Winter notes: anti-woke enforcers, and news from the planning courts
I mean… cripes. Are you keeping up? How could you. How could any of us?
So. Ok. Well - it all seemed to speed up around the time the new NPPF dropped (more of which here) - remember that? No, it wasn’t years ago. Might feel like it. It was only a few weeks go. And since then… just for starters (and it really is for starters):
The grey belt’s in the news. Can I be honest: as a Sheffield boy, I still haven’t warmed to Boris-appointed peer, party-gate apologist, anti-woke enforcer (brave enough to call out that bastion of the wokerati […checks notes…] BBC Radio 3), GB News contributor Lord Daniel Moylan on account of him once describing Yorkshire as “a county of leftist whingers begging for handouts”. Ah - such a charmer. Lord Moylan runs the House of Lords Built Environment Committee. Which recently held hearings into the grey belt. Hearings which were heavy on the haughty, derisory diatribes (from the questioners, not the excellent witnesses who gave evidence), and very light on most of the peers having the faintest clue what they were banging on about. It didn’t inspire confidence. And so it has come to be. Daniel sent a letter to Angela Rayner about the grey belt: here. Which sadly, as Simon Ricketts explains, was more about political point-scoring than objective analysis. The committee’s idea that grey belt policy won’t have any “significant” impacts is - and I’m talking from immediate and recent experience on schemes of all kinds all over the country now - cobblers. Nonsense. Rubbish.
Full context: Lord M’s response on the slagging-off-Yorkshire side of things is that he was making a joke [arf, arf] at the expense not of the county itself, but just of its newspaper: the Yorkshire Post. Which, for some reason, he seems to have a long-standing feud with. The whys and wherefores of the fight go way outside the scope of a modest little planning blog like this. But I couldn’t help but notice that things have gotten, shall we say… spicy. He’s all class, that Lord Moylan. Sheep?!?!? Whatever next. The people of Yorkshire are clearly listening to too much Radio 3.
Annnnnyhow… watch out for that PPG on the grey belt. Coming soon to a .gov.uk website near you. As well as the first major grey belt appeal decisions due in the coming weeks.
We’ve had working papers folks - lots of important working papers: on brownfield passports, nature recovery, planning committees and infrastructure.
Updates from the New Towns Taskforce - but still no news where the new towns actually going to go. Not yet.
A devolution white paper, followed by a “devolution revolution” with mayors coming soon to Cumbria, Cheshire & Warrington, Norfolk & Suffolk, Greater Essex, Sussex & Brighton, Hampshire & Solent, along with a postponement of local elections in Surrey to speed up reorganisation. Kent weren’t happy. Two-tier authorities the nation over have been asked for their ideas for reorganisation. It’s all go. A new generation of strategic planning on the horizon…
Our Chancellor is still going for growth - which means, among other things, a 3rd runway at Heathrow, the redevelopment of Old Trafford, the Lower Thames Crossing, investment into the Ox-Cam corridor… all sorts. She told us “I have been genuinely shocked about how slow our planning system is” - well. One easy answer to that. She should’ve spent less time trying to balance the national books, and more time reading this blog. A slow planning system. Heavens help us. Welcome to our world.
Kier’s still “ready to take on the Nimbys” on behalf of “hard-working Metro readers” everywhere.
A tweak to the NPPF itself. Nothing major. §155 clarified (tbh, it was pretty clear already).
The New Homes Accelerator team have already “identified 725 developments of 500+ homes outlining their barriers to delivery and opportunities for acceleration with about 50% aiming to deliver more than 1,500 new homes”. So. They’ve got some accelerating to do. Apparently, 20,000 new homes have already been “successfully unblocked” [insert plumbing joke here, Ed.] including persuading the EA to ditch their objection to a scheme in Liverpool. On which theme…
Remember the EA’s objection to all new development in Cambridge - well, that’s over now. Which gives rise to the following question:
Is the main function of the New Homes Accelerator travelling the UK trying to persuade the EA to stop objecting to things?
We have a consultation on a Land Use Framework for England, which has (among other things) several excellent graphics, like:
Still waiting on other PPG changes - not just grey belt, but important other topics like viability and flood risk sequential testing (more of which below).
Changes afoot to judicial review procedures for infrastructure projects - summarised by Simon Ricketts here.
The Planning and Infrastructure Bill covering several of the above bits and pieces is coming soon now. With blog posts a-plenty to follow.
CG Fry - a case about nutrient neutrality I summarised here - is being heard in the Supreme Court this week (full disclosure: I act for the Home Builders Federation & the Land, Planning and Development Federation). You can tune in live later on today.
And then, in my little world of planning barristers, there are soon to be 3 new KCs (“Kings Counsel”) in town. And in what has been the most lovely, but also slightly overwhelming and disarming turn of events, I’m one of them.
What comes next (so I’m told) is donning an enormous wig, stockings, buckled shoes, a flowing silk gown and pootling over to Westminster to meet the Lord Chancellor. Well - if they think that’s going to intimidate me… they have another thing coming. Been there, done that. I played the dame in the Cambridge Footlights Christmas pantomime at university. No, not just once. TWICE (first as the Queen of Hearts in “Alice and Wonderland”, followed by the real zenith of my career: Miss Havisham in a panto version of “Great Expectations” wearing a dress shaped like an enormous wedding cake - a performance described by one critic as… “startling” 😬). So, you know. For me - an over-ornate wig, gown and shiny shoes… this is all very familiar territory.
While the relentless beat of planning reform has been pounding, the planning courts have been busy. In particular, the Court of Appeal. Some law is happening, folks, and in the all the furore over £100 million pound bat boxes, you might have missed 3 very important cases.
So. Would you join me… for a breather. Pour some tea. Set your watches. And give me 3 minutes - come on, that isn’t so bad - 1 minute per case!
