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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.

Ralph Kellas

Transparency of financial benefits in planning

The Housing and Planning Bill (Clause 140) proposes to make public, through committee reports, the financial benefits of certain development proposals – as we have commented on before.  The report will need to list the benefits whether it is material to the LPA decision or not, and note the LPA’s position on the benefit, these include local finance considerations (as defined by the TCPA 1990 section 70 (inserted by the Localism Act 2011)).  CIL payments are included within this description whoever may be the beneficiary, i.e. the LPA as collecting authority for its own levy, or for the Mayor of London.

Piles-of-pounds1The Government’s technical consultation on implementation of the planning changes (issued on 18 February 2016, and invites representations by 15 April 2016) sets out that council tax and business rate revenue could also be included within the description ‘other financial benefits’, to be prescribed through regulations.  This will require the LPA to liaise with those relevant departments of its Council to ascertain estimates of the likely tax/ rates that will be generated by a development, and whether that is a material consideration to the decision to be made on the application.  This could prove difficult where the scheme is in outline and the full details of a development are not yet known, in particular where flexible uses are proposed.  New Homes Bonus benefits will also be required to be reported, again further liaison will be required to obtain the appropriate information, the level of funding and determine whether that funding is material.

Most committee reports already include a section on the benefits of a scheme, this would usually include an estimate of any levy charge payable (whether mayoral or its own), as well as section 106 agreement benefits – where a recommendation to grant permission will be subject to the planning agreement being entered into on the basis of the recommendation/ resolution of the committee.  The Planning Practice Guidance already encourages authorities to report financial benefits such as New Homes Bonus and CIL, regardless of whether there is no legal basis for treating them as material to planning decisions. Care is needed to do so without creating a ground for legal challenge that would otherwise have not existed.

The solar industry for example has, for a long time, offered community benefits, either in the form of works in kind (i.e. providing panels on a public building) or financial payments (usually for the benefit of projects promoted either in relation to reduction of energy consumption, or more commonly any projects promoted for the benefit of the community).  These offers are usually made to parish/ town councils.  However, there are a number of instances where payments have been offered, and made, to local schools or other unelected community groups.  The proposals in the technical consultation are likely to require these types of benefits to be included in committee reports and judged on whether they are material.  These arrangements are usually finalised outside of the planning system, by private deed.  This transparency could have opposing impacts – with the relationship between contributions and proposals being tested for materiality, opening routes for criticism and challenge.

Solar permitted development rights

The Government published its technical consultation on Planning in July 2014, the consultation included proposals to increase permitted development rights for solar power.

Everyone wants to do their bit to help save energy, in particular by using clean, renewable energy sources.  The government is proposing to allow development of non-domestic solar panels generating up to one megawatt without planning permission.

The consultation is not clear as to whether this new right will replace the existing right solar whereby permitted development rights exist to allow the installation of PV panels on non-domestic buildings with a capacity of no more than 50kW, or to create a wholly new right for those proposals above 50kW but under one megawatt.  Clarifying this issue with CLG, they have confirmed that a new right, in addition to the existing right, is proposed. This new right (for proposals above 50kW but under one megawatt) will require prior approval, where the LPA is to consider siting and design to minimise impact of glare, other typical conditions (i.e. extending beyond the roof line, excluding Article 1(5) land, and heritage assets) will apply.

This is a step in the right direction, a new proposal to allow up to one megawatt capacity without planning permission.  Not only would this be of great benefit to those new, and refurbished, commercial buildings, seeking to add to their green credentials, but also to those parish and town councils that often receive community benefit funding to develop solar panels on buildings within their area, taking away the extra red tape of having to obtain planning permission.

Success for Dentons at Rushden Lakes

lakesThe Secretary of State has granted permission for the £50million,
465,000 sq ft retail and leisure redevelopment of Rushden Lakes in Northampton.  Dentons acted for LxB throughout the process, including the 12 day Call In Inquiry held last year in response to demands for the Government to step to a refuse permission by 3 local authorities and several institutional landowners.

Senior Associate Roy Pinnock said “This scheme has been a real road test for the National Planning Policy Framework – are we prepared to say Yes to growth when plans are out of date and no effort is being made to address needs? The Secretary of State’s decision is a helpful milestone and the scheme is one of the most complex to rely on the presumption in favour of sustainable development so far.

Both the circumstances and the scheme are exceptional – the site is over 200 hectares and the scheme has been designed from the outset to make the most of nature conservation, transport and sustainability benefits which are now secured by the planning framework for the site. It has been great to work on a scheme with overwhelming local popular support and support from Natural England, the Highways Agency, local traders and the nearest local authorities.”

Jon McCarthy, of LxB Properties, said: “We have always seen the sense in the Rushden Lakes scheme. It has been refreshing to build such a positive relationship with the local community and so many of the public bodies involved, with the aim of realising the benefits it will bring. Dentons did a fantastic job working with the rest of our team to keep our case on the best footing – the fact that the Inspector and the Secretary of State agreed with our case bears that out”.

Roy Pinnock, Melanie Blanchard and Stephen Ashworth led the process for LxB.

The Infrastructure Bill

billThe Infrastructure Bill was introduced into Parliament on 6 June 2014.  The Bill proposes minor changes to the Nationally Significant Infrastructure Projects (NSIP) procedure, this includes the potential to appoint an Examining authority earlier in the process, changes to the make up of panels, and an ability for the Secretary of State to make regulations for material changes to be made to Development Consent Orders, these would be in addition to the powers to allow non-material changes that already exist in the 2008 Act.

A very practical change proposed by the Bill will allow an order to be made for the deemed discharge of certain planning conditions – where approval/ consent/ agreement of the LPA is deemed to have been given and no enforcement action can then be taken.  This was promised in the Autumn 2013 statement.  An applicant would have to had applied for the discharge of the specific condition(s) but the time period in which the LPA were to respond has expired (this is to be prescribed).  There are of course to be a number of exemptions and exclusions – the detail of any development order will be interesting to see.

The Bill also proposes the introduction of strategic highway companies to manage strategic roads in place of the Highways Agency, the control of invasive non-native species, a new role for the Homes and Communities Agency of land disposal, and a community right to buy into a renewable electricity development.

Viability and numbers go together

Two recent articles (by Roy Pinnock) discuss the Growth and Infrastructure Act 2013 (G&IA) amendments to section 106 of the 1990 Act which now allows developers to section 106 affordable housing obligations on viability grounds.

Planning By Numbers (Estates Gazette, 17 December 2013) reviews how the challenge process will work, including the opportunity for exploiting weaknesses in the scheme by developers and ways of reducing risks for authorities.

Please see http://www.dentons.com/en/insights/articles/2014/january/20/planning-by-numbers

The second article (Planning Magazine, 17 January 2014) reviews the first appeal to take advantage of the Section 106BC appeal route (APP/W1145/Q/13/2204429) which involved plans for 151 homes at the former Holsworthy Showground in Devon. Redrow Homes achieved a reduction from 40 per cent affordable housing proportion to 23%. The local authority had failed to determine Redrow’s section 106BA application within the 28 days allowed, and Redrow appealed under section 106BC. The article highlights some of the main features of the case, including whether it did what the new provisions required.

Please see http://www.dentons.com/en/insights/articles/2014/january/20/viability-reviewed-in-appeal-test-case