Anita Rivera
Mishcon de Reya
Hello and thank you for joining this Digital Session, Planning for change. My name is Anita Rivera and I am a Partner at Mishcon de Reya and I head up a planning team here. I’m going to be your Chair for today’s session. I will shortly introduce to all of the speakers but I just want to first go through some housekeeping matters first, very quickly. So, you’ve joined the session automatically on mute and without video and we very much welcome questions so, please don’t be shy. At the bottom of the screen you’ll see a Q&A function. Just press on that and if you are feeling a bit shy, then just do it anonymously but we really, really welcome your questions, let’s make this as interesting as possible. If you have any technical issues during the event, don’t worry, just go on the chat and somebody will be there to help sort you out. So, today is undoubtedly about government. We have Bonfire Night, Guy Fawkes, and we also have the eagerly awaited results of the USA Presidential elections so, fireworks for sure this evening but before then we want to actually look at the UK planning system and see how the Labour Government is tackling some of its reform agenda in changes to the system and the regime. But our time today is super limited and our speakers will be talking a lot about several different topics and areas of discussion but what we’d like you to do is to get in touch with us because we’re offering little, I think they’re called pop-up webinars or virtual pop-ups, it’s 30 minutes so if there’s anything that you hear today that you’d like to learn more about then if you press on the ‘Resource’ button, you can make a booking for a virtual pop-up and speak to any of us for about 30 minutes about whatever interests you and we’d be happy to do that.
So, the Labour Party describes planning as ‘a barrier to growth’ and it absolutely sees planning reform as a significant part of the solution to increase UK productivity and to solve the housing crisis and since Labour has come into Government, they’ve actually hit the ground running. They have made a number of ministerial statements, they’ve had new consultations out and they’ve made some funding announcements, most recently in the Budget last week. So their ambition is absolutely clear but what’s a little less clear is the fine line between being a party for the people and maintaining some form of localism and a localist agenda while at the same time making some top-down decisions to get things moving. And this brings me on nicely to introduce our speakers today and they will highlight various forms of Government interventions at play. First, we have Tom Barton. Tom is a Partner in the Planning team. He is joined by Virginia Blackman, who is the National Head of Avison Young’s Site Assembly and Compulsory Purchase team. Both Tom and Virginia have extensive knowledge in CPO and they’re going to take us through some of the reforms going through the legislation to help unlock land and eventually produce more housing. Next up, we have Nicholle Kingsley. Nicholle is a recent joiner to the Mishcon team and she’s a Partner and we’re very excited to have her so, thank you Nicholle, it’s been a month in and here you are, we’re excited. Nicholle has a practice which specialises in very largescale urban regeneration schemes so, she creates communities and she helps facilitate the delivery of significant numbers of housing. Today she’s going to discuss changes to the NPPF, new legislation and give some examples of direct interventions by government. And finally we have Daniel Farrand. He is the longest member of our Mishcon Planning team and Daniel’s youthful looks are very deceptive because he has decades of experience and he has successfully helped a number of developers, landowners, investment companies, you name it, in kind of guiding them through a very complex planning regime over numerous changes throughout his tenure. He is going to talk about local authorities, mayors, development corporations, new towns and passports. So, there’s a lot to get through and we’re going to crack on and I’m going to hand over to Tom and Virginia.
Tom Barton
Mishcon de Reya
Hey. Thank you, Anita. Well, as Anita set out, we’re starting this session with the most interventionist of interventions, compulsory purchase orders. And recent changes recently enacted under the previous Government have recently come into force and this current Government has signalled an even greater appetite to reform to the CPO compensation process. And it’s fair to say there is some concern amongst landowners and promoters surrounding the ministry of housing and communities and local governments. Representatives comment that, and this is a, this is a quote, “We will reform the updated compulsory purchase process through removing inflated land values and ensure compensation paid to landowners is fair but not excessive.” So, I think we’ll be coming back to that some more, Virginia. And The Times has then subsequently come on and reported that Labour plans to use benchmarking values to cap the amounts of profit that landowners can make from the sale of land in the green belt to prevent owners benefitting from an increase in values for land newly eligible for development, now the Government say unjustly. So, I’m joined by Virginia Blackman to delve into this further. So, Virginia, I think it seems that under the new Government we can expect to see some more use of CPOs or an increased use of CPOs, is that your, is that your sense too?
Virginia Blackman
Avison Young
Yes, it is and that’s not just wishful thinking as somebody who makes it a living out of, out of site assembly and compulsory purchase. I think there has been a steadily increasing enthusiasm for intervention in the form of CPO from the previous Government and certainly this Government is taking that forward, so whether that is local authorities, local planning and housing authorities, whether that is the mayoral combined authorities, certainly development corporations, locally led development corporations for example or, or indeed Homes England, then that is I think certainly the way they’re moving to deliver on this 1.5 million new homes and to make sure that a good percentage of those are, are affordable as well.
Tom Barton
Mishcon de Reya
Yeah, agreed. So, I mean I touched upon these reforms to the compensation regime and particularly the, the new development that allows for these applications for a direction but the prospect for future planning permission could be ignored so, this application would need to be tied to the delivery of affordable housing so, delivering on those numbers as you say but would limit or remove what we refer to as ‘hope value’ to restrict land to existing use value only so, as you say, these applications can be made by LPAs, the GLA, Homes England, mayoral development corporations, lots of the bodies that we’re going to be talking about in some of these other sessions as well but it’s a real departure from the principle of equivalents so, what’s your view, do you think it can be justified?
