Where next for stewardship?

The delivery of new homes has for some time now been a key priority for the current government, previous governments and inevitably will remain so for future governments. With the scale of housing needed to begin to make a dent in the housing shortage, comes also the need to provide infrastructure, new public realm, community and recreational facilities and green space. While the focus is on identifying strategic sites to help deliver the housing needed, greater consideration must be given to the legacy arrangements required to ensure that once residents are living in the delivered houses, they are embedded within a community which offers the recreational facilities and greenspace to sustain and enrich what is simply ‘living’. Stewardship is key to that enrichment and should be addressed early in the development management process. Creating communities requires more than just bricks and mortar.

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

Private keep out!

The ‘right to roam’ has a storied history. The first parliamentary bill was introduced in 1884, then re-introduced in successive years to 1914; this culminated in the mass trespass action and imprisonment of six activists on Kinder Scout in the Peak District in 1932 to draw attention to the lack of public access across the countryside. 

Fast forward to 2000 and the Countryside and Rights of Way Act 2000 (CROWA 2000) finally granted the public a ‘right to roam’ over certain designated open country land and coastal margins.  CROWA was two faced.  While it secured a right to roam, under Part II, some historic footpaths and bridleways are now threatened with extinction.  Those rights of way that came into existence before 1949 but have not been recorded on any definitive map and statement by 1 January 2026, may be extinguished if section 56 is brought into force.

The definitive map and statement is a record of public rights of way held by every local authority (including county councils and London borough councils) in England and Wales.  Many of these unrecorded historical paths are still in use, and an application can be made for a modification to a definitive map on the basis of 20 years’ use under section 53 of the Wildlife and Countryside Act 1981.

According to a Freedom of Information request by the Ramblers, there are over 4,000 outstanding applications to record historic rights of way on definitive maps, and DEFRA has estimated that 20,000 applications may be made before the proposed cut-off date of 2026.

There is currently little guidance on when/if section 56 of CROWA 2000 will be brought into force, and the longer it is delayed the likelihood increases that the 2026 cut-off date may be extended. The sensitivity of the issue was highlighted in a recent debate in the House of Lords regarding a potential five year extension to 2031.

Users of historic rights of way established before 1949 will have to collect sufficient evidence that supports an application for a presumed dedication of a public right of way based on 20 years’ use before 1949. This can be difficult given the intervening period, but manorial records, inclosure awards and maps, tithe and award maps, OS maps and Council records can assist.

For landowners to resist such an application, they will have to demonstrate that prior to 1949 the current or previous landowner did not intend to dedicate the route as a public right of way by:

  1. stopping people using the route, either by turning people away or by putting obstacles in their way;
  2. restricting use of the highway to a particular section of the public;
  3. lacking capacity to dedicate the land.

There is a prescribed procedure for making an application for a modification to a definitive map and for objections to be made. Whether one agrees with the potential cut-off date will depend on their particular views as landowner or right of way user.  However, if public rights of way were established before 1949 and are important to local people, there is potentially a limited opportunity to formalise that right of way and help to keep definitive maps up to date for the benefit of all.

The cost of justice: certainty?

Are the Courts starting to be more generous to Councils when they make mistakes when granting planning permission?

The Court of Appeal confirmed the judgment of a lower court centred around an error by Wirral Borough Council. Wirral Borough Council mistakenly granted planning permission to Thornton Hall for three marquees within the Thornton Manor estate without any planning conditions. This Council had intended to issue the permission temporarily for a period of 5 years. This was apparent in the committee report and the section 106 agreement, which included a draft decision notice. The appellant waited 5 years and informed the Council that the marquees still stood.   

Exceptionally, the initial judgment granted a 5 year extension of time for the judicial review. The permission was quashed, with Thornton Hall’s knowledge of the error being cited as important. While the facts are extremely specific, it does open up the scope for judicial review way past the usual 6 week period. The decision prioritises proper planning outcomes over the need for a clear and certain planning record.