Let me fill you in:
(1) Test Valley BC v Fiske [2024] EWCA Civ 1541: here.
Varying planning permissions. Urgh. It’s a pain.
I summarised what we keep getting wrong about section 73 applications here. Relying on the (incredibly helpful and clear) judgment here of James Strachan KC in the Armstrong case. Worth just reminding you of two of the key things to come out of Armstrong:
Are s.73 applications limited to (as the PPG called it) “minor material amendments”?
No.
Mr Armstrong’s new Swiss Chalet design wasn’t a minor amendment. It was a completely different design. But that didn’t take it outside the scope of section 73.
And that is because, albeit the PPG talked about “minor material amendments” there is nothing in s.73 which limits an application to vary or remove a condition to "minor amendments" or to amendments which do not involve a “substantial” or “fundamental” variation to the original scheme.
Is s.73 excluded for applications which propose a "fundamental or substantial" variation to the original permission?
No.
Again, the key question is whether the new scheme proposed under section 73 is consistent with the operative part of the original permission. If the new scheme fits within the original description of development, that’s what counts. Even if the new scheme is fundamentally different to the old scheme.
There are several older cases which can be read as suggesting some different - i.e. no s.73 applications for “fundamental” changes. But those older cases are (now) explained as being cases like Finney where there would have been an inconsistency between the new scheme and the operative part of the earlier permission.
Buuuuuuut… to make life a bit more complicated, another High Court judgment called Fiske came along which suggested - suggested - that the above is all wrong. Groan. Why can’t judges just agree?!?!
So. Now we had 2 inconsistent High Court judgments. What to do? There could be only 1 winner… and….
The Court of Appeal in Fiske has upheld the Armstrong approach. Which means in a nutshell - here are the 5 things you should remember about s.73 applications:
a. The most important point: the approach to what s.73 consents can and cannot do was correctly set out in the Armstrong case. So. No need for a new blog post. In other words...
b. S.73 consents cannot vary the operative parts of the original permission, e.g. description of development. We knew that already from the Finney case. But...
c. S.73 consents can make "fundamental alterations" to the original permission, i.e. by imposing new and totally different conditions. This is critical. It's what Armstrong decided. It's very different to what the judge had said in the High Court in the Fiske case. We finally now have some clarity. Armstrong was right.
d. Another big point: if you're going to include a list of plans with which a development has to accord, put them into a condition (which can be changed by a s.73 consent) and not as part of the description of development (which can't be changed by a s.73 consent).
e. Happy days, some but not all of these issues will become academic if/when the Government brings s.73B into effect - here Because it would appear - but we'll see - that the s.73B power will extend to changing the description of development etc., but only so long as "the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission".
(2) Mead Realisations Limited v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 32: here.
Flood risk and the sequential test. Remember that?
I explained the background to the Mead case after the High Court decision came out - here. Mr Justice Holgate (as he was back then before his promotion to the Court of Appeal) gave us detailed guidance on how the flood risk sequential test fits into the wider planning balance.
In the end, both developers in that case - Mead and Redrow (and again, full disclosure, I acted for Redrow in the High Court) - came in an honourable 2nd place. The Inspectors’ decisions which dismissed their appeals were upheld.
Mead pushed on to the Court of Appeal. Their key line of argument was that their Inspector had, in effect, read the the Planning Practice Guidance (“PPG”) on flood risk in a way that changed the meaning of the NPPF itself. Which, the Mead team said, you can’t do. Because the NPPF is top of the tree - it’s “policy”. Whereas the PPG is “just” guidance. Which can explain policy, sure. But not change it. Regardless of the legal rights and wrongs of that position, it does reflect my experience of the way the role of the PPG is commonly understood out there in the big wide world.
Well - it was wrong. Mr Justice Holgate dismissed that line of argument, and in the Court of Appeal, Sir Keith Lindblom - the Senior President of Tribunals - has now agreed with him.
The key things to take away are that:
The legal status of the Government's planning policies in the NPPF and its guidance in the PPG is basically the same. No legal distinction exists between them. They are not legislation. Their status is equivalent in the sense that both of them are statements of national policy issued by the Secretary of State when exercising his general power to do so as the minister with overall responsibility for the operation of the planning system.
Where the NPPF policy is in relatively broad terms, as it is for flood risk, the need for elucidation or explanation in the PPG may be greater. Where the policy is more prescriptive, it may be less. But there are no hard and fast rules on what each must contain, or how each must be expressed.
To describe the PPG as being, in a legal sense, wholly "subservient" to the NPPF or subordinate to it in a hierarchy of national planning policy would not be right.
P.S. - keep your eyes open for the promised PPG updates on flood risk and the sequential test! All the more important after this judgment, now we know that PPG has the status of “proper” policy.
(3) Jones v Wrexham CBC [2024] EWCA Civ 1603: here.
I’m going to give you the mega-short version of this one:
Inspectors examine a draft local plan. They recommend it as sound for adoption. Does the local planning authority have to adopt it?
No. They can adopt it. Let’s be honest - they probably should adopt it. But they’re aren’t legally required to adopt it (this was a Welsh case, but the key points above go for England too).
p.s. all the more important, then, not to forget about that new PPG on local plan interventions! And let’s hope it isn’t too long before the Secretary of State starts blowing the dust off those far-reaching legal powers to get our creaking system into action.
So. We have quite the few months ahead of us. Enjoy yourselves, #planoraks. Stay well. Wrap up warm on those site visits. And don’t worry: Spring’s just around the corner. Watch out for the wokerati - you never know where they’re going to pop up. And in the meantime, even though all this change can feel disorienting, keep your heads down, try to tune out the noise (Radio 3’s a good place to start), and do your level best to #keeponplanning!
