The basics #20 - weighing things up
Chestnuts roasting on an open fire. Jingle bells jingling. Bing Crosby wafting through the shopping centres. Oh yes. It can only mean one thing: December is here, and #planoraks everywhere are on the cusp of another new NPPF.
Forget all those long-remembered paragraph numbers, friends. They’ll be worthless soon. Appppppparently the big day is on for… next week. Apparently. Are you busy? CANCEL IT. Keep clicking refresh on the MHCLG website. And watch this space.
You want to know my response to the consultation? Here it is: why-oh-why has releasing a new NPPF just before Christmas become a thing? Why can’t we get new ones … you know… at times of year everyone’s actually at work.
Still, one thing’s for sure: the planning blogosphere (all 4 of us) along with all of you will have lots of reading, thinking and deconstructing to do between now and Christmas morning. 😬. Crank up those tracked-change-ometers. Remember what I said last time - first thing to check when it all comes out… those pesky transitional provisions. After that? Well, I imagine some of you may want to know what grey belt means. And who could blame you.
In the meantime, while we’re waiting, there’s so much to keep up with:
Our new Secretary of State’s nigh-on-but-not-quite 100% planning approval rate continues. By righting many of the wrongs of the Michael Gove era. Remember the M&S case on Oxford Street - I wrote about it earlier this year here. Wellllllll… there’s a new sheriff in town. The Government’s re-taken the decision this week. And it’s all go.
Ditto the Berkeley Homes scheme in Cranbrook which I also wrote about… here (remember all that noise about “generic” “suburban” designs). Anyhow. The Government’s re-taken that decision too. And again - it’s all go.
The Secretary of State has also granted permission for a new prison in the green belt in Lancashire (a) against her Inspector’s recommendation, (b) even though she accepted not all highways safety issues had been addressed, and (c) here’s an important point given my ramblings about flood risk policy earlier this year here, permission was granted despite a sequential test for flood risk being required but not provided. Given that - in particular - the scheme is in flood zone 1 and the proposal has been designed to avoid any adverse off-site effects and so there would be no worsening of any existing flooding issues. So. To the many planning inspectors out there who have been knocking schemes out left right and centre for the last 12 months on the basis of alleged failures in relation flood risk sequential test - have a careful read.
The Minister has addressed the Housing, Communities and Local Government Committee: transcript here. It’s a fascinating, wide-ranging discussion from someone who obviously knows his brief. He begins with a powerful reminder:
“We have a generation now completely locked out of home ownership as a result of the steadily expanding gap between average house prices and average earnings. We have millions of low to middle-income households forced into insecure, unaffordable and far too often substandard private rented housing. We have 1.3 million people languishing on social housing waiting lists. To our utter shame as a nation—I say this everywhere I go—more than 150,000 homeless children right now are living in temporary accommodation. That is the price we have paid for not being serious about house building rates.”
Meanwhile, the PM has been at Pinewood Studios (transcript here) re-upping the 1.5 million home pledge, adding to it a 150 infrastructure project pledge, calling our planning system “a blockage in our economy that is so big it obscures an entire future”, “a chokehold on the growth our country needs… suffocating the aspirations of working families” and delivering a message to “nimbys” and “naysayers” that “you no longer have the upper hand… Britain says yes.”
Over in Kent, Angela Rayner decided to call in a proposal for a new “garden community” comprising, among other things, over 8,400 homes. 3 hours - yes, 3 hours - before members were due to meet to refuse permission. Which will now result in one of the longest and largest planning inquiries for many years being scheduled from March - July 2025. Again, watch this space (full disclosure: I act for the applicant at that inquiry).
Over in Surrey, the Minister was - it turns out - serious about the idea that local authorities need to get on with plan-making. Elmbridge’s request for a looooooong period of paused examination to sort out the fundamental issues with their local plan was rejected. Elmbridge responded with characteristic vigour, alleging that “It is clear to us that building new homes is not this government’s priority”. 🤔.
But enough of the noise. We’re doing basics today. And my basic for you is… a case reference. Plain and simple. It’s a court case I was involved in earlier this summer. It’s one of those incredibly rare cases where… to be frank… just between you and me… I came in 2nd place. It’s a case called Vistry Homes v Secretary of State: here. It was one of the last judgments of Mr Justice Holgate - as he was then - before his elevation to the Court of Appeal (where he is now - if you’re keeping tabs - Lord Justice Holgate). And it’s a case that has some very interesting things to say about how we give weight to benefits in the planning balance.
So. To take a step back:
We’ve talked before about the core balance under section 38(6) of the Planning and Compulsory Purchase Act 2004: here and here, for instance.
