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Community Infrastructure Levy (CIL): is the self-build exemption achievable?

The CIL regime ushered in by the Community Infrastructure Levy Regulations 2010 has brought more development within the scope of developer contributions. ‘Self-builders’ – who directly organise the design and construction of their new home – now generate around 10% of new private sector housebuilding (Self Build Housing Market Report – UK 2016-2020 Analysis). Their experience of CIL was meant to be straightforward, but regulatory complexity and attitudes to charging have meant that it is anything but.  We discuss the CIL regulations’ exemption and highlights its deficiencies.

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This article was first published in Property Law Journal (September 2017) and is also available at www.lawjournals.co.uk

SEA change

There has been a spate of recent cases concerning the requirement for plan makers to consider ‘any reasonable alternatives’ as part of the plan-making process and the role Strategic Environmental Assessment (SEA) plays in how that should be approached. This article looks at the recent decisions concerning the role that strategic environmental assessments play in the plan-making process, and the consideration of reasonable alternatives.

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This article was first published in Property Law Journal (February 2017) and is also available at http://www.lawjournals.co.uk/

The Mayoral Planning Manifesto – who will you be voting for? part 2

In London’s mayoral race, Labour’s Sadiq Khan and the Tories’ Zac Goldsmith are the main contenders, with a substantial lead over the rest of the field. We have explored their planning promises in an earlier blog. However, there are another 10 candidates in race:

Party Candidate
Liberal Democrats Caroline Pidgeon
UK Independence Party Peter Whittle
Green Party of England and Wales Sian Berry
Independent Prince Zylinski
British National Party David Furness
Respect Party George Galloway
Britain First Paul Golding
Cannabis is Safer than Alcohol Lee Harris
One Love Party Ankit Love
Women’s Equality Party Sophie Walker
UK Independence Party Peter Whittle

 

Here is our summary of the key planning promises made by the other 3 key contenders:

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The Mayoral Planning Manifesto – who will you be voting for?

Latest polls suggest Sadiq Khan is likely to be London’s next Mayor, but it will all come down to voter turnout (with turnout at the last mayoral election just 38.1%).

CaptureOur summary of the key Planning promises for the 2 key candidates (from a total of 12 candidates) highlights the planning commitments. A lot of grand promises are made, but as they say, the devil is in the detail and the detail is sorely missing for most of the key pledges (namely how they will be funded). There is arguably no standout performer on planning and not a whole lot between them on concrete pledges to solve London’s housing crisis. That is disappointing, given that most voters in London are concerned with housing, which is very expensive in the capital.

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Will LPA shaming and intervention work to incentivise plan making?

In this blog, part of our series on the Government’s technical consultation on implementation of the planning changes (the Consultation), we discuss how the Government is proposing to deliver on its commitment to get local plans in place by 2017.

As outlined in our earlier blog, clauses 129 – 133 of the Housing and Planning Bill are intended to incentivise and control the plan-making process, with the ultimate sanction being the intervention of the Secretary of State – the Secretary of State will be able to reject, write or correct local plans.

Good plan making picChapter 6 of the Consultation sets out the Government’s proposed criteria for deciding when to intervene in the plan making process. It suggests that the priority or target authorities for intervention are those where:

  1. the least progress in plan-making has been made;
  2. policies in plans have not been kept up-to-date;
  3. there is a higher housing pressure;
  4. intervention will have the greatest impact in accelerating local plan production.

There is nothing surprising or controversial about this criteria, but how the Government will determine where “intervention will have the greatest impact in accelerating local plan production” is not explained.

One study suggests that 21 local planning authorities are most ‘at risk’ of intervention (as of April this year) in light of the Consultation criteria above.

The Consultation also states that the Government plans to publish a range of monitoring information on local plan progress, every 6 months, for all local authorities in England:

  1. the date that their local plan was adopted or last reviewed (for areas without an adopted local plan it would be the date of their last plan prior to the 2004 Act);
  2. for the publication and submission stages of the plan-making process, the date these stages have been achieved;
  3. for each stage in the plan-making process (publication, submission, adoption) that has not yet been achieved:
    1. the local authority’s forecast date for achieving that stage (likely to be April 2016);
    2. for subsequent publications of the information in (a), the most recent forecast dates. Even if the forecast date remains the same as the original forecast (original baseline date) this date will be published. The intent of this is to show that the local authority is meeting their timetable;
    3. any slippage or acceleration between the original baseline date and the most recent forecast dates.

The intent of this publication is clearly to name and shame local authorities into action. Will it work?  Is the threat of intervention going to be enough to stimulate the plan-making progress, particularly for those authorities that are already severely under resourced?

What about financial incentives for local authorities, be they positive or negative?  Surely this is the critical gap in the Government’s thinking.  The Local Plans Expert Group (LPEG) seems to agree and has recommended in their March report that the Government ought to review the role of financial incentives to stimulate efficient and effective plan making and that authorities should be warned that they will be given less priority when bidding for infrastructure related funding (even if through a LEP) if they do not have in place an up to date local plan which identifies the need for that infrastructure.

While most would prefer to see positive, rather than negative incentives for local authorities, if the Government is serious about incentivising the plan-making process the surest way of achieving this, without intervention, would be for local authorities to have some “skin in the game”.

Note: the Consultation closed on 15 April.

Covenants not to apply for parking permits – should they be planning obligations?

The High Court’s decision in Westminster City Council v Secretary of State for Communities and Local Government and another [2013] EWHC 690 (Admin) (the WCC Case) was as a reminder that it is not enough to label something a planning obligation – it must still (1) satisfy the test in section 106(1) of the TCPA to run with the land and bind future owners and occupiers and (2) be properly drafted.

In the WCC case it was found that an obligation which sought to prevent occupiers of a new residential development from applying for parking permits did not satisfy the test in section 106(1) because the obligation did not:

  • restrict the development or use of the land in a specified way;
  • require specified operations or activities to be carried out on the land; or
  • require the land to be used in a specified way.

parking permit 3The WCC case was applied by an Inspector in an appeal decision (17 February 2014) concerning development at 6 St Catherine’s Mews, London and London Boroughs have been quick to take note, with changes being made to their section 106 agreements to address this issue.  It is now almost standard practice for section 106 agreements to make reference to section 16 of the Greater London Council (General Powers) Act 1974, in addition to the ordinary covenant that a developer is not to make or permit owner and occupiers from applying for parking permits. The reference to section 16 is a sensible safeguard by local authorities in the event that the ordinary covenant is tested against section 106(1) of the 1990 Act and found only to be a personal undertaking by the developer – not enforceable on future owners and occupiers.

It is worth noting that the High Court (in the WCC Case) did not go so far as to state that there was no way in which an obligation not to apply for parking permits could meet the requirements of s106(1). In fact, the following wording was said to have, theoretically, passed the test:  “The Owner hereby covenants that the Property shall not be occupied for so long as the Owner or occupier of the Property has made an application to X Authority for a parking permit which has not been decided or is in possession of such a parking permit“.  However, we agree with the Judge’s obiter comments and warn that authorities should stay away from such language as a planning obligation of this kind would be extraordinarily difficult, politically, to enforce. What authority (in their right mind) would seek to turn out an occupier if an application was made for a parking permit in connection with their dwelling?

The reality is that in the areas where restrictions are needed, car parking policies are already in place.  They are controlled by local authorities.  All that the planning agreement does is to act as a public acknowledgement and signal that the authority will not grant permits to occupants of the building.  Rather than trying to buttress the clauses surely local planning authorities would be better just to accept that the provisions are declaratory and leave it at that.