A week is a long time in planning.... so here is a quick(ish) round up of events
The somewhat anti-climactic Spring Statement has been followed by a week so packed full of planning news that I couldn't decide what to write about.
So, in a move that I suspect I will come to regret, I am going to try and cover all of it.... grab yourself a coffee, this may take some time...
1. Planning Reform
After what feels like an interminable wait, there has (finally) been some news on the Government's Planning Reform Agenda.
On Monday, the Government published its response to the House of Lords Built Environment Committee Report on meeting the UK's housing demand. The response gives us the clearest indication yet of the Government's direction of travel with Planning Reform.
The reply commits the Government to:
- looking at how to improve the supply of specialist older people's housing, through the new older person's housing task force;
- bringing forward reforms that will help by " fostering beautiful places that people can be proud of, improving democracy and engagement in planning decisions, supporting environmental protection – as well as supporting the delivery of homes and infrastructure that local people need."
- simplifying and standardising the local plan process
- retaining community engagement "throughout the planning process with traditional forms of engagement supported by digitisation"
- further exploring proposals to replace CIL and s.106 obligations with " a new Infrastructure Levy, which will seek to deliver at least as much affordable housing".
- protecting and enhancing the green belt (again);
- the 'ambition to deliver 300,000 homes per year' and exploring ways of encouraging faster build out rates on developments; and
- exploring options to increase planning fees and developing "comprehensive resources and skills strategy for the planning sector".
Since then, the Housing Minister has indicated that many of these changes are to be dealt with as part of the Levelling Up and Regeneration Bill, which is expected to be announced in the Queen's Speech on May 10th.
2. Article 4 Direction Interventions
The Housing Minister is clearly in a somewhat interventionist mood. Last Friday*, we also learned that he had blocked the Article 4 Directions proposed by several Central London Boroughs to remove permitted development rights that allow buildings falling within use class E (business and commercial) to be converted into housing.
On the same day, Joanne Averley, our Chief Planner, published her latest newsletter, which states:
"Since we announced new policy for Article 4 directions on 1st July 2021, we have received notifications from local authorities of new Article 4 directions, particularly in relation to the Class MA permitted development right which allows the change of use from Class E uses to residential.
Local authorities are reminded that new Article 4 directions are expected to conform with the new policy, as set out in paragraph 53 of the NPPF. This requires that Article 4 directions which relate to the change of use from non-residential to residential use should be targeted to the smallest geographical area possible and only where they are necessary to avoid wholly unacceptable adverse impacts. Where this is not the case, we will contact local authorities to advise that they should reconsider their proposed Article 4 directions to ensure that they meet policy."
From the tone of that letter, it seems likely that the Royal Borough of Kensington & Chelsea, Camden, Lambeth, Southwark, Tower Hamlets, Wandsworth and Westminster will not be the only local authorities receiving a letter from the Housing Minister in the near future.....
3. CIL Case Law
If all that was not enough, on Monday 28 March, the High Court issued its decision in R oao Braithwaite & Anr v East Suffolk Council. The case is notable as it is the first time that the Court has grappled with the implications of Mrs Justice Lang's decision in Trent v Hertsmere. It is even more notable as the claimant in Braithwaite also found themselves appearing before Mrs Justice Lang**.
The case centred on a mixed use development in Suffolk, that was first granted planning permission in in 2017. The developer assumed liability for CIL in relation to the original permission and received a liability notice. They then went on to vary the conditions on the permission twice, between 2017 and 2019. The last of these 73 permissions was granted in February 2019.
The February 2019 permission was implemented in August 2019; but the Council did not serve a liability notice in respect of it until March 2020. The Developer agreed an instalment plan for payment with the Council, but defaulted on the first instalment. The Council then issued a revised demand notice containing a very hefty surcharge.
The Developer appealed the surcharge and won - the Inspector found that the Liability Notice had not been correctly served and overturned the surcharge. In response to that finding, the Council served a fresh Liability Notice, which was validly served. The Developer challenged that new liability notice in the High Court - relying heavily on Mrs Justice Lang's decision in Trent when doing so.
Perhaps unsurprisingly, Mrs Justice Lang upheld her earlier decision. She then went on to distinguish it from the facts of the case - primarily on the grounds that the Developer was out of time to challenge the March 2020 Liability Notice.
The key paragraphs of the judgment are set out below:
- "However, the facts of this case are clearly distinguishable from Trent. In Trent, the claimant was permitted to challenge the liability notice because, upon receiving the liability notice, on 3 September 2019, the Claimant acted properly in pursuing her alternative statutory remedy. When the Inspector issued his appeal decision on 12 March 2020, she reasonably assumed that the Council would accept the wider implications of the Inspector's decision that the 2017 and 2019 liability notices were invalid, and not pursue its application for CIL. So she was understandably shocked to receive the 2020 demand notice, dated 21 April 2020. She acted properly in trying to resolve the matter with the Council in pre-action correspondence before filing her claim on 2 June 2020, which was well within 3 months of the date of the 2020 demand notice.
