Monday, 29 November 2021

ENVIRONMENT ACT 2021


Having retired from legal practice, the first thing I did after that was to go and chair a planning law seminar in London last week, at the invitation of Bath Publishing. The subject was Biodiversity for Planners & Developers: The New Law. This very successful conference (which was held both as a live event and online) was an excellent introduction to the important changes in planning procedure that will be brought about by the recently passed Environment Act, which obtained Royal Assent on 9 November.

The provisions of the Act will be phased in gradually, and it will be some two years before the important changes that will govern how developers structure and present planning applications, but it is abundantly clear that everyone involved in planning and development is going to have to get thoroughly to grips with these changes in good time before they become a binding statutory requirement.

Perhaps the most important aspect of the Act (and which was the focus of last week’s seminar) will be the requirement to demonstrate how significant biodiversity net gain [“BNG”] will be achieved through the proposed development. There is, of course, a lot more in that Act than this, and I do not for one moment belittle the importance of other parts of the Act, which aim to improve the natural environment and will set up the Office for Environmental Protection as an independent monitoring body and regulator. Other parts of the Act deal with waste and resource efficiency (including waste management and enforcement) and air and water quality (including the regulation of water and sewerage undertakers).

But it is Part 6 of the Act, dealing with nature and biodiversity, and the requirement for biodiversity in planning, which strikes me as the part of the Act which it will be most important for planning professionals to understand. Coupled with this will be the introduction of conservation covenants, which are dealt with in Part 7 of the Act.

Three extremely interesting and helpful papers were presented at our seminar last week, by Alistair Mills, of Landmark Chambers, who is a Fellow of Magdelene College, Cambridge and a law lecturer at that college, as well as being a contributor to Garner’s Environmental Law among his other writing credits (giving us a general overview of the new Act), followed by Dr Nick White, Principal Adviser on Net Gain at Natural England, who has been intimately involved in developing the concept of BNG and successive iterations of Natural England’s Biodiversity Metric, which will become a legally sanctioned tool under the Act, and finally Tom Graham, barrister, legal author and a very experienced planning lawyer, whose paper addressed the practical considerations for planning and development that arise from the new Act. The event was rounded off by a lively Q&A session which threw up some interesting and thought-provoking points.

At present, only a few of the Act’s numerous provisions are in force (out of a total of 149 sections and no fewer than 21 detailed schedules). They are sections 22 to 24, 26, 44 to 47, 63, 142 to 149 and Schedule 1. On 9 January, sections 51 to 56, 58, 66, 70, 80, 88, 89, 90, 92, 93, 97 and Schedules 5, 6, 7, 8, 9 and 10 will come into force. Other provisions of the Act will be brought into force by future Commencement Orders. There is also going to be a huge raft of subordinate legislation, none of which has been published yet (unless, unbeknown to me, anything has appeared in the past few days). The NPPF will also have to be revised again to reflect the new regulatory regime.

Nick White stressed the fundamental importance of the Biodiversity Metric to net gain. The Metric calculates the baseline and forecasts outcomes. It is intended to provide confidence in its methodology and ensure consistency of approach. It was clear from Nick’s paper that considerable work has been done within Natural England in developing the Biodiversity Metric as a robust and reliable tool for ensuring the achievement of BNG. The Metric applies the core principles of BNG, i.e. that it secures additionality and does not countenance trading down of biodiversity. The resulting tool (currently version 3.0, to be replaced in January 2022 by version 3.1, incorporating minor changes, and accompanied by the publication of supporting case studies) is extremely sophisticated; its calculation tool and condition assessment are supplemented by both a User Guide and a Technical Supplement. Next year the Secretary of State is expected to consult formally on the Biodiversity Metric, followed by the publication of Metric 4, the final pre-mandatory BNG version before it becomes a statutory requirement, following which it will be reviewed every 5 years or so.

Some of the larger housing developers are already familiar with BNG, and have test flown their own biodiversity metrics. Similarly, a number of LPAs have developed BNG as a development management tool. Now this is all to be put on a statutory basis, and Natural England’s official Metric will become the sole benchmark, with which all developers and LPAs must comply. Present expectations are that this will come into force in about two years’ time.

