Everyday I'm Shuffling: A brief round-up of Politics, Planning & the odd court case
It has been an eventful few days, so this post is going to be a little bit of a mash-up of current events. Starting, of course, with:
A Pre-Valentine's Day Massacre
The big news of the week: The Cabinet reshuffle. Yet again, we have a new Housing Minister. Esther McVey is returning to back benches, which probably isn't the greatest loss to the department considering some of the headlines she made during her seven month tenure. Our new Minister of Housing is Christopher Pincher, whose government bio is set out below. All bets are off on whether he lasts a full year....
Robert Jenrick is remaining as Secretary of State, however, which means that we are not dealing with an entirely new ministerial team.
The big surprise of the day, however, and the one which is likely to have the biggest impact on the sector given the timing, was the resignation of Sajid Javid as Chancellor. Javid was a Chancellor that was unusually knowledgeable about housing and development, given his previous tenure at MHCLG, and many had hoped that this would lead to a more development friendly budget in a few weeks' time. With his abrupt departure, this may now be in some doubt.
Whilst his replacement, Rishi Sunak, did spend some time in the department as a parliamentary under-secretary, it was in much more limited role and for a shorter period. With the budget due in just under a month, there is very little time in hand for the sector to convince him to push housing and development up the agenda - but then, there is perhaps even less time available for him to make many changes to the course that had already been set.
Conflict in the High Court
Following the release of Mr Justice Holgate's decision in R on the Application of Mr J.J. Gluck v Secretary of State for Housing, Communities and Local Government & Anr. Case Number: CO/2292/2019, we now have two directly contradictory High Court decisions over whether or not it is lawful to agree extensions of time for determining prior approval applications.
Last August, Mark Ockelton QC decided in Warren Farms that the strict 56 day deadline for determining prior approval application could not lawfully be extended by agreement. Mr Justice Holgate has now decided that you can, stating:
"7. The general principle is that I should follow the decision in Warren Farm unless I am satisfied that there is a powerful justification for not doing so (Willers v Joyce (No.2) [2018] AC 843 at [9]).
8. In Warren Farm the judge stated (at [34]) that he had not been referred to any prior approval procedure in the GPDO 2015 to which the provision for extending time could be applied if his construction of the legislation was correct. However, in the present case I have had the benefit of extensive and detailed submissions from counsel which have analysed a wide range of provisions in the GPDO 2015. Before going any further, I wish to express my gratitude to them for their assistance.
.......
85. Article 7 must be read as if limb (c) is an alternative to both limbs (a) and (b). The consequence is that any of the prior approval time periods specified either in Schedule 2 or in Article 7 is capable of being extended by an agreement by the applicant and the LPA in writing. The decision in Warren Farm should not be followed "
As a result we now have two directly contradictory High Court Decisions on the same point of law. Strictly speaking, whilst High Court decisions can depart from each other in certain circumstances (as pointed out by Holgate above), one High Court decision cannot overturn another, so for the moment both decisions are good law.
Whilst Mr Justice Holgate's decision may be highly persuasive, in order to decide who is right, once and for all, someone will have to take the point to the Court of Appeal....
Green Belts and Openness
Whilst we are on the subject of the Planning Courts, we have also recently received the Supreme Court's decision in R on the Application of Samuel Smith Old Brewery (Tadcaster) & Ors v North Yorkshire County Council. Case Number: (2020) UKSC 3, which deals with the interplay between visual impact and openness when assessing harm to the green belt.
The Case has been widely reported, so I won't comment on it in detail, but Lord Carnwarth's finding that:
"Paragraph 90 does not expressly refer to visual impact as a necessary part of the analysis, nor in my view is it made so by implication. As explained in my discussion of the authorities, the matters relevant to openness in any particular case are a matter of planning judgement, not law."
is likely to be widely welcomed by the development industry, and many local authorities, in the current climate.
First Homes or Starter Homes: A consultation about more than semantics.
Finally, as my colleague Stuart Tym highlighted last Friday . MHCLG's consultation on 'First Homes', their latest iteration of a Discounted Market Sale type affordable housing product for those yet to get onto the housing ladder, is now open.
I don't have time to get into it here, but it is worth a read - not least because MHCLG are considering a number of ways of securing the product; including through direct legislation and/ or the more traditional s.106 route.
A separate post on this may well follow in the near future...
Christopher Pincher was appointed Minister of State at the Ministry of Housing, Communities and Local Government on 13 February 2020. He was first elected Conservative MP for Tamworth in May 2010.
Christopher was previously Minister of State at the Foreign and Commonwealth Office from 25 July 2019 to 13 February 2020 and Deputy Chief Whip, Treasurer of HM Household from 9 January 2018 to 25 July 2019.
He was also Comptroller of HM Household (Government Whip) from June 2017 to November 2017 and was an Assistant Government Whip from 17 July 2016 until 15 June 2017”
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