Project Nutcracker: A tool for Government to tackle politically motivated council refusals

Normally I write about how to improve the consenting of "nationally significant infrastructure projects" (NSIPs), a regime where the decision-maker is central Government. However, this week I wanted to put forward a suggestion to speed up the granting of consents for which applications are made to local councils, under the Town and Country Planning Act 1990 (TCPA) regime.

The best of both worlds for classes of urgently needed development

Politically motivated refusals by local planning committees are an increasing problem for a pro-growth Government that wants more housing, datacentres, etc. The Government has recognised this and sought to address it in several ways. The Planning and Infrastructure Bill seeks to ensure more applications are decided by planning officers rather than planning committees (the latter being made up of local politicians). The Government has also suggested it will expand the categories of project that can opt out of the TCPA regime, into the NSIP regime (taking local politics out of the equation but at the expense of a much longer and more expensive process).

The best of both worlds (TCPA and NSIP) would be if Government could swoop in and take over a TCPA application where the council was minded to refuse it against the planning officer's recommendation in relation to categories of development that Government policy states are urgently needed.

Currently, the only way the Government can take a decision on a TCPA application is if a public inquiry is held (adding up to a year and significant cost). But need that really be the case? In this article I argue that there is no legal reason why the Secretary of State for Housing Communities and Local Government shouldn't take such decisions at her desk, without need for an inquiry.

All that would be required is a tweak to s77(5) TCPA, and a Direction to all local councils to refer certain applications they are 'minded to refuse' up to central Government.

On receipt of the referred applications, Government officials would decide which to send back to the council to be determined in accordance with their desire to refuse, and which to take over and over-turn. In practice, the Government might choose to intervene in only a small proportion of the referred applications. But such a regime would at least give them a tool to swiftly authorise categories of infrastructure as and when an urgent need arises which might otherwise be consistently delayed by local decision-making forcing the need for appeals.

Resourcing to deal with a flood of such referrals could be an issue. But even if Government chose to use such a power sparingly it would send a powerful signal and could have a dramatic immediate effect.

The perception of local democracy being countermanded is likely to be a bigger challenge. The holding of an inquiry led by the Planning Inspectorate provides an intermediate step (and significant time lag) between a local council's decision and its potential over-turning by the Secretary of State. Under my proposed change, a council's "minded to refuse" decision could be flipped into an approval by Government simply issuing a decision letter a month or so later.  On the plus side, this would be a powerful way for Government to deliver on its rhetoric about over-coming NIMBYISM to "build, build, build". It could be used selectively and sparingly in practice.

I set out below some more detail on this proposal, its justification and analogies.

The problem with the local planning system for a pro-growth Government

For projects not designated under the Planning Act 2008 as NSIPs, the local council (rather than the Secretary of State) is generally the decision-maker (under the TCPA). That regime covers everything from minor house extensions to big housing schemes, retail, datacentres, small solar developments (below 50MW) and other infrastructure falling below the NSIP thresholds.

The total time and cost involved for a developer to get a decision under the TCPA regime is much less than the NSIP regime. There is no comparison in terms of the scale of documentation: a planning consultancy we work with is about to submit two solar applications: a scheme below 50MW going through the TCPA regime (1,000 pages), and an NSIP application for a 99MW project (20,000 pages). The TCPA regime also avoids the onerous pre-application consultation requirements under the NSIP regime (now averaging 27 months according to the Government's recent Infrastructure Planning Reform Working Paper).

There is also no comparison in terms of the decision-making process: NSIP applications are examined over a torturous 6 month period – see my description: Nightmarish Paper-Chase of DCO Examinations. In contrast, TCPA applications (even for the largest and most controversial housing projects) are generally decided in a single evening by a committee of 12 or so local councillors at a public meeting. A report on the application is prepared and presented by the council's planning officer (a qualified planning professional employed by the council rather than a politician). This report summarises the project, its impacts and the objections received. It concludes with the officer's recommendation to grant or refuse planning permission having weighed all relevant factors against national and local planning policies.  The developer and objectors may be allowed to speak briefly (usually 5 minutes each) before the councillors vote.

The TCPA system is therefore a very efficient way to make decisions on development proposals.

Its flaw, for a pro-growth Government, is that committees often vote against the officer's recommendation, regardless of how compelling the case for the scheme is or its alignment with national needs. It is the duty of the committee to weigh the relevant factors themselves in coming to a decision, rather than simply rubber stamping the officer's recommendation. However, in practice, it is often politically expedient for local councillors to take an anti-development stance at committees in order to please vocal groups within their electorate. The officer will often explain to the committee that, if they refuse, the developer is likely to appeal to the (independent) Planning Inspectorate (PINS), and is likely ultimately to win their consent after considerable wasted council expense defending its refusal at inquiry. This is seldom enough to out-weigh the political motivations of the councillors on the committee. It is not uncommon for committees to openly spend time searching for the most robust reason to refuse.

While in such cases the developer can be fairly confident of winning consent after a public inquiry, this can add up to a year to achieving consent. With this Government in a rush to deliver housing, datacentres etc this is unhelpful – as is the wasted public money involved in councils and PINS taking cases through an inquiry where the case for consent is clear.

