Neighbourhood Plans First But How Long Will They Last?

Judgment has been handed down in the first Neighbourhood Plan (NP) case to reach the Court of Appeal, reinforcing the position that NPs can come forward in the absence of up to date Local Plans.

As discussed previously, developer DLA Delivery Limited judicially reviewed the decision to hold a referendum on the draft NP as, in addition to environmental concerns, DLA claimed that the plan was not in accordance with the appropriate strategic policies.  The NP had been prepared in accordance with the policies of the unadopted, emerging Local Plan, rather than the expired strategic plan.

In the High Court, Foskett J dismissed the claim, allowing permission to appeal on the ground of conformity with strategic policies.  Permission was subsequently given to appeal on additional grounds.

Conformity with what?

On the first ground, whether the district council misunderstood and misapplied the requirement that the NP be in general conformity with the strategic local policies, Lord Justice Lindblom agreed with Foskett J that a NP could proceed in the absence of a strategic development plan document. Lindblom LJ added that where the local plan is historic, a NP cannot logically lack general conformity, as the plans are made for wholly different periods.  The judgment makes clear that a NP can come forward in the absence of an up to date local plan.  Both the National Planning Policy Framework (NPPF) and Planning Policy Guidance (PPG) references to a NP being in general conformity are intended to prevent the “mischief” of a NP frustrating an up to date local plan, rather than requiring a local plan to be in place first.

Properly assessed, but not explained

On the second ground, whether the NP failed to meet Habitats Directive requirements due to the lack of evidence that the Suitable Alternative Natural Greenspace (SANG) required to mitigate the proposed development would be provided.  Lindblom LJ found that the examiner was not irrational to have considered that SANG would have to be provided, despite the timing and location being uncertain (unlike the level of certainty needed when dealing with a planning application).  The examiner failed to address the lack of evidence for SANGs, and should have done, but Lindblom LJ did not consider this to be fatal, finding that addressing the lack of evidence would not have changed the conclusion.

Early Warning

This judgment clearly demonstrates that NPs can come forward in the absence of an up to date local plan. However, the groups preparing NPs in such areas should be aware of the risk that their NPs may become “out of date” when a local plan with a higher objectively assessed housing need is adopted.  The Written Ministerial Statement, as clarified by the Housing White Paper, provides protection for NPs unless there is a significant lack of delivery in the local planning authority area – but this will be outside the control of the NP group.  Many NP groups and local authorities will also be reassured by Lindblom LJ’s robust defence of the current way of appointing examiners.

The judgment also flagged other areas of caution for NP bodies. Lord Justice Lindblom found the consideration of the environmental mitigation by the examiner was not wholly correct, whilst concluding that it was not fatal to the plan.  The conclusion that the screening opinion was actually in breach of some habitats legislation will be a particular red flag.  Screening opinions and SEA considerations raise particular risks for NPs.  NP forums need to give careful attention to their proper preparation, which can be tricky where groups may have limited experience of such documents.

Daylight/ Sunlight Error Fatal To Permission

In Watt, R (on the application of) v London Borough of Hackney & Anor [2016] EWHC 1978 (Admin), the High Court quashed the grant of permission for a mixed use development likely to adversely affect sunlight reaching adjacent open land used by the neighbouring school for children’s play. The application had been considered on the basis the redevelopment of the vacant site would have enhanced the character and appearance of the conservation area.

Latent defects

The authority relied on a daylighting report addressing the extent of reduction in daylight to the play land at different times of year. A claim for judicial review was made on several grounds and independent assessment – carried out after the claim – identified flaws in the original report, exaggerating the existing levels of daylight and so understating (by a third) the effect of the new scheme on the play land.

The judge admitted the new report as part of a ground of claim alleging an error of fact. The defendant authority offered its own evidence in response, but – crucially – did not object to its admission.

Errors of fact can be fatal

The judgment confirms that the error of fact justified quashing the permission in the circumstances: there was a factual error which created a misleading picture; the fact was ‘established’, in the sense of being uncontentious; neither the appellant (nor his advisers) were responsible; and finally, the error played a material part in the reasoning (on the basis that it was impossible to say that had not done so, applying Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306).

Get your facts right

The daylight reaching the play area was above the relevant policy threshold with the correct analysis (just less far above than the original assessment had, wrongly, suggested). Despite the fact that the error may not have been decisive in the overall decision, though, the judge was prepared to quash the permission.  The judgment therefore confirms the risk that faulty technical work creates for planning decisions, even where the error itself is not decisive.

