Stopping the endless cycle of consultation

You will have noticed them popping up in towns and cities across the UK, the monuments to our new way of living: temporary cycle lanes, designed to funnel people safely into work and town centres without the need to crowd onto public transport or gridlock the roads with cars. Along with the improvement in air quality we have been experiencing in London, for a brief moment we could glimpse the future that we always talk about – a healthier, more climate-friendly city. It was no surprise to see Transport for London driving this agenda for green transport, but it was a welcome surprise to see less likely highway authorities following suit.

And then, as surely as night follows day, the familiar stories began to appear in the paper. Politicians demanding the removal of the temporary cycle lanes in their constituencies, residents angry about their longer driving commutes into work. The rallying cry was that the highway authority had failed to consult  prior to installing the temporary cycle lanes. And in many places, the status quo ante has now been restored and it is as though the brief dalliance with cycle friendly infrastructure never happened.

Last week, the Government published “Gear Change: a bold vision for cycling and walking“, setting out the aim to double the amount of journeys that are cycled. The Government estimates that, in air quality improvement terms alone, this would save £567 million and prevent over 8,000 premature deaths per year. The Government wants thousands of safe and physically segregated cycle tracks to be constructed across the country in pursuance of this aim. The evidence shows that safe and segregated cycle tracks are the single most important way to increase cycle use (illustrated by the impressive statistic that cycling on Blackfriars Bridge increased by 55% in the six months after a segregated cycle track was installed).

But, as the Government’s vision admits, in the vast majority of cases, the power to actually consent these new cycle lanes falls to local authorities (the Government is only responsible for motorways and some strategic A roads, less likely cycling candidates). So while the Government will be providing the money and a new funding body and inspectorate, it is mostly local authorities who will be responsible for delivering this step change. And, if the past is any predictor, the Government’s bold vision may be about to run headlong into the mire of local consultation.

Now, consultation is a good and often necessary thing for four main reasons:

  1. Government decisions have significant impacts on peoples’ lives and livelihoods. In many cases, good decision making requires that people should have the opportunity to make representations about the impact of those decisions prior to the decision being made.
  2. Consultations often flush out problems or inconsistencies with the proposal. When a small team in government or a public authority design a policy or proposal, they may fail to appreciate unintended consequences. Subject matter experts or members of the public may alert them to those issues during the consultation so they can be corrected in the final version.
  3. Related to point 2 above, consultations will often help the decision maker to identify relevant considerations. This is a good thing because a failure to consider relevant considerations can be a public law error leading to a possible judicial review and quashing of the decision.
  4. Sometimes there will be a statutory duty to consult or the conduct of the authority will have been such as to create a “legitimate expectation” that it will consult on the proposals. In these circumstances, as above, a failure to consult may be a public law error and liable to quashing.

However in the case of new cycle infrastructure, in my view, the current consultation system is broken and a major barrier to achieving the objectives of greener transport infrastructure. Consultations get bogged down in endless representations and design iterations, and often are never delivered. At the heart of this is a fundamental tension which will always result in huge opposition to cycle schemes: cycle schemes will, more often than not, make it harder to drive cars. This is just a spatial reality. There is a limited amount of space in our cities, so cycle schemes by definition take up space on roads which was previously used by cars. The Government’s vision document acknowledges this spatial reality and states that the balance needs to shift in favour of cycling.

There is a similar spatial tension at the heart of planning: new development will often take up space (footprint, airspace, views) that was previously used for something different. It is understandable that those who enjoyed the benefit of that space object to it being redistributed to the new development. But the difference with the planning system is that we have a legislative and policy structure to resolve those spatial disputes. We have questions to ask to guide decision making: Is the development compliant with planning policy? Is your objection a material consideration? What are the public benefits? These structures allow those who are making planning decisions to balance and weigh the objections received against the framework that we as a society have (at least theoretically) agreed upon for how to distribute our most precious resource, space.

