Self Build series Part 1

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.

The Rosewell Review

Reform of the planning appeal procedure and the inquiry process in particular is overdue. The publication of the Independent Review of Planning Appeal Inquiries or, as it is more commonly known, ‘The Rosewell Review’ earlier this year is timely. We look at the main objectives of the review and how the key recommendations seek to achieve those objectives.

Read the full article

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

Call In Blitz Offers Black Hole for London Delivery

The Mayor of London and the Government are looking to London densification to avoid moving, extending and reshaping London’s Green Belt as part of a wider regional strategy. The draft London Plan rejects ‘growth at any cost’ and sets out to deliver a step change in quality, quantity, affordability and delivery. At the same time, London’s local political landscape has been through a painful evolution – in terms of stability, predictability and players.  Reimagining density beyond single plots and tall buildings is work in progress, particularly where so few Local Plans make tested, masterplanned, allocations. Debates rage around density, daylight/sunlight and the meaning of ‘tall’.

Event Horizon

London development is facing a tough time living up to all that.  Intervention by the Mayor of London to move local debates along has been slower than anticipated. Having picked up pace this year, delivery is now being sucked into the black hole of Call In by the Secretary of State. 

Big Bang

Until 2019, the SoS had only Called In three London schemes in nine years.  An unprecedented surge leaves that at five in five months (Newcombe House, Citroen Garage, Albany Riverside, Vauxhall Gyratory * and Camberwell Industrial Estate* schemes).  Two of those were snatched from the Mayor of London’s own ‘called in’ jurisdiction.

That is all the more remarkable given that on average there were – nationally – only 10 Call Ins a year 2013-2018 (Rosewell Review) and 15 in 2017/18.

Escape Velocity

Call In statistics suggest that this will profoundly affect delivery:

  • 60% of Called In schemes tend to be approved (Rosewell Review) and 87% of SoS decisions since 2012 have followed the Inspector recommendation (according to Ministerial statements). 
    That is higher than the 47% approval rate for Recovered appeals, but bear in mind that the local authority was in each case going to locally approve every Call In scheme.
  • Call-Ins are taking between 8 to 35 months to determine. The average is 11.5 months (despite an average time from Inquiry start to Inspector recommendation of 3 months).
  • 30% of Called In schemes are withdrawn, but it is the 60% of that remainder where the ultimate grant of permission is therefore being significantly delayed.

Whether the market is rising or falling, that is a long time to wait. Unsurprising, then, that the Rosewell Review recommendation #17 seeks to “minimise the number of cases that need to be decided by the Secretary of State” by encouraging MHCLG to “keep their approach to the recovery of appeals and call-in applications under review“.  A step back would be progress.


* reportedly at the time of writing

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]).

Read the full article

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.

Read the full article

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.