CPO – gentrification or regeneration?

The recent refusal by the Secretary of State to confirm Southwark Council’s CPO for the next phase of the Aylesbury Estate development demonstrates a meticulous adherence to  parts of the CPO Guidance which have largely been paid lip-service to in many previous CPO decisions.

The mantra that a compulsory purchase order should only be made in the “public interest” is often justified by the inevitable regenerative benefits of development projects.

And that should be good enough, should it not?  – when not a day goes by that the news is reminding us of our housing crisis, that our town centres are failing, of the social divides which exist within our local communities and, as we wait with bated breath, to see what long-term impacts Brexit will have on construction, funding and development, once that axe is finally swung.

Indeed, both the Secretary of State and Inspector agreed that the redevelopment of the Aylesbury Estate would provide social and economic benefits to the area.  However, it was concluded that these benefits were not so significant to justify the lawful interference with the Human Rights of those objecting to the Order.  This was largely based on the conclusion that existing leaseholders, without investing significant savings or taking out new mortgages, would not be able to afford to relocate into new properties provided by the redevelopment and therefore forced to move away from their local community.  He also reached the conclusion that not enough effort had been made to acquire the outstanding interests by agreement.

gentThe decision raises some real issues for the CPO industry.  It paints an uncomfortable picture of CPO being a tool of gentrification, driving residents and small businesses out of their communities on account of rising land values and rents; the polar opposite of what a CPO is intended to achieve, which should be to improve and restore vitality to a local area.

It also creates a real tension with the current reforms to CPO compensation, which essentially seeks to ensure that those subject to compulsory acquisition should not gain any benefit from any enhanced value created by the regeneration scheme underlying a CPO.

It raises the question of whether Council’s should wrestle back control from developers when seeking to engage with those affected by CPO.  Most CPOs are developer-led and their surveyors will be at the fore of seeking to negotiate acquisition of land by agreement, albeit with a duty of care to the Council.  This possibly creates the wrong perception that there is a lack of engagement by the Council.  Greater visibility of the Council promoting the CPO and a genuine strategy to engage will be important.

Whilst the decision is, in some respects, a breath of fresh air that reminds us the impact CPO and redevelopment can have on individuals and local communities must be given more careful consideration together with a thorough review of solutions which can be put in place to maintain the identity of the local community.  One does have to question how genuinely balanced the decision was when the majority of existing residents had raised no objection, the scheme was set to deliver over 800 new residential units and other benefits; yet the CPO failed on the back of only 8 outstanding objections.

Southwark Council has announced they will be judicially reviewing the decision; a sensible move given its ramifications.

Troubled waters – Equalities Duty and Alternative Sites Failings Fatal

bridgeThe public sector equality duty under Section 149 of the Equality Act 2010 (PSED) is playing an increasing role in planning decisions. In LDRA LTD & ORS v Secretary of State for Communities and Local Government & ORS [2016] EWHC 950 the High Court quashed an Inspector’s decision to grant permission on appeal for an onshore office and warehouse facility to serve offshore wind farm installations.  The authority had refused permission on the grounds of unacceptable amenity harm to adjacent residential occupiers.  The Inspector considered the proposals at an Inquiry and attended an accompanied site visit, during which access to the riverside for local people and the existence of alternative sites with lesser potential impacts were pointed out.  The claimants challenged under Section 288 of the TCPA 1990.

The High Court agreed that the Inspector had failed to give effect to the PSED when considering effects on access to the riverside area for disabled people.

Equalities duties

Section 149 requires authorities to have “due regard to the need” to “eliminate discrimination […] [and] advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not […]” when exercising functions. Disability is a relevant “protected characteristic”.  The key principles are that:

  • The duty is not a duty to achieve a result but to have due regard to the need to achieve the statutory goals in a way that is integral to the decision making process (R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809).
  • Decision makers must be properly informed and are under an inquisitorial duty, requiring rigorous enquiry and reporting (applying R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) and R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 94).