But there is no such framework for highways consultations. The Highways Act 1980 is a nightmarishly complex piece of legislation and (I believe most planning lawyers would agree) barely fit for purpose for the traditional business of improving roads for use by cars, let alone new cycle infrastructure. Where a statutory consultation process is provided for (such as for Traffic Regulation Orders) the legislation just provides for a 21 day consultation period. But crucially, there is no decision making framework following that. How is a highways authority to weigh a perceived harm to the town centre from loss of car traffic, against a possible benefit to health from improved air quality? Or what if the cycle scheme disrupts a bus route which provides valuable mass transport for a town or city? The decision makers are given no legal or policy framework to resolve these decisions. The result is that consultation documents for cycle schemes are often a very lengthy way of asking the question “what do you think of this cycle scheme?”. Residents then answer “we don’t like it very much”, and more often than not, that is that.

This needs reform if the Government’s cycling vision is to be achieved. To be clear – I am not arguing in favour of allowing poor cycle schemes to proceed. Cycle schemes can have serious safety issues or they can cause genuine damage to town centres or retailers, which are already suffering more than their fair share of pain in the current environment. But it is clear that we are not giving decision makers the tools they need to make these crucial decisions. So I propose a new national policy document for decisions on cycle schemes based on the following principles:

  1. Decision makers should seek to approve cycle schemes wherever possible, unless the harms outweigh the benefits of doing so.
  2. The benefits include population health and air quality improvements and great weight should be given to these.
  3. Harms may include safety issues or loss of vitality to town centres.
  4. When considering harms, it will not be sufficient that a cycle scheme may have a negative impact on travel times for car users.

My colleagues have been exploring in recent weeks what trends will shape our Future Cities. There is no doubt that cycling will form an important part of the way that we all get around, and we should ensure that the consenting regime is ready to meet the challenge.

Annika Holden is currently on maternity leave.

For more information please contact:

Annika Holden
Annika Holden
Senior associate (Australia), planning, London
+44 20 7466 2882
Matthew White
Matthew White
Partner and head of UK planning practice, London
+44 20 7466 2461

 

New permitted development right for “emergency” development

As cases of COVID-19 continue to rise, more people are in need of urgent medical attention. This has put immense pressure on the NHS. The ExCeL exhibition centre, which normally plays host to lifestyle shows, expos and conferences, has already been converted into the temporary NHS Nightingale Hospital with space for up to 4,000 beds, making it the largest field hospital in the UK. However, as the pressure continues to grow, more emergency facilities may be needed.

In response to this, the government has today published the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 (the “Order”). This creates a new permitted development right (“PDR”) authorising “emergency” development by local authorities and health service bodies. The new PDR comes into force at 10.00 am tomorrow, 9 April 2020.

Many owners of commercial buildings that cannot currently be used as a result of social distancing rules are considering whether their premises can be put to good use to help the NHS. This new PDR will enable such temporary changes of use to be made without having to make a planning application for the temporary development and without worrying about the need to obtain a future planning permission to authorise a change back to the original use of the building.

We set out below a summary of what is permitted:

  • Development by a local authority or health service body on land owned, leased, occupied or maintained by it is permitted if it is for the purposes of: (i) preventing an emergency; (ii) reducing, controlling or mitigating the effects of an emergency; or (iii) taking other action in connection with an emergency.
    • An “emergency” means “an event or situation which threatens serious damage to human welfare in a place in the UK”.
    • An event or situation which threatens serious damage to human welfare is one which involves or may cause: “loss of human life; human illness or injury; homelessness; damage to property; disruption of a supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health.”
    • Only “local authorities” and “health service bodies” (as defined in the Order) can rely on this PDR.
  • Development under the new PDR is not permitted if any part of the development is on land which is or forms part of a military explosives area, a SSSI or contains a scheduled monument; is within five metres of the curtilage of a dwellinghouse; or exceeds certain height restrictions.  In addition, any moveable structure, works, plant or machinery required in connection with the development must not be located within 10 metres of the curtilage of a dwellinghouse or within 5 metres of any boundary of the land.
  • Development under the new PDR is permitted subject to three conditions, which are:
    • If the developer is not the local planning authority, it must as soon as reasonably practicable after commencing development notify the local planning authority of the development;
    • The use of the land for the purposes authorised by the Order must cease on or before 31 December 2020; and
    • Within 12 months of the use ceasing, any building, works, plant, machinery, structure and erection must be removed and the land must be restored to its former condition or such other state as may be agreed in writing with the local planning authority.

