From House of Lords
Building firms: ministers will probably have to reintroduce housing targets
The government may need to reintroduce central government housing targets to boost the supply of new homes, a report has suggested.
The report, Tackling the Housing Crisis, from the housbuilding lobby group the Federation of Master Builders (FMB), says the government’s planning reforms “could not have made a worse start” by abolishing regional strategies which set local authorities targets for building new homes.
The report says one of the problems of removing the regional tier of planning is that it “exposes local planners and local councillors to the full force of local opposition to new development as responsibility for necessary but unpopular new construction can no longer be deflected to some distant entity. As such, while the government may baulk at compulsory housing targets, it is likely that it will have to find a way to re-introduce them“.
The report also says that demand for new housing will outstrip supply by over half a million units by 2015, equivalent to the size of the UK’s second largest city Birmingham.
FMB director of external affairs Brian Berry said: “We want the Government to consider our report’s recommendations to help ease the housing problem. In particular, we want the Government to ensure banks increase lending; review and reduce the financial burdens on house builders; end the current uncertainty in the planning system; and end the policy of gold plating European carbon standards because the longer the Government leaves it to act, the more it will cost to get our housing system right.”
Tackling the Housing Crisis can be read here.
Undertaken for the City of London here
The continued success of the City of London as the world’s leading financial centre could be threatened by proposed changes to the Town and Country Planning (General
Permitted Development) Order, which would allow uncontrolled change of use from business use to residential use. That change has the potential to undo the
achievements of more than 30 years of town planning strategies which have been successively endorsed by Planning Inspectors and the GLA.
The City is unique in hosting a planned concentration of business and supporting uses. Whilst residential use is an important element of the City, it is deliberately planned for on
the City fringes. The density and intensity of business use is essential for the 24/7 operation of the City and for its ability to renew itself through large scale redevelopment, which allows the City to continually adapt to suit the changing needs of business. The existence of residential uses removes this essential flexibility.
Evidence shows how sporadic residential uses can remove the ability of the City to adapt through preventing development due to their longer lease structures and inhibiting its scale through their entitlement to rights of light and privacy. Residential rights also impose costly controls on the early and late servicing and operational activity which is essential for maintaining a competitive business environment.
An analysis by agents Jones Lang LaSalle has advised that residential values often exceed office values at different times in the economic cycle (including the current time), with the consequence that as much as 13m sq ft of office floorspace could be at risk from the proposed relaxation in the short term.
The proposed changes, therefore, have the clear potential to undermine the City of London’s unique and essential contribution to the UK economy.
Stuart Fraser, policy chairman at the City of London Corporation, said: ‘These proposals could lead to a dramatic reduction in the volume of office space.
‘The City requires a high degree of certainty to meet the needs of current and future occupiers. Changes of use would undermine this, and the City’s ability to provide a fitting home for a range of businesses would be severely diminished.’
The profession has backed the City’s stance, with Michael Squire at Squire and Partners arguing there was a ‘case for protecting office use’ in the Square Mile. He said: ‘Clearly, a major change of floor space from office to residential would impact the City’s power to maintain itself as the pre-eminent international financial centre.’
Graham Morrison of Allies and Morrison agreed: ‘It seems contradictory for the home of the free market to protect a mono-culture. But the City of London’s wish to be exempt from this new rule is entirely justified. It would be good to have more people living in the City, but not at the expense of its unique position as a world trading centre.’
According to a City of London source, the use-change issue is ‘on communities secretary Eric Pickles’ desk for a decision at the moment’
The top civil servant at the Communities and Local Government department has been tipped to leave his post.
An announcement is expected later today on the future of Sir Bob Kerslake who, it has been reported, is line to take up the role of head of the Civil Service.
Sir Bob became permanent secretary at the CLG on 1 November last year and if, as expected, he leaves, the CLG will be left without two key positions following the resignation of Richard McCarthy earlier this year.
Sir Bob was formerly the first chief executive of the Homes and Communities Agency and from 1997 to 2008 was chief executive of Sheffield Council.
There is some confusion here as it was previously reported that the new Head of the Civil Service role – separate now from the Cabinet Secretary, would be carried out part time by an existing permanent secretary, a wholly impractical idea. The idea seems to be one of treating the civil service like an ‘agency’ with senior ministers and the cabinet office distancing themselves from governmental failure.
William Upton, Co-convenor of the UKELA Planning and Sustainable Development Working Party,
6 Pump Court. He has specialised in planning, local government and environmental law since being
called to the Bar in 1990. He drives a Peugeot.