Process matters

Having concluded that only able-bodied people would have the “continuing opportunity to reach the riverside” near the development, the Inspector was held to have failed to discharge the PSED in the absence of: detailed consideration of the value of the existing amenity to disabled people, comparable alternatives, practical difficulties which disabled people and carers would experience and the loss of a resource (access to a car park) would not merely be less convenient, but may result in an inability to access the riverside at all.  The fact that the PSED issues had not been identified as a “main issue” in the appeal was irrelevant to the decision to quash.

Conflicting approaches

The Judge held that Section 31 Senior Courts Act 1981 – preventing a quashing order where it is “highly likely” the outcome would not have been substantially different had the PSED been applied – did not apply given that the PSED is concerned with process, not simply outcomes. This is presumably based on the public interest exception to Section 31(1) under Section 31(2B).  Contrast this with the Court of Appeal’s approach in West Berks accepting a retrospective Equalities Impact Assessment as ‘adequate and in good faith’ to be able to discharge the PSED because a different process “would not have led to a different conclusion“.

Alternative solutions

The Judge also held that the claimants had been substantially prejudiced by the Inspector’s failure to address an alternative site which may well have influenced the outcome. She rejected the suggestion that the Inspector was not required to absorb evidence during the site visit, holding that the purpose of the visit was to identify and view possible alternative sites.  Failing to take into account the identification of the alternative made during the site visit was a breach of natural justice/procedural fairness.

High Court allows relaxed view of needs on appeal

high courtThe High Court has adopted a flexible approach to dealing with ‘objectively assessed needs’ (OAN) on a planning appeal in Dartford Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 649 (Admin). In considering an appeal against refusal of permission for housing, the Inspector had to decide whether the authority could demonstrate a 5 year supply of deliverable housing sites against OAN.  If not, NPPF policy recommends that restrictive local housing policies are supplanted by the presumption in favour of permission.

The Core Strategy included a ‘maximum’ housing delivery figure (based on environmental constraints) and a lower figure (at which active management of under-delivery would be needed). At the lower figure, the authority could show a 5 year supply. Neither the appellant nor the authority appear to have submitted OAN evidence, despite the ability to do so (West Berkshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 267 (Admin)).

The Inspector found that the scheme merited approval regardless of the OAN position. He also explained that the authority was not likely to meet full OAN judged against the maximum housing figure and so applied the NPPF presumption. The authority challenged the decision under Section 288 of the Town and Country Planning Act 1990, on the basis that his reasons were inadequate (including why the upper figure was the correct measure of OAN). The High Court dismissed the challenge, on the basis that the upper/lower level figures provided a ‘context for assessing housing need’ and that nothing in the NPPF should prevent decision makers from being able to use a range of figures to assess whether there would still “be advantage in the grant of permission“.

The judgment purposively and pragmatically allows for range-based approach to assessing OAN where there is no real demographic evidence available on appeal, and emphasises the undesirability of appeal Inspectors being diverted into a statistical “sojourn in a garden of delights” on OAN.  Care is needed, though:

  • It does not address the situation where reliance on OAN is required to ‘switch off’ restrictive housing policies and engage the NPPF presumption.
  • It also recognises that “a more thorough analysis would have been required” in those circumstances, consistent with the finding in West Berkshire that the Inspector had to “identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the council was able to demonstrate whether it had a five year supply of housing land.”
  • The maximum figure the Inspector used for the upper limit of the OAN ‘range’ in Dartford appears to have been derived from a historic Regional Spatial Strategy policy set by reference to policy-based environmental constraints.  It is hard to reconcile this with the need to avoid OAN assessments being artificially limited by such ‘policy on’ considerations (St Albans City and District Council v (1) Hunston Properties Limited and (2) Secretary of State for Communities and Local Government [2013] EWCA Civ 1610).

Affordable snakes and ladders on small sites

The judgment in the battle of wills over the Government’s small sites affordable housing and Vacant Building Credit policies has concluded, for now, with the Government victorious in the Court of Appeal. This blog considers the practical impact of the Vacant Building Credit.  What are the wider implications of the judgment for affordable housing decisions and policies?

Policy on the hoof

cartoonThe process by which the policies were introduced was surprising, but not unlawful.  However, two elements of the judgment may prove controversial:

  • firstly, the acceptance of a retrospective Equalities Impact Assessment where complying with the Public Sector Equalities Duty when taking the decision where the assessment was ‘adequate and in good faith’ and original decision “would not have led to a different conclusion“;
  • secondly, that Ministers are not required to have regard to material considerations when making national planning policy given that it relies on the exercise of crown prerogative powers. This will seem obscure to those living outside the legal bubble.