This new PDR will enable local authorities and health service bodies to change the use of existing buildings, or erect new temporary buildings or structures to provide health facilities such as temporary hospitals, coroner facilities, mortuaries, testing units, storage facilities, and distribution centres for food and other commodities. It also recognises the need for plant, machinery and hard surfaces for parking and storage and allows the change of use of existing buildings such as hotels to provide temporary accommodation for staff, volunteers in the health sector and those who may be homeless.

The local authority or health service body does not need to “own” the land to rely on this PDR as the Order specifically refers to land which is “owned, leased, occupied or maintained by it.”  The Order will therefore enable existing buildings or land to be used where the relevant body has been granted a temporary licence to occupy.

The scope of this PDR is very wide given the broad definition of “emergency”. However, because the longstop date is 31 December 2020, in practice it is only likely to be used for coronavirus-related development. The explanatory memorandum recognises that there is a need for a broad PDR because it is difficult to fully predict the types of development that may be required.

Property owners will need to consider a number of issues before proceeding with development:

  1. Check the terms of the Order carefully to ensure that the whole development falls within it. The restriction on development within five metres of a dwellinghouse (or ten metres for any moveable structure, works, plant or machinery) could catch some changes of use of commercial buildings in residential areas, for example. If the stated conditions are not met then a planning application will be required unless other PDR are available.
  2. Consider whether the proposals require an Environmental Impact Assessment (“EIA”). The PDR will not be available if the development is EIA development pursuant to Schedule 1 or Schedule 2 of the EIA Regulations.
  3. Make sure that the local planning authority is notified of the development as soon as practicable after it is commenced – although prior approval is not required, notification by the developer is one of the requirements for the PDR to apply.
  4. Take advice on whether any other consents are required. The PDR only grants planning permission for emergency development. Listed building consent must still be obtained if the development involves alterations to a listed building. Advertisement consent may be required for any new signage. Environmental permits may also be required if, for example, the use involves the storage of any hazardous substances.
  5. If the property is held under a lease, check whether the permitted use covenant allows the temporary use and obtain your landlord’s consent if it does not. Similarly, if the property is subject to a mortgage or charge, check the terms of your finance documents and obtain the lender’s consent where necessary.
  6. The development must be by a local authority or health service body on land that is owned, leased, occupied or maintained by it, so a short-term lease or licence will be required if the land is not already owned by one of those bodies.
  7. The Order provides for a time limited right that will cease to have effect after 31 December 2020. Should the facilities be required beyond 31 December 2020 then a planning application may need to be submitted. The practicalities of this should be considered in any lease negotiations with the local authority or health service body.
  8. Check your insurance policy in relation to the property and notify or obtain consent from your insurer to ensure that the policy isn’t avoided.

This PDR is very welcome and will avoid planning applications having to be processed by local planning authorities for development that is urgent, necessary and plainly in the public interest. At a time when the NHS and other public authorities are stretched to the limit, we are seeing many private property owners ask what they can to do assist. It is very encouraging to see the planning system respond so quickly to ensure that the real estate sector can play its part in tackling this national emergency.

For further information, please contact:

Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461
Lisa Bazalo
Lisa Bazalo
Senior Associate (New Zealand), planning, London
+44 20 7466 2957

Impact of COVID-19 on planning

This week, offices, schools and public places are being closed in response to COVID-19. Herbert Smith Freehills continues to provide a full client service, with our teams mostly working remotely but, as with all businesses, those involved in planning are trying to work out the best ways to continue with projects and what accommodations need to be made to do that. The impact of COVID-19 measures on national and local planning services could cause delay with planning applications, appeals and court proceedings. These are fast moving times and the news changes on a daily basis, but this is what we know so far regarding the impact of COVID-19 on PINS, local government, the courts and Parliament.

Planning Inspectorate guidance – updated 18 March 2020

PINS has published guidance on the impact of COVID-19 on site visits, hearings, inquiries and other events.

As at 18 March 2020, PINS has recommended that its staff avoid unnecessary or non-essential travel. Appeal hearings and inquiries will not proceed, although PINS is considering alternative arrangements, including the feasibility of technological solutions or whether a case can be decided by written submissions following questions raised by the Inspector. Site visits can continue to go ahead on an unaccompanied basis, provided that the inspector is able to travel to a site without using public transport.

