Real opinions on the alphabet soup of planning and development from s106 agreements to CIL, PDR to DCO, BIDs to UBR, viability to profits for everyone
As the courts continue to grapple with the issue of ‘appropriate assessment’ under the Habitats Regulations, we examine why this area has attracted so much attention and contemplates what lies ahead.
This article was first published in Property Law Journal (September 2019) and is also available at www.lawjournals.co.uk
Read Roy Pinnock’s overview of the latest changes to the Community Infrastructure Levy regime (and what is still needed).
This article was first published in Estates Gazette on 9 June 2019.
Posted on
2019/08/07 By Mark Child
In R (on the Application of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359 the Court of Appeal has generously confirmed that the statutory power conferred by section 96A of the Town and Country Planning Act (“the Act”) to make non-material changes to a planning permission includes the power to make non-material changes to conditional approvals of reserved matters.
Persimmon Homes’ outline planning permission was granted for approximately 700 dwellings subject to a large number of conditions. A conditional approval of a reserved matters application was granted by York City Council that included the requirement to submit for approval a detailed Bat Mitigation Strategy prior to any development taking place. York City Council then approved an application for a non-material amendment that permitted changes to the bat house types and layouts, and changes to the strategy. In response, Fulford Parish Council brought a judicial review on the basis that section 96A’s statutory power is limited to making non-material amendments to “planning permissions”, and the approval of reserved matters did not constitute a “planning permission”.
Referring to the primary source of the power to grant planning permission (s.70(1) of the Act), the court decided that the grant of outline planning permission is the grant of planning permission defined by the Act and since the grant is “subject to” conditions, the conditions must be seen as an intrinsic part of the grant; therefore the conditional approval of a reserved matters application is itself a condition to which the planning permission has been granted.
In the court’s judgment:
Importantly, the court stressed that the power under s.96A is restricted to non-material changes otherwise the need for public participation will again be required and the change will be outside of the powers of s.96A.
Whilst this judgment will be welcomed by developers, a word of caution – as the term “non-material change” is not defined by the Act it will be important for both developers and local planning authorities to consider sensibly whether proposed scheme amendments can rightly be classified as “non-material changes” especially in those situations where there is organised local opposition to a proposal. One possible, and ironic, outcome of the case is that authorities become even more cautious about what they will accept as non material amendments.
The Housing, Communities and Local Government Committee has highlighted the need for Government to promote modern methods of construction to get anywhere near its target of 300,000 new homes a year by mid-2020s. There is a need for a wider exercise of political will to achieve the shift.
Recommendations
The Committee’s report recommends Government support for:
Turn up the volume
Discussion on MMC has been running for years and is not a new phenomenon; the Barker Review (2003) flagged it as an important lever for speed, quality and skills. The benefits for small, high density plots where modules can be slotted into a serviced core are clear and the resurgence of Build to Rent means that the economics of very quick delivery and releasing units onto the market at the same time stack up.
The picture for new settlements and urban extensions – where the majority of the extra 100,000 homes a year realistically needs to come from – is less clear. Institutional players are investing in MMC and smaller players are developing compelling products for bigger sites.
Political will
The constraints on delivery are complex, though. As the Letwin Review noted, they do not relate solely to build out rates – absorption rates and the price/demand curve are key.
That leads to the exercise of political will:
With genuine political will, MMC will be able to make a greater contribution.
Dentons Planning & Public Law team advised Tide Construction on the world’s tallest modular scheme.
The new chapter to the NPPG helpfully states that LPAs:
However, it leaves a lot to the discretion of a LPA, including what use class this type of specialist housing falls into and whether affordable housing may be required alongside housing for the elderly, subject to viability.
Despite including a summary of four different types of specialist housing for older people, the guidance purposely shies away from answering the often contentious and critical question, because of policy wording, of whether a development for specialist housing for older people falls within C2 (Residential Institutions) or C3 (Dwellinghouse) of the Use Classes Order. Instead of stating that a LPA should look to current precedents for guidance, the new NPPG chapter acts to undermine it by stating that:
Some other weaknesses in the guidance are that it says LPAs could (as opposed to should):
Overall, the guidance is a step in the right direction but is an opportunity lost.