Tom Graham’s paper also stressed the Biodiversity Net Gain objective and the mitigation hierarchy, drawing attention to the scope for purchasing biodiversity conservation credits. There will in future have to be a biodiversity gain plan and, overall, the biodiversity gain objective must be achieved. There remains at present, however, a degree of doubt as to the practical means by which this is to be secured. One limitation of the Biodversity Metric (which Nick White also flagged up in his talk) is that it measures habitats, rather than species as such, although it could be said that habitats are in effect a proxy for the species they support.

There is still some uncertainty as to the mechanisms by which all this is to be secured on individual sites. A Construction Environmental Management Plan (aka CEMP), a Landscape & Ecological Management Plan (aka LEMP) and species specific measures will ned to be part of the package. Tom expressed misgivings about the suitability of planning conditions to secure BNG, which may not be an adequate mechanism to deal with changes to the Biodiversity Gain Plan or to guarantee the enforceability of these requirements. Offset or land transfers may be alternative mechanisms, but would require a legally binding agreement to secure them (although a Grampian condition might be a useful first step towards this). The same would apply to financial contributions. Even a planning obligation carries with it some risk as to whether the developer is capable of delivery, and as to maintenance mechanisms and long term financial security. (What happens, for instance, if the management company goes bust? My own answer to this would be for the developer to provide a bond, backed by a substantial financial institution). There are also questions as to the suitability of a 106 agreement, compared with a conservation covenant agreement.

Many of these points will no doubt become clear in time, and will be refined and perfected as practical experience is gained in the operation of these provisions and procedures. In the meantime, however, the final message of Tom Graham’s paper, and of the whole seminar, was to emphasise the crucial importance of familiarisation and training of personnel at all levels, for developers, their staff and their professional advisers, as well as local planning authority staff. Two years is not as long as it may seem in which to get to grips with the new regulatory regime.

Next year, we shall all have the assistance of Tom Graham’s new book - The Environment Act 2021 – A Guide for Planners and Developers to guide us through the new legislation. If the government had not taken such an inordinate time to get its legislation through parliament, Tom’s book would have been published by now. Last week’s seminar had originally been planned as a launch event for the book, and it is no fault of either Tom or Bath Publishing that the book has been delayed. Late changes to the legislation, right up to the last minute, have made re-writes of some chapters unavoidable, but I have seen the manuscript and it is already at an advanced stage of preparation. So readers can pre-order the book, confident in the expectation that it will prove to be an essential companion in navigating around this legislation, with sound practical advice on the day-to-day operation of the statutory procedures.

© MARTIN H GOODALL

Friday, 12 November 2021

Winding down


After some 44 years in practice as a solicitor, during nearly the whole of which I have specialised in the law and practice of Town and Country Planning, not to mention the years that I spent in the profession before being admitted as a solicitor, I have finally decided that it is high time that I retired. Planning law is an area of work that I have always enjoyed, and it was for this reason that I carried on for some considerable time after what most people would think of as a ‘normal’ retirement age. But none of us can go on for ever, and so I have finally hung up my metaphorical wig. (As you are no doubt aware, solicitors don’t actually wear a wig, but I did do a great deal of heavy-weight advocacy at planning inquiries, and long ago lost count of the number of public inquiries and hearings in which I had appeared.)

I first opened the pages of the Planning Encyclopedia as long ago as 1967, if only for the purpose of filing new loose-leaf pages, and I drafted my first notice of appeal (on behalf of my principal) in 1970. It was addressed to the Minister of Housing and Local Government (just a few months before Ted Heath created the Department of the Environment as a new ‘super-department’), as well as drafting some written representations in a couple of planning appeals.

It took me a lot longer to qualify as a solicitor than it should have done, due to my having got involved in politics, which proved to be a considerable distraction. However, I realised that I really did have to concentrate on the two papers in the solicitors’ finals that I had repeatedly failed – Revenue Law and Equity & Succession. I really don’t know how I eventually managed to get through these two papers; the Rule in Earl of Chesterfield’s Trusts and the doctrine of election are as much a mystery to me now as they ever were. Just as well, then, that my interest even at that time was focused on town and country planning, and that I took the opportunity of pursuing this as my career.