Two local plan examinations which were due to take place this week, the North Hertfordshire local plan and the Chiltern and South Buckinghamshire local plan, have been postponed, although in the case of the Chiltern and South Bucks local plan the Inspectors have decided to consider duty to co-operate matters through written representations to ensure that the examination can continue until hearings can be resumed.

The PINS complaints service is also limited as a result of travel restrictions – see here.

Civil and Family Court guidance – updated 19 March 2020

On 17 March 2020, the Lord Chief Justice announced that, “whilst the latest guidance from government on how to respond to COVID-19 will clearly have an impact on the operation of all courts in every jurisdiction … it is of vital importance that the administration of justice does not grind to a halt”. The courts are working through the implications for operating the courts and “recognise the need to increase the use of telephone and video technology immediately to hold remote hearings where possible”.

The Lord Chief Justice confirmed this on 19 March, saying that “The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely”. It was noted that “the rules in both the civil and family courts are flexible enough to enable telephone and video hearings of almost everything. Any legal impediments will be dealt with” and the courts are “working urgently on expanding the availability of technology, but in the meantime we have phones, some video facilities and Skype”, and “many more procedural matters may be resolved on paper within the rules”. In relation to civil appeals, it was noted that “most applications for permission to appeal … are likely to be suitable for telephone hearing”.

It was noted that arrangements are being made “to include those working in the courts within the scope of key workers who will be able to continue to send their children to schools”.

Local government guidance – updated 19 March 2020

MHCLG has published guidance for local government during the COVID-19 outbreak. This is further to the package of measures announced by the Chancellor in the Spring Budget on 11 March 2020. Amongst other measures, councils are to be able to use their discretion on deadlines for Freedom of Information requests and legislation may be brought forward to allow council committee meetings to be held virtually for a temporary period – for more information see here.

Council services such as planning may well be impacted by government guidance issued yesterday on which council staff are “key workers” for the purposes of maintaining essential services during the COVID-19 crisis. Staff defined as key workers include those working in:

  • key public services – which includes “those essential to the running of the justice system, religious staff, charities and workers delivering key frontline services, those responsible for the management of the deceased, and journalists and broadcasters who are providing public service broadcasting”; and
  • local and national government – but only including “those administrative occupations essential to the effective delivery of the COVID-19 response, or delivering essential public services, such as the payment of benefits, including in government agencies and arms length bodies”.

Staff of planning departments may not be seen as key workers. Those staff who are able to work may be asked to help with other departments providing essential services.

Parliament – updated 16 March 2020

On 16 March 2020, Parliament announced that all non-essential visitor access to both Houses would be stopped from 17 March 2020 and that from 20 March Westminster Hall debates would be suspended.

COVID-19 has also impacted the work of the Public Bill Committee considering the Environment Bill (see our blog on the Bill here). Sittings of the Committee have been suspended until further notice (see here). It remains to be seen whether it will be possible for the Bill to make its way through Parliament in time for the end of the Brexit transition period.

We are keeping an eye on developments as they happen.

Our construction team has also considered the impact of COVID-19 on construction contracts – see HSF Construction Notes here.

Please contact us for our briefing note on COVID-19 advice to landlords.

For further information, please contact:

Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461
Catherine Howard
Catherine Howard
Partner, planning and environment, London
+44 20 7466 2858
Fiona Sawyer
Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674

Ring in the new? – planning update

In Planning for Housing, published in Real Estate. Reconsidered last month, we took a look at ongoing Government initiatives designed to tackle the housing crisis, and also the problems faced by high streets and town centres. Throughout we noted that whether and how various initiatives would be progressed depended on the result of the General Election. Now that we have a Conservative majority in Parliament, and understand the new Government’s priorities through their election manifesto (see our blog post of 27 November 2019) and the Queen’s Speech of 19 December 2019 (and the accompanying Background Briefing Notes), we have a clearer idea of what to expect in planning over the coming months. On the whole, it seems to be a case of progressing with initiatives already announced (although not necessarily widely publicised) with continued focus on housing, the environment and thriving centres. Here is a brief overview:

Planning reform

The Government has confirmed its continued intention to publish a Planning Green Paper, with the aim of making the planning process “clearer, more accessible and more certain for all users … also address[ing] resourcing and performance in Planning Departments”. Arguably a familiar objective for successive administrations, achieving these goals has proved difficult. There is relatively little more information on the detail of what the Green Paper will contain, although it may include CPO reform. We expect publication in the next few months.

