Thu, 13 Sep 2018
Response from Christopher Young QC, No5 Barristers' Chambers
Introduction
1. This Review asks how can planning inquiries be improved to “significantly reduce the time taken to conclude planning inquiries, while maintaining the quality of decisions..?”
2. This Review expressly invites evidence from “those who are, or have recently been involved in the inquiry process. We want to draw on people’s first hand experience and knowledge and encourage users of the process to identify ways it can be improved.”
3. Public inquiries engage the public, local authorities the house building industry and the myriad of professionals who advise and represent them across the whole country. Thousands of people are involved in the hundreds of public inquiries which take place each year. In light of this, a great many people should respond to this Review.
4. What is offered here is just one personal view from someone who has been engaged in public inquiries almost constantly for the last 19 years. As a barrister I appear, on average, in about 20 planning inquiries a year, but advise on many more. The vast majority of my work concerns public inquiries into housing proposals. I also regularly appear in the higher courts in respect of legal challenges to planning appeals into housing proposals which have been considered at a public inquiry, both challenging and defending such decisions. Defending one such inspector’s decision from a legal challenge by the local authority resulted in the Supreme Court judgment in Richborough Estates v Cheshire East BC [2017] UKSC 37. I act mostly for the house building industry, but do on occasion act for local planning authorities.
A) CONTEXT
The Housing Crisis
5. The planning appeal process, and the inquiry process in particular, needs to be set in context. To understand the inquiry process one needs to understand the reasons why it operates in the first place. The context is that what is in operation is a highly politicised planning system which has created a deep and lasting housing crisis across the whole country resulting from far too few houses being built for decades. Planning appeals are often the only way developers can secure planning permission for proposals which meet with significant local opposition. When the proposal involves around 30 or more houses, the gross development value of the scheme is usually over £10 million. There is much at stake.
6. There is plenty of evidence to suggest we should have been building around 300,000 new homes a year.[1] The Government has itself committed to building this figure (Government Response to NPPF Consultation). Yet, the last time we did that in this country was in 1969. If one draws a line from that point to today and looks at the scale of under-delivery over the last 50 years, the level of under-delivery is around 6 million homes.[2] That is the housing crisis in one statistic.
7. In the Foreword to the Housing White Paper: Fixing Our Broken Housing Market (February 2017), the then Secretary of State for Communities and Local Government (The Right Honourable Sajid Javid MP) made clear: “The housing market in this country is broken, and the cause is very simple: for far too long, we haven’t built enough homes”. In July of the same year, at the Local Government Association Conference, he said “…since the 1970s – under Wilson, Callaghan, Thatcher, Major, Blair, Brown, Cameron and now May – we’ve supplied an average of 160,00 new homes each year. That’s far below what’s needed, and that failure of supply to keep up with demand has led to predictable results.”
8. So why is it that we do no build enough homes? The main reasons are entirely political. As Mark Carney, the Governor of the Bank of England pointed out in an interview with Sky News on 18 May 2014 “(There are) half as many people in Canada [his home country] as the UK (but] twice as many homes are built in Canada every year than in the UK”.
9. The fact is that politicians at all levels constrain housing delivery for political advantage. At the national level, the Conservative Party vowed to abolish the Regional Strategies ahead of the 2010 General Election because they were identifying housing requirements which were unpalatably high. Once in office they followed through that election promise, removing a clear set of housing targets which had taken years to prepare and which had been independently examined, without any clear strategy for what would replace it at the time. At the local level, district and borough councillors often seek artificially low levels of housing in their local plans, citing constraints such as Green Belt, landscape harm and traffic congestion as reasons why they cannot deliver enough homes in their area. In Birmingham, for example, the City Council has said it is unwilling to meet 43% of its own need. In Sussex, the level of unmet need which local plans in the area do not address is even higher. Neither area has been able to off-load the huge scale of this unmet housing need other districts. And every week, up and down the country, local councillors refuse proposals for new housing because local people (who vote them into office) oppose new housing in their area, sometimes even opposing sites which are allocated in the local plan.
What Does the Housing Crisis Have to do with this Review?