- In contrast, the Claimants in this case took no steps to challenge the 2020 LN when it was served on 30 June 2020, and instead entered into an instalment plan for payment, which was on favourable terms because of the Defendant's recognition of the delay in issuing the 2020 LN. The Defendant rightly relied upon this as evidence of the Claimants' waiver of the delay in serving the 2020 LN. It was only when the Claimants fell behind with payments, and surcharges were imposed, that they appealed against the surcharges under regulation 117 of the CIL Regulations, some 7 months after the issue of the liability notice. The claim for judicial review was not filed until 16 December 2021, nearly 18 months after the issue of the 2020 LN. Although the claim form applied for "a declaration of invalidity of the liability notice dated 30 June 2020", it was not identified as a decision to be judicially reviewed in section 3. No extension of time was sought and no grounds for an extension were presented. No application has been made to amend the claim form and grounds to address the issue of delay."
4. More Local Plan Shenanigans
Last, but by no means least, we have news of yet more fun and games with Local Plans. Slough Borough Council has reportedly paused work on its local plan after the entirety of the budget for local plan preparation was cut as part of a massive cost saving exercise.
This is just the latest in a string of bad news stories for strategic planning. In just the last four months we have seen:
- Basildon Borough Council twice voting to withdraw its Local Plan from examination;
- Castle Point Borough Council voting not to adopt its, recently approved, local plan; and
- Hertsmere Borough Council voting to withdraw its Regulation 18 local plan, following a public consultation which was alleged to have shown a lack of public support for the proposals
Although Slough is the only Council to have paused their Local Plan preparation for financial reasons. The other three local authorities listed above all cited concerns over the green belt as reasons for their actions.
Speaking of which, readers of last week's post might find the following table of interest. It takes the twenty four local planning authorities identified by Barton Willmore as having seen the greatest jump in their affordability ratios and overlays information about their land constraints, and the dates of their local plans.
It may not come as a great surprise to see that the words "green belt" crop up fairly frequently.....
Local Authority | 2020-2021 Affordability Ratio Increase | Constraints | Date of Adopted Local Plan |
Melton | 38% | Rural with large proportions of arable farmland | October 2018 |
West Devon | 37% | Largely rural | March 2019 |
Dover | 30% | Coastal Kent Downs AONB Largely Rural | February 2010 |
Woking | 28% | Green Belt Thames Basin Heaths SPA | 2012 |
Sutton | 28% | Green Belt | 2018 |
Gravesham | 26% | Green Belt RAMSAR Kent Downs AONB | Sept 2014 |
North Norfolk | 25% | Coastal Norfolk Coast AONB North Norfolk Heritage Coast RAMSAR | Adopted 2008 updated 2012 |
Stockport | 24% | Green Belt | March 2011 |
Isle of Wight | 24% | Island Heritage Coast AONB RAMSAR and SPA | March 2012 |
Rossendale | 23% | Green Belt SSSI | December 2021 |
Liverpool | 23% | Green Belt Historic Parks the Mersey Estuary SPA/RAMSAR/SSSI | Jan 2022 |
Bolsover | 23% | Green Belt SSSI | March 2020 |
Brentwood | 22% | Green Belt SSSI | March 2022 |
Fenland | 22% | Rural SPA/SAC/RAMSAR/SSSI | May 2014 |
Stroud | 22% | Largely rural Cotswolds AONB | Nov 2015 |
Gedling | 22% | Green Belt SSSI | Sept 2014 |
Hillingdon | 21% | Green Belt SSSI | Nov 2012 |
Dorset | 21% | Green Belt SSSI/SAC/SPA AONB Heritage Coast World Heritage Site Historic Parks | Various |
Derby | 21% | Green Belt World Heritage Site | Jan 2017 |
Knowsley | 21% | Green Belt Historic Parks | Jan 2016 |
Torbay | 21% | Coastal AONB Historic Parks | Dec 2015 |
Welwyn Hatfield | 20% | Green Belt SSSI/SAC Historic Parks | 2005 |
Salford | 20% | Green Belt | 2006 |
Redbridge | 20% | Green Belt SSSI/SAC Historic Parks | March 2018 |
*25 March 2022
** At this rate, I may have to do a 'The Decisions of Mrs Justice Lang' blog post for next year's International Women's Day....
Minister for Levelling Up, Housing and Communities Stuart Andrew responded to seven councils - the Royal Borough of Kensington & Chelsea, Camden, Lambeth, Southwark, Tower Hamlets, Wandsworth and Westminster - saying that the proposed directions “failed to take a sufficiently targeted approach”, according to the copy of the letter sent to the Royal Borough of Kensington and Chelsea (RBKC).
Andrew said the proposed Article 4 Directions “cumulatively would disapply the permitted development right from most of the Central Activities Zone (CAZ)”.”
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