The Monkhill Case – Applying Footnote 6 of the #NPPF

Reminder of NPPF Para 14

where there are no relevant development plan policies, or the
policies which are most important for determining the application are
out-of-date7, granting permission unless:
i. the application of policies in this Framework that protect areas or
assets of particular importance provides a clear reason for
refusing the development proposed (footnote 6); or
ii. any adverse impacts of doing so would significantly and
demonstrably outweigh the benefits, when assessed against the
policies in this Framework taken as a whole

The case Balli

Monkhill Ltd v SoSCLG [2019] EWHC 1993 (Admin).

Next week ill do a flowchart.

1) The presumption in favour of sustainable development in paragraph 11 does not displace s.38(6) of the 2004 Act. A planning application or appeal should be determined in accordance with the relevant policies of the development plan unless material considerations indicate otherwise;

2) Subject to s.38(6), where a proposal accords with an up-to-date development plan, taken as a whole, then, unless other material considerations indicate otherwise planning permission should be granted without delay (paragraph 11(c));

3) Where a proposal does not accord with an up-to-date development plan, taken as a whole, planning permission should be refused unless material considerations indicate otherwise (see also paragraph 12);

4) Where there are no relevant development plan policies, planning permission should be granted unless either limb (i) or limb (ii) is satisfied;

5) Where there are relevant development plan policies, but the most important for determining the application are out-of-date, planning permission should be granted (subject to section 38(6)) unless either limb (i) or limb (ii) is satisfied;

6) Because paragraph 11(d) states that planning permission should be granted unless the requirements of either alternative is met, it follows that if either limb (i) or limb (ii) is satisfied, the presumption in favour of sustainable development ceases to apply. The application of each limb is essentially a matter of planning judgment for the decision-maker;

7) Where more than one “Footnote 6” policy is engaged, limb (i) is satisfied, and the presumption in favour of sustainable development overcome, where the individual or cumulative application of those policies produces a clear reason for refusal;

8) The object of expressing limbs (i) and (ii) as two alternative means by which the presumption in favour of granting permission is overcome (or disapplied) is that the tilted balance in limb (ii) may not be relied upon to support the grant of permission where a proposal should be refused permission by the application of one or more “Footnote 6” policies. In this way paragraph 11(d) prioritises the application of “Footnote 6” policies for the protection of the relevant “areas or assets of particular importance”;

9) It follows that where limb (i) is engaged, it should generally be applied first before going on to consider whether limb (ii) should be applied;

10) Under limb (i) the test is whether the application of one or more “Footnote 6 policies” provides a clear reason for refusing planning permission. The mere fact that such a policy is engaged is insufficient to satisfy limb (i). Whether or not limb (i) is met depends upon the outcome of applying the relevant “Footnote 6” policies (addressing the issue on paragraph 14 of NPPF 2012 which was left open in R (Watermead Parish Council) v Aylesbury District Council [2018] PTSR 43 at [45] and subsequently resolved in East Staffordshire at [22(2)];

11) Limb (i) is applied by taking into account only those factors which fall within the ambit of the relevant “Footnote 6” policy. Development plan policies and other policies of the NPPF are not to be taken into account in the application of limb (i) (see Footnote 6). (I note that this is a narrower approach than under the corresponding limb in paragraph 14 of the NPPF 2012 – see eg. Lord Gill in Hopkins at [85]);

12) The application of some “Footnote 6” policies (e.g. Green Belt) requires all relevant planning considerations to be weighed in the balance. In those cases because the outcome of that assessment determines whether planning should be granted or refused, there is no justification for applying limb (ii) in addition to limb (i). The same applies where the application of a legal code for the protection of a particular area or asset determines the outcome of a planning application (see, for example, the Habitats Regulations in relation to European protected sites);

