High Court Rules Appeal Decision Issued in Error Can Be Withdrawn

Landmark

High Court upholds SSCLG’s withdrawal of a planning appeal decision issued in error

DATE: 21 Oct 2013

Cranston J. today delivered judgment in R (Gleeson Homes Ltd) v. (1) Secretary of State for Communities and Local Government and (2) the Planning Inspectorate [2013] EWHC 3166 (Admin), a case arising out of the mistaken issue of an Inspector’s decision letter allowing Gleeson Homes’ planning appeal and granting permission for a 180-dwelling residential development in Malmesbury, Wiltshire. At the time when the decision letter was issued, the Secretary of State had already decided to recover the appeal for his own determination and his office had communicated that decision by email to the Planning Inspectorate. The recipient of that message was, however, on leave and by coincidence on the same afternoon the Inspector sent his decision letter to the Inspectorate’s despatch office for it to be released, which, in ignorance of the Secretary of State’s decision to recover, it duly was. The mistake was discovered shortly afterwards and on the next day a letter was sent to the parties to the appeal stating that the Inspector’s decision had been issued in error and was withdrawn. On the following day, the Planning Inspectorate issued a further letter providing the parties with formal notice of the recovery direction and the reason for it.

Dismissing the claim, Cranston J. held that:

1. The proper interpretation of the provisions in paragraph 3 of Schedule 6 to the Town and Country Planning Act 1990 was that a recovery direction did not need to be served on the parties before it could take effect. The decision the House of Lords in R (Anufrijeva) v. SSHD [2004] 1 A.C. 618 did not support the broad proposition that all public law decisions do not take effect until they are communicated to the affected parties, but the narrower proposition that only those decisions which adversely affect an individual’s rights needed to be communicated to take effect. It therefore did not help Gleeson in the present case, since the Secretary of State’s decision to recover the appeal was not ‘adverse’ to anyone but simply altered the identity of the decision-maker.

2. Accordingly, the Inspector’s decision was issued at a time when jurisdiction to determine the appeal had been transferred from him to the Secretary of State. The previous cases of Norfolk CC v. SSE[1973] 1 WLR 1400 and Co-operative Retail Service Ltd. v. Taff-Ely BC (1980) 39 PCR 223 were authority for the proposition that, in the planning context, a person deprived of legal authority to perform a function cannot subsequently issue any decision having legal effect. The Inspector’s decision letter therefore had no legal effect and the Secretary of State retained the power to determine the appeal.

3. Alternatively, even if the recovery direction had not taken effect prior to its service on the parties, meaning that the Inspector continued to have jurisdiction to determine the appeal at the time when his decision letter was issued, the Secretary of State was still entitled to withdraw the decision letter in the circumstances.  Applying the judgment of the High Court of Australia in Bhardwaj v. Minister of Immigration [2002] H.C.A. 11 on the principles relevant to assessing whether a public body has power to correct its erroneous decisions, it was appropriate to imply into the 1990 Act a limited power to enable simple and obvious administrative errors to be corrected (subject to compliance with the requirements of public law). The powers of revocation in ss.97-100 of the 1990 Act (which carry with them an obligation to compensate the beneficiary of the revoked permission) did not undermine this analysis since they were not concerned with simple and obvious errors but the situation where there has been a change of mind on the part of the planning authorities.

4. The recovery direction was not irrational or inadequately reasoned, nor was there a requirement for the Secretary of State to consult the parties to the appeal before issuing the recovery direction.

5. The withdrawal of the Inspector’s decision letter without compensation was not in breach of Gleeson’s rights under Article 1 of the First Protocol ECHR. Given that the error was identified and corrected within one day, any interference with its A1P1 rights was de minimis. In any event, it was justified as a fair balance between the claimant’s interests and the general public interest.
John Litton QC and David Blundell appeared for the Claimant.

Charles Banner appeared for the Defendant, with Jonathan Swift QC.

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Yet Again The Middlewich Sandbach Road Appeal Returns

Following a JR and redetermonation with a ‘minded to’ decision the principles of the site have had to be determined again as by thyen the RS had been revoked and Cheshire East had made progress with a draft plan.

Though nominally Cheshire East has a 5 year housing supply 700 or so in excess of demand the SoS considered that

On the supply side the Secretary of State considers that there is justifiable doubt about the assumed build rates on sites. The updates to individual site assessments of
delivery submitted by the Council and the Appellant serve to highlight the vulnerability of the overall assessment to changes in build rate assumptions. This is compounded by the substantial reliance on strategic sites (43%) that form part of an emerging plan where, from the evidence available, some sites are subject to objection and can reasonably be expected to be subject to challenge during plan preparation; leading the Secretary of State to conclude that there is reasonable doubt that all sites will remain in the plan and deliver housing at the assumed rates. Sites identified as under construction or with planning permission, where there is likely to be more certainty on yields from sites, constitute only some 14% of the anticipated 5 year land supply. This further emphasises the substantial reliance on sites where changes to assumptions of yield and build rates may significantly impact on the achievement of the projected land supply. The Secretary of State is also not persuaded by the evidence submitted to him that the Housing Market Partnership has endorsed the methodology and conclusions of the updated SHLAA. This further undermines his confidence in the updated SHLAA findings. Having considered these matters very carefully, the Secretary of State is of the view that the Council has not demonstrated a 5 year supply of deliverable housing sites against even the most favourable assessment of the 5 year housing requirement. The Secretary of State finds this a factor weighing in support of the proposed development.

On this basis the 20% addition figure applies.

But the question is is this double counting.  The NPPF adds 20% in cases of persistent underdelivery ‘to provide a realistic prospect of achieving the planned supply’ as well as the ‘choiuce and competition’ reasoning for the 5%.  If realistic build rates are recalculated then is it not double counting to add a factor within the 20% for underdelivery as well, and why does the ‘realistic prospect’ argument not apply to the 5% as well.  Frankly on this point the NPPF is a dogs breakfast interpreted willfully and without clarity consistency or principal by the SoS.

