Planning for an ageing population

The housing shortage and the inability of young people to get onto the property ladder, particularly in the south-east of England, is a near-constant media headline. But what about the needs of older people and the mounting undersupply? Where is the build-to-rent style government support that seeks to incentivise older people’s housing and give the older generation the range and quality of accommodation that they need in retirement?

We look at how planning law and policy are affecting the delivery of homes for older people and whether more can be done to accelerate extra care housing.

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This article was first published in Property Law Journal (May 2019) and is also available at www.lawjournals.co.uk.

Residential first for Neighbourhood Development Orders

Back in 2013, we highlighted the first Neighbourhood Development Order (NDO) – made to permit specified development without further permission – under the Localism Act 2011 regime, in Cockermouth.  In the five years since, however, only two other NDOs have been made (and the Cockermouth NDO expired in 2017).

Following that hiatus, the first NDO to authorise residential development has now been made. Kettering Borough Council made the Broughton Neighbourhood Development Order, along with the Broughton Neighbourhood Plan, on 17 October 2018. The NDO, approved by a 93% “yes” vote at the September 2018 referendum, permits the redevelopment of a BT exchange to provide between 5 and 7 dwellings, each with one or two bedrooms, aimed at younger people, single occupancy or older people downsizing.  The NDO identifies the site as a valuable strategic site, to deliver smaller properties to meet local needs, replacing a currently unattractive building adjacent to a conservation area.   

Previous NDOs permitted changes of use, and works to shop fronts and windows in Cockermouth, which has now expired, and the reinstatement and extension of a single dwelling in the Yorkshire Dales.

Brought forward alongside a Neighbourhood Plan, the Broughton NDO is a sensible step for the community in encouraging the type of development they wish to see when the site comes forward for redevelopment, alongside an allocation in the neighbourhood plan.  It remains to be seen whether this will prove to be a sufficient incentive for this development to come forward within the lifespan of the NDO.

It also highlights the very limited number of communities who have taken forward the opportunity to develop NDOs.  As with Neighbourhood Plans, the time and expertise involved in preparing an NDO is considerable – the Broughton neighbourhood group first applied for designation in 2013.  While the Localism Act has provided opportunities for communities to have a greater say in the development of their local area, the practical difficulties limit the opportunities for communities to take forward those opportunities.  Given limited Parliamentary time available, it seems unlikely that this will be resolved, notwithstanding the continuing political lipservice to localism.    

Assets of Community Value – no horseplay, for now

Back in 2016, we commented on the first  Asset of Community Value (ACV) case to reach the Upper Tribunal.  The case concerned green belt land included in the 2009 Strategic Housing Land Availability Assessment as suitable for 110 homes.  It had been used informally by the local community for 40 years, and was listed as an ACV in 2014.  As a result, the land became subject to the ‘Community Right to Bid’ restrictions and the ACV status became relevant to planning decisions.  Banner Homes requested a review of the listing decision and then appealed to the First Tier Tribunal and later the Upper Tribunal, all unsuccessfully. 

Since then, planning permission has been refused twice (for a change of use to the keeping of a horse and for construction of a stable block), with those refusals upheld on appeal on both occasions.  Most recently, in January this year, St Albans City and District Council’s planning committee again refused an application for change of use to horse paddock, contrary to advice from officers.  However, the reason for refusal was that the site is located in the metropolitan green belt, and although “the impact on openness would be small, it is not demonstrated that very special circumstances exist”.  The Committee Report considered the land’s ACV status, but concluded that the development proposal was not inconsistent with that status, as local people could still use the footpaths, and would have the opportunity to make a bid to purchase the land in the event of a sale. This is rather different from the local intent behind the ACV listing – and the rationale for the Court of Appeal’s decision to uphold it – on the basis that the community use of the field beyond the footpaths could restart despite being fenced off (because the green belt status of the land made any alternative permission/ use unlikely).