Environment Bill

In our blog post of 11 November 2019 we reported on the Environment Bill 2019-2020, abandoned following the dissolution of Parliament prior to the General Election. The Government has confirmed that the Bill will be reintroduced largely in similar terms, including provisions on mandatory biodiversity net gain (see Mandatory Biodiversity Net Gain in Real Estate. Reconsidered), tightened air quality controls and the establishment of the Office for Environmental Protection (OEP). With environmental protection a high priority for the Government, this should be expected soon.

Housing

Housing need, affordable housing, Starter Homes and “First Homes”

Continuing the drive of previous governments towards increasing housing supply, the Government is committed to building at least a million new homes this Parliament with hundreds of thousands of new homes promised through renewal of the Affordable Homes Programme.

The previous Government promised that regulations to implement the statutory framework for Starter Homes introduced by the Housing and Planning Act 2016 would be introduced in 2019, and that regulations to exempt Starter Homes from the Community Infrastructure Levy (CIL) would be laid before Parliament. Recent announcements have been silent on whether the Government plans to continue with this, although we can expect that they will. However, the Government has announced another affordable homes initiative, “First Homes”, on which they will consult shortly. First Homes is intended to “provide homes for local people and key workers at a discount of at least 30 per cent”, funded by developers and secured through a covenant with the discount secured for perpetuity. The Government also intends to introduce “a new, reformed Shared Ownership model” to help shared owners buy more, and eventually all, of their property.

Also worth mentioning is that the Housing Delivery Test for November 2019 is still awaited, as is a promised review of the standard method for calculating housing need. These were due before the end of last year, so should be expected soon.

Permitted development and Future Homes Standard

Towards the end of 2019, the previous Government confirmed that it intended to introduce permitted development (PD) rights enabling upwards extensions of certain buildings in existing commercial and residential use to deliver new homes, and to allow the demolition of commercial buildings for rebuilding as residential units. There seems to be no reason not to expect secondary legislation implementing this to be published for consultation soon, in which case the promised review of residential PD rights “in respect of the quality standard of homes delivered”, announced in March 2019 in response to valid concerns regarding the design and quality of housing delivered pursuant to PD rights, may also be delivered.

To deal with concerns over PD rights the previous Government also intended to “develop a ‘Future Homes Standard’ for all new homes with a view, subject to consultation, to introducing the standard by 2025”. We wait to see whether this will be delivered.

Diversification guidance

Alongside the 2019 Spring Statement the previous Government promised additional planning guidance to encourage the diversification of large sites to encourage quicker build out rates, in response to findings of the Independent Review of Build Out Rates led by Oliver Letwin. It is not yet clear whether the current Government intends to pursue this.

Design

The final report of the Building Better, Building Beautiful Commission (BBBBC) was due to be published last month (see our blog post of 12 July 2019 on the BBBBC interim report). The previous Government committed to consult on a new “National Model Design Code” which would take the final report into account. We can probably still expect this consultation once the report is published.

Infrastructure

The Government has announced a £10bn Single Housing Infrastructure Fund to provide the infrastructure necessary to support residential development, building on previous infrastructure funding. Bearing in mind the Government’s manifesto commitment that infrastructure must be delivered ahead of new housing developments being occupied, which could impact viability, it will be interesting to see more detail on how this will be implemented.

Also, in its election manifesto the Conservative Party promised a £100 billion investment into infrastructure such as roads and rail, Northern Powerhouse Rail and the restoration of many of the Beeching lines. The Government has confirmed that it will publish the National Infrastructure Strategy (NIS) alongside the Spring Budget on 11 March 2020, together with its long overdue response to the National Infrastructure Commission’s National Infrastructure Assessment (due by July 2019), and that legislation to implement the NIS will be introduced “in due course”.