I gave up politics ‘temporarily’ in order to concentrate on my finals, but I never went back to politics. I have never lost my interest in the subject, but purely as a spectator and commentator. If I am asked what alternative career I would like to have pursued, it would have been as a political journalist. (I fear that this may have been all too obvious at times from the contents of this blog.)

To echo the words of Theresa May, I have decided that “Retirement means Retirement”, and so I am not tempted to continue in some sort of consultancy role. However, I shall not be closing this blog, but now that I have retired from active legal practice, posts are likely to appear rather less frequently in future. In fact, you may already have noticed a reduction in the number and frequency of posts. But I am sure that I shall be unable to resist commenting on planning topics from time to time, and I have no intention of taking down my previous posts, which will remain available to be read by anyone who’s interested.

And then of course there are also my two books (A Practical Guide to Permitted Changes of Use and The Essential Guide to the Use of Land and Buildings under the Planning Acts). Both of these will clearly require new editions in due course.

So maybe I shan’t be riding off into the sunset just yet.

© MARTIN H GOODALL

Friday, 5 November 2021

Biodiversity book and seminar


As you know, I am a great fan of Bath Publishing, who continue to expand their planning and environment law list, in addition to the other areas of the law that they cover.

Tom Graham is a practising lawyer with many years of experience in environment and planning law, and is an established legal author whose book, A Practical Guide to Planning, Highways and Development is a ‘must have’ title from Bath Publishing’s catalogue. Bath Publishing will shortly be launching Tom’s latest book, The Environment Act 2021: A Guide for Planners and Developers. This book could hardly be more topical, and will be published almost before the ink has had time to dry on the new Act. So it will be one of the first books available to provide a comprehensive overview of the Act specifically for the planning sector.


This new book answers the questions that planners and advisers will need to consider such as:

• The interpretation of the Environment Act
• Conservation biology and the planning system
• What is Biodiversity Net Gain and how will it interact with the planning system?
• What is the "precautionary principle" and how is this to be reflected in the planning process?
• Can local planning authorities push a "green agenda"?
• Section 106 agreements, conservation covenants, planning conditions and ecology
• How will local planning committees get to grips with the complexities of the Act?
• How will the act impact on developers? Is it a benefit or a problem?

As well as practical commentary, the book includes the relevant sections of the Act, annotated by the author, so you will have the sources you need in one, handy volume. Due for publication shortly after Royal Assent is granted in the Autumn, it will be the essential, practical guide to help navigate the new regime efficiently and profitably.

• Paperback
• 200 pages approx
• £40 inc free digital edition if you pre-order
• ISBN 978-1-9163023-1-0

In order to launch this important new book, Bath Publishing have organised a seminar in London later this month, which will also be available online.

Attend the seminar and get the book free! This seminar, Biodiversity for Planners & Developers: The New Law, is being held on Thursday 25 November 2021. You can attend in person or online and you'll get a free book as part of the package. The event is being held at One Great George Street, London SW1P 3AA between 10am and 1pm, and I am honoured to have been invited to chair this event. The speakers will be Tom Graham, Dr Nick White and Alistair Mills, all of whom are experts in this area of law and practice.

As a special offer to readers of this blog, the ‘early bird’ offer for seminar bookings, giving you access to the seminar (with book included) of £150 + VAT has been extended to 12 November 2021. (The price will be £175 + VAT if booked after 12 November). So readers of this blog have just one week to snap up this generous offer, and save £25! [To get this discount, you will need to quote this code: BDMG1121 ]

I should mention that the availability of 'in-person' tickets is now limited (due to a rapid take-up of bookings). There is a need to keep the numbers fairly limited in order to minimise covid risks, so far as possible. Bath Publishing is offering everyone the option to swap to remote attendance if preferred.

UPDATE (17 November) : As readers are no doubt aware, it took the government until 9 November to get the Environment Bill through its final stages in parliament, and it became the Environment Act 2021 on that day. Tom Graham's book is now at an advanced stage of preparation, but it could not be finalised until after Royal Assent had been achieved (because important changes to the Bill were in the offing right up to the last minute). So, through no fault of Tom's, the book will not be ready as soon as everyone had hoped. The seminar on 25 November will nevertheless be a valuable opportunity to learn about the new Act and the way it will affect the way we do development in future. Attendees will, of course, be entitled to a copy of the book when it is published, and in the meantime they will find the seminar very helpful as a timely introduction to this important new legislation.

