A Hectic Week in Planning Land: Boats, New Towns, Call In Decisions & Stand-up Comedy
On Friday night, I attended Matt Forde's End of an Era Tour.
Tunbridge Wells is a bit of a comedy hotspot, so I have seen quite a lot of stand-up over the years. Last night, however, was the first time that a comedy set featured, not one, but an entire string of jokes about planning!
Nimbys, housing targets and renewable energy all got a mention, which only goes to prove that planning really does get everywhere…..
It was certainly a fitting way to end a week that was so stuffed with planning news - I couldn't decide what to write about!
As a result, below is a selection of interesting stuff that happened in the last seven days.
Secretary of State calls-in Sittingbourne urban extension
Let's start with a surprise call-in! Those are always fun.
On Thursday, the Secretary of State decided to call in two major applications in Sittingbourne - just three hours before the planning committee at which Swale council had been due to consider them.
The applications between them propose the construction of up to 8,400 homes, including sheltered and extra care accommodation, community space, a hotel, a new rubbish tip, and primary and secondary schools.
Both applications are on sites that have not been allocated for development by the Council and have been highly controversial locally. They had been recommended for refusal by case officer.
The Council's response to the short- notice intervention by MHCLG is worth reading in full…. my favourite paragraphs, however, are below:
"We will work closely with the Secretary of State as they make their determination, but we will robustly explain the council’s reasons for recommending refusal.
“We understand the importance of these two applications but would appreciate being informed of the Secretary of State’s decision before less than three hours until the planning committee meeting so we can adequately prepare our response."
The decision to call in the applications is particularly noteworthy in light of Labour's new town agenda. Whatever the outcome, this will certainly be a call-in appeal to watch!
Nutrient Neutrality heads to the Supreme Court
This week also brought news that the Supreme Court has agreed to hear the latest (and final) appeal in the C G Fry litigation.
The case, in essence, is about whether an appropriate assessment can be required under the habitat regulations at condition discharge stage - even if the relevant issue (in this instance nutrient neutrality) didn't apply when the planning permission was issued.
Every Court, up until this point, has said “yes”.
A full write-up of the decision can be found in this week's Environmental Round-up.
In other unexpected news, on friday it was announced that both the Chair and Chief Executive of Homes England are standing down.
The Chief Executive, Peter Denton, will be leaving in the New Year whilst Peter Freeman will remain in post until the recruitment of a new Chair has concluded.
A formal search for new leadership at Homes England will begin next week and an interim CEO will be announced ‘shortly’.
The press release states that:
“The new Chair and interim CEO will be working at pace to implement the priorities set out in the recent letter from the Housing Minister, with a strong focus on boosting growth through the delivery of new housing supply and place-based regeneration”
New Town Taskforce issues call for sites
Speaking of new housing supply and place-based regeneration; earlier this week, the New Town Taskforce issued a call for evidence about locations for potential new settlements.
Submissions should not be more than 1,000 words in length and should address the following four questions:
- Provide a description of the proposed location and how far it has progressed?
- How does this location meet the Taskforce’s research remit?
- What would be the barriers to creating a new town in this location and what would be needed to overcome them (if known)?
- Has this prospective development previously received government support (if known)?
The call for evidence closes on 13 December 2024.
And finally, possibly my favourite story of the week.
On Monday, FTB Chambers confirmed that the Court of Appeal has refused permission to appeal the High Court's decision in London Borough of Newham, R (On the Application Of) v Revenue and Customs [2024] EWHC 2321 (Admin).
Newham is an absolute gem of a judicial decision, which I missed when it was first handed down in July.
The challenge is against a VOA CIL Appeal decision, hence the involvement of Revenue & Customs*. The facts are pretty straightforward:
- On 4 August 2023, the London Borough of Newham granted planning permission for the Good Hotel at the Royal Victoria Dock.
- The Good Hotel is a floating hotel. You can learn more about it here.
- The permission was granted in the following terms: "Mooring of a 160 room hotel on a floating platform with associated access, car parking and landscaping".
- The Council issued a Liability Notice for the hotel; and the developer appealled to the VOA on the basis that the “Good Hotel” was not a building and therefore not CIL Liable.
- The Appointed Person deciding the appeal agreed that the Good Hotel was not a building, describing it at paragraph 2 of the Appeal Decision ("AD/2") as "a floating concrete non-propelled accommodation platform moored in the Royal Victoria Dock". She added, "I understand it was originally constructed and used as an inland river barge before lying idle for some time. It was then re-purposed as a pop-up hotel moored in Amsterdam, before being floated across the North Sea to its current location in the Royal Victoria Dock.
- Newham challenged that decision in the High Court.