Stratford Admits Lack of Evidence to Support New Settlement at Gaydon/Lighthorne

Cabinet Report Tommorrow Night

A number of issues have been raised in relation to the new settlement proposal, which identify the need for further detailed assessment work to be undertaken prior to the Council determining that this proposal is the most sustainable option for the District…

That prior to formal consideration of the soundness of this new settlement proposal the issues outlined in paragraphs 3.13, 3.14 and 3.19 of this report be subject to a more detailed analysis to evaluate the robustness of the evidence base that the Gaydon/ Lighthorne Heath new settlement proposal is the most
sustainable option for the District…

Development Strategy – some respondents suggest there is no justification for the scale of development proposed or for the creation of a new settlement. Many feel that the strategy should provide for a wider dispersal of development across the District and suggest it is possible to accommodate more growth in smaller settlements. There is a body of opinion that suggests a new settlement could be provided more appropriately at Long Marston, where it would use brownfield sites and
there is a potential connection to the rail network. An M40 related conurbation would inevitably encourage trips by private car. Others feel there should be more development at Stratford-upon-Avon to benefit its town centre and economy or that it might be shared around the Main Rural Centres as they already have the necessary facilities and infrastructure….

Nature of the location – the site is identified as being isolated from services and its development would have occupational, educational and social implications. It is said to be on the fringe of South Warwickshire in a location that does not relate well to other parts of the area. Rather, it would attract new residents to the District and provide housing for adjacent districts rather than provide for the District’s own residents and communities. The location next to the M40 will increase out-commuting
and make it impossible to offset the carbon footprint of the settlement.

Traffic and transport – this is the most consistent source of concern. Many say that a major increase in cars using existing roads will cause congestion, hazards to pedestrians and have an adverse effect on residents. Various local roads are identified as carrying heavy traffic flows (the B4100, Fosse Way, Lighthorne Road, Old Gated Road and B4511 are all mentioned), speeds are dangerously high, and the roads are felt to be unable to take additional traffic. On wider forms of transport, the objections point out that there is no nearby access to the railway network and that the location is too far away from other main towns for an express bus service to be successful. As regards walking and cycling, the impact on local footpaths will mean that the amenity of walkers will be seriously affected and the main towns are too far away to make cycling a realistic option…

The Council has not ignored the requirement set out within the Strategic Environmental Assessment Regulations to produce an Environmental
Report to accompany the Core Strategy. In accordance with best practice this report sits within the Sustainability Appraisal (SA).  However, because work on the latest iteration of the SA has been ongoing during the consultation period, it has not yet been presented to the Council, accepted into the Evidence Base and made public.

[Comment – because the new settlement proposal was developer led there was not time.  The intention of nthe EU SEA directive is that the SEA process should lead and not follow choice of options and that there should be ‘early consultation’ on options.  This will mean the who process will have to be re-run.  It is not even clear if this is the best location for a new settlement].

On the highway issues there has yet been no response from the Highways Agency, as the site is next to the M40 it is difficult to see the scheme progressing without their ok.

It is clearly the case that more detailed work is required on traffic impacts, and it appears that most critically this work should report on two aspects:-
• The anticipated impacts on the rural highway network in the vicinity of the site, including the potential impacts on a number of local villages. This work has been commissioned as part of the next phase of assessment, is underway and is programmed to
report by the end of 2013.
• The anticipated impacts on air quality and the historic environment in Warwick and Leamington Spa. This work has been jointly commissioned in line with the Duty to Co-operate and is programmed to report by Spring 2014.

There are further aspects of the proposal where the evidence base needs to be developed to provide greater clarity around the detail of what is to be delivered. However, having regard to the consultation responses, there is good reason to believe that nothing will emerge that would threaten the principle of development in this location.

[Comment – this is not the case as Seven Trent have not yet responded.  The first issue to be determined in choosing a location for a new town is whether the water courses can take the discharge from a sewage works and still meet EU water quality and habitats directives,  This work has not been done.]

It is now apparent that JLR has ambitions to further develop the Gaydon site that from their perspective would best involve the use of part of the land currently proposed as lying within the new settlement. Information made available to the Council but not yet formally confirmed by the two parties suggests that JLR and the scheme promoters are seeking to reach an agreement that would see an area towards the southern end of the proposed new settlement being identified to provide capacity for JLR’s expansion plans. The implications for the new settlement proposal are significant in two respects. Firstly, the provision of general employment
land associated with the new settlement would be displaced to land on the south side of the B4451 and not previously included in the proposed new settlement area. Secondly, the overall capacity of the new settlement would be reduced to around 4000 homes, although still with 1900 homes being provided during the plan period. These anticipated changes are built into the revised proposal for the new settlement.
Although it was hoped that an agreement might have been reached by the time the Council met, this is unlikely to be the case. It is considered that the resolution of these discussions to the mutual satisfaction of all parties is critical to the future interests of the District. The issue is one of strategic significance and its resolution is likely to go to the core of the overall soundness of the Strategy. In the absence of an agreement the Council would be unwise to seek to progress its proposals to the stage of independent examination.

In light of the comments submitted and the foregoing assessment, the following options should be considered:

(2) In relation to the new settlement at Gaydon/Lighthorne Heath:
a. To include the new settlement proposal in the Core Strategy as consulted upon.
b. To include the new settlement proposal in the Core Strategy but in a revised format that incorporates the provision of land for Jaguar Land Rover, with a consequent reduction in the overall housing capacity and the relocation of the site for more general employment purposes to land south of the B4511.
c. To undertake further work on the soundness of the new settlement proposal in light of the response to the consultation and the issues raised in paragraphs 3.13, 3.14 and 3.19.
d. To remove the new settlement proposal from the Core Strategy and identify alternative means of meeting a comparable scale of development.
4.2 In options a, b and d members should consider whether the preferred option can be confirmed now or whether further evidence is required
prior to such confirmation.