10. The answer is simple. Politicians do not like the appeal system, and they particularly do not like public inquiries. Planning inquiries are a major source of new housing in this country. It is through public inquiries that around 20,000 new homes are delivered each year, which is two thirds of all the new homes granted planning permission by the Planning Inspectorate, despite public inquiries making up just 2% of all planning appeals (in 2017 there were 282 public inquires out of 15,742 planning appeals).[3]
11. One anticipated that politicians, both MPs and local councillors, would largely prefer there to be no public inquiries. They are unlikely to welcome the scrutiny to which the performance of local authorities is subject at an inquiry. Many local planning authorities fail to adopt up-to-date development plans because they find it difficult to allocate land without upsetting local voters. The present delays in the adoption of up-to-date plans have sometimes been in excess of a decade. The consequence is that delivery from large scale and complicated housing allocations, where there are major infrastructure requirements that have to be put in place before housing is delivered, often runs a decade behind as a consequence. And that means housing delivery in such local authorities is often poor, with many local councils unable to demonstrate the minimum five-year supply of housing sites. It is in these circumstances that planning appeals are often allowed. In other words, it is the under-performance of the local authority which triggers successful housing appeals. And that, in my view, is what politicians do not like – that is both constituency MPs and local councillors.
12. That is the background, but the three main reason why public inquiries are particularly unpopular is three-fold.
(i) Public Scrutiny: This scrutiny of a local authority’s performance takes place in a very public forum, where local residents can see for themselves the reasons why housing appeals are being allowed.
(ii) Cross examination: there is cross examination of council witnesses in which this under-performance is examined in detailed. Cross examination gives the council witnesses nowhere to hide as the barristers will keep asking the question until they get a direct and satisfactory answer. There is no room for political ‘spin’ or obfuscation under cross-examination.
(iii) Detailed and Reasoned Decisions: A local authority’s under-performance and the reasons for it will be exposed and reported on in the Inspector’s detailed appeal decision. In the case of public inquiries into housing proposals, these often last six to eight days. Detailed evidence is presented and cross-examined and the barristers and/or solicitors presenting the case will make detailed and carefully referenced closing submissions addressing the relevant evidence, policy and law. The resultant decision from the Inspector in such cases will usually run between ten to twenty pages. And if the appeal is allowed on a suitable site, it will often be because of the local authority’s failure to have an up-to-date plan or a failure to demonstrate a five-year supply of housing land.
13. This Review will receive many representations from politicians suggesting that public inquiries into housing proposals should be curtailed, vastly reduced in number or even abolished. And when the Planning Inspectorate is under recognised pressure in terms of resources, recruitment and an increasing number of appeals[4], time consuming public inquiry might seem like a soft target. After all, major national infrastructure projects no longer involve public inquiries and there is no cross-examination. Added to which housing appeals conducted by informal hearings only take a day.
14. Yet curtailing, reducing or even abolishing public inquiries is the very last thing the Review should be recommending. Public inquiries are critically important to housing delivery. It is not just that they deliver on average 20,000 new homes a year, often making the decisions which local councillors feel unable to do so. Their importance and influence far exceeds this figure. That is because public inquiries not only expose failings in a local planning authority’s performance, but also encourage those same local authorities to grant planning permission when they know the such scrutiny at a public inquiry is just around the corner. Councillor officers and solicitors routinely warn local councillors that if they refusal a planning application for housing there is likely to be a public inquiry, that the council will need to put up witnesses and those witnesses will be subject to cross examination. They will also point out that a decision to refuse planning permission may mean councillors exposing the Council to a significant award of costs made against it for unreasonable behaviour. Evidence of such unreasonableness is often easier to demonstrate following cross-examination at a public inquiry. This awareness of the potential for a public inquiry is what often leads many councillors to reluctantly, but sensibly, grant planning permission for new housing proposal, even though there are 100 angry residents sat in front of them at the committee meeting to determine the application. Take away or reduce the number of public inquiries and that threat is removed. The impact would be much greater than on just the 20,000 houses granted by way of public inquiry: it will hamper and delay housing delivery on sites which might otherwise have been granted planning permission even further by removing the threat of public inquiries.
15. Added to which, when an inquiry decision comes out, and an appeal is allowed because the position adopted by the council is found wanting, that inquiry decision can be very useful in terms of persuading both officers and councillors to look more favourably at other forthcoming planning applications. An inquiry appeal decision will be based on detailed evidence, proper scrutiny and legal submissions. All of which means, it will not be easy for local councillors or MPs to dismiss its contents.