Common sense still allowed

Policy is just policy. The judgment confirms that:

  • government, whether central or local, may state policy ‘rules’ absolutely, but
  • decision takers must consider them without treating them as absolute – their discretion to weigh things in the balance and do something different cannot be fettered by policy.

For applications, that means:

  • complying with the duties to consider all relevant issues and determine in accordance with the development plan unless there are reasons not to (Section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning & Compulsory Purchase Act 2004);
  • local authorities are entitled to weigh the Government’s policy against their own plan policies, the demographic evidence on which they are based and any economic evidence on the viability of specific ‘small sites’.  There will inevitably be an upsurge in appeals as they do so, since applicants will generally expect the Government to follow its own policy on appeal;
  • where there are perfectly sound reasons for a Localist decision, there should be little scope for adverse costs awards.  The difference in weight to the national policy is simply a matter of planning judgment – which the Court of Appeal decision emphasises must be carried out diligently.

Making plans

Local Plan policies could still be promoted on the basis of evidence base and local circumstances which justify the LPA’s proposed thresholds. That will run the gauntlet at Examination in Public given the wider powers to intervene in the Plan-making process now available under the Housing and Planning Act 2016.

The reasoning given for the small sites policy in Government’s evidence (extracted at paragraph 53 of the judgment) provides clear scope for authorities to use evidence to show that their affordable housing policy thresholds are in line with the intended policy objective as long as requirements are:

  • viable, and
  • that contributions will be required at a time when they could not sensibly stall schemes (i.e. pre-occupation).

If local policies are supported by evidence that shows they would deliver Government’s stated intended outcome then they should survive Examination.

‘Especial speed’ in judicial review

The Court of Appeal’s recent judgment in R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and Norrington Solar Farm Ltd is a blunt reminder on the importance of promptly filing judicial review applications.

Background

skThe claim concerned the grant of permission for a 22 hectare solar farm installation in Broughton Gifford. It was filed almost a year outside the relevant period.  The Council had complied with the statutory publicity requirements.  The High Court judge nonetheless granted an extension of time for bringing the claim.  The claimant owned the Grade II* Gifford Hall near the site. The developer advertised and held two public exhibitions before submitting the application.  The Council then publicised the application by posting newspaper, online and site notices (including at the end of the lane leading to Gifford Hall).

The claimant remained unaware of the application and so did not object. He only realised the site was being developed once works began and wrote to the Council to object to the impact on the setting of his property.  His complaint was rejected and he waited five months to file a claim for judicial review (by which time the developers had spent about £10.5 million installing the solar farm).

High Court decision

Despite the exceptional delay in bringing the claim, the High Court granted an extension of time and quashed the grant of planning permission. Dove J held that:

  • assurances given in the Council’s Statement of Community Involvement (SCI) had created a legitimate expectation that Mr Gerber would be personally notified of the planning application, which the Council breached.  The fact that he needed time to assimilate all the issues and the supposedly incomplete advice received from his first legal advisors was treated as a reasonable explanation for the delay in bringing the claim; and
  • he was required to quash the permission, given failures to consult English Heritage (as was), to properly deal with heritage impacts and to properly screen the application for EIA purposes.

Appeal decision 

The first instance decision led to concern that a planning permission was not “safe” even when the challenge window had passed. The Court of Appeal unanimously rejected this approach and the judgment makes clear that once planning permission is granted a developer is entitled to rely upon it.  There was no reasonable explanation for either the lengthy delay between the grant of permission and the claimant’s objection to the Council or his delay in bringing legal proceedings.

Gerber is nonetheless a blunt reminder that:

  • Compliance with statutory notice procedures is essential, but the Courts will rarely impose more onerous requirements based on legitimate expectation.  Care is needed to ensure that commitments in Statements of Community Involvement have been honoured though.
  • Prompt legal action to challenge the grant of planning permission is required in all cases, unless very special reasons can be shown.  Objectors who have been involved in the planning process throughout should act with “especial speed”.
  • Extending time for bringing a legal challenge should not be allowed simply because an objector did not realise what has happening, where statutory notice requirements are met.
  • Failure to deal properly with EIA and heritage issues can be fatal, where claims are brought in time. Even where there are acknowledged breaches of EIA and heritage duties, though, the effects of exercising the discretion to quash must be weighed up.
  • Quashing of a permission is a discretionary remedy.  The Court of Appeal did not need to decide whether the permission should have been quashed, but made clear that it would not have done so given: the significant delay in bringing the claim without good reason; the prejudice to the solar farm operator (including £1.5m to dismantle the development, plus the £10.5m invested in construction); the lack of real damage to the claimant’s own interests; and the need for good administration.  In a difficult political climate, investors may also take some comfort from the importance given to renewable energy development and investor certainty.
  • The longer the delay after the grant of planning permission the greater the risk and extent of hardship and prejudice to developers if the consent is subsequently set aside. Being able to substantiate the financial costs of development is essential to be able to rely on this prejudice.

Putting the Neighbourhood Plan cart before the Local Plan horse

newickThe Court of Appeal has granted permission for the first Neighbourhood Plan case to be heard by it on appeal. The appeal is brought by DLA Delivery Limited, who applied for planning permission for 63 houses on the edge of the village of Newick, East Sussex.  DLA promoted its site as part of both the Local Plan, and the Neighbourhood Plan process, which have been running concurrently.  Although DLA’s land was identified as a suitable reserve housing site in the emerging Local Plan, the Neighbourhood Plan did not allocate it.

Accordance with what?

While the Local Plan is still emerging, the Neighbourhood Plan has been progressed. DLA sought permission to judicially review the local planning authority’s decision to hold a referendum on the draft Neighbourhood Plan (which has subsequently been formally made, becoming part of the local development plan).  In addition to environmental grounds, DLA claimed that the Neighbourhood Plan was not in conformity with the appropriate strategic policies.  The Neighbourhood Plan had been prepared in accordance with the policies of the emerging Local Plan.  However, as the Local Plan had not yet been adopted,  the plan currently in force covered the period to 2011.  DLA argued that the Neighbourhood Plan could not be in accordance with the strategic policies, and therefore meet the basic conditions to be made, as the plan it related to was not yet in force.

Court of Appeal prepared to look again

The claim was dismissed in the High Court by Foskett J, but granted permission to appeal on one of eight grounds – the need for the Neighbourhood Plan to be in ‘general’ conformity with strategic policies.  Permission to appeal on the other grounds has subsequently been granted by Lord Justice Lindblom in the Court of Appeal.

The case raises interesting points at a time where neighbourhood planning is a political priority, with measures to speed the process included in the Housing and Planning Bill.  Meanwhile, Local Plans with their need for a vast evidence base, may lag behind.  It remains to be seen how the following issues, addressed in the High Court in Woodcock Holdings, will be dealt with by the Court of Appeal.

  • Where Local and Neighbourhood Plans come forward at the same time, should the Neighbourhood Plan look back to the existing plan, or forward to the emerging plan?
  • How can a Neighbourhood Plan, in general conformity with an out of date Local Plan, meet the needs of the community going forward?
  • Should a Local Plan be able to override a Neighbourhood Plan once it has measured its objectively assessed need, if more homes are needed?

Independence day?

A further point of interest raised by the appeal is the appointment of Neighbourhood Plan Examiners. While Local Plans are examined by inspectors appointed by the Planning Inspectorate, Neighbourhood Plan examiners are appointed by the relevant Neighbourhood Plan steering group.  Whilst the claimant emphasised that they made no criticism of the examiner personally, they did suggest that the appointment of the examiner by the parish council gave rise to an appearance of bias.  It will be interesting to see what the Court of Appeal make of this “apparent bias” in the appointment of examiners – should it be another job for the Planning Inspectorate?

Sun will go down on section 106BA/BC numbers game appeals

We have commented on the initial impact of the changes to the Section 106 regime made by the Growth and Infrastructure Act 2013 to allow developers to challenge affordable housing obligations on viability grounds.  The new Section 106BA gave developers a right to ask councils to review housing obligations.  Section 106BC gave a right to appeal against review outcomes.  Both came into force on 25 April 2013, subject to a ‘sunset clause’ killing off the changes after 30 April 2016 unless otherwise extended.  They will now die on 30 April but uncertainties remain about the transitional picture.

sunGovernment About Turn

The Spending Review and Autumn Statement 2015 committed to extending the sunset clause. The anticipated Order has not materialised and we understand that the Government has now decided not to do so.  This may simply be a reflection of the fact that we are no longer in recession and stalled schemes should be seen as bad planning rather than bad luck. It may also reflect the odd outcomes that have crept into the process.