Virginia Blackman
Avison Young
Well, as you say Tom, it is quite a departure and historically, I suppose we have justified compulsory purchase, one of the biggest things a Government can do and that has been kind of balanced out by the benefits that that brings to the community so, as you say, affordable housing, healthcare, infrastructure, transport, all those kinds of things and I suppose when you’re balancing the benefits to the community and the impact on the people who are directly affected who have land acquired, then some of the balancing things in there have been that people are entitled to market value for the value of their property, interest acquired and that they should be put into a position sort of you know long-standing case law in as far as you know of equivalence as far as money can do so. And I suppose Government is saying in the, in this Section 190 of their Levelling-up and Regeneration Act that they think the balance is too far in one direction, that some landowners are inflating these claims and getting more than what they consider is market value. I think there is some confusion around what hope value means, what market value means and there’s a kind of a geeky valuation bit that surveyors could sit forever and talk about as to you know, and for surveyors I think the, both the current use and future uses which are, which might create more value would be generally part of market value, so when Government says it’s taking hope value out, it is taking part of, in a classic you know valuer sense, it’s taking part of the market value out of it.
Tom Barton
Mishcon de Reya
Absolutely. And so, I mean, we’ve, there’s been a lot of talk about green belt and green belt release and obviously there’s, so there’s these swathes of land at the moment which have got a very depressed value because they’re part of the green belt and there’s very little prospect of that being released but obviously policy changes mean that suddenly this is ripe for development, that value increases significantly and then I guess it’s about who should benefit from those, those changes which are essential government driven but really I mean it strikes me that it’s somewhat of a deprivation of those landowners’ rights and I think there could well be challenges on that front.
Virginia Blackman
Avison Young
Yeah, I mean I think that the feedback because this came up in the, the NPPF, the new NPPF consultation on grey belt, green belt etc and certainly a number of the people I have spoken to have raised concerns about that, have raised concerns about the fact that it is, it’s an interference of the land market, it’s an interference and it’s changed that and also that it will have the opposite effect, as in it will actually reduce the amount of land that is being brought forward for development if the benchmark land value, which Government is talking about setting is not set at the right level. If that’s set at a level which is round and about existing use value, i.e. sort of agricultural or amenity land value which is where a lot of green belt is at the moment then that would be, I mean hundreds of times less potentially than the, than the value of development land with planning permission generally so, there’s a big difference there.
Tom Barton
Mishcon de Reya
And something I’ve heard a lot of people referring to in the market is about the fact that these applications can only be made by these public bodies and therefore in the absence of a public housebuilding project, in fact where at the moment it’s generally delivered by a private developer, it wouldn’t be reasonable for these directions to be made when the developer will be delivering the scheme and therefore you’re actually diverting value from the landowner to the developer and I think that’s, that’s pretty fair, I mean, have you heard about this?
Virginia Blackman
Avison Young
Yeah, and I think that’s, that’s definitely a concern that, that has been raised by a number of people, I think that if we as you say, if the scheme is, most schemes which are delivering housing whether that’s affordable housing or a combination of affordable and private housing, have some private sector investment into that, whether that’s you know housebuilder, whether that’s another type of investor or, or etc so, the Government guidance on the use of the Section 190 power, that you know ability to have a direction that takes out the alternative development value, I think it’s paragraph 321 of the Government guidance…
Tom Barton
Mishcon de Reya
You’re showing me up now, Virginia.
Virginia Blackman
Avison Young
…says that it doesn’t say that you can’t have that direction if there’s private sector money involved, but what it does say is that if there is private sector investment in part or whole underwriting a scheme where there’s a compulsory purchase order, it is less likely you’ll be able to show that the benefit of buying land on this basis will direct to the public which is the purpose of it, is that the benefit of that will go to the public and it’s more likely that some of the benefit of that will go to the private sector and therefore it is less likely you will be granted this direction. So, I think it’s not saying no if there’s private sector money involved but it’s saying that you’re going to have to show how that benefits the public rather than that private sector investor and that’s something that, that means that you know it wouldn’t apply to a lot of the, a lot of the projects in which most of us are involved day to day.
Tom Barton
Mishcon de Reya
And I know there’s, there’s quite a clawback provision by way of the statement of benefits where it’s necessary for an upfront indication on exactly what’s going to be delivered and just saying “I will be delivering affordable housing” isn’t sufficient, you need to give details on the number and the nature of the units and then there’s a kind of a lookback to ensure that those benefits have actually been delivered and if not, there’s an opportunity for affected parties to you know come back to the table and seek an uplift in their compensation, so that feels at least you know reasonable under the circumstances.
Virginia Blackman
Avison Young
Yeah, and I think that probably comes back to the intention of this, which is that the public should be benefitting from this, i.e. as you say through the affordable housing and if that doesn’t end up being the case then you know why should they have the benefit of buying the land at that value so, I think there’s, Government in the guidance has tried to address some of these questions and issues and we will see how that works when it rolls through but I think they certainly, they’ve done some listening to some of the earlier concerns about it and put these in there. We will have to see how that works in practice.