The land is clearly very important to local people, but while its ACV status has prevented the land coming forward for development, it is worth noting that it has not been determinative in the planning decisions (nor more influential than the underlying green belt status).  The current position therefore perhaps demonstrates the impact of a well organised community group, and supportive planning committee members, alongside the ACV regime itself, in dealing with planning applications on ACV land.   

The land is being promoted for 160 homes (including 50% affordable homes) as part of the Local Plan process.  The expiry of the 2014 ACV listing later this year is likely to tigger a re-consideration of the question of whether there is a realistic prospect that the wider field could be used by the community in the near future.

Real estate and public procurement

Those who are involved with public sector regeneration and development projects will be interested to learn about the important developments concerning the interface between public procurement law and property law, as explored in the Faraday Court of Appeal judgment (Faraday Development Ltd v West Berkshire Council [2018]).

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This article was first published in Property Law Journal (March 2019) and is also available at www.lawjournals.co.uk

Allotments and their protection

The housing shortage and housing affordability, particularly in the South East of England, is a near-constant media headline. Building on its manifesto pledge, in its Autumn 2017 Budget, the government announced its ambition to deliver 300,000 new homes a year by the mid-2020s. We examine the vital role that allotments play in creating communities of the future.

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This article was first published in Property Law Journal (March 2019) and is also available at www.lawjournals.co.uk.

Failing to take account of the up to date local development plan

A recent decision by the Court of Session has quashed a planning appeal refusal determined by the Scottish Ministers for failing to take account of the up to date local development plan.   The case emphasises the importance of monitoring assumptions made as part of the planning process.

An application for planning permission in principle was made for a residential development of 600 units, including affordable housing, commercial space, a public park and a new primary school near Bridge of Allan.

When the application was submitted, Stirling’s Local Development Plan (“LDP”) did not allocate sufficient land for housing  to provide a 5 year supply.  As such, the relevant LDP housing policies would be considered out of date and Scottish Planning Policy (“SPP”) would apply. The SPP provides a presumption in favour of development which contributes to sustainable development as a significant material consideration.

However, the development was proposed on land lying within the North Stirling Green Belt and the LDP contained policies protecting the green belt from development.

The planning officer recommended the application for approval due to the benefit of the development outweighing the effect on the green belt; the SPP favouring sustainable development; the significant weight to be attached to the SPP which outweighed the policies of the LDP; and the impact of the development being mitigated by a proposed Section 75 Agreement and the imposition of planning conditions.

However, the application was refused on 23 March 2016.  The Council determined that the benefits of the development would not outweigh non-compliance with the LDP and the proposed mitigation of the impact of the development on the greenbelt, flooding and transport would not be sufficient.

An appeal was submitted and was called in by the Scottish Ministers and a Reporter was instructed to examine and report on the appeal. During the appeal process, a new LDP was being progressed which sought to provide a sufficient 5 year land supply for housing.  In his report to the Scottish Ministers, the Reporter made certain assumptions about the incoming LDP and stated that:

On the assumption that the proposed replacement development plan should identify sufficient sites, the land supply shortage may be resolved before development commences on site; … and … There is also an expectation that the proposed replacement LDP, currently under examination, will properly address the shortfall before any housing is built on this site if the appeal is allowed.

The Reporter estimated that the number of units which could realistically be provided by the proposed development within the 5 year land supply period would be 175 which was some way short of addressing the 896 unit shortfall.

The Reporter concluded that the development would only address the housing land shortfall in part; the harm to the green belt must be given considerable weight; that this would not be outweighed by the SPP presumption in favour of sustainable development; and to approve the development would be prejudicial to the emerging LDP which would set out the location of sufficient housing land for a 5 year supply.  As such, the Reporter recommended refusal of the appeal.

However, when the LDP was approved for adoption on 3 May 2018 the new LDP still did not provide a sufficient housing land  supply with a shortfall of 169 units. Despite this being brought to the attention of the Scottish Ministers in a report prepared by its officials on 17 May 2018, the Scottish Ministers issued their decision on 18 June 2018 refusing the appeal, stating that they accepted the Reporter’s recommendations and conclusions and adopted them for the purpose of their own decision. 

