ECJ’s preliminary ruling in the People Over Wind/ Sweetman case means that ‘mitigation measures’ should not longer be taken into account when screening for ‘any significant effects’ on SAC/ SPA for plans and projects (for the purpose of deciding whether Appropriate Assessment is needed to establish if the effects would be likely to have an adverse effect on the integrity of the designated asset).
On the face of it, it means, for applications where significant effects on SAC/SPA are likely (i.e. applying the Waddenzee precautionary approach, the risk cannot be definitively ruled out) that Appropriate Assessment will be required so that mitigation measures are evaluated in more detail.
An End To Sense?
The People Over Wind ruling is that “…it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site” (emphasis added).
This cuts across the domestic approach adopted in the Hart District Council case in 2008, which has provided a sensible basis for addressing effects on Natura 2k sites. Having regard to mitigation measures in screening out Appropriate Assessment for planning applications and plans has been commonplace common sense, treating the Habitats Directive as a “aid to effective environmental decision making, not a legal obstacle course” (Sullivan, J as he was in Hart).
The reasoning in the ruling (paragraphs 35 and 36) does not withstand much scrutiny and is really Law Over Sense. To make things worse, it is unclear about what “mitigating measures” are for these purposes. It simply refers to them as measures “intended to avoid or reduce the harmful effects of the envisaged project on the site concerned“.
Planning Inspectorate View
In-built mitigation by design is surely not within its ambit? The Planning Inspectorate’s Note 05/2018 takes a more hardline view: “Competent authorities cannot take account of any integrated or additional avoidance or reduction measures when considering at the HRA screening stage whether the plan or project is likely to have an adverse effect on a European Site. The screening stage must be undertaken on a precautionary basis without regard to any proposed integrated or additional avoidance or reduction measures“.
This is gold plating – the ECJ ruling does not provide any express basis for the underlined element. The benefit of the environmental assessment process, noted in Hart, is to get thinking about reducing effects at the outset of scheme design. Trying to split out anything that is ‘integrated’ into the scheme design, for example, is horribly artificial and a terrible waste of time.
The effects of this are being felt as LPAs suspend development management decisions and Local Plans are suspended.
Let’s Be Sensible
Outcomes: Where the finding based on mitigation would previously have been a negative screening (because of no likelihood of any significant effect at all, with that mitigation), the lesser threshold of no adverse effect on the integrity of the SPA at the full AA stage should be satisfied. The additional process will probably yield more information about mitigation measures but no change of outcome (subject to the point noted below).
Government will need to provide leadership to ensure we do not simply end up with a deluge of AA reports concluding that there is no significant effect with mitigation. That would be a truly pointless exercise.
Steps: It would be sensible for PINS and Government to be clear, ASAP, that:
- Things authorised by the development consent should be regarded as integral components of the scheme and so not mitigation for its effects for the purposes of the ECJ ruling.
- Where AA is now unavoidable, a standardised toolkit will be available to allow very short AA reports to be prepared that allow, for example, the analysis of the effect of off-site SANG contributions to be fully standardised (using the AA analysis conducted when justifying the SANG contributions in the first place). This is crucial to avoid the ruling becoming another source of time-soak, cost and distraction in the already bloated world of planning assessments.
- The current block (in NPPF119) on applying the NPPF14 ’tilted balance’ is going to be revisited in the soon-to-be-revised NPPF to avoid an unintended outcome. If AA concludes that there is no likely significant effect with mitigation (as distinct from concluding that there will be a significant effect short of adversely effecting the integrity of the SPA), the presumption in favour should apply.
We consider the main proposed changes in the draft NPPF and whether these will be sufficient to deal with the housing crisis. On 5 March 2018 the Ministry of Housing, Communities and Local Government published a revised text of the National Planning Policy Framework (the draft NPPF) alongside a raft of other supporting documents, government responses and further consultations, including the revised Planning Practice Guidance text. The government has said that it intends to publish the final version of the NPPF ‘before the summer’, indicating that few changes are expected to be made as a result of the consultation.
This article was first published in Property Law Journal (May 2018) and is also available at www.lawjournals.co.uk
Michael Gove has published a 25 year plan to improve the environment. It is wide-ranging, comprehensive and aspirational. If delivered, and the lack of a real delivery programme is problematic, the plan aims for us to leave the environment a better place than we found it.