Tom Barton
Mishcon de Reya
And the Government’s categorisation of claims is “inflated”, in inverted commas. Do you think that’s fair? Do you think that’s, that’s reasonable? I mean, I’ve never known a landowner to be able to you know settle any kind of compensation claim without going through a pretty high level of scrutiny so the idea that they could be, you know, getting one over on, on local authorities, in my experience at least, is, that’s not really the case.
Virginia Blackman
Avison Young
No, certainly, if you’re making a claim, if you’re affected by a compulsory purchase you will put in a fairly robust claim and want to make sure that you’re getting the right compensation and that’s and that reasonable but I would agree with you, I don’t see many cases where landowners are, or any cases, I can’t recall any, where landowners have been paid way above what is market value because they’ve claimed that there is future potential development value there that needs to be reflected and I think there’s something in there around this definition of how you look at market value, how people that work in property look at market value and perhaps the observer from the outside, it does look like there is this sudden increase in value when you get planning permission but I think it’s more realistic to understand how that works throughout the process of allocation and delivering a scheme.
Tom Barton
Mishcon de Reya
And you touched upon the guidance there, obviously we’ve had an exciting reform, so exciting if you work in CPO at least, to the CPO guidance and although it’s badged guidance, I always kind of take the view that if you’re not following the guidance, you’re not following the law as it’s really a codification of the law and I think we’ve just talked about something which potentially adversely impacts landowners and I think there’s some bits in the revised guidance you know coming from the decisions in Vicarage Fields and some of those shockers that were had last year but actually look to strengthen the support for, for affected parties and the steps that local authorities were acquiring, authorities sorry, were expected to take – ooh, slight echo there – expected to take in order to deliver their schemes. One thing that I particularly appreciated was the, the fact that there’s now an expectation that affected parties will be given undertakings for their fees all the way through the process, where they’ve currently been somewhat outgunned by acquiring authorities.
Virginia Blackman
Avison Young
Yeah, I think that what the guidance has done is probably written down and made sort of a very, very strong suggestion that you do what good acquiring authorities and their advisors have been doing previously so, absolutely as you say, there’s an understanding that you need to work hard to understand the impact of the CPO on people and that includes the financial and practical but I think there’s also a recognition that there’s some, that certainly on major projects they have an impact on the mental health of the people affected as well, so I think there’s a bit in there that says “you should be understanding impact overall” and making some of the things that previously were, “you might like to consider these things to help people affected” into “you should”, which I think is a good thing, you know we should be the balance in there around benefits to the public versus impact on affected parties you know needs reviewing every so often and we should be making this you know impact mitigated as, you know, as much as we can.
Tom Barton
Mishcon de Reya
Absolutely. So, bit of crystal ball gazing here. Looking, these talks from the new Labour Government about increasing the scope of these directions. Do you see further reform coming down the track?
Virginia Blackman
Avison Young
I think that they are serious about, about making reforms to get housebuilding moving, get the kind of quality housebuilding as well as quantity. I suppose I would hope that we might see how these work first.
Tom Barton
Mishcon de Reya
Some settling in time.
Virginia Blackman
Avison Young
Yeah and you know we’ve got some, we’ve got some, it’s a big change as you say, I think it would be, for me, I think it would be useful to understand how this works and to understand how you know whether it is a local authority, whether it’s Homes England, how these, these powers might work in practice before we start moving again but I don’t know, I think this Government is, is showing that it’s prepared to make changes so, we will have to wait and see on that.
Tom Barton
Mishcon de Reya
Yeah, watch this space, we may well be back on another webinar in a few months’ time talking about further changes.
Anita Rivera
Mishcon de Reya
Yeah, to talk about something new, yeah exactly, exactly.
Tom Barton
Mishcon de Reya
Thanks so much, Virginia. So, now I’m going to pass, pass on to our next speaker.
Nicholle Kingsley
Mishcon de Reya
Thanks so much, Tom and Virginia and good afternoon to everybody. So, as Anita mentioned, my intention is to cover briefly the underlying framework behind the Government’s ability to influence and intervene in the planning process in terms of policy and decision-making. It’s fair to say much of the underlying framework has come from previous governments but it is really interesting to see how the Government is approaching the use of its various powers in that influence and particularly in terms of the determination of planning applications and intervening with the speed of delivery of the development. Now, as Anita said, it’s quite a quick canter through and I’ve only got 10 minutes so I’m only picking up on a couple of points but we are all here to take questions and if you have any additional queries or want to discuss further then please do give us a call.