Devolution

The Conservative election manifesto proposed an English Devolution White Paper in 2020. Interestingly, this was not mentioned in the Queen’s Speech or the Background Briefing Notes. However, in a speech to the Local Government Association on 7 January 2020, Local Government Minister Luke Hall confirmed that the Government will “publish an ‘English devolution white paper’, aiming for full devolution, so that every part of the country has the power to shape its own future”. We wait to see when this will be brought forward and what “full devolution” will mean in practice. How the combination of devolution and infrastructure investment may impact development on a regional basis is worthy of further consideration.

Conclusion

All in all, rather than ringing in change the new Government seems to be on track to continue progress with the aims and initiatives of preceding administrations, with the exception perhaps of English devolution which has the potential to see a significant shift of influence from central to local government. It will be interesting to see how the various initiatives play out, and whether they bring the desired results.

For further information please contact:

Fiona Sawyer
Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674
Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461

Real Estate. Reconsidered

Yesterday the HSF Real Estate team launched Real Estate. Reconsidered, a collection of our thoughts on some of the key issues that are impacting the real estate sector and our opinions on what the future may hold for the real estate market and its legal landscape.

To read Real Estate. Reconsidered click here. Please contact us if you would like further information.

Jeremy Walden
Jeremy Walden
Partner and Head of UK Real Estate, London
+44 20 7466 2198

 

Back to basics: acquiring land compulsorily by way of a GVD

Current crises in housing and in town centres have placed greater emphasis on the role that local authorities can and should play in compulsorily acquiring land to promote much needed development, whether to implement local plan policies or to help progress consented schemes. In a series of back-to-basics posts we will discuss the various stages of the compulsory purchase process, from deciding what power to use to the payment of compensation, and the relevance to developers.

This post focuses on the implementation stage and in particular the General Vesting Declaration (“GVD”) process. In this post we seek to answer the following key questions before going on to identify some important points to note:

Who implements the powers?

Compulsory purchase powers in England can be granted either as standalone Compulsory Purchase Orders (“CPOs”) made under a wide range of empowering Acts or as part of secondary legislation, eg Hybrid Acts and Development Consent Orders (“DCOs”). The body that is endowed with the powers depends on the legislation pursuant to which the powers exist. Standalone CPOs are exercised by public bodies, commonly local authorities in order to facilitate a scheme promoted by a private entity. In such a case, the local authority will exercise the compulsory purchase powers on behalf of the private entity in return for an indemnity in respect of its costs.

It should be noted that the standard implementation process is sometimes modified, eg a DCO may tweak the relevant time periods or notice procedures. It is therefore important to check the terms of the empowering CPO or legislation carefully before taking steps to exercise the powers. We summarise below the standard procedure pursuant to a CPO.

What options are available to exercise the powers?

Once a CPO has been confirmed, the land may be acquired by following one of two procedures:

  1. notice to treat; or
  2. GVD.

The notice to treat procedure involves three separate steps: a notice to treat, a notice of entry and a conveyance. The GVD procedure replaces those three steps with one procedure whereby the title in the land vests automatically with the acquiring authority on a specific date known as the “vesting date” (see below). This means that the acquiring authority can obtain title more quickly and in particular without having to settle the amount of compensation prior to the transfer of title. A GVD is also useful where there is some uncertainty over the ownership of all of the land interests because, provided the correct service of notice procedure is followed, the GVD vests all interests in the land.

For these reasons, the GVD procedure is often the preferred route. However, while acquisition of title may take longer to complete under the notice to treat procedure, it may be possible to gain possession and start development earlier than under a GVD.

It is important to consider both options carefully before deciding which route to pursue. It is also vital that the notice and service provisions are adhered to carefully, and to make sure plenty of time has been built into the acquisition schedule to ensure these requirements are completed satisfactorily.

What does the GVD process entail?

The procedure for making a GVD generally involves the acquiring authority including a prescribed statement describing the GVD process and the effect of the GVD in the notice of confirmation of the CPO, and inviting any persons who would be entitled to claim compensation if the GVD was made to give personal information and details of their interest in the land.

Once the prescribed statement has been made, the acquiring authority will make the GVD after the CPO has become operative (normally on the date of publication of the CPO unless it is subject to special parliamentary procedure). A GVD itself must be in the prescribed form as set out in the relevant legislation and must include details of the CPO land.

As soon as possible after making a GVD, the acquiring authority must serve notice of it on every occupier of the land and on every person who gives the acquiring authority information relating to the land following an invitation to do so (as described above).