Angela Raynor's pledge to "call-in" applications for her own determination

When this Government came into power, there was much coverage in the media about Angela Raynor's pledge to "call-in" planning applications for her own determination. The implication was that this would be used to reduce the stagnating effect of local refusals driven by NIMBYs. In reality, her powers are somewhat limited given the way the law currently works, as I explain below.

The term "call-in" is used loosely by politicians and the media to cover two quite different powers at the Secretary of State's disposal. Apologies for a bit of technicality here, but it's important:

1. "Recovered" decision-making by the Secretary of State on appeals

Where a developer is refused planning permission by a council under the TCPA, they can appeal to PINS who will hold a public inquiry before making a decision whether to over-turn the refusal, or let it stand. Where the Secretary of State is particularly interested in the outcome of an appeal, she may "recover" that appeal. All this means is that while PINS holds the inquiry, the Inspector doesn't make the ultimate decision. Instead he or she sends a recommendation report to Angela Raynor, who makes the final decision. This gives the Secretary of State the ability to disagree with PINS' recommendation if she wishes. An example of the exercise of this recovery power (mis-referred to as "call-in") is reported here in relation to a datacentre:  Angela Rayner overrules council and approves data center planned for Buckinghamshire, UK - DCD

For those who are pro-data centres, it is positive that Angela Raynor was sufficiently interested in the fate of this application that she didn't trust PINS to make the ultimate decision. She presumably wanted to take a look at it herself, and set a precedent as to how the relevant factors should be weighed up (in favour of such projects).

A key point to note, however, is that this intervention by way of the "recovery" of appeals does not stop the need for an inquiry to be held. It is therefore not helpful in terms of speeding up consenting.

2. "Call-in" powers of the Secretary of State

The Secretary of State also has the power, under s77 TCPA, to "call-in" particular planning applications for her own determination.

The Call-in Direction 2024, requires that where a council's committee is minded to approve an application for certain types of sensitive or significant development (eg in greenbelt or flood zones) they must refer the application, together with the committee report and all objections, to the Secretary of State.  Once on her desk, she must (within 21 days) either write back to the council and tell them to go ahead and approve it, or she can decide the application needs more scrutiny and that she is therefore calling it in for her own determination. In the latter case she must trigger a public inquiry to be held.

The first key point to note is that it is only where a council is minded to approve an application that the council's duty to refer it to the Secretary of State is triggered. It is therefore inherently an anti-development, or at least a development-sceptic, power. Sometimes local residents will lobby for a call-in where they oppose a project which the council is minded to grant – here for example.

The duty to refer does not bite where a council is minded to refuse a planning application.

The second point to note is that call-in does not lead to swifter decisions. At best, if referred but not called-in, the process causes a 21 day delay before the council can go ahead and make the positive decision it intended to make. If the Secretary of State elects to call the application in, an inquiry will be held. This is because section 77(5) states:

"Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the local planning authority wish, give each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose."

The Call-in Guidance confirms at Annex A.2.2:  "An inquiry will be held" where an application is called-in.

Call-in powers are used sparingly in reality, given the time it takes the Secretary of State's team and PINS to deal with such applications. If a particular type of development (such as airport expansion) is of interest to the Government they are more likely to wish to intervene. An example of this is the previous Government's call-in of Luton airport's proposed passenger increase, which my team worked on. The council would have granted it consent, and ultimately the Secretary of State did grant consent, but only after scrutiny at an inquiry: here

Legendarily, Eric Pickles MP, as Secretary of State for Communities and Local Government under the Conservatives used Government's powers of both call-in and recovery powers to kill off onshore wind between 2013 and 2015.

Using call-in to empower Government to intervene swiftly to support development

My suggestion for the Government to consider is this: Why not change "call-in" in two ways, which would support speedier consenting:

1. Set out a new Call-in Direction under s77 TCPA, requiring councils to refer certain specified types of application to the Government where the council is minded to refuse them. The types of application the Government might want to list in such a direction could include major housing schemes (above a certain number of units), datacentres, and solar projects – all of which suffer disproportionately from the NIMBYism of committees. The Government could even specify the particular areas of the country covered by the Call-in Direction, where it wished to encourage consenting of certain types of project in a particular area, or where there is a pattern of local refusals against policy. Query whether Government would or would not want to limit the referral criteria only to applications within these classes where the officer has recommended approval (ie homing in on potentially unjustified political refusals)?; and
2. Modify s77(5) of the TCPA. Swapping the word "shall" for the word "may" would probably be enough. Alternatively, it could be spelt out as follows: "Before determining an application referred to him under this section, the Secretary of State may, if he considers it necessary or appropriate (i) give the applicant or the planning authority the opportunity to be heard by an appointed person, or (ii) ask questions of either party in writing, but may proceed to determine the application immediately where he considers he has sufficient information to do so". This modification would remove the duty to hold an inquiry. Instead, the Secretary of State could decide to grant the application without more ado, in light of the paperwork sent to her, or ask for written responses to some limited supplementary questions before proceeding to make her decision. As set out below, this is exactly what we see the relevant Secretaries of State doing for NSIP applications in cases where PINS recommends refusal.