By doing so, the Scottish Ministers adopted a decision which was based, in part, on a material consideration regarding the emerging LDP to provide sufficient housing land supply which had later proved to be incorrect. 

The applicant appealed the Scottish Ministers’ decision to the Court of Session and Lord Carloway, delivering the opinion of the Court, determined that it was incumbent on the Scottish Ministers, as the decision maker, to take into account all relevant material considerations.  In this instance, the Scottish Ministers in adopting the Reporter’s recommendation, had (1) taken into account a material consideration which had become irrelevant; and (2) failed to take into account a material consideration that the approved emerging LDP did not provide a sufficient housing land supply.  Therefore, the decision to refuse the appeal was quashed. The Court of Session can only review the legal validity of the appeal decision and cannot substitute its own decision.  It therefore falls upon the Scottish Ministers to reconsider the appeal.  They will have to be more careful next time.

Viability – Speed of Delivery Matters

Last year, the High Court in R (McCarthy and Stone Retirement Lifestyles Ltd) v Greater London Authority [2018] EWHC 1202 (Admin) found the Mayor of London’s 2017 Affordable Housing and Viability SPG unlawful in one respect: the SPG sought to require all planning applications that do not provide at least 35% affordable housing to be subject to early and late stage viability reviews (the ‘Viability Tested Route’). 

This, the Court found, is inconsistent with current London Plan Policy 3.12 which only requires further reviews on developments that are ‘likely to take many years to implement‘.  It was therefore not something that the SPG could, as guidance, properly cover.

So what?

Policy H6 of the Draft New London Plan now seeks to convert the SPG’s approach to viability into policy.  The Mayor has therefore been unruffled by the judgment. Although the Draft London Plan is not yet adopted, he has given full weight to the emerging policy. 

The McCarthy and Stone judgment was more circumspect about weight (paragraph 57), noting that only once representations had been considered and the DNLP amended would it have equal weight to guidance.  It would, it was held, be normal at that point for it to have “some” weight. 

London Plan Weightlessness

The Millharbour appeal decision in December bears out the limited weight that the draft policies deserve. The Inspector found that a late stage review was not necessary to make a proposal, offering 16% affordable housing, acceptable in planning terms.

This was a single-phase, mixed-use scheme including two tall buildings and 319 residential units in Tower Hamlets.

The Council agreed with the developer that only 16% affordable housing could be provided, but nonetheless sought to justify a late stage review on two grounds:

  • first, the appellant’s earlier viability assessments suggested 35% and 40% affordable housing could be provided;
  • second, the Draft London Plan applies the Viability Tested Route where the relevant affordable housing threshold is not met.

Rejecting that, the Inspector had ‘no reason to quibble with the [agreed] 16% level‘ and found that:

  • the previous affordable housing offers carried no weight in justifying a late stage review. The Draft London Plan carried only ‘limited weight’;
  •  a late stage review would only be needed (citing McCarthy and Stone) where a scheme ‘took ‘many years’ to implement or build out‘. It was ‘very unlikely this scheme would be left unfinished for any length of time or that it would take many years to complete’. Hence, no late stage review was required.

This appeal decision shows that decision-takers may, at least in the short term, find it harder to rely on policy alone to justify further viability reviews for schemes offering sub-threshold levels of affordable housing. Where policy is being relied on, it is likely to focus minds on the ‘likely to take years to implement’ criterion, imprecise and evidentially problematic though it is.

The decision also suggests that a) speedy delivery (i.e. of smaller, more straightforward schemes) as a matter of policy has the potential to compromise affordable housing, and b) conversely, slower and longer/phased schemes may be subject to higher affordable housing requirements. The Mayor will be concerned that this does not create perverse incentives. In any event, all sides will be keenly watching the examination of Draft Policy H6.

A legitimate expectation to what, exactly?