The Critically Important Role of the Planning Inspectorate
16. The Planning Inspectorate (PINS) is plainly under pressure like never before. Part of the rationale for this Review may be to examine how to significantly reduce the number of inquiries so as to reduce the financial and time pressure on PINS. This is a resource issue. The Government is reducing the amount of money it is willing to spend on planning appeals all the time. And yet, at the same time the Government is pumping millions of pounds, and recruiting hundreds of new people, into Homes England, which is a Government backed body with the specific aim of increasing delivery on housing sites.
17. So, there is no lack of financial resources available. Unlike a planning inspector however, none of the people at Homes England can grant a single planning permission.
18. What the Government ought to do, if it wants to accelerate housing delivery in this country is significant increase the number of planning inspectors. To do to that they need to put up their salaries significantly in recognition of the critical role Inspectors have addressing the housing crisis.
19. Planning Inspectors are highly qualified and experienced individuals who have to make important decisions about proposals which often have a gross development value of tens, hundreds and even thousands of millions of pounds. They usually have to deliberate over detailed and complex evidence presented by a whole range of specialist and technical experts. Attracting and retaining planning inspectors is what the Government should be focussing on. And to get the best candidates, inspectors should be paid in line with the huge burden and responsibility they carry.
20. Added to which, having spoken to three Inspectors who have recently retired (and therefore are able to speak more freely), they have told me that public inquiries were by far their favourite part of the job. Planning inspectors carry out most of their work at home, especially all the written representation cases. That autonomy will have many attractions including the ability to work flexibly. But professional interaction is limited and that perceived social isolation must be a contributing factor in dissuading some potential candidates to join the Inspectorate. Planning inquiries are therefore a very important and enjoyable part of the job for most inspectors. It allows for interaction with other professionals in a process. That sustained interaction with others can also aid the understanding of the evidence and the barristers and solicitors can assisting in addressing the growing body of case law which is now a major feature of planning system. In my experience, Inspectors are unfailingly diligent, polite, considerate, humorous and above all things scrupulous and fair. At a public inquiry, they provide a very visible, accessible and important public face to the enormous amount of work the Planning Inspectorate carry out each year, most of which goes unnoticed by the public at large.
21. Finally, it is important to record that there is a lot of law surrounding planning decisions and planning appeals in particular. Following the Supreme Court case of Tesco Stores v Dundee City Council [2012] UKSC 13, the courts now play a much more significant role in the interpretation of policy. That is both development plan policy (as in the Tesco case) and now also in terms of the interpretation of national planning policy and guidance as determined by the Court of Appeal in City of St Albans v SSCLG and Hunston [2013] EWCA Civ 1610 and confirmed by the Supreme Court in Suffolk Coastal DC v Hopkins Homes; Richborough Estates v Cheshire East [2017] UKSC 37. This has led to many more legal challenges being made to planning decisions, especially appeal decisions, in relation to the interpretation of the NPPF. The resultant case law has served to significant complicated (and at times to confuse) the law in this area. Richborough Estates successfully brought their appeal, firstly to the Court of Appeal, by pointing to the fact the High Court had handed down no less than five conflicting decisions on the interpretation of one sentence in paragraph 49 of the National Planning Policy Framework (NPPF).
22. When the Richborough Estates case went to the Supreme Court there was a potential opportunity for the Supreme Court to reverse the decision in Tesco v Dundee, and row back from the need for the courts to interpret planning policy. But the Justices of the Supreme declined to do so, not least because the Tesco v Dundee approach is consistent with the law in other areas of administrative law. Whilst the Supreme Court did urge restraint in challenges to the interpretation of policy, the principle that the interpretation of policy should be determined by the courts remains. And therefore so will the growing body of case law.
23. Inspectors, few of whom are legally qualified, will therefore inevitably look to the barristers and solicitors involved in public inquiries for assistance in navigating the choppy waters of the case law on planning, especially on issues of policy interpretation. For multi-million pound developments, which is the value of nearly all housing proposals at public inquiry, guidance offered by lawyers on the law should be seen as an essential component of the process. Barristers and solicitors, whose involvement in planning appeals is largely limited to public inquiries, are the only people qualified to advise on the law.