The Supreme Court supported Lambeth Borough Council on a similar case earlier in the month. The site involved a Homebase store originally granted permission in 1975. A section 73 application to vary an extant permission to sell a wider range of goods was granted to the site in 2010. The new consent explicitly stated that this was limited to ‘non-food goods’.  A further section 73 permission was granted in 2014, and did not include the ‘non-food goods’ condition. The landlord applied for a certificate of lawful use and argued that there were no restrictions on what could be sold. On appeal the inspector agreed and a certificate of lawful use was issued.

The Secretary of State was ruled to have acted correctly by the High Court and Court of Appeal. The Supreme Court overruled this judgment. It found that the conditions of the 2010 section 73 permission continued to have effect, so far as they were consistent with the 2014 permission.

This adds an element of uncertainty into the interpretation of the planning history of a site. It means applicants will have to pay close attention to previous section 73 permission(s) and their conditions and work out whether earlier restrictive conditions should be considered to be “rolled forward”.  That is a rather subjective approach.

In both cases the outcome was understandable.  Why should the public at large suffer, and the owner gain, from Council mistakes? On the other hand the decisions make it more difficult to be clear about what uses are lawful.  Justice comes at the cost of certainty and simplicity.

With thanks to George Fennell who assisted in preparing this blog post.

Appropriate assessment of habitat sites

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.

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

CIL: the more it changes, the more it stays the same?

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.

Reserved Matters approval can be amended

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:

  1. the “planning permission” referred to in s.96A refers to a package consisting of the grant of planning permission itself, together with any conditions to which it is subject, whether the conditions are imposed at the time of the grant or subsequently; and
  2. the application for an amendment to an approval (or conditional approval) of reserved matters is an application for the alteration of an existing condition, which is expressly permitted by s.96A(3)(b).

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.

Embrace Hard Choices As Well As Modern Methods

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:

  • Increasing capacity in the supply chain and ensuring that the workforce is appropriately skilled, working with Homes England and training centres to develop skills programmes;
  • Improved data collection to demonstrate the long-term viability of the methods to both investors and consumers (and grant funding of MMC projects);
  • The application of MMC to social housing given that it often includes large numbers of similar homes, lowering costs and providing certainty of demand.

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:

  • allocating more land for growth through Local Plans than the absolute minimum required –so creating a better pool of land, better pricing for it and more resilience in delivery;
  • facilitating greater direct delivery by the public sector, which is the historic factor behind the housing delivery rates in the two housebuilding surges after the First and Second World Wars;
  • acting on the Housing Delivery Test horror show by the time the numbers hit the wall in 2020.

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.

New planning guidance for housing for older and disabled people

The new chapter to the NPPG helpfully states that LPAs:

  • should set clear policies to address the housing needs of older people and ensure that their Plans provide for specialist housing for older people where a need exists;
  • need to count housing provided for older people against their housing requirement;
  • should take a positive approach to schemes that propose to address an identified unmet need for specialist housing.

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:

  • the use class a particular development falls within may depend on the level of care and scale of communal facilities provided (at paragraph 14); and
  • extra care housing usually has “a medium to high level of care available if required” (at paragraph 10).

Some other weaknesses in the guidance are that it says LPAs could (as opposed to should):

  • provide indicative figures for the number of units of specialist housing needed for the plan period, but makes clear (paragraph 12) that Plans need to provide for specialist housing for older people where a need exists;
  • monitor the provision of housing for older people;
  • allocate sites for specialist housing for older people.

Overall, the guidance is a step in the right direction but is an opportunity lost.   

New new towns

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:

  • how do we make sure that proposals which are “best in class” when first proposed and commenced continue to meet those high standards over a decades long build out?
  • how do we encourage development and delivery throughout the economic cycle?  Any decently sized New Town will face two or three recessions as it evolves;
  • how do we make sure that the present and future communities play a full part in the creation of the new place?

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.

Self-build series Part 4: Further reform still needed

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:

  1. introduce an appeals process against the refusal of SBE application and other reliefs;
  2. the wording in regulation 54(C)(3) and/or the Self Build Part 2 Form (form 7) to make clear that the information or evidence that is to be submitted to verify the use of the home by the self builder is not limited to the three things listed on the form. Other types of evidence could satisfy the requirement and the requirement to ‘include the particulars specified or referred to in the form’ does not provide the Collecting Authority with a discretion to accept evidence beyond the three things listed on the form[1].

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