The plan contains three themes that might lead to a profound change in planning. The first is a principle that development should have a net environmental gain. On a project by project basis this could mean a development having a natural capital account setting off the environmental costs against a compensating balance for either on-site or off-site benefits. If so there will need to be a proliferation of environmental land banks and habitat improvement schemes that development can use to ensure a net gain.
The second theme involves looking at how to improve the environment. Much of the plan focuses on managing, maintaining and enhancing the natural environment. It is clear that we should be seeking opportunities to remedy past mistakes. It might be worth thinking about how this could change attitudes to, for example, brownfield sites. It might lead to a move away from the lazy assumption that brownfield sites in the countryside can simply be replaced by less ugly development. It might, instead, just mean saying “no” to the replacement of development that would never be permitted nowadays and a focus on sites that, although green, can make a better contribution to sustainable growth if carefully planned, designed and developed.
The final theme relates to the Green Belt. The language of the plan talks about making these areas more accessible, almost envisioning them as country parks. That has never been a Green Belt purpose. With changes due to the NPPF it might, however, become a future factor when changing Green Belt boundaries or when designating new Green Belts. Tying back to the first theme it might lead on to a scheme where, in exchange for planning permission, new development has to secure rights of access to Green Belt land as part of the environmental benefit offer. And where that increase in accessibility is itself part of the balance to be struck in release of other Green Belt land.
If the plan follows through on these themes it could reshape the foundations of the planning system.
The Court of Appeal has clarified the meaning of ‘deliverable sites’ in the key housing land supply provisions of Paragraph 47 NPPF (5YHLS). As well as emphasising the need for pragmatism when applying the NPPF, the judgment confirms the need to get timing right if challenges are to be made to the assumed rate of housing delivery.
Supply test in question
In St Modwen v SoS CLG, the developer challenged the housing trajectory put forward by the authority to satisfy the NPPF 47 requirement to show specific deliverable sites sufficient to provide five years worth of housing against objectively assessed need. NPPF Footnote 11 confirms that ‘deliverable’ means available now, offer[ing] a suitable location for development now, and […] achievable with a realistic prospect that housing will be delivered on the site within five years and […] viable.
The Inspector disagreed that sites without permission should be excluded. She accepted that the rate of consents was likely to increase in light of the draft plan. She acknowledged a distinction between deliverability and likelihood of delivery: ‘…it may well turn out that not all allocations currently identified as deliverable will in fact be delivered’. The submitted HLS figures were robust, because ‘the assessment of supply is distinct from that for delivery’.
The Secretary of State accepted the Inspector’s finding that there was a 5 year HLS and dismissed the two linked appeals.
Courts insist on common sense
The High Court and the Court of Appeal dismissed the argument raised in seeking judicial review of the decision that the SoS had misunderstood and misapplied the concept of ‘deliverability’. He should, it was claimed, have considered what would ‘probably be delivered’.
The Court of Appeal disagreed that Ouseley J’s judgment in the High Court suggested that assessment of ‘what probably would be delivered’ is part of, not separate from, the assessment of deliverability.
Ouseley’s judgment – that the assessment of “deliverability” … is an assessment of the likelihood that housing will be delivered. [It] does not require certainty that the housing sites will actually be delivered’ (emphasis added) – simply reflected the distinction between the HLS figure required under the first part of NPPF47 and the ‘expected rate of delivery’ required for the trajectory under the second part.
The Court of Appeal once again went out of its way to criticise ‘unreal’ arguments on the meaning of NPPF policy, holding that:
- there is a consistent and intentional distinction in the NPPF between ‘deliverability’ and the ‘expected rate of delivery’;
- deliverability in footnote 11 concern sites’ capability of being delivered – not the certainty/ probability of delivery;
- the appeal decision was being taken in light of NPPF49, engaging the question of demonstrable 5YHLS, not a question about the ‘the expected rate of housing delivery’.
The judgment serves to emphasise that:
- there need only be a ‘realistic prospect’ of delivery for sites to be relied in within the 5YHLS;
- challenges to the assumptions around the expected rate of delivery generally need to be taken up at the Local Plan examination stage;
- ‘Local planning authorities do not control the housing market. The NPPF recognises that.’
The last point underlines the fact that LPAs play a critical role, but are only one part of the housing delivery jigsaw. It is also illustrates how important the Housing Delivery Test will be, as a sense check on assumptions and progress, if it is introduced as promised in the Housing White Paper.