So, I thought, it’s been mentioned but I thought I’d go back to the Labour Government Manifesto just to put it into some context in terms of what we’re talking about here and we’ve heard already the sort of focus on delivery of new housing and it’s all to do with kickstarting economic growth and that continues was, and continues to play a key part in the Government's agenda. And it’s not just housing, it’s also infrastructure including energy and transport, and they’re all key parts of the Government’s focus and as I say, continue to be. So as you can see on that slide, 1.5 million new homes over the next five years, new towns which Daniel will come onto, deliver more social and affordable housing, so that sort of greater emphasis not just on the numbers of housing but the type and mix of that housing and in particular social rented as well as the focus on commercial uses to help that economic growth. So, how is the Government attempting to achieve these objectives? I’m waiting for slides to catch up. Firstly, the NPPF. So, one change is through policy clearly and we saw that pretty much immediately I think from the new Government coming into power. So back in July, Rachel Reeves confirmed Manifesto pledges and that’s to reform the planning system, including with a new taskforce, accelerating stalled housing sites and supporting local authorities and in the Budget the week before last or last week, saw the addition of 300 additional planning officers and graduates to help with that aim. But alongside that July statement, the Government issued the draft revised NPPF and I think as most of you will know, the NPPF and as it says in its introduction, is a policy framework within which locally prepared plans, they can provide for housing and other development in a sustainable manner but it also states in that introduction that preparing and attaining up-to-date plans should be seen as a priority in meeting that objective. And the NPPF of course is material consideration in the determination of planning applications. So, what are the main amendments propose? Well just picking out a couple of the key points as per the slide. Firstly, housing and that’s a big one. And it’s the reintroduction of the mandatory housing targets for local authorities using the standard method of the housing assessing the housing need and that standard method is proposed to be amended also. So what that’s doing is effectively undoing the changes that were made back in December by the previous Government where local authorities were only obliged to meet as much of an area as identified need as possible. So strategic policies then informed by that local housing need assessment and a requirement for local authorities to demonstrate five year housing land supply. In addition to the local housing need of course the unmet neighbouring needs are also required to be taken into account and that’s to establish the amount of housing to be planned for. And as mentioned earlier there is a great emphasis in the draft NPPF as revised of providing a mix of housing sizes and tenures and particularly a greater emphasis on the provision of social rented. Now initial indications suggest that with the changes between 65 and 80% of local authorities will be unable to demonstrate five year housing land supply when the new standard method is brought into force and that’s compared to currently 40 to 50% at the moment, so it’s fairly significant change. There are also other changes to percentage of the buffers local authorities are required to include when looking at their supplier specific sites and then there’s also changes to the housing delivery test and footnote 9 which is a presumption in favour of development. So, secondly, additional requirement as I’ve mentioned already for local authorities to plan for employment and commercial development and so that’s particularly in relation to references to lab space, gigafactories, data centre, digital infrastructure, freight and logistics and that sort of aligns with the Government's industrial strategy and future growth plans. And then we’ve already heard that there is a strengthened expectation application of brown field land will be approved and then green belt release and so we’ve got the introduction of new defined grey belt and then a cascade really of presumption in terms of sustainable locations of brown field land followed by grey belt and then lastly, sustainable green belt locations. Now finally, there are transitional arrangements and that’s in terms of what local authorities have to do in terms of where they’re at in their plan making.
Autumn Budget has been mentioned a few times but we saw the additional interventions through funding and investment in the Autumn Budget. Again, with a particular focus on housing and affordable housing and I’ve already mentioned the additional resources for local authorities but there was also support for direct projects, for example, Liverpool and Cambridge. And then the establishment of various delivery groups to help speed up that delivery, for example, Euston Housing Delivery Group. Not just housing, as I’ve mentioned, also green energy funding, carbon capture and green hydrogen but also transport specific investments including HS2 and the Euston Tunnel and then a number of Transpennine upgrades.
So, I wanted to also just mention Levelling-up and Regeneration Act, which received Royal Assent pretty much just over a year ago now and there are a number of significant amendments worth mentioning which the Government could progress. Now some, there’s only a few amendments already in force such as changes to time limits for enforcement. The majority of provisions do await further secondary legislation and detail but one of those changes, and obviously I’ve said in there, there is no infrastructure levy no more but the one that I particularly wanted to focus on was the one in relation to determination of planning applications and the introduction of national development management policies. So you can see there on the slide, Section 93, that proposes to change Section 386, the Planning and Compulsory Purchase Act and just a reminder that if regard has to be to the development plan for the purposes of determination, then the determination must be made in accordance with the plan unless material considerations indicate otherwise. So here we’ve a change by Section 93 that new national development management policies will sit alongside those development plans as part of the determination of the planning application but importantly, you can see there at the bottom of the slide that if there is a conflict the National Development Management Policy will take precedent. So, Section 94 then tells you what National Development Management Policies mean and you can see on the slide, so I won’t repeat it, but importantly whilst this was all going through Parliament, there were expressed doubts in terms of the ability of the Government to just designate national development management policies without prior consultation. Now the Government, the previous Government of course, did assure everybody that that wouldn’t be the case but it’s important to note that the actual legislation doesn’t provide any such notification requirement or any clarification in that respect. So, in practice, a written ministerial statement could be a national development management policy, not currently enforced and of course the Government has, does have lots of other intervention provisions that they can use but it is a significant change if and when the Government do bring that forward.
So, finally, as back in July again, Rachel Reeves said as a direct intervention that “The benefit of development will be a central consideration and the Secretary of State will not hesitate to review an application where ethe potential gain for the regional and national economies warrants it.” And what I thought was interesting was in the last couple of weeks we’ve seen a number of applications being called in or recovered and I’ve listed out a few there and we did expect that following that July notification or statement, that we would see a lot more coming forward for the Secretary of State to determine.