Odd Outcomes

The appeal route has been widely used for schemes granted consent in the current market, on the basis of a policy compliant affordable offer or viability assumptions that have then been changed on appeal.  The ability to use the appeal route for schemes that are complete has also begun to be tested.   The recent Chatham Quays case concerned a large multi-phase mixed use scheme approved in 2007 and subject to S106 variations to push back affordable housing contributions to better times. The housing element of the scheme came forward and the commercial phase remained, as accepted by the Council, ‘largely complete’ but not fully complete.  The developer successfully stripped out the remaining payments on appeal and the Inspector’s approach was upheld in the High Court.

The judgment confirms that:

  • developments which are largely complete can take advantage of the S106BA/BC process to eliminate affordable housing requirements even though the time for delivery or payment has long passed and there is no real relationship between the obligation and whether the scheme would be completed;
  • completion should be judged by looking at the whole of a mixed use scheme, not just the housing part. The Inspector failed to consider the Council’s argument that only the housing part should be considered in a mixed use scheme, not the whole. The Judge simply held that the argument was so poor that he could never have properly accepted it if he had considered it though.  It should also be considered on the basis of whether the development is in a state which could generate receipts or return, from the point of view of the developer. Wider claims about its significance should be taken with a pinch of salt;
  • the correct route of challenge to an Inspector’s S106BC decision is by Judicial Review, not S288 statutory challenge.   This point is less novel than assumed in the judgment – it arose in 2014 in the failed Mast Pond Wharf challenge.

The judgment leaves open the question of whether a viability appeal can be entertained after a scheme has been fully completed.  Common sense would suggest not, but the judgment notes that the Act is silent on the point.

Eye of the Needle for New Challenges

We understand that the Government will allow S106BC appeals made before the sun sets on 30 April to proceed. It is hard to see how there would be any jurisdiction to deal with ongoing applications or appeals without express transitional provisions in an order (which the Act allows for).  They are needed either way, not least to be clear about the effect of the sunset clause on modified obligations where the development as a whole has not yet been fully completed, to avoid  successes like Chatham becoming pyrrhic.

It will be interesting to see whether the Government’s viability test for Starter Homes, trailing in the consultation, sets a more rigorous test than that which local authorities have faced under the Sunshine Regime.

Authorities are increasingly using planning conditions as a work around, which are outside the S106BA regime. It would be nice if this willingness to slim down bloated planning agreements survived the sunset.

Housing and Planning Bill – consents with benefits?

This third part of our Q&A on the Housing and Planning Bill 2015 considers how the Government’s proposed duty to list financial benefits associated with planning may create trip wires for development.

calcWhat is the new duty?

Clause 115 introduces a new requirement for local planning authorities to provide information about the “financial benefits” of any planning application when reporting it, including:

  • list of any material and non-material financial benefits of the application, whether to the local planning authority or otherwise;
  • a statement of the planning officer as to whether each benefit is material to the application.

The benefits are the ‘local finance considerations’ introduced by the Localism Act 2011 (the Community Infrastructure Levy (CIL) and the New Homes Bonus) and others specified in regulations (which may also define the amount or value of various benefits).

Why?

The Government is keen to ensure that the benefits of development are known, including the role of CIL and other funding in delivering community infrastructure and other investment.  Communicating the value of plans for growth remains a critical aspect of promoting contentious development. There is a risk that the changes will make it inadvertently harder.

What might the practical effects be?

Requiring councils to report on benefits has the potential to increase the risk of judicial review. When a duty to give reasons for approval was introduced in December 2003 by an amendment to the Town and Country Planning (General Development Procedure) Order 1995, it gave rise to legal nit-picking and numerous challenges on the grounds of the adequacy and coherence of reasons. The duty was put out of its misery by a subsequent amendment to the Order in September 2010.

As currently drafted, the Bill requires councils to not only decide whether something constitutes a financial benefit, but also whether the benefits are material or not to the application. Given the current struggle to resource the core planning work needed to process applications, this is unlikely to be a welcome burden. Equally, the question of materiality is one that is rarely dealt with cleanly in practice –  in relation to CIL, where the need for a genuine planning relationship between CIL and the scheme itself to qualify as a material financial consideration is often ignored.