[This is an updated version of the article previously published in the Trinity Law Association journal,
It has not been a quiet time for planning since the coalition government published its draft national
planning policy framework for England (“the NPPF”) this summer. Whilst the property industry has
broadly welcomed the document, it has also led to the campaign spearheaded by the National Trust,
as well as the Daily Telegraph’s “Hands Off Our Land” series and accusations that it is simply a
The political spat has certainly meant that Planning now has a few colourful phrases to add to the NIMBY. Ministers have
accused critics of their national planning policy framework (‘NPPF’) of being ‘semi-hysterical’, of peddling “deeply misleading
and simply untrue” claims, and memorably of “nihilistic selﬁshness”. The Department for Communities and Local Government
have even taken the unusual step of issuing a ‘myth-busting’ guidance note. Lawyers who have suggested that the NPPF is likely
to lead to more appeals, not less, have not escaped criticism. The Communities Secretary has said: “I don’t see a system that
allows planning silks to buy a Maserati or spend an extra week at their villa in Tuscany as one that is going to improve the lot of
my fellow man.”
You may wonder why a policy document, and one that is only in draft, should matter so much. Whatever one’s views of
planning, this NPPF is an important part of the changes being made to the planning system as a whole, together with the
Localism Bill and the faster decision making process for major infrastructure (such as nuclear power stations, windfarms, trunk
roads and railways etc). The draft NPPF is also a problematic document, and there does appear to have been an element of ‘shoot
the messenger’ in the political responses so far. Although we are still looking for the Maserati-driving planning silk who troubles
Eric Pickles so much, the consultation responses sent in from local government express considerable concerns. Even English
Heritage has had to be reassured that the NPPF will be redrafted. The UKELA Working Party has submitted some trenchant
Part of the problem with the NPPF is that the government has undertaken two rather different tasks. The ﬁrst task is
simpliﬁcation, and the NPPF reduces over 1,000 pages of planning policy (47 documents) into 52 pages (plus glossary). On the
whole, most people welcome the idea of a simpler policy guide than that in the current PPGs and PPSs. However, because this
editorial task has removed much of the supporting detail, there will be considerable argument about what precisely has or has not
changed and what established concepts can now be re-argued. We should not shy away from acknowledging that there will be
some dislocation, even though this is perhaps an inevitable consequence of a change on this scale.
The second task the government has undertaken has been to seek to introduce some radical changes to the substance of existing
planning policies. The current draft places its emphasis on economic growth and loosens protection for the general countryside.
There have also been some deliberate changes to speciﬁc areas of policy, such as increasing the amount of deliverable housing
land that should be allocated by 20%, removing maximum limits on parking places, removing restrictions on out-of-town ofﬁces,
and on re-using buildings in the green belt. Whilst that is the prerogative of any government to do so, the way in which these
changes have been expressed are also problematic.
The most obvious change is the introduction of the general ‘presumption in favour of sustainable development’. The idea sounds
attractive. But everyone appears to be arguing about what the government actually means by it. The Minister in his Foreword
has added to the confusion by deﬁning ‘development’ as ‘growth’, and by stating that “sustainable development is about positive
growth” – an approach not shared by others who deal with sustainable development. The deﬁnition of ‘sustainable development’
contained in the NPPF is stated very simply, and repeats the high-level formulation put forward by the Brundtland Commission
that it “means development that meets the needs of the present without compromising the ability of future generations to meet
their own needs” (para 9). This does not provide any deﬁnite answers to the issue of how to apply this in practice. We are also
presented with the dilemma of not having a list of principles and yet are told “Decision-makers at every level should assume that
the default answer to development proposals is “yes”, except where this would compromise the key sustainable development
principles set out in this Framework”. (para 19)
The House of Commons Environment Audit Committee itself recommended (3 rd Report, 16 March 2011) that the ﬁve
internationally-recognised principles set out in the 2005 Sustainable Development Strategy should be included in the Localism
Bill – namely, living within environmental limits, ensuring a strong, healthy and just society, achieving a sustainable economy,
promoting good governance and using sound science responsibly. However, the explanation given in the draft NPPF of what
sustainable development means in the planning context does not acknowledge these. Indeed, there is no mention of living within
environmental limits – which would necessarily restrict how far needs can be met – or the considerable scientiﬁc evidence that
already exists as to the extent to which the UK is operating within its ecological limits.
What we do ﬁnd is the statement (in para 14) that:
“14. At the heart of the planning system is a presumption in favour of sustainable development, which should be seen as a
golden thread running through both plan making and decision taking. Local planning authorities should plan positively for
new development, and approve all individual proposals wherever possible. Local planning authorities should:
• prepare Local Plans on the basis that objectively assessed development needs should be met, and with sufﬁcient ﬂexibility to respond to rapid shifts in demand or other economic changes
• approve development proposals that accord with statutory plans without delay; and
• grant permission where the plan is absent, silent, indeterminate or where relevant policies are out of date.