B) THIS REVIEW - TO SIGNIFICANTLY REDUCE THE TIME TAKEN FOR PUBLIC INQUIRIES
24. There is unquestionably a need to reduce the time taken for appeals by way of public inquiry. The delays experienced by the house building industry at the moment are unwelcome, unhelpful and create a huge amount of uncertainty around what are very significant investments by the industry: an industry much criticised for about the speed of delivery and the volume of houses built. This Review is very timely.
Changes Which Have Taken Place Already:
25. To begin with there are two things which the Government have already done which will immediate reduce the length of most planning inquiries (i.e. the inquiry sitting time) into housing proposals. I would suggest they may reduce the length of most public inquiries by about 50%.
(i) Housing Need Evidence: The amount of new housing needed (expressed as the annual housing requirement figure) for each local authority area used to be set out in what was called the Regional Strategy. These covered each region of the country and were subject to independent examination. The resultant report identified precisely how many houses were needed for each district, borough or city, taking account of environmental constraints in different parts of the region. When Regional Strategies were abolished in 2012 the system when into turmoil. It was replaced by a system which required each local authority to identify its own housing need. This is the identification of objectively assessed need (OAN). This concept was introduced through the National Planning Policy Framework (NPPF) in March 2012. But what did not help was the fact the Government did not publish the methodology for working out the OAN until March 2014, some two years later. Even then what was published was complicated and generated significant uncertain, most especially for the local authorities involved. The correct OAN was meant to be set through the local plan process. If a local authority had an up-to-date local plan, the OAN would be contained in that plan and was to be delivered (subject only to the local authority convincing the local plan inspector it could not or should not have to meet its OAN for reasons of physical or environmental constraint). However, since so many local plans were out-of-date or not based on the OAN approach set out NPPF, this meant the correct level of OAN to apply had to be debated at planning appeals.[5] And, at a public inquiry, that meant cross examination. This could often take up two whole days of an inquiry. The Government changed this completely in July of this year with the publication of the revised NPPF (2018). The new approach is to adopt a simple standard methodology towards the calculation of housing need, based on the household projections and a simple upward adjustment based on two key criteria linked to affordability. The precise formula which the Government has adopted to arrive at a housing need under the standard methodology appears to be a disaster, as it fails to achieve the 300,000 new homes a year which the Government has pledged to do. The Government have immediately acknowledge there is a problem with the formula. But the important point for the purpose of this Review, is that its use will mean a vast reduction in the amount of time taken considering the issue of housing need at many planning inquiries. The use of a standard methodology is very welcome because there was a clear need to make the issue much simpler, albeit the precise formula used needs a radical rethink.
(ii) The Five-Year Housing Land Supply: The need for a local planning authority to demonstrate a five-year supply of housing land is fundamental to the whole process of ensuring the delivery of new homes. A shortfall against the five-year requirement will trigger the tilted balance and make the grant of planning permission more likely. The Court of Appeal has recently confirmed that it is both the existence of the shortfall and the size of the shortfall which can be important: Halllam Land Management v SSCLG and Eastleigh BC [2018] EWCA Civ 1808. As such, there is often detailed scrutiny of the five-year supply at an inquiry, so that the extent of the shortfall can be estimated. Many local authorities claim to have a five-year supply but developers often show this is not the case. Other local authorities claim to have nearly a five-year supply (for example 4.9 years), and so there is inevitable scrutiny of the size of the shortfall. That involves scrutiny of the likely delivery from individual sites in the council’s housing land supply and the reasons for the sluggish or non-existent delivery of new homes on certain sites. Like the housing need issue, this can often take up two days or more at a planning inquiry. What frustrates many local authorities is the need to have to carry out this exercise time and again at each public inquiry. But through the new NPPF (2018) published last month, the Government has introduced a new system which will see local planning authorities submit an annual housing supply statement to the Planning Inspectorate instead. The conclusions of the planning inspector appointed on the extent of the five-year housing land supply can then be relied upon by the local authority for a year. It is intended that this cannot be questioned at a public inquiry or other appeal. There is much that is wrong with the procedure which is being adopted for the scrutiny (or lack of it) of these new annual statements, including the complete absence of any cross examination or indeed any public examination at all. The representations submitted by the house building industry will not even be provided to the planning inspector who is to determine the issue (only a summary provided by the Council). But for the purpose of this Review, it is important to recognise the new procedure will remove a vast amount of the material that is frequently debated at public inquiries into housing proposals, with a huge saving in inquiry time.