I think that’s probably a good point for me to pass over to Daniel, who’s going to talk about decisions and take that further. Thank you.
Daniel Farrand
Mishcon de Reya
Thank you very much, Nicholle. Well, as Nicholle mentioned there, the Secretary of State can end up making decisions but impressive through Angela Rayner might be, she can’t decide all 350,000 planning applications we get in England every year. So, once she’s set the policy framework how does the Government policy and growth agenda, how does that actually get decided on individual applications? Who makes the decisions? Well, it’s not this row of old white men necessarily, but it could be a variety of different bodies and let’s have a quick think about that and so I’m going to actually make you all do some work, just to get some reassurance that you’re actually still all out there. So we have the dreaded audience participation question. This is the second most important vote that is happening in the world today. So, with a bit of technological wizardry, hopefully there will pop up on your screen a voting panel and you can choose who do you personally trust most to deliver a step change for growth in England and Wales? Do you trust local authorities? Regional mayors? Arm’s length development corporations? Direct Government intervention? That could be through I don’t know, NSIPs, LDOs, something like that or do you not trust any of them? Are you as cynical as I am? I’m not allowed to vote apparently but hopefully you’re all out there clicking like mad and we might, I’ll give you a couple more seconds to do so, okay let’s call that done, I don’t know why the Americans can’t just do their election in that kind of speed, let’s see what the results are. Ah ha. Okay. That’s interesting. There’s a good cynical number out there, that’s good, 11 of you have thought none of the above but arm’s length development corporations and direct Government intervention seem to be doing quite well but regional mayors get a good vote as well, but poor old local planning authorities are not trusted to deliver growth agenda, now that’s, that, well, I’m not going to comment on, on that. But let’s have a look at those local authorities shall we. So, how do, how do you get the actual individual local authorities to do the, to do what you want them to do if you’re in Central Government? Well, Nicholle’s mentioned you can give them a chunk of cash and they’ve had a chunk of cash, they’ve had at least £68 million from the brown field land fund that the previous Government set up, there’s also the new homes accelerator which I think has just closed, I think that closed on the 31st, that’s an opportunity to bid for sites that are stuck and a bit of money to free those up so, a bit of money to lubricate the wheels. You can also write to them, you can also write to the local authority and tell them what you expect of them, a bit like Nelson saying, “England expects every local planning authority in England to do their duty” but also, in reality, local authority need resources more than just specific site related resources and we’ve heard the announcement following up on a manifesto promise to deliver extra, extra planning officers. Now these are going to be junior planning officers, there is time and effort that goes into training a good local planning law officer, that’s an investment and that’s going to take time to come round and of course once they are trained, people even listening to this, this webinar may well decide that actually they’re quite useful people and encourage them out of local authorities with, with nice cheques so, you know they’re going to have to have the terms and conditions to make it worth staying in local authorities to actually deliver the step change in planning that we need. And of course if the local authority isn’t delivering that there is still on the books the ability for a local authority, for the Central Government to designate a local authority, as we know the previous Government designated Bristol, St Albans and Uttlesford as authorities for whom major applications, well, perhaps aren’t to be trusted with major applications and that anyone in those areas could appeal, could apply directly to the planning inspectorate rather than to the local authority and so that remains as a, as a tool, a bit of a stick that the Secretary of State can wield against local authorities who are failing to perform and that’s, failing to perform on both speed of decision making and quality of decision making in terms of appeals that get overturned, which of course then brings us to the next place where decisions are made, planning appeals and we’re going to have to watch that very, very carefully, particularly as there is, where there are conflicts between national policy and, in current local plans, those often get decided on appeals and so we’re going to see that, in some ways that is direct Government even if they’re not called in direct Government decision making on individual planning applications.