All of these policies should apply unless the adverse impacts of allowing development would signiﬁcantly and demonstrably
outweigh the beneﬁts, when assessed against the policies in this Framework taken as a whole.”
As currently framed, the presumption appears to promise an easier ride for developers – indeed it is already seen as such by many
commentators. The wording at the end is likely to be a section that is much debated – this is no longer intended to be a planning
balance between competing considerations, but one where an adverse impact of a development must be “signiﬁcant” enough to
The draft NPPF suggests that the decentralisation promised by the Localism Bill will be limited. The regional spatial strategies
and targets may be removed by the Bill, but the NPPF wants local people to take the responsibility for meeting the “objectively
assessed development needs”. This is Localism, so long as the default answer is ‘yes’.
But there are also some legal issues. As a matter of law, the presumption does not ﬁt with the basic statutory test that planning
decisions should be determined in accordance with the development plan unless material considerations indicate otherwise
(established in s.54A of the 1990 Act, and now in section 38(6) of the Planning and Compulsory Purchase Act 2004). Some
have argued that the presumption harks back to the language used before 1997, that permission should be granted unless “that
development would cause demonstrable harm to interests of acknowledged importance” (PPG 1, 1988, para 15, and earlier
versions). But that policy presumption was held to be irreconcilable with the statutory duty and the same conﬂict will arise here.
The status of the local plans in relation to the ‘presumption’ is also a major challenge. The NPPF wishes to see development
granted permission where a local plan is “absent, silent, indeterminate or where relevant policies are out of date”. The planning
system is used to dealing with policies which are “out of date”, and that is probably all that this part of para 14 should have
said. Instead, what are we do with the 70% or so of local plans that have yet to be adopted, and are ‘absent’ ? Many recent local
plans will deliberately be ‘silent’ on important points, as they will have been adopted following the old advice to ensure that they
did not repeat national planning guidance. There is a major problem with the idea that the default answer applies when plans
are “indeterminate”. This would turn the current working of the plan-led system into confusion. Many decisions in planning
are made where the development plan policies pull in different directions and are in effect “indeterminate”. That is part of the
normal judgment made by the planning authorities, as was acknowledged by the House of Lords in City of Edinburgh Council v
Secretary of State for Scotland  1 WLR 1447, per Lord Clyde:
“There may be some points in the plan which support the proposal but there may be some considerations pointing in the
opposite direction. [The inspector] will require to assess all of these and then decide whether in light of the whole plan
the proposal does or does not accord with it. He will also have to identify all the other material considerations which
are relevant to the application and to which he should have regard. He will then have to note which of them support the
application and which of them do not, and he will have to assess the weight to be given to all of these considerations.
He will have to decide whether there are considerations of such weight as to indicate that the development plan should
not be accorded the priority which the statute has given to it. And having weighed these considerations and determined
these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some
material consideration or takes account of some consideration which is irrelevant to the application his decision will be
open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or
As for the document as a whole, the country’s planning committees and planning inspectors will have no choice but to apply
the policies as they are drafted. They will need to know what they mean, and their deﬁnition will ultimately be debated in the
courts. The courts will pay due deference to the politicians, and they will only quash a decision based on policy if the decisionmaker attaches a meaning to its words which they are not capable of bearing. But this can be taken too far, and the courts will be wary of any approach to interpretation “whereby a decision-maker can live in the planning world of Humpty Dumpty, making a particular planning policy mean whatever the decision-maker decides it should mean.” (Cranage Parish Council v First
Secretary of State  J.P.L. 1176 per Davis J.).
Consultation on the NPPF ﬁnished on 17 October 2011. There has been a high rate of response, of about 14,000 responses.
I welcome the fact that the government has now signalled that the document will be redrafted to take on board many of the
concerns that have been raised, and that they are likely to allow for a transitional period (there being none suggested in the draft).
There was a danger that this scale of change was far more of a shove than a ‘nudge’, and one therefore where the planning system
was at risk of stumbling and falling before it found its feet.
So, anyone affected by development must now probably wait until next year to see the adopted version of the NPPF. In the
meantime, we will continue to debate the relevance of the draft to current applications. Fortunately, that has become a little
clearer. The Planning Inspectorate initially stated in rather bullish form that the draft NPPF “gives a clear indication of the
Government’s `direction of travel’ in planning policy”. They withdrew that statement in September, and their guidance now more
accurately only states that
“It is a consultation document and, therefore, subject to potential amendment. It is capable of being a material
consideration, although the weight to be given to it will be a matter for the decision maker in each particular case. The
current Planning Policy Statements, Guidance notes and Circulars remain in place until cancelled.