[Comment – This none recommendation of course does not comply with the RTPI code of conduct.  Which is the chief planners recommendation.  Perhspas they should be asked.  Which do they consider is legally robust and sound?  Legally c is the only option open to the District as they have not yet conducted an SEA or consulted on it. In the light of the principle established at the Merrydown case (Basingstoke and Dene) they could find the next stage of consultation legally challenged unless they follow in full the SEA directive and include all reasonable alternatives.  Also it is clear that not even the basic studies necessary to identify the suitability of a new settlement site – water cycle and Strategic transport network studies – have been done – indeed it is amateurish.  Also I would add as it is clear that a whole new round of consultation is needed once these studies and the SEA reflecting them is finished Stratford Councillors could be challenged by the District Auditor for pressing ahead on a plan they know to be unlawful and without evidence of it being sound – similar concerns and the intervention of the Distrcit Auditor – would could have lead to cllrs being surgcharged for abortive expense, led to the North London Waste Strategy and associated plan being halted.

Finally a point that has not so far been raised fully.  The NPPF and the associated BETA guidance are clear that housing is to be assessed by housing market area.  Because the Gaydon/Lighthorne site is next to the M40 it ios clear that it will primarily serve Brum and Warwick/Lemington over Stratford commutes, possibly by a ratio of over 4:1.  This mean that to meet the NPPF test of jobs homes balance any new settlement would have to be several times larger to account for the majority of housing need it serves being from outside the district.  This would like;y make the scheme unworkable, there is not enough space to the West of the M40.

Unless and until the basic work on housing markets, water Cycle, and Strategic Transport Impact are done Startford is no position to green light this scheme or even determine if this is the best location for a new settlement.  This work will take another 6-8 months to complete.  In my mind the scheme is dead but Stratford are still in denial until they see the evidence in black and white.  I think the Core Strartgy can only survive, especially as the Shottery Inspector said the housing requirement is still well in excess of what Stratford are proposing, if they drop the proposal for a new settlement now, go for North East of Stratford instead and propose an early review which may consider several sites for new settlements if the outcome of the Brum plan/SEA process shows the need for considerable overspill, This is what is happening in Lichfield and Bromsgorve.]

Independent Expose on Britain’s Worst Developer

Peel Holdings of Course

When the BBC announced in 2007 that it was to move five major departments and 1,500 London-based jobs up to Salford, Manchester, one of the reasons it cited was a commitment to “distribute production spend… more widely across the whole of the UK”.

Its new £200m, five-storey home – MediaCityUK – on the banks of the famous Salford Quays would be a shining beacon of regeneration that the then-Labour government was trying to encourage in less-affluent regions beyond London and the South-east.

However, the company that rents the 200-acre waterfront site to the BBC is, in fact, one tiny cog in a giant network of companies ultimately controlled by a billionaire tax exile who lives on the Isle of Man.

Over the next 20 years, the BBC is due to spend hundreds of millions of pounds in licence-fee payers’ money to the Peel Group, one of the largest private-owned property companies in the UK.

At the apex of its complex corporate structures sits John Whittaker, a fearsome dealmaker whose aggressive business strategies have seen the firm colonise huge swathes of the North.

There are hundreds of subsidiary Peel companies registered in the UK, all ultimately owned by a private family trust, the Billown Trust, registered in the Isle of Man.

Almost three-quarters of this entity is owned by John Whittaker, 71, and his children, with the remaining stake taken by the Saudi Olayan Group.

The tycoon is a director of an astonishing 312 companies, according to Companies House. Almost all are Peel Group subsidiaries, which include interests in Liverpool, Durham and Doncaster airports, the Manchester Ship Canal, Scottish ports, and docks along the banks of the River Mersey.

The jewel in the Peel crown was, until 2011, the Trafford Centre, a huge out-of-town shopping mall in Manchester eventually sold to CSC for £1.65bn. When the sale was completed, Whittaker’s empire managed to legitimately avoid paying around £200 million in capital gains tax because it took payment in CSC’s shares.

Last week, MPs on the Commons  Public Accounts Committee published a report that warned of a danger to the BBC’s reputation if it forms questionable business partnerships. “The BBC’s relationship with significant partner organisations also involves potential reputational risks for the BBC, for example, the extent to which partner organisations are transparent about their tax status in the UK and the amount of tax they pay,” it said.

The committee demanded that the BBC executive provide evidence to the governing BBC Trust showing that it assessed the “potential risks” of allowing the Peel Group to have a “dominant position” at Salford.

“It should also make clear its expectation that, as an organisation funded by the licence fee, it expects companies with which it contracts to pay their fair share of tax.”

Peel Group’s MediaCityUK venture in Salford is heavily reliant on public money, including more than £400 million in rent for BBC studios and office space.

The labyrinthine nature of the Peel Group’s corporate structure means it is difficult to say how much tax it pays to HM Revenue and Customs.

In June, the MPs made a visit to the premises and the committee chair Margaret Hodge said the Peel Group was not contributing enough to the Inland Revenue, claiming the group paid a maximum average of 10 per cent corporation tax. “They do not pay their fair share,” she said.

A Peel Group spokesperson said: “It is inaccurate to suggest that Peel is not paying its fair share of corporation tax. All Peel Group operating businesses, including Peel Media (the developers and owners of MediaCityUK), are UK domiciled for taxation purposes and pay the appropriate level of UK corporation tax.” He declined to comment on the tax affairs of Mr Whittaker, of whom surprisingly little is known.

Mr Whittaker seldom makes public appearances, and when he does they often stay in the memory. When the Trafford Centre opened in 1998, Mr Whittaker dressed up in a spotless white naval uniform with gold epaulettes and abseiled down into the mall from the bridge of a mocked-up transatlantic cruise liner.

Despite Mr Whittaker’s advancing years, his ambition shows no sign of faltering. His next big project is to transform 50 miles of bleak industrial land between the Port of Liverpool and Salford Docks into a £50 billion redevelopment called “Ocean Gateway”. The scheme, which will take at least five decades to complete, will include a £5.5 billion overhaul of the city’s waterfront with 50 skyscrapers, four hotels, a marina and a cruise liner terminal.