In Reigate and Banstead BC v SoS CLG  EWHC 1562 (Admin), Lang, J quashed permission granted on appeal for development on greenfield land intended for release in the development plan only if needed to boost housing land supply (HLS).
The recently-adopted Local Plan provided for almost a 5 year HLS, constrained so as to be unable to meet full objectively assessed need (OAN). Despite its “urban area first” strategy, the Inspector worked on the basis that sustainable development should be approved in the absence of harm. He found that there was not basis for dismissing it because the proposal would reduce the HLS shortfall against OAN over the plan period and would not significantly prejudice the spatial strategy given its scale (45 homes).
The authority challenged the decision on the basis that the Inspector had inverted the statutory requirement to determine the appeal in accordance with the development plan, subject to material considerations otherwise (s38(6) PCPA 2004).
The judgment identifies ten key propositions for NPPF14 cases, including:
- The need to distinguish between local and national policies which describe what qualifies as sustainable development (e.g. NPPF 6, 7, 18 to 219) and policies that determine when a presumption in favour of such development arises.
- That the NPPF 14 exhaustively defines when a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14 (applying Trustees of the Barker Mill Estates v SoS CLG  EWHC 3028 (Admin) and Cheshire East BC v SoS CLG  EWHC 571 (Admin)). The Inspector could – in theory – have reached the same outcome by applying the s38(6) starting point but giving in efforts to close the OAN gap greater weight. However, the judgment implies that in the absence of something significant – such as evidence that local housing stress had worsened substantially since the Local Plan was adopted – the decision would be have been doomed to the same fate.
- One proposition seems out of kilter with the rest – that the NPPF14 presumption “does not extend to a proposal which conflicts with the development plan“. Although not relevant in Reigate, NPPF14 is explicit that the presumption does extend to such proposals where (1) the development plan is absent, silent or relevant policies are out‑of‑date and (2) any adverse impacts of granting consent would not significantly and demonstrably outweigh the benefits considered against NPPF policies in the round (and no specific restrictive NPPF policies apply – which should now include ‘related’ development plan policies following Suffolk Coastal District Council v Hopkins Homes Ltd & Onr  1 WLR 1865).
The question of what powers LPAs have to deal with old planning applications is raised by both applicants, concerned that their planning application may be unilaterally withdrawn, and LPAs, keen to understand their options for dealing with undetermined applications.
A LPA can decline to deal with an application if: (i) it is not made in the prescribed form; (ii) the circumstances set out in section 70A of the Town and Country Planning Act 1990 (‘TCPA’) apply (namely, the LPA / Secretary of State has refused a similar application in the previous 2 year period and there has been no significant change in the relevant considerations); or (iii) it constitutes an overlapping application under section 70B TCPA. However, there is no power for an LPA to actually withdraw a planning application.
Instead, an LPA may seek to record the application as “finally disposed of” to avoid the application remaining open indefinitely. What does this mean? What is the effect?
“Finally disposed of”
The term “finally disposed of” is used in article 40 of the General Development Procedure Order 2015 (‘GDPO’). Under article 40(2) GDPO, each local planning register authority must keep a register of every live application for planning permission relating to their area.
Article 40(13) GDPO sets out the circumstances in which an application can be treated as finally disposed of. In summary, this is where an application has been:
- granted or refused by the LPA and the time limit for appealing has expired without appeal;
- referred / appealed to the Secretary of State, who has issued a decision and any application to the High Court has been finally determined;
- withdrawn before being decided by the LPA / Secretary of State or an appeal has been withdrawn before the Secretary of State has issued a decision; or
- finally, the period for determination and appeal has expired no decision has been made. This means that a LPA can simply record an application as finally disposed of as soon as the period for determination and appeal has expired – so watch for that date.
Once any of these requirements are satisfied, the LPA may treat the application as finally disposed of and elect to remove the application from its Planning Register.
Best Practice for applicants
To avoid an application being finally disposed of, applicants should either: (i) agree to extend the time period for the Council to determine the application; or (ii) if the LPA fails to determine the application within the statutory period, appeal on the grounds of non-determination. Applicants should note that if the application period is extended, the right to a refund is lost, even if the authority fails to meet the extended deadline.