13) In other cases under limb (ii), the relevant “Footnote 6 policy” may not require all relevant considerations to be taken into account. For example, paragraph 196 of the NPPF requires the decision-maker to weigh only “the less than substantial harm” to a heritage asset against the “public benefits” of the proposal. Where the application of such a policy provides a clear reason for refusing planning permission, it is still necessary for the decision-maker to have regard to all other relevant considerations before determining the application or appeal (s. 70(2) of the 1990 Act and s. 38(6) of the 2004 Act). But that exercise must be carried out without applying the tilted balance in limb (ii), because the presumption in favour of granting permission has already been disapplied by the outcome of applying limb (i). That is the consequence of the decision-making structure laid down in paragraph 11(d) of the NPPF;

14) There remains the situation where the application of limb (i) to a policy of the kind referred to in (13) does not provide a clear reason for refusal. The presumption in favour of sustainable development will not so far have been disapplied under limb (i) and it remains necessary to strike an overall planning balance (applying also s.38(6)). Because the presumption in favour of granting planning permission still remains in play, it is relevant, indeed necessary, to apply the alternative means of overcoming that presumption, namely limb (ii). This is one situation where the applicant for permission is entitled to rely upon the “tilted balance”;

15) The other situation where the applicant has the benefit of the “tilted” balance is where no “Footnote 6” policies are engaged and therefore the decision-maker proceeds directly to limb (ii)….

The following practical summary may assist practitioners in the field, so long as it is borne in mind that this does not detract from the more detailed analysis set out above:-

• It is, of course, necessary to apply s.38(6) in any event;
• If the proposal accords with the policies of an up-to-date development plan taken as a whole, then unless other considerations indicate otherwise, planning permission should be granted without delay (paragraph 11(c) of the NPPF);
• If the case does not fall within paragraph 11(c), the next step is to consider whether paragraph 11(d) applies. This requires examining whether there are no relevant development plan policies or whether the most important development plan policies for determining the application are out-of-date;
• If paragraph 11(d) does apply, then the next question is whether one or more “Footnote 6” policies are relevant to the determination of the application or appeal (limb (i));
• If there are no relevant “Footnote 6” policies so that limb (i) does not apply, the decision-taker should proceed to limb (ii) and determine the application by applying the tilted balance (and s.38(6));
• If limb (i) does apply, the decision-taker must consider whether the application of the relevant “Footnote 6” policy (or policies) provides a clear reason to refuse permission for the development
• If it does, then permission should be refused (subject to applying s.38(6) as explained in paragraph 39 (11) to (12) above). Limb (ii) is irrelevant in this situation and must not be applied;
• If it does not, then the decision-taker should proceed to limb (ii) and determine the application by applying the tilted balance (and s.38(6)).

The Agenda for the New Planning Minister @RobertJenrick

The Prime Minister talks of an agenda to ‘liberalise’ the planning system, however there is no clear ideological push as to what that means.  Gone are the day when the IEA put out a pmaplet every year calling for the abolition of the planning system and Green Belt, or the Policy Exchange put out two pamphlets a year suggesting ideas that were swiftly adopted then swiftly abandoned.  It is easier to talk of results, how to get the outcomes the government wants, with the least bureaucratic means.

 

1. Justifying and Hitting 300k

Top of these must be the government’s 300k annum housing target, a target where there may well be a reversal of the (slowing) progress since 2013. The first think the government needs to do is to restore confidence in how the number is derived (even if the result isnt exactly 300k) and more importantly restore confidence in how the target is distributed throughout local authorities through the standard method.

At the moment we have a disjunction between demographic projections and need, as the standard method is based on demographic projections which carry forward current assumptions, which includes households being suppressed because of a lack of housebuilding where they are most needed.  The current standard method adds up to 278,000, current development plans add up to 234,000 according to Nat Litch when you include realistic completion rates from the London Plan.  However when you consider that many authorities are building far less than planned for in their local plans due to slow delivery rates on strategic sites there currently seems to be no clear pathway to hitting 300k by the mid 2020s.