However, there is significant local disquiet over pumping yet more public money into a company that – albeit legally – appears to avoid so much tax.

Peter Kilfoyle, a former Labour Cabinet Office minister, is campaigning for more openness and transparency in Peel’s dealings on Merseyside.

His think-tank ExUrbe claims the Peel Group has received millions in EU and UK public grants. Mr Kilfoyle is also concerned about the influence the group has over local planning and points out one of its directors, Robert Hough, was chair of the North West Regional Development Agency and now chairs the Liverpool City Region Local Enterprise Partnership. He told The Independent: “Everything we know about what Peel does is legal. But that is vastly different from what is in the public interest.

“We have to ask ourselves if putting public money into organisations like Peel, who operate through a web of companies that funnel a lot of money offshore, is actually in the national interest. Just because it is legal doesn’t mean it cannot provoke disquiet. Where does the investment go?”

Mr Hough said: “The roles and responsibilities of all LEP board members, including the chairman, are clearly defined and have been formally discussed by the board.”

The Classical Theory of Rent: A Correction and Reconstruction

Below is an abstract of a paper im writing, which will take some months to complete.  It aims to solve a recently rediscovered problem in Ricardo’s theory or rent in relation to intensive rent.  The solution has wider implications in showing how an unequal distribution of economic rent earning resources can slow economic growth.  I realised this when following a recent discussion on the Gang 8 mailing list.  The question was how could rent be extractive if it was simply a transfer payment, i.e. if someones rent is another person’s income.  I realized that if rent has an extractive effect this has to reflect on the total value of all goods, and that the solution to the intensive rent issue was at the same time a precised description of what the scale of this extraction was.

Abstract

As is well known Ricardo’s theory of value rests on two principles:

1) All variable and fixed capital can be treated reduced to labour;

2) Rent is an effect and not a cause of profit

Hence all value can be reduced to embodied labour and rent does not enter into the price of goods.

Both assumptions have been challenged. The first principle on the basis of the problem of unequal capitals (period of turnover and ratio of variable and fixed capital).  For Ricardo’s contemporaries Mill and Mc Culloch this was not a problem as they insisted all capitals could be recalculated to the same scale through the method of annuities.  Using such a method all output princes can be recalculated at input present values – so there is no transformation issue.  In the first part of the paper we reconstruct a hypothetical economy with perfect competition and perfectly flexible and transferable labour and equal fixed endowments of money, but no credit. I in such an economy we demonstrate that using the method of annuities all princes are directly proportional to discounted marginal labour values as labour time is the only scarce variable.

Ricardo’s second principle has recently been shown to present considerable difficulties in the case of intensive differential rent (the separate writings of Sinha and Fratini).  Ricardo’s rebuttal to Say on the issue of intensive rent depended on an assumption that capital could produce corn without land. Correcting for this assumption leads to the cost last dose of capital at the intensive margin entering into the price of goods and princes no longer being proportional to labour values (the same principle can be applied at the extensive margin as new land will also require new capital inputs).  This as a by product a vindicates of both Smith and Marx’s theories on ‘Absolute’ monopoly rents when there is no longer viable uncultivated land.

This theory however has a problem, as it assumes that the last dose of capital can be created without labour.  When one uses the method of annuities to calculate the present value of labour entering into this capital one finds that cost plus gross profit (before division into wages, interest, profits and rent) is equal to discounted labour inputs.

I proceed by treating land as an example of joint production where the commodities produced are the land and the services yielded by that land.  As the income stream has no fixed end it is treated as a perpetuity rather than an annuity. Rent is a form of perpetuity due, paid in advance at the beginning of any lease period,  however the services of land is an ordinary perpetuity which yields its services over the period of the lease.  By calculating the difference between the perpetuity due and the ordinary perpetuity one can calculate the value of economic rent.  The joint production/depreciation issue can be solved using a novel method perfected by Hotelling.  I show that the result is equivalent to the flow input/flow output treatment of rent developed by Mason Gaffney.

Using this method I expand the previous hypothetical model to income economic goods (scarce goods) and rental of money produced at a cost (credit) and demonstrate that all economic rent can be decomposed into capital inputs (which can be decomposed into rent and labour in turn) and extensive rent (which is a transfer payment) hence all value can be reduced to discounted marginal labour values, and the Bose Theorem critique of the classical theory of value is disproved. Reconstructed in this way the classical value theory holds even in cases where intensive rents are price determining.  Also it is far more general holding in all cases including of monopoly rents, for non-produced goods and for interest.  It is a general not a special theory of value.  Also it demonstrates how the implications of unequal distribution of scarce goods can impact on effective demand and economic growth by requiring savings to bridge the gap between the value of the perpetuity due (rent) and the value of the ordinary perpetuity (services of economic goods).

What the Papers Would Have Said About the Liverpool-Manchester Railway

fter the nonsense on the front pages of the Guardian and Telegraph today what might they have said about the opening of the Liverpool Manchester Railway (apologies to Basitat).  Also what was Henry Overman thinking?

Municipal leaders from Wigan, Oldham and Blackburn protested today at the opening train, George Stevenson’s Rocket, of the Liverpool-Manchester Railway’

‘We could lose thousands of Guineas, said the Mayor of Wigan.  Bushiness will relocate from our town to Liverpool or Manchester, it must be stopped’

Did these town suffer, no they benefitted.  Spot the economic fallacy here. Businesses will only relocate if they have a productivity saving.  This saving creates agglomeration savings in the towns affected.  The boost to the national economy benefits the whole national economy and through spillover effects to adjoiniung towns, and so on.  By definition the gaining areas will outweigh any losses suffered by individual places.

Of course also the best way to ensure that Cambridgeshire doesnt suffer losses is to build an HSR to Stanstead, Cambridge and Peterborough which would also provide a second HSR path to the north.

Ludicrous ‘one in two out rule’ is Hampering Housing Standards Review

Interesting panel discussion in AJ

Ten months after the first AJ More Homes Better Homes roundtable set out how the government could kickstart house building, a second gathering of top-flight experts convened last Monday to discuss progress on planning reforms and assess the Housing Standards Review.