A period of at least three months from the date on which this notice is served will be specified in the GVD. The land will vest in the acquiring authority the day after the specified date (the “vesting date”), together with the right to enter and take possession of the land. In some circumstances, such as where a counter-notice is served or where the land is subject to a minor tenancy or a long tenancy about to expire, there may be additional notice requirements and the vesting date will be determined following a different process.

When is compensation payable if using the GVD process?

Compensation for land compulsorily acquired by way of GVD is assessed at the vesting date and interest on the compensation also accrues from this date until the date of payment, even if possession is not taken for some time after the vesting date. This differs from the notice to treat procedure where compensation falls to be assessed at the date of entry and taking possession. If the CPO land is being acquired on behalf of a private entity, these costs will likely be incorporated into a CPO Indemnity Agreement so that the private entity will ultimately be liable for these costs (and other associated costs) rather than the acquiring authority.

What are the applicable time limits?

If the CPO became operative on or after 13th July 2016, a GVD cannot be executed after three years beginning with the day on which the CPO became operative. CPO powers can be lost entirely if the GVD has not been executed in time so it is very important to be aware of the relevant time limits that apply.

Points to note

The law and procedures that govern compulsory acquisition are complex. GVDs are amenable to legal challenge, eg if the proper process has not been followed or if the acquiring authority’s purpose for acquiring the land is not within the scope of the CPO. Recent cases have demonstrated that there may be a degree of “wriggle room” where some procedural irregularities have occurred (eg failing to publish notices in the required way), provided that it has not resulted in substantial prejudice. However the courts appear to be taking a stricter approach where the exercise of CPO powers do not fall squarely within the scope of what was originally envisaged by the CPO. Caution must be applied to ensure the GVD is exercised in accordance with the original intention of the CPO.

Author: Julia McKeown, Associate (New Zealand), planning, real estate

For further information please contact:

Julia McKeown
Julia McKeown
Associate (New Zealand), planning, London
+44 20 7466 2321
Charlotte Dyer
Charlotte Dyer
Of counsel, planning, London
+44 20 7466 2275

 

It’ll take a long time to get quicker – how PINS is planning to change the inquiries process (slowly)

On 14 May 2019, the Planning Inspectorate published its Inquiries Review Action Plan to explain how it intends to implement the recommendations of Bridget Rosewell CBE’s Independent Review of Planning Appeal Inquiries. This blog considers what progress has been made and what are the main challenges to full implementation.

The Rosewell Review

The PINS Action Plan

Will it be successful?

The Rosewell Review

Having been involved in a large number of major planning inquiries in recent years, I found myself back in February of this year vigorously nodding my head in agreement with the findings of the Rosewell Independent Review of Planning Appeal Inquiries, in particular “that there is substantial scope to improve the planning inquiry appeal process from start to finish”. I fully agreed with the view that improvements were needed to significantly reduce the time taken to conclude planning inquiries while, crucially, still maintaining the quality of decisions and reports. The 22 recommendations set out in the Rosewell Review were designed to address key failings in the inquiries process, focused on three main areas: better technology, earlier engagement by the parties and shorter inquiry programmes.

However, I also approached the review with a healthy dose of scepticism. Having seen first-hand the immense strain that inquiries place on PINS, on top of all the other workstreams for which they are responsible not least of which being the development consent process, I was rather doubtful about how quickly (if at all) these recommendations could be implemented by PINS so as to have a noticeable and beneficial impact on the process.

The PINS Action Plan

A few months on and PINS has now published its Inquiries Review Action Plan to explain how it intends to implement the recommendations of the Rosewell Review. Overall, the PINS response is positive, praising the Rosewell Review for the practical, common sense nature of the recommendations which promise to lead to much faster decisions and to radically improve the experience of users.

The Action Plan confirms that PINS’ ambition is to be deciding planning appeal inquiries within a 26-week target by June 2020. A table of actions, with clear delivery dates, has been produced showing how each of the 22 recommendations will be implemented. On the issue of resourcing, PINS has recently begun its latest recruitment drive, this time looking to recruit another 20 senior planning inspectors. This follows an inspector recruitment exercise in January of this year, during which 200 interviews were completed, 106 offers made and almost all accepted.

