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.   

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

Self-build series Part 3: Self-build pitfalls fixed, but will not remedy existing injustices

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:

  • the failure to give the commencement notice before starting development will no longer (from 1 September 2019 assuming the amendment regulations take effect) result in the loss of charitable relief or social housing relief exemption; and
  • the failure to give the commencement notice before starting development will no longer result in the loss of the exemption for residential annexes and residential extensions (from 1 September 2019 assuming the amendment regulations take effect).

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


Self-build series Part 2: Options for retrofitting the exemption to future permissions

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):

  1. submit an application for the self-build exemption;
  2. cease development under the original permission in advance of the new permission being granted, and not recommence development under the new permission until:
    • the self build exemption has been granted; and
    • a completed assumption of liability notice and commencement notice is submitted to the LPA for the new permission (noting a future commencement date);
  3. document their development activities as clearly as possible (i.e. document/photograph when and where the works stopped on site, what works were the material operation under the new permission, obtain written statements from contractors, etc.) so this evidence can be provided to a LPA, if needed to corroborate their position. 

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

  1. write to the LPA to ask that the s73 application be determined as a s73A application, with the self-build exemption to be granted on the same day as the permission. If this is not agreed by the LPA or the application is not a s73 application, the application should be withdrawn and a new application submitted as a s73A application;
  2. submit an application for the self-build exemption in advance of the application being granted permission; and
  3. submit with the self-build exemption application a completed assumption of liability notice and commencement notice which states that the date of commencement is the date of the grant of the new permission and 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.

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.

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.

Read the full article

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

The NPPF six years on

We consider the main proposed changes in the draft NPPF and whether these will be sufficient to deal with the housing crisis. On 5 March 2018 the Ministry of Housing, Communities and Local Government published a revised text of the National Planning Policy Framework (the draft NPPF) alongside a raft of other supporting documents, government responses and further  consultations, including the revised Planning Practice Guidance text. The government has said that it intends to publish the final version of the NPPF ‘before the summer’, indicating that few changes are expected to be made as a result of the consultation.

Read the full article

This article was first published in Property Law Journal (May 2018) and is also available at www.lawjournals.co.uk

ACV listing works to ultimately save a Maida Vale favourite?

The pub formerly known as the Truscott Arms in Maida Vale, north west London will re-open as the Hero of Maida on 1 March 2018 as part of the Harcourt Inns Group of gastropubs.

The Truscott Arms closed on 4 August 2016 after the then tenant said that a 333% rent increase (amounting to extra £175,000 per annum) rendered the business unsustainable. The hike in rent appears to have been intended to override the pub’s Asset of Community Value (ACV) listing and enable it to be converted into luxury flats on account of:

  • the increased market rent (£250,000 per annum) being too much for any potential tenant to take on, making it not viable for the property to continue being used as a pub and opening it up to applications for other uses i.e. residential units; and
  • the supposed (inflated) value of the Property being too expensive for the community to acquire.

A local community group (represented by Dale Ingram of Planning for Pubs Ltd) was successful in its endeavours to have the Truscott Arms, a favourite local pub, listed as an ACV on 29 April 2015. Despite a successful challenge to this listing having been made by the then freehold owners of the pub and the pub being de-listed in August 2015, it was relisted in November 2015 and remains so today (expires 5 years from listing date).

The Friends of the Truscott Arms ACV reportedly relinquished its rights to attempt to acquire the pub themselves from the then freehold owner  – the Localism Act 2011 provides them with 6 months to attempt to do so – following assurances from the Harcourt Inns Group that they would re-open the Truscott Arms as a pub post acquisition with the intention being to “preserve this community hub and reinstate a spot for locals to come by and enjoy good food“.  Although it is not clear quite what part the ACV status had in securing the retention of the pub the issues raised by the listing clearly had an effect, and would have been a material consideration in any application for a non-pub use.

What is happening with ACV applications generally?  The pace and success of applications seems anecdotally to have slowed.  A review of the Westminster City Council website suggests that the Truscott Arms is just one of approximately 10 successful ACV nominations in the Borough since 2015, amounting to a nomination to listing success rate of 43.5% (with 13 of 23 nominations having been rejected). Interestingly, the website suggests that only 4 listing decisions (40%) have been challenged by the freehold owners, with only one other – in connection with The Prince of Wales Public House – having been successful in removing the ACV status of a Property.

The review decision for The Prince of Wales Public House dated June 2016 suggests that for there to be a realistic prospect that part of the building would, within the next 5 years, be put to a non-ancillary use that would further the social well being and interests of the local community there needs to be:

  • specific details about the types of activities that have taken place at the property in the recent past, when they took place and over what period to substantiate a non-ancillary use, particularly when the proposed non-ancillary use (i.e. music and dancing) could otherwise be seen as part of the general use of the public house; and
  • compelling evidence to contradict any existing evidence about the pub been the cause of anti-social behaviour and/or associated with criminal incidents in the recent past.

This approach may need to be reviewed.  It seems to focus a little too much on the past, rather than the future community use.  For more background information on ACVs please read some of our earlier blogs.

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.

Read the full article

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.

Read the full article

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