The Review is currently out for consultation, closing 22 October, and proposes replacing 100 independent standards with a 10-point national standards framework, abolishing the Code for Sustainable Homes and floating controversial UK-wide minimum space requirements.

But the roundtable, which included leading housing architects and developers, plus two members of the government’s Challenge Panel, claimed the Standards Review did not go far enough to impact housing supply.

The panel criticised the government’s arbitrary ‘one-in, two-out’ rule on regulation, which has been blamed keeping the standards out of the regs, describing it as ‘ridiculous’. Challenge Panel member and planning consultant Paul Watson said: ‘There seems to be a consensus that we’re going in the right direction and we shouldn’t go there slowly.’

Developer Roger Zogolovitch also questioned the government’s focus on streamlining regulation, while the planning system remains arbitrary, saying housebuilders have a ‘desperate need for clarity’.

‘Regulation does not stop the housebuilder making homes, what does is this arcane planning system,’ Zogolovitch said, calling for New York-style zoning laws which would give developers the right to build to an agreed size before site purchase.

Alison Brooks argued that putting housing standards into the regulations would free up planners to consider more important issues, such as infrastructure, aesthetics and town planning. ‘Take them out of planning negotiations and empower planners,’ Brooks said.

THE PANEL

  • Paul Finch, editorial director, The Architects’ Journal (chair)
  • Paul Watson, planning and urban design consultant
  • Julia Park, head of housing research, Levitt Bernstein
  • Claire Bennie, development director, Peabody
  • Andy von Bradsky, chairman, PRP Architects
  • Alison Brooks, director, Alison Brooks Architects
  • Alex Ely, partner, Mae Architects
  • Roger Zogolovitch, director, Solidspace

Regulation

Paul Finch Has anyone produced any evidence that conflicting standards and conflicting bits of planning is actually significant in slowing house building in percentage terms, compared with shortage of finance or unavailability of land in the right areas? It’s talked up as the really big problem; but in reality isn’t it a minor problem?

Alison Brooks It’s amazing how many schemes get stuck in conflicting standards and conflicting compliance. The only way to create a more level playing field is to consolidate the standards as regulations. Take them out of the planning negotiations and empower planners with the responsibility to deliver long-term infrastructure.

It’s amazing how many schemes get stuck in conflicting standards and conflicting compliance

Claire Bennie Pretty much every standard can go in the regulations. Space standards and affordability are problematic because they are locally treasured.

Andy Von Bradsky We don’t have the answer for supply and we don’t have the answer for land or planning. But, certainly, if you simplify the standards, put as many as you can in Building Regulations, you have at least a chance of getting the scale of development you need.

Paul Watson Artificial barriers such as the government’s ‘one-in, two-out rule’ for new regulations are being put in the way of common sense. There seems to be a consensus that we’re going in the right direction and we shouldn’t go there slowly on the back of the failing process.

Julia Park The ‘one-in, two-out rule’, whether we like it or not – and it is ridiculous – is there, and the idea that the civil servants could just brush that aside and say ‘housing quality is more important’, is not realistic. Furthermore, the Housing Standards Review was deregulatory, so the idea of streamlining to one regulated set of standards in one go, leaving local authorities no room at all to manoeuvre and no possibility to cope with genuinely geographically determined circumstances isn’t realistic.

Roger Zogolovitch The market doesn’t have an appetite for total deregulation. But as a manufacturer, I have a desperate need for clarity. Regulation does not stop the housebuilder making homes. What does, is this arcane planning system that makes it impossible to regulate. The principle for ‘of right’ development, such as in New York, could be embodied in more of a regulatory form.

Andy von Bradsky The timing of the standards review and its closeness to an election becomes an issue for how reform is delivered. If we leave it to the usual processes of getting changes into regulations, it could take up to three years and that might jeopardise the review.

Julia Park I’d like to see this process succeed, but there are real dangers in holding out for regulation because regulation, as distinct from standards, has to be subject to ‘one-in, two-out’. It will take years, not months, and I think we risk losing it because of that.

Paul Watson I simply don’t buy the argument that it will take years and not months to introduce changes to Building Regulations. We’ve found ourselves in a ludicrous position of the government’s own making. We need to make sure the review is completed through a process that’s got drive and pace in it.

Paul Finch This process is not deregulation at all, it is rationalised regulation. Furthermore, the word ‘regulation’ should not be pejorative because, Roger, you like the New York system and it is an extremely rigid regulatory system. In many free market Tory minds regulation equals evil, but if it is referred to as a standard, like an educational standard, it’s rather good. The best standards are really elitist, and isn’t that what Tories all like?

Space

Paul Finch I’ve heard no evidence that reducing standards and allowing hutches somehow produces more properties which satisfy the market.

Alison Brooks Parker Morris standards were based on very conventional families and there are all sorts of diverse make-ups that aren’t catered for. Existing space standards are too small and there isn’t encouragement to design a house so it can be extended or expanded. The Netherlands is one of the densest countries in Europe and has space standards 30 per cent bigger than the UK.

Roger Zogolovitch The debate focuses on large-scale housebuilders, but we forget the inventive and innovative stuff on the fringe. Developers like Pocket, for instance, have looked at young professionals looking to buy for the first time. We must be very careful we don’t preclude this kind of development and make it impossible to occupy a central London property.

Julia Parks Pocket’s main product is a small one-bed flat but, by referring to it as a one-bed, one-person flat it then falls within the 37m², 38m² or 39m² category and is permitted within the London Housing Design Guide. Some of its developments are even smaller, at 29m². They like to build studios at 29m² [two or three units this size feature in Burrell Foley Fischers’ 2008 Weedington Road scheme in Camden]. The Greater London Authority capitulated [on Pocket’s Waugh Thistleton Architects-designed Marcon Place development in Hackney, which has permission for two studio flats at 32m²], as there is woolly wording in the Supplementary Planning Guidance, which says: ‘In exceptional circumstances and subject to excellent quality, a small proportion of smaller homes would not be ruled out.’