26. The consequence of these two measures, which have been introduced in only the last 8 weeks, will probably cut in half the amount of time taken for a public inquiry into a housing proposal. In the 1990s and 2000’s, public inquiries into major housing proposals used to take about three to four days. Following the Government’s decision to abolish the Regional Spatial Strategies, replaced it with OAN, and put the issue of five-year supply centre stage, many planning inquiries now take two weeks. The combination of the two measures listed above, which have already been implemented through the revised NPPF (2018), will also vastly reduce the amount of evidence heard on what are often the most complicated and time-consuming parts of a public inquiry into new housing. This will not only reduce the amount of time taken for the inquiry, but will also vastly reduce the amount of time inspectors require for writing up their decisions.
C) TWELVE SIMPLE WAYS TO SPEED UP THE PUBLIC INQUIRY PROCESS FOR HOUSING APPEALS
Topic A: Inquiry Timetable
(i) Inquiries should be heard within four months of being lodged by an Appellant: At the moment it can take up to a year for a public inquiry into a housing scheme for around 100 houses to be even begin. It can then take a further three to four months for the decision to be issued. That is without taking account of any adjournments. There is absolutely no justification for this delay. Whilst the parties need time to prepare a statement of common ground, and prepare and exchange proofs of evidence, this could all be done in the space of four months. The delay of up to a year adds very significantly to the risk for developers who cannot be certain what the policy and five-year housing land supply position will be in one year to eighteen months time. It is widely believed that the delays are a result of an inadequate number of inspectors. In addition, some developers often want a particular barrister or solicitor to present their case, and that individual may not available for six months. But speaking as a barrister, that is not a good reason for an appeal not to start within four months. There are sufficient numbers of barristers and solicitors specialising in planning in England and Wales for clients to be able to select someone else. Reducing the time between the start of the appeal process and the public inquiry opening will save between 6-8 months of delay.
(ii) Appeals should be lodged within three months: There is no good reason why an appellant needs six months to lodge an appeal. Most of my clients, who will invariable seek the view of a barrister or solicitor before lodging an appeal, will often appeal within one or two months of the application being refused. But not always. Indecision sometimes causes the delay and some people work to the end of the deadline. A three month deadline was tried a number of years ago. But I understand the Planning Inspectorate found this problematic. I assume they did not have enough resources to cope with the accelerated process and this simply resulted in PINS delaying inquiry start dates. So it was returned to the six month period, although the start delay problem remains. But if the purpose of this Review is to find ways to speed up the delivery of new homes and the public inquiry process, then this is one obvious way of doing so. This measure alone will save 3 months delay in some cases.
(iii) Reduce Inspectors inquiry reporting time: Until the last couple of years it was the convention for planning inspectors to issue their appeal decisions on most housing schemes within 6 weeks of the end of the inquiry. That was the case for all but the very largest inquiries, some of which last a month or more. Gradually, the timescale has slipped and even for housing appeals of less than 100 houses, the period between the end of the inquiry and the issuing of the appeal decision now usually extends to three or four months. This only compounds the uncertainty for the housebuilding industry. The six-week period should be re-instated. One anticipates that the reason for the delay is partly because Inspectors are being overworked and the delay is because they are having to do other work during their report writing time, and therefore they are not able to concentrate and complete their reports. The move to a standard methodology for calculating housing need and annual review of the five-year supply of housing will greatly assist in this task. This measure along will save between two to three months of delay.
(iv) Start date delays: There are sometimes huge delays between an appellant lodging an appeal and PINS issuing a start date for that appeal process to begin. This can often be not just a matter of weeks, but sometimes a matter of months. Such delay is unwelcome and unjustified although it is no doubt tied to the resources available at PINS. The solution is to demand that all appeals heard by way of public inquiries are registered within one week of being received by PINS. Indeed, there is no good reason why that should not apply to all appeals. There is some suggestion that it is the Government which is urging PINS not to register appeals, and to not issue the start date until the Government’s intended timescale for the appeal can be met. This measure alone would save between one to two months of delay.
Topic 2: Funding and the Allocation Resources at the Planning Inspectorate
(v) Employ More Planning Inspectors: Since all four of the issues listed above are related to the issue of resources at the Planning Inspectorate there is quite clearly a need to employ more planning inspectors. The Planning Inspectorate offers a Rolls Royce service. The Inspectors