Best Practice for LPAs
Once the date for determination has passed, consideration should be given at regular intervals to whether the application should be deemed “finally disposed of” and removed from the Planning Register. Given the cost and expense of submitting an application an LPA should notify the applicant of its intention to treat an application as “finally disposed of” before doing so. This should set out a timetable for dealing with any outstanding matters.
Refusal as an Alternative
Rather than recording an application as “finally disposed of”, LPAs could simply refuse the application. However, LPAs are often keen to avoid this course of action for 2 reasons:
- Refusal rates are monitored nationally and, in theory, LPAs with clear policies and effective pre-application advice should issue fewer refusals. LPAs may therefore be concerned that refusing such application will have a negative impact on their performance figures; and
- It would reinstate an applicant’s right to appeal.
- Given the above, it is likely that LPAs will continue to treat applications as “finally disposed of” unless a formal procedure for LPAs to withdraw planning applications is implemented. This is unlikely to be high on the agenda at any time in the near future given the raft of more pressing planning matters.
The Government’s solution to the so-far intractable problem of Neighbourhood Plans that do not meet housing needs is here in the form of a Written Ministerial Statement (WMS) calling time on the relative certainty provided by the NPPF and firing the starting gun for changes to the NPPF due with the issue of the Housing White Paper early in 2017. Most Neighbourhood Plans (NPs) will be going nowhere sensible, even more emphatically than ever.
Nothing comes of nothing
The Courts have confirmed that the Examination tests for a Neighbourhood Plan are a cake walk that does not require any sensible relationship with strategic goals of meeting Objectively Assessed Needs. NPs can be passed fit for service at Examination simply having “regard to” national policies where it is “in general conformity with the strategic policies” that may date back to the 1990s and have little or no relationship to the ongoing mess of housing delivery.
Equally, the ability to put NPs in place without any up to date strategic policies – and the endless snakes and ladders of the Local Plan process – creates a challenge for those promoting NPs as a positive framework for local growth. Adopted NPs may provide a warm glow that immediately fades as an absent overarching housing land supply weighs in under paragraph 49 of the NPPF.
The Government’s response to date has been wholly political. In some cases NPs have been effectively ignored; in others the out of date NP policies have been given determinative weight, refusing permission for 100 homes at Yapton in an area of housing need with 3 years’ HLS on the basis that out of date NP policies should be given “significant weight”.
Sticking Plaster Applied
The WMS states that
“relevant policies for the supply of housing in a neighbourhood plan … should not be deemed to be ‘out-of-date’ [under NPPF49] where […]”:
- the WMS or the NP are less than 2 years old
- the NP “allocates sites for housing”
- the LPA “can demonstrate a three-year supply of deliverable housing sites”.
Cue some authorities currently bobbing around on the Local Plan process to ditch infrastructure planning, batten down the hatches with a 3 year supply and encourage NPs through the process. Cue some NP that allocate a couple of single unit sites being treated as up to date even if there remains a housing shortfall in the neighbourhood.
A far better solution would simply be to require the NP examination regime to grapple with the unconstrained Objectively Assessed Needs for their area and plan to meet an equitable slice of them until the Local Plan comes along. NP authors are, after all, engaging in devolved governance. With that great power comes great responsibility.
In the absence of the Housing White Paper, the industry is still left needing to mind the gap. We have simplified budgets – abolishing the Autumn Statement – but no hint of simplified planning for growth.
The overall commitment to housing is welcome mood music, but the lack of detail on powers and fiscal incentives to support locally-led Garden Towns to deliver at the scale needed leaves a hole. Expanding grant funding for affordable tenures is great news but at £25,000 per unit is not going to be life changing.
The £2.3bn Housing Infrastructure Fund could be a game changer if it is used to reward areas for proactively planning for growth. Making an up to date housing land supply a condition for at least some of the funding would dangle the right carrot for authorities that currently only have the stick. The lack of fiscal measures for new settlements – incentivising forward funding of major infrastructure that can unlock delivery at real scale – is disappointing though.
Affordable Housing is heading towards life support – delivery in 2015-16 was 52% lower than last year. The announcement in the Autumn Statement of a funding injection to deliver 40,000 affordable homes is welcome. It is a clear recognition that addressing the housing shortage is not simply about building more homes. Yes, we need more but they must meet a variety of needs. There are further signals of a softening of the Government’s stance on Starter Homes – tenure flexibility replacing David Cameron’s commitment to a single tenure.