Of course the next tier up from that are mayors, where there are regional mayors, and also moving outside the local government structure into development corporations. Now both of those bodies can have a range of powers. Obviously, the Mayor of London has long had call-in and, and direction powers and development, and development corporations can also be granted planning powers. The mayoral development corporations within London can have a full range of planning powers, although for the London Legacy Development Corporation they forgot to give them enforcement at the beginning. Old Oak Common also has planning powers. Those are the two that the Mayor has used so far and obviously LDC is coming to an end but when Sadiq ran for Mayor for the third time he, his manifesto says that he’s going to use a greater, make greater use of development corporations and we’ve seen that with his choice to designate a mayoral development corporation for Oxford Street, for the pedestrianisation, much to the surprise of Westminster City Council and many other people. Whether that’s the extent of his ambition at the moment, he certainly has Government support for doing that, whether he’s prepared to do that for Euston as well, I think Camden are spoiling for a fight if that, that potential regeneration is taken away from them. Other areas might actually positively want, we know that Cambridge, the Cambridge wider growth agenda, there is a, a bottom-up approach of the authorities getting together and putting together a structure on which they can hopefully invite a development corporation to be attached, they have the Cambridge Growth Company and last week Peter Freeman was made Chair of that, ex-Homes England obviously. And so they’re actually looking quite serious as a development corporation for the Cambridge growth agenda and there are other places around. Of course, historically those of us with long memories, even, even youthful looking apparently, older people with good memories will remember that there were many development corporations run under the aegis of the regional governmental layer, which did have a bit of an accountability problem. We saw that again at Old Oak Common where there are a lot of criticisms that that just wasn’t as accountable as it should have been. There is that feeling of democratic accountability deficit with a development corporation, which feeds into what I’m going to talk about a little bit later in terms of judicial review risk and of course development corporations were also used for new towns, not even I am old enough to have, to have done that although I do live in a new town and it’s nice to always see these come back, they come back every now and then but the Government hit the ground running with this one, they’ve appointed a New Towns Taskforce, they’ve met twice already, they’ve been to Milton Keynes and they’ve been to Cambridge to learn what’s going on there, they have a mission statement that’s not quite as catching as the, as Captain Kirk’s mission statement, “to address national housing demand and help boost economic growth” and they want to deliver that through 10,000 houses plus site and they’ve actually yesterday went out with a call for sites, they want to know if any of you happen to have sites suitable for 10,000+ houses down your back pocket that you maybe have forgotten about and nobody’s mentioned to them before, you’ve got a window and I think it’s to the 13th of December to put those forward and explain why you should be a new town in 10,000, a 1000 words or less so, if you are interested, that is something that you should be looking at. To give you a feel, I did a quick check, where I live, Welwyn Garden City, one of the first new towns, is currently about 20,000 households which I am hoping is roughly 10,000 houses, no sorry roughly 20,000 houses so about half the size of Welwyn Garden City. They’re due to publish their findings next year, it’s not really a bidding process like the last time we looked at, at new town equivalents but it is a, it is a process of site selection and finding and they will report, they are now talking about July next year. What we don’t know is how they’re actually going to deliver that. Are they going to do it through encouraging local authorities to bring forward these new towns through local plans? Are they going to do it through sort of development incorporation and a traditional new towns way or other ways, possibly NSIPs, something like that, redefine what you can do with an NSIP to say a new town here is so important to the local and to the national interest, it is a significant infrastructure project.
The other, the other question where we’re talking about how actually will we deliver, is brown field sites. They’re talking about brown field passports, this is not technically a consultation but it’s a call for evidence, there is no deadline for this but I would get in and say something pretty soon if you want to say something about brown field sites. It’s worth a look at the, at the not consultation, it’s, they’re really grubbing around, they want to say yes to brown field but they don’t really know what a ‘yes’ looks like, a yes default, yes you will get houses on a brown field site. Is that just more policy, more motherhood and apply pie kind of things or is it something closer to the permission in principle, maybe we can borrow that idea, bring that forward, or even could you write a full local development order for brown field sites that says as long as you fit within these boxes, go for it, just build on brown field land. And they are actually interested in what you’re going to say about that so do have a look at that consultation and do say something but if you’re not going to get it through passport, are you going to pass it to the courts? Every time you shake up the planning system, be that through new law, new policies, somebody wants to test that in court and that’s not just as lawyers, you know we like to do it but we, you know, we need to find clients who want to do it but people do because you pass a new law and Tom, Nicholle, Anita and I, we’re going to sit down, we’re going to talk about what that law means, we’re going to compare it to other laws, we’re going to use words and play with it and see if there’s an angle on that and until frankly we get a few cases through, we’re not going to know for sure which one of us is right. So, it’s natural that when you change the system, the boundaries get tested. And this is obviously concern for local or for Central Government because they see that that delays things, that it prevents decisions coming forward as quickly as possible and they’ve looked at this, it was the previous Government in fact asked Lord Banner KC to have a look at it for NSIPs and his report is really interesting, it’s worth a read as to how to speed that process up whether there are inappropriate challenges and there’s been a call for evidence on that one and that closes on the 30th December, that’s also worth a look and make some comments on because there’s a real chance that if something works for that, it’ll also be applied to other major, major projects for growth. And of course, what we’ve been talking about and a number of you don’t trust local authorities to do, to deliver a growth agenda, means that if we are taking that away from the directly elected councillors that people we know traditionally trust, that actually creates a, a fear of disenfranchisement, a resentment on imposed solutions and that creates a greater degree of challenge. Richard Buxton, famous for challenging planning permissions, he used to say his practice was built on that resentment and disenfranchisement, if you don’t say, you don’t show how you’re listening to people, they don’t feel attached to a decision and their willingness to challenge is much increased and of course those challenges, and until those challenges are settled, creates market uncertainly instability and that’s the one thing we all know the market hates.
So that’s very much a whistlestop of where those decisions are going to be made over the coming years and months and what I’ll do is, I’ll hand back now to Anita to see whether anyone’s got any comments about that.
Anita has obviously turned her microphone off.
Anita Rivera
Mishcon de Reya
Thank you very much and to all the speakers as well. I’d really just encourage the audience to use their Q&A, do it anonymously because I am sure you all have a million and a half questions and now is the time to ask them so please take advantage of that opportunity. What I’d like to do first is I’d like to ask each of our speakers the same question and that is if the audience could just take home one takeaway from your talk today, what should it be? And I’d like to start with Tom and then go through to Virginia, Nicholle and then Daniel, if I may.