Posted on
2019/06/24 By Stephen Ashworth and Roy Pinnock
We were immensely proud to win the Planning Law Firm of the Year Award a fortnight ago. The award recognised both the contribution that we have made to the new legislative and policy framework that within which the next generation of New Towns will come forward, as well as our practical work on emerging new garden communities.
However, even if the foundations for good progress are in place, with public and private sector communities being proposed there are still several big issues that remain unresolved:
The answer to these questions is work in progress and may be different in different places. Whatever the answers we will all need to avoid the temptation to be too prescriptive. Good communities will not emerge from within a legal straitjacket. We need instead to develop a new form of partnership between land owners, developers, public bodies and communities that focuses on collaboration, quality, delivery and participation. If Dentons can continue to contribute, and can help find a sensible and workable approach, that will be a further reward.
This Series has explored the common CIL risks for self-builders and the proposed amendments that should help to protect future self-builders from themselves. These changes are summarised in Part 3 of this series.
Whilst the changes have addressed most of the potential future pitfalls with the self build exemption, they do not address or undo any previous injustice that has resulted in many self-builders incurring unexpected CIL in the tens of thousands.
We do not accept the Government’s explanation that retrospective amendments to the Planning Act 2008 are not possible, we will continue to lobby for retrospective amendments to rectify the unfairness that has experienced by so many self-builders to date, as well as further amendments to:
Watch this [blog]space.
[1] We are aware of a situation where a home was purpose built for a disabled child and due to the build being funded by the child’s trustees it was not possible for one of three supporting documents required under the Self Build Part 2 Form (form 7) to be supplied and this resulted in the SBE being withdrawn
The earlier blogs in this Series have explored the pitfalls in the CIL regulations in connection with the self-build exemption (SBE).
After much lobbying the Government appears finally to have listened. The Government’s response on the Developer Contributions consultation confirms that the proposed amendments to the CIL regulations (that were announced as part of the Government’s Developer Contributions reform consultation) will be taken forward to make the SBE process a little easier, fairer and more forgiving.
The draft regulations (laid before the House of Commons to come into force on 1 September 2019) ensure the penalties that result from a self-builder failing to submit a commencement notice before starting development will be softened. Instead of losing the SBE entirely, the developer will only be required to pay a mandatory surcharge equal to the lesser of £2,500 or 20% of the CIL that would apply to the development if not for the exemption (i.e. the penalty is capped at £2,500)[1], and confirm that the SBE to be carried over to an amended permission (i.e. a s73 permission), even if the development has commenced under the original permission[2].
This will not apply to wholly new applications, so careful thought still needs to be given to the potential CIL consequences if a new application is made after works have commenced under the original permission.
In addition to the changes for self-builders, the proposed amendments will also help to correct many of the pitfalls that plague the other CIL exemptions including:
However, as for the self-build exemption, the failure to give the commencement notice in advance of starting development will for each of the abovementioned scenarios give rise to a mandatory surcharge of no more than £2,500 (although the draft amendment regulations do not explicitly refer to residential extensions being subject to this penalty).
Unfortunately, the proposed amendments are not to have retrospective
effect, so will not address or undo any previous injustices. Part 4 of this Series will address this and
what more is needed.
[1] Regulation 6 of the Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019
[2] Regulation 7 of Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 proposes a new regulation 58ZA
Following on from Part 1 of the Self-Build series, the precarious position for future self-builders should be improved later this year, given the Government’s response to their Developer Contributions consultation. However, the proposed amendments will only come into effect from 1 September 2019, arriving too late to fix the predicament of many existing self-builders.