Claire Bennie We have been using the London Housing Design Guide a lot and we find it provides quite a lot of simplicity and certainty. Londoners, however, need options, and affordability is key; sometimes smaller-sized homes offer people affordability.

Andy von Bradsky If you talk to anyone who is using the London Housing Design Guide at the moment, the advantage with it is the ability for local authorities to do trade-offs. This idea of flexibility within the regulation application is really important. There needs to be a level playing field between tenures, protection for social housing, and the Housing Act needs to be revisited in terms of what constitutes an adequate bedroom or double bedroom. A better-informed customer is important, so having standard labelling for all new and existing homes is vital.

Planning

Alex Ely If you could pin down a set of standards and if local authorities could be much more rigorous with local development frameworks, using localism to define what land use and quantum should happen where, then if you meet those requirements you should get your permission. Also if you exceed standards or regulation there must be some sort of mechanism to incentivise.

Alison Brooks With Newhall, it is like a competitive bid process, but instead of developers putting forward a bid with an architect in tow and working up a deal with the local authority, it is a design-led bid with the land value built into the bid, and once it is consented by developer Newhall Projects, it goes through planning quickly, like a shot. The pace of consents and builds has got to be an incentive for developers to build more.

Andy von Bradsky There needs to be a document that sits in the National Planning Policy framework which refers specifically to an aspiration for quality and sustainability for housing in the UK, not the building performance issues which should clearly be in Building Regulations.

Infrastructure

Alison Brooks Housing is a kind of infrastructure. It needs regulation and it needs to be dealt with in a way that isn’t based on the short-term market’s development appraisal sheets. It needs to be embedded into a long-term strategic development framework that comes from local government and supported by national government.

Paul Watson There are all sorts of issues in the Penfold Review about infrastructure, roads, utilities, which haven’t been brought forward and that’s the review that happened two years ago. If you could recreate an effective strategic planning system in this country and then take some tough decisions around new towns or garden suburbs, for example, then you could make a real difference to the amount of homes that would be built.

Andy von Bradsky I’m encouraged by the fact that all three parties are fighting to be top of the tree on housing policy, and two of the three parties are advocating garden cities. There are ways of expanding our towns, but of course it cuts across electoral boundaries which makes it very difficult, so you need a strategic authority of some sort to make those decisions.

Land

Claire Bennie There are a lot of viability arguments around sites. A lot of people are still saying: ‘Oh, we can’t do much affordable housing, because look at the Community Infrastructure Levy and look at the space standards, etc.’ But they’re basing it on what they paid for the site when there was more grant and so forth. A very gradual diminution in land values needs to happen, so that asking for higher standards doesn’t mean fewer affordable homes.

Alison Brooks The laissez-faire way properties are valued keeps the consumer ignorant. You don’t really know what you’re buying, which creates a false or inflated value. There needs to be a much more succinct and scientific method of measuring the physical properties and qualitative aspects of housing.

The laissez-faire way properties are valued keeps the consumer ignorant

Roger Zogolovitch I don’t buy this argument about land being artificially priced. If Claire and I were competing for a plot in auction this afternoon, we would both have independently assessed the site and we would probably come up with a different development figure; then one of us would outbid the other. It is market value based upon an assumption.

Paul Finch You’re bidding on the unknown where nobody quite knows what will win planning consent. Would you get more if you could eliminate that uncertainty? Does there need to be proactive planning? What you’re arguing for, Roger, is New York-style zoning, where every bit of land has got an as-of-right ‘this is what you can do’.

Looking forward

Alison Brooks It’s great that this debate is even happening, when you think about where the housing industry was 10 or 15 years ago. The fact that it has come to the forefront of everybody’s consciousness in the past five or so years is great. It’s a crucial debate because it is about the economy of cities and social wellbeing.

Claire Bennie Building more homes is great and all the standards are great, but what does it look like? You can have something that meets every single standard, but is still ‘pig ugly’ in planning minister Nick Boles’ words. This is something Peabody and the RIBA are going to be working on shortly.

Alex Ely If regulations are too far off and we need an interim stop-gap, I would like to see standards in the hands of one agency, because Code for Sustainable Homes is owned by BRE, Lifetime Homes by Habinteg, Secured by Design by someone else [ACPOS]. They’re all upgraded and changed in their own time frame, and they’re not cross-referenced.

Roger Zogolovitch The advantage of a national regulatory framework is that you may get to European sizes and scales of effectiveness in prefabricated design, and start to disaggregate your design and manufacturing process from the land itself. We would then start to get some interesting, fresh players.

Hartlepool Councillors Abandon Town to Appeals in Irresponsible Move

Perhaps a Hartlepool cllr can explain any likely scenario where withdrawing its local plan and casting aside the binding results of an inspectors report will benefit the town?

They like previous cllrs in Coventry in a similar position are making a critical mistake somehow imaging that the realities of objectively assessed housing need will somehow go away.  It failed in Coventry and will fail here, an inspector at a reopened inquiry on a resubmitted plan is no mug.  Hence the cllrs are acting like ostriches in avoiding a difficult but inevitable decision, and they can expect one thing only, appeals, appeals. appeals, here there and everywhere which they will have no power to influence.  The district auditor should look at any new and unnecessary work on a new plan and seek to surcharge the cllrs responsible each individually.  Again demonstrates the folly of allowing LPAs unilaterally to withdraw plans without SoS approval. All such cases have ended in tears and political humiliation for the local politicians involved.

Planning resource

Although an inspector has just said changes to the Hartlepool local plan would allow it to be found sound, Hartlepool Borough Council will discuss withdrawing the plan at a meeting this evening.

The local plan, which was drawn up by a previous administration led by independent mayor Stuart Drummond and submitted for examination in June, outlines development in the borough over the next 15 years.

The withdrawal motion, proposed by the new Labour administration, comes after planning inspector Kevin Ward wrote to the council last week saying he was happy to recommend modifications to the plan so it would be found sound.