So far so good. However, then come the warnings. The Action Plan notes that a recent pilot of the new system has “underlined the size of the challenge and that there isn’t a quick fix”. Indeed, PINS believes that “a sizable transition period is likely to be needed”. Only five of the recommendations have now gone “live”, one of which is the preparation of the Action Plan itself, with 17 recommendations yet to be implemented. PINS also warns that, for the reforms to have maximum effect, all parties involved with planning inquiries will need to adjust their approach. In other words, there are factors in play that are outside of PINS’ control.

A big sticking point seems to be the creation of a new portal for the submission of inquiry appeals (and publication of inquiry documents) by December 2019. According to the Action Plan, a third-party system is being used as an interim measure for the pilot scheme. However the Government Digital Service, with whom PINS is working to establish the new portal, has ruled out the long-term use of a third-party tool and instead required the development of a strategic portal solution that will be internally owned and managed by PINS. This has led to delays, with funding being an unresolved concern. Rather unfortunately this was Recommendation 1 in the Rosewell Review – has PINS failed at the first hurdle?

Having spoken to people involved in appeals that are part of the current pilot scheme, the feedback seems to be that the inquiries process is indeed significantly quicker. The requirement for appellants to notify local planning authorities 10 days in advance of appeal submission (only guidance but could become fixed in legislation) is an important part of this. However, speed has come at a cost, with rumours of inquiry dates being fixed by PINS when whole teams are on holiday, although PINS claims that “a degree of flexibility” will be allowed “in exceptional circumstances”.

The Action Plan notes that the successful delivery of the Rosewell Review recommendations is likely to mean that inquiries are determined more quickly than hearings, which contradicts the logic that inquiries are supposed to be reserved for the most complex casework. According to the Government’s website, it now takes 43 weeks from appeal validation to decision for a hearing and 41 weeks for an inquiry, which must in part be due to the pilot scheme.

To address this, the Plan identifies that PINS will put extra attention towards hearings to improve their timeliness. Sensibly (in my view) the Action Plan also acknowledges that, alternatively, a better approach might be for the length of time required for a case to be decided not to be determined purely based on which procedure it follows but instead on a new set of published priorities (eg focussing on housing delivery or other key infrastructure) as the key determinant for decision timings.

Will it be successful?

That depends on how you define success. Will PINS hit the 26-week target by June 2020? If they enforce tight, inflexible inquiry programmes then probably yes. Will the new system result in more successful legal challenges in respect of decisions made? Possibly, but as Rosewell herself has argued, that may be a worthwhile price to pay if it means that the appeal process as a whole improves. Rosewell has promised to issue a progress report, jointly with PINS, in September 2019, and a full implementation report in June 2020, exactly two years after her appointment as Chair of the review.

Author: Charlotte Dyer, Of Counsel, Planning, London

For further information please contact:

Charlotte Dyer
Charlotte Dyer
Of Counsel, Planning, London
+44 20 7466 2275

Recommendations from the Rosewell Review – how can planning appeal inquiries be made quicker and better?

A publication that has caught the attention of many in the industry this week is the government-commissioned ‘Independent Review of Planning Appeal Inquiries.’ The review, chaired by economist Bridget Rosewell CBE, was tasked in June last year with assessing how planning appeal inquiries could be made quicker and better. The report makes 22 recommendations aimed at reducing the time it takes to conclude planning inquiries, while maintaining the quality of decisions.

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Real Estate EP5: The future of planning – Matthew White and Ghislaine Halpenny in conversation

British Property Federation (BPF) director of strategy and external affairs, Ghislaine Halpenny, sits down with Matthew White, partner and head of UK planning, to discuss planning, its ever-changing nature and the direction it is taking.

 

Also published on the BPF soundcloud for the BPF Futures network, a networking and development group for junior professionals working in all areas of UK real estate.

For further information please contact:

Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461

Back to Basics: Housing Need and Delivery

 

From 25 January 2019 (although see here for our commentary on the ambiguity surrounding the actual date), local planning authorities must use the new standard methodology for assessing housing need set out in the National Planning Policy Framework published in July 2018 (“NPPF”). As part of our ‘back to basics’ blog series, this blog post explores:

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