Therefore, if works have started but deviated from what was originally approved and a s73 application or new application is made (instead of a s96a application) but not determined, to try to avoid a CIL liability under the new permission the self-build should consider and discuss one or more of the following options with the LPA:
Option 1 – Agree to extend the determination date for the s73 application until after 1 September 2019 when the proposed amendments have taken effect to allow a transfer of the self-build exemption.
Option 2 – Agree that commencement under the original permission does not disqualify the new permission from the self-build exemption.
It is not uncommon for LPAs to claim that commencement under the original permission constitutes commencement for the purposes of the new permission and that this disqualifies the new permission from the self-build exemption. Whether or not the LPAs position is legally correct depends on how far advanced the works are under the original permission, as there will need to be a material operation that could be undertaken as part of the new permission to implement it. If the LPA can be convinced that that works have not commenced for the purposes of the new permission and that they are still capable of granting the self-build exemption for it, the self-builder ought to (as soon as possible and before the new application is determined):
Option 3 – If the LPA will not agree that commencement under the original permission does not disqualify the new permission from the self-build exemption
All of the options carry large risk and require the cooperation/‘blessing’ of the LPA. Option 1 is the preferred approach as it carries the least risk and should be the easiest to secure LPA agreement to.
If a self-builder has made a new application and is unable to agree one of the above approaches with a LPA, quickly, it should consider withdrawing its application before it is granted and the potential CIL liability is crystallised.
Given the Government’s response to the Developer Contributions consultation, it is unlikely that a LPA would seek to take enforcement action where a self-builder withdrew or delayed the making of their s73 application, on the understanding that the self-builder would submit a s73 application as soon as the proposed amendments to the CIL regulations take effect.
The proposed changes to the CIL regulations do not relate to s73A applications. Therefore, it is critical that the LPA is comfortable that a s73 and not a s73A application can be used to correct works deviating on site from what was originally approved. This will be more of an issue for those s73 applications that are made late in the development process and there is very little work remaining.
Part 3 and 4 of this Series will address the Government’s response to reforming developer contributions and the changes that will be made to the CIL regulations to help make the self-build exemption process a little easier, fairer and more forgiving in the future.
Until at least 1 September 2019, self-builders need to remain alert to the risks outlined in Parts 1 and 2 of this Self-Build series.
We regularly get CIL self-build enquiries following our blog. Sadly, more often than not the request for advice comes after works have commenced (often without a commencement notice having been given) or a subsequent application has been made at the behest of local authorities (LPAs).
Here are some common risks with the self-build exemption:
1. A self-build exemption does not, at present, transfer to a related application (i.e. a s73 application or a new application for substantially the same development). This means that:
a. a new application for the self-build exemption needs to also be made for the subsequent application. If works have not commenced under the original application then this is a straight-forward repeat of the same process for the original application (if not see 2 below);
b. the self-build exemption must be obtained and a commencement notice submitted in connection with the new permission before starting any work on the site.
If the above steps are not complied with strictly, the right to claim the self-build exemption in connection with the revised/new permission is likely to be lost forever and full CIL will be payable in connection with it.
2. Where works have started but deviated from what was originally approved, a LPA will often request that the self-builder submit a new application (s73 or new application) to regularise the works. It is critical that a self-builder does not follow the LPA’s request blindly and submit a new application (s73 or new application) without seeking legal advice first because:
a. a new application (s73 or new application) means a new permission and chargeable development, which carries new CIL consequences;
b. a new application (s73 or new application) is different to an amendment under s96a which simply amends the existing permission by, for example, the substitution of new plans. An application under s96a is the only safe route for regularising the works on site without jeopardising the existing self-build exemption.
If the change is not material and is only required to regularise the position, then the LPA should not resist a s96a application, especially after the self-build position is explained to them. Even if the LPA will not accept the justification for a s96a application a self-builder should refuse to comply with their request until seeking legal advice to confirm it will not open them up to an unexpected CIL liability that could be in the tens of thousands.
Part 2 of this Series will consider some of the options that could be considered if the second scenario above arises and the LPA will not accept a s96a application.