Tom Barton
Mishcon de Reya
Sure, well I’m straight away going to ask if I can answer that twice with my two hats on, once with my acquiring authority hat on and then once with my affected party approach. So, for acquiring authorities, it’s very clear and it’s very easy, really get under the skin of that revised guidance, it reflects the decisions and the, or luck perhaps we should say, but those schemes that were refused last year, so getting under the skin of those guidance and taking the steps which are required to address affected parties and seek to assist them in any way possible. And then for affected parties, so those which are subject to CPO, maybe you’re not subject to CPO but you’ve got options over land or you’re a landowner, I’d say do engage with the consultations which we anticipate being upcoming in regard to this increase in the ability to remove hope value because it is going to potentially have sweeping effects on your rights for compensation so, I mean very much to echo Dan’s comments there, engage, speak up, otherwise you may find yourself materially out of pocket.
Anita Rivera
Mishcon de Reya
Thank you. Virginia.
Virginia Blackman
Avison Young
Well, Tom’s stolen mine, which, the benefit of going first, but I would echo the guidance and I think for anyone who’s considering either being an acquiring authority or if you are a developer, investor, that maybe would like to go and ask the public sector to work with you on delivering something that has benefits, so I’d definitely say that is exceedingly helpful to do so and I would plug also, the RICS has recently published new guidance and mandatory requirements for surveyors working in CPO which again links back to that bit, understanding the impact, behaving you know in a way that’s professional so, I think those are probably both very useful to anyone who’s thinking about being involved in this.
Anita Rivera
Mishcon de Reya
Thank you. Okay, Nicholle.
Nicholle Kingsley
Mishcon de Reya
Yeah, thanks. Tom stole mine as well.
Tom Barton
Mishcon de Reya
Oh excellent, clean sweep so far.
Nicholle Kingsley
Mishcon de Reya
But I guess to add to it, it does seem like the Government is listening so it does mean, unlike the previous Government actually we saw a lot of responses, I think there was a huge amount of response to the White Paper and, and to Levelling-up and Regeneration Act and none of which really seemed to go through but in this case now, it does appear that the Government is listening, so it is really important to take the opportunity, there’s a lot out there in consultation and there’s a lot of information available, so it’s well worth making sure that you input and respond in to the consultation. And of course if you need any help, we’re all here, so that’s the other takeaway is give us a call.
Anita Rivera
Mishcon de Reya
Okay. Great. Daniel.
Daniel Farrand
Mishcon de Reya
Yeah, well, we can, we can call Tom have a full house really because the response on the number of questions out there is, is definitely worthwhile but I think the takeaway from my end a bit is that this is not just Central Government, this is not just local government, there are going to be a lot of different ways in which this new, not, yes it is, it is new hyperfocus on growth and recognition of the planning systems efficient working as a, as a means to achieve that. This is a multi-headed beast now, we’re not just talking about local government with Central Government telling them what should be in their plans when they actually get round to writing their next version of them, this is going to be, this is going to be directly affected by Government decisions and push at a very early stage and local government and other bodies are going to work very, will be working together to get this done.
Anita Rivera
Mishcon de Reya
Yeah, I mean we’ve often heard with previous governments how planning was always the tool to kind of kickstart economic growth, it was going to be the saviour etc, etc but I don’t think we’ve ever seen it so forcefully and so immediate as we have in the last 120 days or however long they’ve been in government now but it is, and they actually even started talking about it before they hit government so, so it’s, and it’s interesting to see that you know that they really do mean business. If I could come back, Daniel, sorry.
Daniel Farrand
Mishcon de Reya
I was to say, and that has to be the case because of my last point, which is what governments have always found is they, they like to play with the planning levers, they like to pull on a few levers, see what they can do to change the planning system, make it work and then when it doesn’t work they pull a few more levers, forgetting that once you’ve pulled the lever, things need to settle back down again and so, unless they do it Year 1, they’re not going to see the effects of it for, before they’ve already started to fiddle with it again so, you know that, they needed to do that if they are really serious about that, they needed to do it, get it in place quickly and then just monitor it and guide it rather than keep on.
Anita Rivera
Mishcon de Reya
Yeah, what I think is quite interesting is like fifteen years ago, planning was never really on the agenda. You might get the Secretary of States to kind of talk about planning reform and changes and then you’d sometimes get the Prime Minster and then you started getting Treasury and now it’s just central, front focus about what Government wants to do when they see planning as the major tool to achieve that but can I go back to you, Daniel again on something you mentioned which is about Lord Banner’s report. Now, I just want to ask what is he actually suggesting regarding challenges to NSIPs because I know that there was a lot in his report, with a lot of controversial recommendations so, if you could just kind of tease that out a little bit.