As such, the only question before Mrs Justice was whether the Appointed Person had erred in law when deciding, for the purposes of the CIL Regulations, whether the Good Hotel should be considered a boat or a building.
Albeit, this question was stretched across five seperate grounds of challenge.
Ultimately, it was decided that the Good Hotel was not a building for CIL purposes.
The rationale for this decision is illuminating. As such, I have set out the key paragraphs from the judgment below:
"17. For the purposes of CIL, chargeable development is defined in regulation 9(1) of the CIL Regulations as "the development for which planning permission is granted".
18. Development for the purposes of the Planning Act 2008 ("PA 2008") and the CIL Regulations is defined in section 209(1) PA 2008 as: "(a) anything done by way of or for the purpose of the creation of a new building or (b) anything done to or in respect of an existing building".
19. There is no statutory definition for the term "building" within the CIL Regulations. The wide definition of "building" at section 336(1) TCPA 1990, which includes any "structure or erection", is explicitly excluded from the CIL Regulations made under Part 11 of PA 2008 by section 235(1) PA 2008.
20. In my view, the AP applied well-established principles of statutory interpretation by considering the natural meaning of the word "building" in its statutory context. Although the purpose of CIL is broadly expressed, parliament determined that CIL would only be levied against buildings. The AP, therefore, correctly identified, at AD/14, that the issue in the appeal was as follows:
"Therefore, I am of the view the parties are correct, this appeal turns on the definition of a building and whether the subject is a vessel, as argued by the appellant, or a building as argued by the CA".
21. As I have already stated, at AD/10, the AP identified the development for which permission was granted as the act of mooring the hotel (ie securing it at the dock) not the erection or building of a hotel. The conditions attached do not alter the terms of the permission or the development."
"30. In my view, Ground 4 is unarguable. A vessel is not a building, but a vessel may be adapted into a structure which has the characteristics of a building. The AP did not confine her consideration to the difference between a building and a vessel. She addressed the dictionary definition of a building and the case law on the meaning of a building. She expressly considered whether a floating accommodation platform that has been fitted out for use as a hotel could be described as a "permanent fixed thing built for accommodation" within the meaning of the dictionary definition (AD/17). After assessing the relevant factors, she concluded that they pointed to the conclusion that the Good Hotel remained a vessel and had not become a permanent fixed thing. She compared it to a mobile home on a residential site.
31. In my view, her exercise of judgment does not disclose any arguable error of law and permission is, therefore, refused on Ground 4.
Ground 5
32. The Oxford English Dictionary definition of "building", referred to by the AP at AD/17 reads as follows: "A thing which is built; a structure; an edifice; a permanent fixed thing built for occupation, such as a house, school, factory, stable, church, etc".
33. The claimant contends that the AP erred in not considering whether the hotel met the dictionary definition of "a thing which is built" and erred in applying the definition of "a permanent fixed thing built for occupation".
34. In my view, this ground is unarguable. The dictionary definition had to be read as a whole. The literal meaning of "building" - "a thing which is built" - would not have enabled the AP to determine the meaning of "building" in the context of the CIL Regulations because it is too broad. The defendants cited an apt passage from the judgment of Byles J in Stevens v. Gourlay (1859) 141 ER 752 at [757] where he said:
" … What is a 'building'? Now, the verb 'to build' is often used in a wider sense than the substantive 'building'. Thus, a ship or a barge-builder is said to build a ship or a barge, a coach-builder to build a carriage; so, birds are said to build nests: but neither of these when constructed can be called a 'building'".
35. For these reasons, I refuse permission on Ground 5."
Conclusion
To conclude: it was a busy week.
If I were to attempt to sum up in a slightly more helpful manner, however, I might say something along the following lines….
The last week has demonstrated just how seriously this government is taking it's home-building agenda. The New Towns Taskforce's call for evidence, the changes at Homes England and even the decision to call-in the Sittingbourne applications all speak to a determination to make real progress towards that eye-catching 1.5 million homes target.
Success, however, is not entirely within MHCLG's gift. There are some really tricky issues, such as nutrient neutrality, standing in the way. These need to be sorted out… If we are lucky, the Supreme Court's decision in C G Fry might provide some assistance in that regard.
Oh…. and finally……
You can't charge CIL on a boat.
*and why I missed it first time around.
Plans for a “new town” in Kent have been sent to the government for the final decision after an intervention by the housing secretary.
Swale Borough Council had been due to decide on Thursday whether 8,400 homes could be built near Sittingbourne, but said the government intervened just hours before the meeting.
Planning officers had previously recommended the council should vote against the project, with campaigners saying it would overwhelm current infrastructure and harm the environment, the Local Democracy Reporting Service reported.”
Key Contact