MARTIN H GOODALL

Thursday, 28 October 2021

THE GREAT POST OFFICE SCANDAL : An important new book


As regular readers of this blog will know, Bath Publishing has gained a well-deserved reputation as publishers of very useful and accessible books on various legal topics, including employment law and family law. In 2015 they published the first of my two books on planning law, and they have subsequently published several other planning law titles. Having now worked with Bath Publishing over a period of more than six years, I hold them in very high regard and have been very pleased to see this firm’s growing success and reputation.

So I was excited to hear of Bath Publishing’s latest and very interesting publishing venture. This is the publication of THE GREAT POST OFFICE SCANDAL: The story of the fight to expose a multimillion IT disaster which put innocent people in jail



About the book

On 23 April 2021, the Court of Appeal quashed the convictions of 39 former Sub-postmasters and ruled their prosecutions were an affront to the public conscience. It is a scandal that has been described as one of the most widespread and significant miscarriages of justice in UK legal history.

The 39 were just a few of the 738 people who, between 2000 and 2015, had been prosecuted by the Post Office for theft, false accounting and fraud. The prosecutions were based largely on evidence drawn from Horizon, the Post Office’s deeply flawed software system that threw up duplicate entries, lost transactions and made erroneous calculations. If these errors resulted in apparent losses, Sub-postmasters were forced to settle the discrepancies from their own pockets, sometimes for tens or hundreds of thousands of pounds. Those who could not pay were sacked and taken to court. Proud pillars of their communities were stripped of their jobs and livelihoods. Many were forced into bankruptcy and/or borrowed from friends and family to give the Post Office thousands they did not owe. The really unlucky ones were sent to prison.

This is the story of how these innocent people fought back to clear their names against a background of institutional arrogance and obfuscation, a fight dragged out by the Post Office’s refusal to accept responsibility for its failings.

Nick Wallis, an award-winning freelance journalist and broadcaster, has been pursuing this story since 2010 when he met a taxi driver who told him his pregnant wife had been sent to prison for a crime she did not commit. Since then, he has recorded interviews with dozens of victims, insiders and experts, uncovering hundreds of documents to build up an unparalleled understanding of the story.

Using these sources, Nick has been instrumental in bringing the scandal into the public eye. He broadcast his first investigation for the BBC in 2011. In the same year he took the story to Private Eye. He has subsequently made two Panoramas, a Radio 4 series, and raised thousands of pounds to crowdfund his own court reporting for the Post Office Trial website.

Nick has now written the first definitive account of the scandal. He takes us from the ill-fated deal that brought Horizon into existence, through years of half-truths and obstruction, to the tearful scenes at the Court of Appeal this year. He exposes the secrecy and mistrust at the heart of the story, and the impact that it had on the victims. He also chronicles how this story’s hero, Alan Bates, started as a lone public voice of dissent but went on to beat the Post Office - against overwhelming odds – at two of the highest courts in the land, and win some redress for the victims.

This book will be available from Bath Publishing from 18 November 2021.

Price: £25.00 in Hardback

Horizon Scandal Fund: Bath Publishing and the author are donating 10% of the revenue from the book sales to a 'fighting fund' so that Sub-postmasters can continue their quest for proper redress and compensation.

Tuesday, 21 September 2021

Daft name competition


And the winner is ……….Mr Alexander de Piffle Johnson of London SW1, who came up with the stunningly daft name of “The Department for Levelling Up, Housing and Communities”. Well done Mr Johnson, a cheque (by way of a generous donation to the Conservative Party) is on its way to you, subject to a little something back in the New Year’s Honours List, please.

When it was called the Department for Communities and Local Government, various people (including those in PINS) used to refer to it as “DeCLoG”, a name I delighted to use in this blog. The new name does not so readily lend itself to being turned into an acronym, although I suppose “DeLUge” might be a possibility? So the previous incumbent, Robert Jenrick can now go around Westminster intoning “Après moi, le DeLUge!