The Court of Appeal has considered whether the Secretary of State is required to give reasons for deciding not to ‘call in’ a planning application. In R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government [2018], Save Britain’s Heritage (Save) challenged the lawfulness of the Secretary of State’s (SoS’s) decision under s77 of the Town and Country Planning Act 1990 not to call in an application relating to the ‘Paddington Cube’ development. We consider the court’s findings and its implications.

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This article was first published in Property Law Journal (December 2018/January 2019) and is also available at www.lawjournals.co.uk.

Holiday lets in Edinburgh – has the bubble burst?

Fancy a city break anyone? Who could resist a few days in an iconic European city that also happens to be a UNESCO World Heritage Site?

So, where to stay – one of Edinburgh’s many hotels or perhaps a flat is more appealing? There are lots of options to consider. Interestingly, the concentration of Airbnb’s in Edinburgh is four times greater than in London, Paris or New York, but could three recent enforcement notice appeal decisions (1, 2, 3) point the way towards a clampdown on the operation of Airbnb’s and short term holiday lets in Edinburgh?

The appeals related to three separate properties in the same block located in the heart of the tourist centre and lying in close proximity to Princes Street Gardens and the Castle. All three properties were one bedroom flats, with sofa beds in the living room, thereby allowing occupation by up to 4 adults. In summary, the enforcement notices stated that the flats were being used for short term commercial visitor accommodation, without having obtained planning permission and, accordingly, required the alleged use to cease within two months.

The key here was whether there had been a material change of use from residential flats which had resulted in harm to the amenity of adjoining occupiers. Reference was made in the various submissions to City of Edinburgh Council’s Local Development Plan policy Hou 7 (inappropriate uses in residential areas) and the Council’s non-statutory Guidance for Business. The Guidance provides advice on whether the use of a residential property for short term commercial visitor accommodation requires planning permission and refers to the need for an assessment of (i) the character of the new use and the wider area; (ii) the size of the property; (iii) the pattern of activity associated with the use, including the number of occupants, the period of use, issues of noise, disturbance and parking demand; and (iv) the nature and character of any services provided.

In all three cases, the Scottish Government Reporter refused the appeals having concluded that there had been a material change of use, taking account of the number of arrivals and departures, the likelihood of increased noisy activity late in the evening, increased activity due to cleaning the properties, luggage drop-off in between checking in and out and the increased use of the communal drying area by guests for socialising – all of which would be greater than if the properties were in use by a single household.

Meanwhile, the Green MSP, Andy Wightman, has successfully tabled an amendment to the Planning (Scotland) Bill which would require property owners to obtain planning consent in order to change a main residence into a short-term let property such as an Airbnb. This would only apply to a main residence, rather than second homes and is still to be considered by all MSPs at Stage 3 of the Bill next year.

City of Edinburgh Council believes a licensing regime would be the best way to control short term lets and has asked the Scottish Government to consider introducing this.

So, plenty to consider going forward for owners of holiday lets – maybe book that city break sooner rather than later?

Planning TV: Delivery Challenge – Speeding up build out

The focus on the rate of delivery of housing on sites that have planning permission has sharpened recently. This was  signalled in the Housing White Paper, 2017 and accelerated by the announcement in January 2018 of a Ministry of Housing, Communities and Local Government (MHCLG) review on this matter, chaired by Sir Oliver Letwin MP. Housing delivery has also been a focus of for the Local Government Association.

Planning TV asked a group of planning experts to come up with creative solutions to get housing delivered on a real site in a town in the south of England with a for permission 200 homes with where build out has slowed and in currently stalled with only a handful of homes built over several years – presenting a bit of planning mystery. Lindsey Richards – Homes England, Anna Rose – Planning Advisory Service and Mary Parsons – Places for People share their insights on how to tackle this problem site and speed up build out.

Brought to you by Dentons and Citiesmode it draws on the knowledge of a core panel of experts from across the sector, supplemented with special guests hand picked for their particular expertise. From Greenbelt to Brownfield, national planning policy to local plan-making and everything in between, Dentons Planning TV provides a unique insight into the thoughts of those involved at the sharp end.