Without the Housing White Paper, there is also still a wait to see how the NPPF is going to be reshaped and in particular how housing land supply and Local Plan duties will be re-set following expert advice on accelerating delivery. If the Community Infrastructure Levy is to be replaced by a simplified flat national charge, the effect on infrastructure funding and the transitional arrangements need to be understood now, so that schemes in the pipeline do not get put into suspended animation.
The statement gives some clues about the Government’s direction of travel but, funding commitments aside, offers little substance. We still await the detail in the Housing White Paper which we are told will be published “soon”. Reasons for the delay are unclear. Have responses to leaks on more radical measures, such as penalising developers for slow delivery, prompted a re-think?
Too many unnecessary and overly restrictive conditions are still routinely attached to planning permissions, driving up costs and impeding development. It is against this backdrop that the Government proposed further reforms in the recently published Neighbourhood Planning Bill aimed at streamlining the use of planning conditions.
This is not a new objective. Since the Killian Pretty Review in 2008 successive Governments have been on a drive to minimise the use of unnecessary conditions. For instance, in April 2015 the Government introduced the concept of ‘deemed discharge‘, whereby an applicant can treat certain conditions as discharged if the LPA fails to reach a decision in the requisite time frame. Although the intention was admirable, it is debatable whether this reform has been effective given that the power is rarely relied upon in practice. As we have pointed out before, part of the answer has to be improving the quality of some applications in the first place and giving a less risky route to appeal onerous conditions.
The DCLG consultation ‘Improving the Use of Planning Condition’ (the ‘Consultation’), which was launched in conjunction with the Neighbourhood Planning Bill, seeks views on the Government’s proposals to improve the use of planning conditions and closes on 2 November 2016.
There are 2 key elements to the Government’s proposals:
- Restriction on the use of pre-commencement conditions without prior approval by the applicant; and
- Prohibition of specific types of conditions.
1) Restriction on the use of pre-commencement conditions
LPAs would not be permitted to use pre-commencement conditions without prior approval by the applicant. By giving applicants an earlier opportunity to challenge unnecessary pre-commencement conditions, it is hoped that a consensus can be reached between the parties at the outset and the likelihood of appeals reduced. Of course, there is a risk that front loading the process will lead to delays in planning applications being determined. There are several practical implications:
- Where an applicant refuses to accept a proposed pre-commencement condition the LPA will have a number of options at its disposal: (i) revising the condition so that it is agreeable to the applicant; (ii) allowing compliance with the condition post commencement; (iii) removing the condition in its entirety; or (iv) refusing planning permission.
- The threat of refusal may do two things. Firstly, force applicants to consider whether they have really included adequate detail in the application itself. The answer will often be ‘no’. Secondly, accept unsatisfactory conditions in order to secure the permission (particularly where the grant of permission is a pre-requisite for the release of funds), and then use Section 73 to seek to remove the offending condition while avoiding an appeal scrutinising the merits of the entire application afresh.
- The restrictions will not apply to outline permissions. The Consultation does not explain why. However, the impact of delays caused by pre-commencement conditions is arguably lessened in the case of outline permissions given that development cannot commence until reserved matters have been approved in any event.
2) Prohibition of specific types of conditions
At present, LPAs have a broad power to impose “such conditions as they think fit” providing they meet the tests prescribed in the NPPF, its supporting guidance and case law.
The Government’s proposals are intended to provide greater clarity about conditions that do not meet these policy tests and should therefore be prohibited. The Consultation sets out examples of conditions that are categorised as unacceptable by existing planning practice guidance and seeks consultees’ views on whether such conditions should be expressly prohibited through legislation.
Given the relevant tests for using conditions are already enshrined in the NPPF and the example conditions set out in the Consultation are effectively prohibited (albeit through guidance rather than statute), the purpose served by this aspect of the reforms is questionable. A more productive use of this legislation would be to use the conditions as a benchmark for reasonableness, and allow binding decisions on them, via the mooted Dispute Resolution Service under the Housing and Planning Act 2016.
The reforms are unlikely to herald a new era in which conditions are used conservatively and pre-commencement conditions are consistently agreed upfront without the intention of resorting to Section 73. Bolder reform, providing a quicker right of appeal or up front, binding dispute resolution on this specific point, would be a much better outcome.