Daniel Farrand
Mishcon de Reya
Yeah, no problem at all. I mean he was asked a controversial question, you know, “Are NSIPs unreasonably upheld by inappropriate legal challenges?” is a pretty loaded question and I think he rightly decided not to touch that and says so in his talk. What he did do though is look at, to an extent, speed of decision-making and that speed of decision-making by the courts because, and the first stage of that is the permission stage and one of his main recommendations is looking at that permission stage and seeing how that can be more effective so, a challenge to an NSIP, and it was NSIP specific, a challenge to an NSIP is a normal judicial review so you have a permission stage in which the court considers whether or not there is an arguable case, that’s done on the papers and unless it’s totally without merit, that can be renewed orally and the oral renewal if that’s refused can be then appealed to the Court of Appeal. That’s three bites of the cherry, as Lord Banner describes it and he thinks that if we’re going to speed up NSIP challenges, that, that should be truncated. Maybe you should skip straight to an oral hearing for an NSIP, maybe you shouldn’t be able to go to the Court of Appeal. If there’s an oral hearing maybe straight away and that goes against you, maybe that should be the end of it. He says that that’s not terribly controversial because that’s the way it works for enforcement appeals. There are, I mean he does explain the basis behind that and it’s not indirectly equivalent but it’s never been challenged as a, as a problem with it so that, that’s the first thing he’s been looking at. Second one is a lot of stuff about timescales and inviting the Supreme Court to rewrite its rules to build much faster and tighter timescales in there but then also, very controversially, he touches on the question of the threshold for judicial review so I said you know is there are an arguable case with a reasonable prospect of success? That’s the standard test for a judicial review. There have been the occasional case and because that test is not statutory, that test is case law based and there have been occasional cases where the court has said actually, do you know what, we’re going to decide this on whether it’s actually likely to succeed. Now those cases have all been cases where a lot of evidence and a lot of arguments have been presented in an oral permission hearing, often at the Court of Appeal, and he rightly puts that behind the other, the other recommendations but still doesn’t rule it out as raising the bar and that’s, that’s quite, quite dramatic.
Anita Rivera
Mishcon de Reya
Just for those who don’t know what NSIPs are, it’s just to say they’re Nationally Significant Infrastructure Projects and the reason they’re probably slightly hotter topic at the moment is because there has been some discussion about whether or not NSIPs should be used to help facilitate the delivery of housing and as Daniel mentioned, that could be in the form of new towns but it could be just stand-alone, large-scale housing so, just looking at NSIPs and looking at the CPO regime because NSIPs also include the ability to compulsory acquire land, I’d just like to turn to Tom and to Virginia about just principally, do you see the NSIP regime as something that would help facilitate the delivery of new housing, particularly given its CPO powers?
Tom Barton
Mishcon de Reya
Virginia, I’m conscious that I stole the show on Question Time so I’ll let you take that.
Virginia Blackman
Avison Young
Yeah, I think that’s an interesting question, Anita because I think there is, you know there is an argument that housing and sufficient affordable housing is infrastructure, necessary infrastructure for the country and there’s an argument that a national decision on where the best places for housing is, you know, can be done nationally rather than locally and I think that’s partly what the New Town Taskforce is looking at currently. So I think there might be some benefit in combining the two of those upfront. I think there’s some concern about fixing everything upfront which is what is needed in a, you know, fixing design and what will be within what’s called a Development Consent Order which gives you planning, land acquisition powers and all the other consents you need. There’s some concerns about that but I think, again, it might be one of the options, I don’t think it’s going to fix everything but it might be one of the options if you, if you are serious about delivering housing in the places where, you know, evidence says it’s required across the country. I think what’s interesting in addition to that is that we are going to have an infrastructure delivery plan, a national ten year infrastructure delivery plan which of course is going to need probably land assembly, DCOs etc to deliver and it will be interesting to see where Government puts focusses and infrastructure across the country because that might be a hint towards where they consider both commercial employment land and also housing is going to go as part of some of these things, so these might have earlier hints towards some of these, where some of these new towns maybe would go to.
Tom Barton
Mishcon de Reya
Yeah, agreed, I mean we’re not going to see NSIPs delivering housing in the southeast, I don’t think the market does a really good job of that but I wonder whether it would be used to stimulate that kind of development in those areas where perhaps the market will look to less naturally.
Anita Rivera
Mishcon de Reya
Right, okay.
Daniel Farrand
Mishcon de Reya
The point about the sort of the design and the and all the other bits that go with it are important because the new towns policy that the Government has produced goes very heavily on what I would call master planning stuff which is, is going to be essential for the thing to work, they can’t, they can’t, you can’t jump that step, it needs the infrastructure, the employment and all the rest of it, master planning and baked in from the beginning.
Anita Rivera
Mishcon de Reya
Okay. We have one question from the audience, which I’ll pick up, and the question I think is to Virginia. Is there a timeline on the National Infrastructure Delivery Plan, ten year plan? Do you know?
Virginia Blackman
Avison Young
I don’t know for certain. My understanding is that it’s linked to the Spending Review, which is next spring and it will come with that so, my understanding is, it might well be ahead of the decision on the new towns but it’s not going to be before, you know, it’s not going to be in the next month or so, and that’s probably sensible, you know, in reality we’d all like it now but if it’s going to be a ten year plan with any, that provides the credibility that we want to allow investment, planning ahead, all those kind of things, it will take time to evidence and put in place but that’s my understanding.
Anita Rivera
Mishcon de Reya
Okay, thank you. So I think we are nearing the end so, now it’s time for me to thank you for joining us today and thanks to our speaker and our special guest speaker, Virginia Blackman. Their insights and contributions have really made this a very engagement, engaging discussion, I hope you’ve found so too. Just a reminder, if you want to ask any more questions then hit the ‘Resource’ button and also, I’d just like to let you know that you can view our latest insights on planning reform at our dedicated planning reform hub which is actually featured on the resource panel as well. So, with that, thank you very much again for joining us and roll on those fireworks.