The government must urgently review the standard method basing growth in households on projected growth in employment and household wealth if this was unconstrained by housing and then distributing it to each strategic planning area  or LPA by projected employment growth and realistic assumptions about unconstrained  land availability.   That means biting the bullet, if London cannot triple its housing completions, which it cant, then that need must go somewhere and if not in the Green Belt the government must decide which authorities outside the GB have to take it.

 2. Reproducing High Performance Completions

There are certain countries that have (per capita) much higher completions that England and certain parts of England at certain times that have produced high completions – this isnt rocket science.  Masterplanned new communities with master developers, development corporations and multiple points of sale, with high social housing completions and high build to rent are the secret of success. The problem is the shortage of master developer scale strategic sites where the ground work has been done to enable early starts. There is a big shortage of good master developers with sites in local plans and with outline consent.  Housing England combined with locally led development corporations  can fill the gap, but sites need to be in strategic plans.  This has proven immensely difficult politically.  The request for Garden Communities (over over 10k nnd ideally over 50k) in places like the Oxford Cambridge Arc has not produced any (public) takers in terms of new sites (as opposed to what was already in development plans. The extent of Green Belt in some areas like Surrey, Herts and South Essex (almost wall to wall) means that authorities have little choice to review Green Belt and typically remove less than 5% of it.  Though denying this when challenged successive ministers have allowed this to happen.  Political opposition to this has been growing and it makes not a whole lot of difference to the opposition (as in South Oxfordshire) whether a site is just inside or just outside the Green Belt.  The public (and certainly the national press) has not the slightest idea where Green Belt boundaries lie only having a vague idea of places like the South Downs (which has never been Green Belt).  The fault being the growth of Green Belt under Thatcher so the concept became coterminous with countryside and rather than a tool to contain sprawl development was pushed to lower land value areas where lower densities at greater sprawl were required to be economic.   Practically so much of the Green Belt is covered by AONB to the South and North West of London that here development will have to be pushed beyond it to places like the Arc.  Only North Kent and South Essex have sites outside of AONB and other constraints of a scale to take strategic scale Garden Communities inside the Green Belt, South Essex has no Choice it has no other land.  The key practical issue is transport capacity so these can be developed in Zero Carbon form.  This will practically have to be a combination of rail and new Bus Rapid Transit, as Boris says quoiting Peter Hendry there is no transport problem that cant be solved by a single decker bus.

3.  Getting a Grip on Strategic Planning

The early years of the coalition government were governed by what you might call the Pickles Fallacy, that strategic planning was slowing housebuilding because it led to opposition to new housing.  As we have seen any proposal for new house building leads to opposition and only strategic planning is able to justify large strategic sites meeting needs often of more than one authority and in many cases straddling boundaries.  However emergent strategic planning is in a mess. We have a strategic enabling framework for it in the NPPF, however governance for it is a mess (combined authorities, joint committees, ad-hoc arrangements and new unitary authorities), funding is a mess (growth deal areas, and other areas) and we bizarrely have a legacy of two competing forms of plan (SDS and DPD).  This all needs simplifying, with statute setting out that decisions on joint plans are taken by majority vote of council leaders, removing the power to withdraw plans at late stages, making plan making and being part of joint plan making where directed a statutory duty.  There is a risk that without such reforms strategic plan making will become too politically difficult and complicated for anyone to pursue it.

The government needs to be less timid on driving forward big projects like the Arc, Powerhouse etc.  In all cases these are driven by government intervention so there should be no ideological barrier to working with local stakeholders to provide taylored packages to make them work.  Government leverage here is critical (i.e. if you want your 37 billion give me 1 million houses, and lets work together with all government departments to unlock the barriers.  The barriers in many cases will require knocking heads togthr e.g. giving instructions at cabinet level to the likes of the Highways Agency, Ofwat, Network rail etc. to make certain investments to unlock major sites.