After initial hearings in February, Ward expressed concerns about plans to allocate a Gypsy site in Brenda Road, Hartlepool. The council then decided to allocate a traveller site in Hart village, prompting opposition from residents and local councillors.

Another controversial policy in the plan is a 2,500-home development on greenfield land called the South West Extension. One of Ward’s modifications, which he sent to the council on Tuesday, suggested reducing the scheme’s capacity to 2,200 homes.

He also recommended raising the number of homes at another site, the North West Extension, from 150 to 500 homes. He said the changes would require further consultation and a sustainability appraisal.

Council leader Christopher Akers-Belcher said in a statement: “I would not endorse any more work on a local plan that is unpopular with local people. The best approach would be to withdraw the current local plan, do our own modifications and then carry out a consultation exercise and a sustainability appraisal.”

Akers-Belcher said he had spoken to Labour members in the Hart ward about their concerns over the proposed traveller site. He said: “We must revisit this element of the local plan in respect of both need and demand to determine if any site should be designated within the borough.”

Akers-Belcher said he also met with the Fens Residents Association regarding the South West Extension, which the group opposed. He went on to say that the plan withdrawal would allow the council “to review the future housing offer in Hartlepool in its entirety”, adding: “This may lead to a review of the proposed development, which does not have the support of local residents.”

In a statement, the Labour group said: “The local plan inherited by our current administration does not meet the needs of the communities we collectively represent. We cannot and will not adopt a local plan that has become divisive rather than cohesive for our town.”

The statement said members would use a measure in the Planning and Compulsory Purchase Act 2004, amended by the Localism Act 2011, which allows planning authorities to withdraw a local plan any time before adoption.

More details on Hartlepool’s local plan examination can be found here.

Pickles Refuses 24MW Solar Farm in Suffolk – Dodgy Decision Likley to be Repeated with Windfarms

In a recovered appeal Pickles has disagreed with his inspector and refused a 24MW Solar Farm.  There was already permission for a 14mw farm on part of the site.

Interestingly he quotes the new guidance as material even though it has been through no consultation (contrary to the Arrhaus convention).

The 100 or so jobs created during construction ‘would not be local, and limited to the construction phase of the development’

‘[the SoS] agrees with the Inspector that the economic benefits of the scheme are important considerations but given they are limited the Secretary of State affords them only moderate weight in support of the proposal.

And

Although the Secretary of State agrees with the Inspector that the wider environmental benefits [from clean sustainable energy] should be afforded significant weight (IR82), taking account of the Guidance, he recognises that new renewable and low carbon energy infrastructure should only be provided in locations where the local environmental impact is acceptable (paragraph 3 of the Guidance)

And

The Secretary of State agrees with the Inspector that the harm to the character and appearance of the area would not amount to significant adverse effects but,
nevertheless, considers the effect on the character of the site, although limited, would be adverse

Now it gets interesting.  The benefits of the scheme are significant, the adverse effects are not.  Even without para 14 of the NPPF requiring the disbenefits to outweigh the benefits before refusal this ought to be a straight approval.

The Secretary of State has carefully considered the planning balance in this case and the Inspector’s view that the significant benefits of the proposal outweigh the limited harm to the character and appearance of the countryside. In coming to his conclusion the Secretary of State has taken into account that a scheme in the northern part of the site has already been approved by the Council. The permitted scheme, he considers to provide an important ‘fall back’ position and to be a material consideration in his determination of this appeal.
Bearing in mind his conclusions that the local environmental benefits of the appeal scheme are comparable to those provided by the permitted scheme, and the economic benefits are limited, the Secretary of State considers there to be two key differences between the appeal scheme and permitted proposals.
Firstly, he recognises that the appeal scheme would generate a larger amount of renewable electricity, although he has also taken into consideration that this should not automatically override environmental protections and the planning concerns of local communities, as set out in paragraph 5 of the Guidance.
Secondly, the Secretary of State recognises that the limited harm caused by the appeal scheme is greater than the very limited harm that would be caused by the permitted scheme, ...He is aware that the impact on the character and appearance of the area, in particular the HTCLA, was commonly referred to in the representations of local residents and, in line with paragraphs 5 and 8 of the Guidance, he has had regard to these concerns.

Overall, the Secretary of State considers that, in this case, the increase in the amount of renewable energy generated by the appeal scheme does not outweigh the additional harm caused to the character and appearance of the area

Quite the dodgiest SoS decision in years, and I welcome the new guidance as it recognises the landscape harm that solar farms can cause.  The problem is that the SoS was desperate to show he was backing local objections to renewable schemes, even though according to the still extant Planning system General Principles this by itslef is not a material planning consideration.  No we can see why the crucial paragraph from PSGP was omitted from beta guidance, to enable decisions such as this.  In doing so the SoS has abandoned all good principles of planning decisions making and simply played to the crowd.

There are many grounds for JR here and it will undoubtedly be challenged.  Firstly the SoS relied on guidance which has never been subject to consultation.  Secondly he gave guidance greater weight that national policy in the NPPF which statements in Parliament have made clear does not amount to a change in renewable energy policy.  Thirdly the planning balence issue clearly show the benefits are significant and the dis-benefits are not – clearly in breach of para 14 of the NPPF and the presumption in favour of unsustainable development. Fourthly the treatment of the fallback position is a total dogs breakfast the SoS should have considered the net impact positive and negative de novo and this clearly maintains the planning balance weighting as set out before.  Clearly adding 10 mw to 14 mw makes a significant benefit almost doubly significant.  Finally the SoS has had regard to an immaterial planning consideration, weight of public opposition, and not a a material planning issue, the harm that may or may not be caused to the landscape.  That such matters are not material is a matter of common law and the SoS cannot have regard to them unless there is a change in the law not through guidance, which is wholly unreasonable to interpret now permits, when it never has before, public opposition in isolation to be considered as material.