Written ministerial statements

As a supplement to the above, the Secretary of State could bring in a written ministerial statement or statements expressing strong support for particular types of development which will feature in the new Call-in Direction. The statement could provide that it is "to be taken into account for the purpose of planning decision-making", and explain that the new referral Direction is being brought in to support proper and swift implementation of Government policy. It might be along the lines of the written ministerial statement the Conservative Government brought out in support of fracking ten years ago (but with the addition of reference to the new call-in power). In terms of planning decision-making, this written ministerial statement was as helpful as any National Policy Statement could have been.  

The Government's approach to granting NSIPs: an analogy

The thing that sparked this idea in my mind was actually what we're seeing with some NSIP applications. In the case of the Sunnica Solar Farm DCO application, the Secretary of State for Energy was content to grant consent despite receiving a report and recommendation from PINS to refuse. He did not hear from the parties before doing so, at an inquiry or otherwise. He simply decided from his review of the paperwork to weigh things up differently. The decision letter states: “The Secretary of State has considered the overall planning balance and, for the reasons set out in this decision letter, has concluded that the public benefits for the Proposed Development outweigh the harm identified, and that development consent should therefore be granted for the Proposed Development."  

In other cases, PINS is examining NSIP applications and suggesting to the Secretary of State that he/she should not grant consent without consideration and resolution of certain issues.

Such reports and recommendations in NSIP cases are equivalent to the "minded to refuse" committee resolutions that under my proposal would be as far as a council could go without referring applications falling within the new Direction up to the Secretary of State.

It seems to me that if it is legitimate for the Secretary of State for Energy or Transport in NSIP cases to come to a different view from those who heard the case at examination (PINS), then it must be legitimate for the Secretary of State for Housing Communities and Local Government to come to a different view from the councillors who considered the TCPA application at committee.

When this idea crossed my mind previously, I assumed there must be some human rights or procedural fairness issue I was missing which meant the analogy didn't hold. But certainly a senior planning KC I collared on the topic on the train home from an inquiry recently couldn't see any legal reason why my proposal could not be implemented.

What about the precedent of the Greater London Authority's takeover of certain TCPA applications?

Others I have discussed this idea with have pointed to the approach the Greater London Authority (GLA) takes when it occasionally calls-in applications from London boroughs referred to it under the GLA's own call-in regime (article 7 of The Town and Country Planning (Mayor of London) Order 2008). In such cases, a hearing takes place before the Mayor makes his decision. Such hearings "take the form of a structured meeting, chaired by the Mayor, which will usually be held at City Hall (or such other venue as the Mayor may decide) which members of the public can attend" (full guidance here). I have debated whether there is a need for, or any advantage to, the holding of these sorts of short hearings as part of the regime I propose. My conclusion is that there isn't.

I go back to the NSIP analogy, where the Secretary of State hosts no such hearings before deciding to disagree with PINS' recommendation. Sometimes he/she asks some further questions in writing, but only where necessary to come to a decision to approve where the paperwork shows unresolved issues which make it impossible to make a robust decision to grant without some further information. This could also be allowed for under my proposed regime.

For those attracted to the idea of having the Secretary of State host some sort of local hearing before deciding a TCPA application taken over from a council who is minded to refuse, I would just ask them to consider the practicalities.  Unlike the GLA (who only takes over London-based applications and therefore can justify hosting its short hearings in City Hall), the TCPA applications we're talking about would be all over the country. The idea of sending the Secretary of State or her representative to contentious hearings of this sort is unappealing. It is also likely in practice to muddy the decision-making waters. Setting up such hearings (including legal representation and statements from the parties) would also take time and resource, thereby eroding the benefits of a fast-track desk-based decision-making process by the Secretary of State.  

Conclusion

I don't under-estimate the political challenge of making it easier for Government to over-ride the desire of local authorities to refuse consent for development. However, the current call-in regime already makes it possible for Government to over-rule a local authority's desire to approve development. I am simply proposing we ensure that that power extends to cases where a local authority wishes to refuse development. Given the Government's ambitions with regard to growth, this seems the more urgent and useful power.

I also expect that there will be some who dislike the idea of the Government replacing a local authority's view with its own without holding an inquiry, but there is nothing intrinsically unlawful about this, and it is exactly what we are seeing on NSIP applications. We also see it with "recovered" appeals, where the Secretary of State can disagree with the Inspector's recommendation (without holding any further hearing or inquiry, but simply by weighing things up differently on the papers in front of her).

To be clear, I am not suggesting that the Secretary of State would in practice choose to call-in more than a small proportion of the applications that councils are "minded to refuse". And of those she did called-in, it may be only a small sub-set where she feels it appropriate to grant consent without holding an inquiry or a hearing to inform her decision. In some cases, the information provided in the officer's report or committee resolution may require further interrogation in order for a legally robust decision to be made.

My proposed change simply provides greater scope for efficient Government intervention where considered appropriate.It seems to me at least worth the Government giving itself the possibility of using this tool by making a tweak to s77(5) TCPA in the Infrastructure and Planning Bill (if it's not too late).