How much weight things get in that balancing exercise - the development plan itself, and any other material considerations (on which, see here) - is a question of judgment for the decision-maker.
Sometimes, national policy gives us a steer on how much weight different things should attract, e.g.
“Great weight” is given to conserving and enhancing landscape and scenic beauty in National Parks and National Landscapes.
"Great weight” is given to conserving designated heritage assets.
“Great weight” is given to the benefits of using suitable windfall sites within existing settlements for homes.
“Substantial weight” is given to the value of using suitable brownfield land within settlements for homes.
“Substantial weight” is given to any harm to the green belt brought about by inappropriate development.
“Significant weight” should be placed on the need to support economic growth and productivity - although, the Court has recently said, that doesn’t necessarily mean you give economic benefits significant weight in every case: see here.
But most of the time, the Government is happy to leave coming up with the right weighing adjectives to the #planoraks. They don’t even prescribe a standard scale of weightings. A pet peeve of mine: I think we could do with a standard scale. Because one of the key benefits of using language to describe weightings in a planning balance exercise is to try to get to a result which is clear, transparent and comparable to the outcomes in other cases. That only works if we’re all speaking the same language. And we aren’t. Planners use their own terms for weighing. And I think that’s something which could usefully change. If I was in charge, it’d go something like this - in ascending order:
No weight - limited weight - moderate weight - significant weight - very significant weight - substantial weight - very susbstantial weight.
Now - I am aware I may be over-complicating all of this. Which is exactly what the courts keep telling barristers not to do. This is not, the court keep reminding us, some kind of quasi-mathematical exercise. Not all of you will like the “verys” in my list. I get that. I think they’re useful when you get into situations which justify materially upping the ante - but that’s just me. Not all of you will feel that substantial is any different to significant. Indeed - the Court recently accepted that “the word 'substantial' does not denote a greater quantum of weight than 'significant'“ so what do I know. Although I must say, in 99% of the inquiries I do, the planners use significant and substantial differently. And in the end, aren’t these all just loose metaphors anyhow (i.e. we don’t literally go around with weighing scales - do we?).
Still. I think standardisation of vocab would genuinely be useful. And it’s a starter for 10 which is broadly reflected in most of the appeal decisions I see. So. You know. I’ll leave it with you.
One point that comes up a lot is the idea that when a planning benefit is provided which is also required by policy (e.g. affordable housing, say, or BNG), weight should be reduced to reflect the fact that the applicant is doing “no more” than policy requires. I’ve always had a problem with this. If a policy is designed to secure a public good, and you’re providing a public good in line with policy, I’ve never understood why that should reduce the weight to be attributed to that public good in the balance. But that’s just me. What does the Court say about all of this?
Here’s a few key points from High Court’s judgment in the Vistry case:
It is sometimes suggested that where a development makes provision for something which is required by a policy or by legislation, that cannot be regarded as a benefit at all. There is no legal principle which supports that idea.
The identification of what is, and what is not, a benefit should not be altered because what would otherwise be recognised as an improvement or benefit is the subject of a requirement imposed by planning policy or by legislation. Whether a measure should be treated as a benefit, depends upon inter alia its nature and purpose, including whether it would help to meet a need which is, or is not, related to the development proposed.
It is difficult to see how logically a decision-maker could give no weight at all to, for example, the provision of 10% BNG because that equated to the 10% requirement in the law. The fact that such a requirement is imposed by legislation is simply a mechanism for ensuring that a wide range of developments contribute to the collective effort of improving biodiversity in England. It does not alter the nature or purpose of the improvement in biodiversity which is provided, or the underlying justification for the requirement to reverse a national decline in biodiversity over many years. It also follows that where a development would provide BNG of 20%, a decision-maker is not entitled to say that only that part of the BNG which exceeds 10% can qualify as a benefit in deciding whether to grant planning permission.
If a decision-maker were to reduce the weight which he would otherwise give to a 40% provision of affordable housing because the development will provide the level of housing required by the development plan, that would also be objectionable, certainly in the absence of any logical explanation. The decision-maker should be assessing how the developer's contribution of affordable housing stands in relation to inter alia the justification in the development plan for the level of affordable housing required by the policy. Key considerations could include the level and nature of the need for affordable housing in the district and any shortfall in delivery.
So. The nutshell summary: weigh the thing on its merits. Don’t reduce the weight just because the benefit is being provided at the level required in a plan.
Stay warm and dry out there, #planoraks. Don’t forget a good pair of wellies (as I did on a site visit earlier this week with predictably disastrous consequences). Keep clicking refresh on that NPPF website next week. And, most of all, through all the noise, do you very substantial best to #keeponplanning.