4.  Simplifying the Consent Process for Housebuilding

Forget gimmicks such as pd for beds in cowsheds or windowless beds in converted offices.  They produced a one off burst in housebuilding but at an appalling cost in terms of quality and in many locations such as London have actually slowed redevelopment by making it harder to assemble comprehensive sites.  If you want to see this disaster repeated give PD rights to develop Fulham Favella extra stories on top of existing houses, making London’s roofline as ugly as Kabul’s.  A general rule to ministers’ if an ‘easy solution’ to planning problems appears in a Policy Exchange pamphlet 95% chance it wont work (they have form). However even though sites might be allocated in local plans this doesn’t give them planning permission.  This is a unique, failed and idiosyncratic feature of the English discretionary planning system. Over the past 7 years or so we have moved in small steps towards the continental zoning and subdivision system – but we still have not rolled out a system for granting permission in principle for sites allocated in development plans, nor have we a proper system for granting ‘masterplanning consent’ to layout and subdivide allocated sites.

5.  Building Beautifully

Concern for Beauty was a major concern for many interwar writers on planning who bemoaned the poor quality rubbish produced by most housebuilders.  Despite this it was the time when we produced most housing.  The biggest barrier is not a lack of concern for quality in planning but a poor quality product of most mass housebuilders.  This is particularly the case where timber frame is the norm outside the South East of England, where despite a move to quasi modularisation in timber frame the standard product is in most cases worse than awful.  There is a world of difference between (mostly social) builders such as Swan and A2 Dominion who have worked with architects and urban designers to produce modular standard designs as good as anything you see in Europe and the big housebuilders whose standard designes and layouts in many cases never go near an architects or urban designer.  Time for the minister to name and shame.

6.  Standards

One area of major progress has been standards with a shift away from stripping away standards on matters such as energy consumption and inserting standards into the building regs.  This is going well and no need to disrupt it.

7.  The Challenge of Zero Carbon Housing

New sites will have to be zero carbon but there is no clear model as to what technology they will use and how you will deal with residual emissions (do you bring in allowable solutions for example combing it with the net positive agenda).  This is the area the ministry’s research agenda should be focussed on.

8.  Keeping Land Value Capture Simple

The clamour to ‘sort out CIL’ and section 106 is dying down, this is because CIL is operating at a reasonable level for residual impacts on small sites in most parts of the country and where it is not in place in many cases it will never be viable to introduce.

What we lack is a simple mechanism to capture land value on strategic sites where CIL should the zero rated.  There government has hinted that the operation of the Pointe Gourde Rule will render the need for reform of the Land Compensation Act (somit operates on existing use value) unecessary.  The problem is this requires CPO and cuts landowners off at the knees.  It would be much simpler to reform the land compensation laws so that landowners kept 25% of the unearned increment (a legal precedent dating back to the 12th Century) giving an incentive for landowners to hand land over to the developer or local authority early., and for local authorities to bring forward large sites so they have the funding to develop social housing.

Unlocking this uplift is key to broadening options on home ownership, if you dont yuo will just boost land prices and housebuilder profits (like Help to Buy.  A good scheme is the ‘Camberra Solution’ where you buy the house but not the land and the state (who has controls the land) charges a low ground rent to cover costs only – you can read about this here.  It can halve costs of home ownership.

9. Speeding up Planning

One area where the process is working well is with planning performance agreements, indeed my experience is you only ever get an acceptable level of service (or planning officer at all) where you negotiate a PPA.  The Accelerating Planning Green Paper will give an opportunity for process improvements for medium and smaller scaled planning applications.

One priority should be increasing investment in and remuneration of conservation officers.  If we value our national heritage it requires a corps of professionally trained officers to manage it.  These are dying out as they typically earn less than non specialist officers (as they dont line manage) and courses are closing down.  Within 15 years we will have no conservation officers if nothing is done.  If this were nurses or teachers the government would intervene.