Unhelpful and sarcastic suggestions for other acronyms or epithets would be welcome, provided they are printable.

© MARTIN H GOODALL

Thursday, 16 September 2021

Gove IN ; Jenrick OUT


There is little point in speculating on the reasons for Robert Jenrick’s summary dismissal from the cabinet in yesterday’s cabinet reshuffle, although a certain air of sleaziness (no matter how unfair of unjustified it may have been) seemed to hang around him.

Whether Michael Gove is any more clued up about town and country planning, local government or any of the other subjects for which he will now have ministerial responsibility than any of his recent predecessors is a moot point, but he is certainly the most high profile politician to fill this post for some considerable time. He has always struck me as rather an odd-ball, and his recent rather bizarre behaviour has done nothing to dispel that impression.

Gove does at least have a reputation for being effective in getting things done, although it is difficult to identify any particular achievements that he could claim in his most recent role as Chancellor of the Duchy of Lancaster [Cabinet Office Minister] in which he was supposed to play a co-ordinating role across Whitehall to ensure that Bungling Boris’s will (insofar as it could be ascertained from day to day) was done. He retains responsibility for the government’s “levelling up” agenda, which is still no more than a slogan and a hodge-podge of infrastructure projects that will take several years to come to fruition.

I always thought that adding “Housing” to this ministry’s title, and giving it prominence as the first word in that title was an unwise hostage to fortune. 300,000 homes a year still seems to be an unachievable target. Meanwhile, Gove will have a lot of other problems on his ministerial plate, including what to do about the wildly unpopular planning ‘reforms’ that Bungling Boris has decreed and over which ministers and Tory MPs are still arguing furiously. Then there is the question of how to tackle the cladding scandal after five years of inaction following the disastrous Grenfell Tower fire, among several other political hot potatoes.

The man actually responsible for town and country planning will be one of the Parliamentary Under-Secretaries in MHCLG. There may well be a secondary reshuffle today of junior minsters, and it remains to be seen (at the time of writing) who will end up in that role, as what the press will no doubt refer to as the ‘Housing Minister’ or the ‘Planning Minister’. (The same junior minister usually combines both roles.)

So where to now with town and country planning? Frankly, your guess is as good as mine. Bungling Boris appears to be in a particularly gung-ho mood at the moment, and seems to think he can push whatever he wants through parliament. But I still remain profoundly sceptical of the chances of a Planning Bill being introduced until well into the New Year, and what will emerge still remains extremely uncertain. My prediction is that, if it comes forward at all, its provisions are likely to be considerably watered down compared with what was in last year’s White Paper, and it is very unlikely that it will simplify or speed up the planning system in practice.

© MARTIN H GOODALL

Saturday, 31 July 2021

GPDO tidied up (continued)


In my first post on this topic on 20 July, I confined myself to the changes to Part 3 of the Second Schedule to the GPDO (dealing with permitted changes of use).

The changes to Part 4 (temporary buildings and uses) are mainly cosmetic, but one provision that caught my attention is the deletion from paragraph C.1(e) of the reference to Use Class A4 and the substitution of a reference to Class F.2 (local community use). The first point to note is that the removal from paragraph C.1 of the prohibition of a temporary change of use under Class C from use as a drinking establishment (formerly Class A4) to use as a state-funded school (within Class F.1(a)) does not now allow such a temporary change of use, because use as a drinking establishment is now sui generis, and Class C does not permit a change of use from any sui generis use in any event. On the other hand, a temporary change of use to use as a state-funded school from the new local community use (within Class F.2) is specifically excluded from Class C.

In Part 4, Class CA (provision of temporary school buildings on vacant commercial land), the definition of “vacant commercial land” has been changed. This definition previously referred to land which was last used for a purpose falling within Class B1 (business), Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class D2 (assembly and leisure) . The definition now refers to land which was last used for a purpose falling within Class C1 (hotels), Class C2 (residential institutions), Class C2A (secure residential institutions) or Class E (commercial, business and service).

Class D in Part 4 (temporary use of various business premises) is amended, so that the change of use that it now permits is from use as a betting office, a pay day loan shop or hot food takeaway, or from Class E (commercial, business and service) to a flexible use falling within Class E (commercial, business and service), Class F.1(b) (display of art), Class F.1(c) (museum), Class F.1(d) (public library or public reading room) or Class F.1(e) (public hall or exhibition hall).