This decision stinks, if it stands we might as well throw away planning examinations and have decisions determined by X-factor style referenda and accept that will mean almost no housing or renewable energy installations in the country.  Also perhaps indicates the folly of hiving off renewable energy decisions to a junior minister that never normally deals with recovered appeals, or course if Boles did decide it there is a another grounds for JR as clearly he has a family pecuniary interest in restricting non-renewable forms of sustainable energy.

Mary Riddell – We Dont just need New Houses We Need New Towns

Mary Riddell is spot on on the scale of ambition needed to tackle our housing shortage.

Political reputations are built in bricks and mortar. The post-war consensus decreed that Britons could and should hope to own their homes, and no prime minister, Conservative or Labour, wished to crush that aspiration. Harold Macmillan’s definition of Thatcherite dispossession may have been coined with Belgravia in mind (“First all the Georgian silver goes, and then all that nice furniture that used to be in the saloon. Then the Canalettos go”) but his heart was with Acacia Avenue.

In common with Attlee, Churchill, Wilson and Heath, he helped orchestrate a property expansion for those who wished to buy, underpinned by a supply of fairly priced rental properties. As proof that power is enshrined in breeze blocks, the 300,000 new homes a year Macmillan ordained as a housing minister in the Fifties helped keep the Tories in office for 13 years.

Fast forward to 2013 and a Britain where only the Canaletto-owning classes can feel secure. Nine million potential buyers are renting homes, often at outrageous cost; evictions are up and, if current building rates continue, Britain will have two million too few homes by 2020. Young people cannot afford to buy while – despite Government promises to the contrary – many pensioners may have to sell their homes to pay for care. Meanwhile, David Cameron is set to become the first Conservative prime minister since 1945 to preside over a fall in house-building (and a corresponding drop in Tory votes, since home-owners are more likely to favour the Conservatives than those who rent).

Having engineered the evolution of Bailiffs’ Britain, the Government is showing signs of panic. George Osborne’s Help-to-Buy scheme, allowing buyers to put a five per cent deposit on properties worth up to £600,000, will do nothing to help low-income families and much to bankroll those with a vested interest in rocketing house prices. With the head of Lloyds bank the latest expert to warn that the scheme risks creating a dangerous housing bubble, Conservative housing policy looks increasingly eccentric.

Why, for example, downgrade the post of housing minister in the latest reshuffle? Although the new incumbent, Kris Hopkins, has cross-party admiration (“He tells his party what it doesn’t want to hear,” says one Labour shadow cabinet member), he commands a lower status than his predecessor. With unease mounting, Mr Osborne is said to have “agitated for” the Communities Secretary, Eric Pickles, to come up with a game-changing suggestion.

If that is true, then housing should present an easy triumph for Ed Miliband, whose ambitions seem lofty in comparison. As he announced in his conference speech, he would build 200,000 new homes a year by the end of the parliament and threaten land-hoarding developers with a “use it or lose it” ultimatum. But even assuming Mr Miliband were to meet his target, he would fail significantly to match demand.

As Shelter points out, 250,000 new homes a year will be needed for the foreseeable future. The Fabian Commission on Future Spending Choices, which reports today, notes that the charity’s £12 billion price tag for one million affordable homes over the next parliament represents “an important and bold ambition”. Whether that can be achieved in the face of Nimbyism and planning blockages is – as the report also suggests – another matter entirely.

And yet it becomes ever more urgent that such obstacles are overcome. Yesterday’s revelation by the Office for National Statistics that English house prices rose by 4.1 per cent last year, surpassing their 2008 peak, reflects market madness. We now live in a country where the average property in the billionaires’ boulevard of London’s Kensington Palace Gardens will set you back £36 million and where, a few miles away, families are being driven from their homes because they are deemed to have one surplus bedroom.

As Jon Cruddas, Labour’s policy reviewer, pointed out in a Civitas speech on Monday, £95 of every £100 spent on housing now goes on benefits and only £5 on building. In this crazed culture, created partly by the fire sale of council properties devised by Margaret Thatcher and perpetuated by her Labour successors, the nation’s bankers are no longer bowler-hatted functionaries or City slickers, but more or less affluent parents. On Shelter’s estimates, the Bank of Mum and Dad ploughs £2 billion a year into housing for its offspring – almost twice the Government’s total annual housing spend of around £1.2 billion. Like eye colour, home ownership – passed on through social DNA – is now determined mainly by heredity.

Remedies such as shared ownership – under which people part-buy and part-rent their homes – are likely to be favoured by Labour’s new shadow housing minister, Emma Reynolds. Little progress, however, is feasible without the statesmanship shown by the post-war pioneers, who grasped that national emergencies demand the wholesale government intervention from which both Labour and the Tories instinctively recoil.

Labour’s growth reviewer, Andrew Adonis, believes the politics of housing divide not on Left/Right lines but on an action versus inaction faultline. Lord Adonis, who can fairly claim to have shown some past form as “Mr Action”, spent the months before the party conferences touring every post-war new town and speaking to their planners about future expansion.

The “right to grow” championed by Mr Miliband (and, presumably, being worked on by his housing commission head, Sir Michael Lyons) may be more fruitful than, say, Mr Cameron’s policy paper on new towns, promised two years ago and never delivered. None the less, simply expanding existing conurbations will not suffice. As Lord Adonis recognises, new towns in the mould of post-war developments, such as Stevenage and Harlow, must be built from scratch. Ebbsfleet, between St Pancras and the Channel Tunnel, is his first suggestion.

A route to a Britain fit for all its citizens must be driven by bulldozer through red tape, planning regulation and shire sensibilities. In peddling the dream of home ownership without offering the means of achieving it, Mr Cameron may be making the greatest error of his premiership. Even so, the greater pressure may be on Mr Miliband. If he cannot vastly increase housing supply, then he can also bid farewell to any chance of lowering the welfare bill or the cost of living.

The only certainty is that, in a country ravaged not by enemy bombs but by government neglect, only a leader capable of recapturing the post-war spirit can hope to win what is now destined to be a bricks-and-mortar election.