject to confirmation by the Secretary of State, unlike an order made under s.97 or s.102.
  
  
• “Public confidence in CLEUDs must extend to the reliability of the information put forward by an applicant to support the grant of a certificate. […] Telereal obtained a certificate to which it was not entitled on the basis of the information it provided and withheld”.
  
  
• A lawful planning right which has accrued upon the expiry of a time limit is not lost merely because subsequently that right is not exercised for a period of time. […] So an accrued planning right must not have been lost in the meantime because of a event, such as abandonment.

The High Court has quashed a planning permission for a 110 unit housing scheme, because had errors not been made a different decision might have been reached by the planning committee. Four of the local resident claimant’s grounds were successful.

Planning permission had been granted for the redevelopment of some of the buildings on Sydenham Hill Estate. There are statutorily and locally listed buildings on the Estate and part of the site falls within a conservation area.

The scheme was referred to the Design Review Panel (DRP) three times at pre-application, but it was not referred to the DRP after the planning application was submitted.

Among the consultees reviewing the planning application was the council’s conservation officer, who carried out the assessments required by legislation and by the National Planning Policy Framework and provided a recommendation that raised objection to the proposals.

The planning officer’s Committee Report included a summary of the conservation officer’s comments and recommended approval. The report did not explain that the officer objected to the scheme and paraphrased her comments to the extent that an assessment of harm had not been undertaken.

The judgment describes the conservation officer’s comments as “careful and detailed” and outlines how there were “some significant omissions and changes” in the planning officer’s references to the conservation officer’s comments, in his Committee Report.

It was found that the senior conservation officer was employed to assist the Council in discharging its duties under the Listed Buildings and Conservation Areas Act 1990 and the Framework and her advice ought to have been available to Members when they were deciding the application. Members ought to have taken her view into account, but could not do so because they did not know her comments existed.

The planning officer also expressly stated the scheme had the support of the Council’s design team.

He had summarised the views of other internal consultees, but not those of the conservation officer, on the basis that she was employed within the Planning Department and so was part of a team which contributed to the committee report, rather than giving independent advice.

The judge considered this approach to be inconsistent with case law and had led to Members making a decision on incomplete information.

The judge referred to Barnwell Manor Wind Energy Limited v East Northamptonshire District Council & Ors:

“Sullivan LJ held that there was an overarching statutory duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give "considerable importance and weight" when carrying out the balancing exercise. It is not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment”.

It was found that the Committee Report did not expressly advise members of the need for a "clear and convincing justification"; the conservation officer’s reference to this was withheld.

“A further flaw was that the OR [officer report] did not disclose the SCO's classifications of the level of harm within the category of "less than substantial harm", and instead referred to "a degree of less than substantial harm". The effect of those omissions was to downplay to Committee Members the level of heritage harm and the weight to be attached to it”.

And with reference to departing from planning practice guidance, which the conservation officer had followed:

The judge also agreed with the claimant, that the Senior Conservation Officer’s written comments were a “background paper” for the Committee Report and as such should have been made public.

The claimant’s argument that the planning application should have been referred to the DRP was also successful. The judge found that notwithstanding that it had been referred three times at pre-application stage, the Council’s Statement of Community Involvement (SCI) “included a clear representation that a planning application for a major development (as defined) "will" be referred to the Panel”. The promise in the SCI was such that the Claimant had a legitimate expectation that the Council would refer the planning application to the Panel.

Furthermore, the DRP’s concerns at pre-application stage had not been fully addressed by the planning application scheme. Therefore, it was misleading to imply that there were no outstanding concerns and failure to comply with the SCI was unfair. “Members made their decision on the […] planning application without the benefit of a review by a body of specialists, whose comments could have influenced their views”.

 

The Communities Secretary, Rt Hon Robert Jenrick MP, has issued a Written Ministerial Statement (WMS) confirming changes to the policy on Article 4 Directions in paragraph 53 of the National Planning Policy Framework (NPPF), following a consultation held at the start of 2020. The consultation also covered a number of other proposals the Government has yet to respond to (see our previous blog for more detail on these).

The changes will be included in a revised NPPF expected at the end of the year, but have been announced now “so that local authorities and communities can take it into account from today when they consider bringing in any new Article 4 directions”.

Please see Tom Davies blog “Minister confirms national policy change on Article 4 directions” for an overview of this policy change.

 

Requirements for First Homes, the Government’s new discount market homes for sale product, now form part of national planning policy – albeit subject to transitional arrangements.