An additional temporary PD right was introduced in Part 4 during the current covid crisis. This is Class DA (permitting restaurants etc. temporarily to provide takeaway food). As now amended, this permits development consisting of a change of use of a building and any land within its curtilage from use as a drinking establishment, or as a drinking establishment with expanded food provision, or Class E(b) (sale of food and drink mostly for consumption on the premises) or from a mixed use as a drinking establishment and as a café or restaurant, to a use, up to and including 23 March 2022, for the provision of takeaway food. [As I have previously pointed out, a condition in a planning permission that prohibits hot food take-aways still prevents the temporary change of use permitted by Class DA, due to the effect of Article 3(4) of the GPDO.]

One of my complaints when changes were previously made to the GPDO (particularly in 2015) was that there were inadequate transitional and saving provisions. This time, that previous omission has been repaired.

The first transitional provision relates to changes of use which no longer constitute development. Where a change of use of a building or land was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition requiring a prior approval application but, with effect from 1 August 2021, no longer constitutes development because the change is between uses that both now fall within Class E in the UCO, the change of use may proceed notwithstanding any undetermined prior approval application or related appeal proceedings. [In fact, irrespective of this provision, such a change of use can now be made even if there was a previous refusal of prior approval and even if an appeal against the refusal of prior approval was dismissed, because it is simply not development now, by virtue of section 55(2(f). But before anyone gets too excited about this, just remember that the existing use and the new use must both now be within one and the same use class, failing which section 55(2)(f) has no application.]

There is then a transitional provision for development no longer subject to a condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) without being subject to a condition that is the same, or substantially the same, as the previous condition, the development may proceed notwithstanding any non-compliance with the previous condition (but the development must comply with any other condition imposed by the new provision).

Next, we come to a transitional provision for development subject to a new condition. Where any development was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) subject to a condition, and is now permitted development under Schedule 2 (in the form in which it applies with effect from 1 August 2021) which imposes a new condition which is not the same, or substantially the same, as a condition which applied under the previous provision, then if it began, or a prior approval application was made, before 1st August 2021, the development may proceed irrespective of whether the new condition has been complied with (but the development must comply with any other condition imposed by the previous provision).

Finally, there is a transitional and saving provision for development which is no longer permitted by the GPDO. This applies to development (“protected development”) which was permitted under Schedule 2 to the GPDO (as it applied immediately before 1st August 2021) but is no longer permitted by the GPDO on or after 1st August 2021, provided that the land or building was in use immediately before 1st August 2021 for a purpose which qualified it for PD under the previous provision. In this case, the GPDO has effect in relation to such protected development up to and including 31 July 2022 as if the amendments made with effect from 1 August 2021 had not been made. This saving extends beyond 31 July 2022 in relation to the processing and determination of any prior approval application made in respect of such protected development on or before 31 July 2022, and also the determination of any appeal proceedings related to such a prior approval application. In the same way, this saving provision applies to the completion of such protected development which began, or in respect of which a prior approval application was made, on or before 31 July 2022, as if the amendments the GPDO that took effect on 1 August 2021 had not been made.

Where this saving provision applies, a reference in the GPDO to a use or use class specified in the Use Classes Order is a reference to the previous version UCO before the 2020 changes to the use classes in that Order. However, where the protected development consists of a change of use of a building under paragraph I(a) of Class I (industrial and general business conversions) in Part 3, as it applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (g) (business uses) of Use Class E (commercial, business and service), the building must not, in the absence of further planning permission, be used for any other purpose within Class E.

Furthermore, where the protected development consists of a change of use of a building under Class S (agricultural buildings to state-funded school or registered nursery) or T (business, hotels etc to state-funded schools or registered nursery) in Part 3, as they applied immediately before 1 August 2021, and it results in the building being used for a purpose within sub-paragraph (f) (registered nurseries etc) of Use Class E, the building must not, in the absence of further planning permission, be used for any other purpose within Class E (including another purpose within Class E(f)).

© MARTIN H GOODALL