Jennie Baker’s blog gives and overview of the First Homes policy and Rachel Clements and Bethan Haynes’ blog analyses some potential inherent tensions within it.

Seven banks and building societies have announced their participation in the First Homes scheme, agreeing to provide 95% loan-to-value mortgages for First Homes.

Referring to the first pilot of First Homes announced for Bolsover, Derbyshire, the Housing Minister said in a written answer

The Building Safety Bill was introduced to Parliament on 5 July 2021.

The provisions include the creation of a Building Safety Regulator, which will be a statutory consultee for planning applications for high-rise buildings. This is part of planning gateway one, which will be introduced in August 20201, in advance of the Bill gaining Royal Assent. The Health and Safety Executive will be statutory consultee referred to until the Building Safety Regulator is in existence, albeit the Bill make clear that the regulator will be the Health and Safety Executive.

Please see Lichfields May Planning News for more information on planning gateway one.

 

The Department for Culture, Media and Sport has published a Tourism Recovery Plan, which it describes as “a cross-government plan which recognises that tourism supports, or is supported by, the work of nearly every government department. This plan brings together recent, existing and planned support for the sector by the UK government into one framework”.

Two of the objectives are particularly relevant to planning: a tourism industry that contributes to the enhancement and conservation of the UK’s cultural, natural and historic heritage and minimises damage to the environment and a tourism industry that provides an inclusive and accessible offer that is open to all.

In addition, according to a Written Ministerial Statement published alongside the Tourism Recovery Plan, it will be revisited at regular intervals to ensure the right policy interventions are in place with the government to work with the Tourism Industry Council and other key stakeholders on this. Furthermore, a new quarterly inter-Ministerial group for Tourism, chaired by the Culture Secretary, will be set up to deliver and update the Tourism Recovery Plan.

Providing more immediate support to the leisure and tourism sector, the Government has encouraged LPAs to take a “flexible and proportionate approach” to enforcing planning breaches at existing commercial campsites, including breaches of condition.  

This approach is in addition to the temporary extension of permitted development rights for the temporary use of land.

The Written Ministerial Statement, which expires on 31 October, says:

The House of Lords has established the Built Environment Committee; it will consider matters relating to the built environment, including policies relating to housing, planning, transport and infrastructure.

There are 12 members of the Committee, many of whom are readily recognisable as frequent contributors planning-related debates.

The Committee’s first inquiry “Meeting the UK’s housing demand”, which was launched on 29 June, will accept written submissions until 10 September 2021 and report to the Government by the end of the year.

The Committee has posed 11 inquiry questions to assist it in considering “the key factors shaping the type, tenure and quality of housing needed”. The inquiry will look at challenges to meeting housing demand, including skills shortages.

While the title of the inquiry refers to the UK, question 3 of the inquiry questions refers to “the Government’s target of 300,000 new homes per year” suggests that it is focused on England.

The Chair of the new Committee referred to part of its scope of work when speaking in the debate regarding the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2021.

Baroness Neville-Rolfe explained:

“One strand of our work will be on skill shortages and assessing whether the professional and other skills required to meet housing demand—for example, in the construction, planning and design sectors—are being tackled adequately. One of the issues we face is a dearth of planning staff following pressure on local authority budgets, Covid and the need to consider and process development applications across the country, partly as a result of the changes that provide the context for today’s draft regulations.

I support my noble friend the Minister’s proposals to charge fees for these new areas of work. It is essential that planning departments have the capacity and professionalism to do a proper job. Planning fees are an important source of finance for councils seeking to provide a good and timely service. My only question is whether the fees are high enough. Take a proposal to add storeys to a home, terrace or block of flats. There may be quite a lot of factors to consider, such as light and design, and representations to process—for example, from those who live underneath the new developments. The Minister may like to comment on this and any plans he has to keep the fees under review.

I thank the Minister for the full explanation of the regulations in the paperwork that has been circulated and the impact assessment relating to the original order, which I found very interesting. I note from page 8 of the Explanatory Memorandum that another impact assessment is being prepared and submitted for independent assessment. Why is this not available now? The whole point of these assessments is to inform intelligent decision-making. It is virtually pointless ex post”.

The Minister said he will be:

The proposed fees are considered to meet the right balance between showing location of encouraging development and meeting the costs of determining such applications. The new fees introduced by these regulations have been considered as part of the full regulatory impact assessment for the permitted development rights legislation. That will be published in due course

Adding later “I firmly believe that these regulations will support local authorities to have the capacity to consider these applications, play their part in creating new and improved homes and local communities, and support the economic recovery and growth our country needs.”