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The new New Towns Agenda

The third reading of any Bill in the House of Lords is normally fantastically dull. That was not true of what is now the Neighbourhood Planning Act 2017. Lord Mathew Taylor introduced a new and apparently innocuous clause that allows a completely new and parallel way of bringing new towns forward. It authorises the rewriting of the existing new town legislation, by regulation, to allow local authorities, or groups of local authorities, to ask the Secretary of State to designate an area as a new town and for a development corporation to be set up.

If agreed by the Secretary of State, then the local authorities will, effectively, step into the role that the Secretary of State occupied in the old new towns. They will control the way in which their new town development corporation is governed, operates and delivers new communities.  They will be accountable for successes.  They will be responsible for failures. Some powers will, inevitably, be retained by the Secretary of State, at least in the short term – the power to confirm CPOs and to authorise Local Development Orders. In time, with true devolution, even these powers could be left to the parent authority.

What will this mean? Many authorities are already exploring the possibility of new towns and particularly garden communities. One of the real difficulties is educating landowners that the cost of developing the necessary community and social infrastructure up front is significant, and that the legacy costs of stewardship will eat into land values, as much as if not more than the traditional enabling costs. This means that the normal landowner model of a minimum land value + a share of net proceeds or overage does not really work.  There is also a need to ensure that all land is bound into the same broad vision and programme. If that is not the case then the allocation of costs can be unfair.  The first phases will have to bear significant infrastructure costs that then increase the value of the land in later phases. If the later phases choose to develop independently then it may be problematic making sure that they bear their fair share of the initial place-making investment. A development corporation model helps to solve this. It allows early and extensive acquisition. It also ensures that the underlying “scheme”, the new town, is more completely disregarded for valuation purposes.

In practice, development corporations should rarely be necessary. Local authorities already hold most of the appropriate powers. However, the use of, or the threat of the use of, a development corporation may well be a helpful bargaining tool. It should allow local authorities to reach agreements with reluctant landowners. It should ensure that all parties contribute and benefit equally. It should be a weapon of last resort.

Planning TV – Spotlight on the Housing White Paper

In this episode of Planning TV, Ian Fletcher, Director of Policy (Real Estate), British Property Federation, Richard Crawley, Planning Advisory Service and Stephen Ashworth, Partner, Dentons discuss the implications of the Housing White Paper released by the government in February.

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Brought to you by Dentons and We Plan London, and Alice Lester MBE from Brent Council, 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.

Property Owner Business Improvement Districts

There are now over 200 business improvement districts (BIDs) in the country.  BIDs are democratic, business-led vehicles with an ability to raise a mandatory levy, based on rateable values, to invest in their areas.  They focus on issues of importance to local ratepayers, and the levy is paid by ratepayers.  Since BID legislation first emerged in 2003, there has been a lobby for a levy to be charged on property owners as well as on the payer of business rates. In many places property owners are able to bring a different perspective on, and longer term funding for, the changes necessary for a place to be successful.  After 14 years of waiting the Local Government Finance Bill now brings forward the right for property owners to start their own BIDs.  This builds on the experience of three London BIDs who, because of a happy coincidence back in 2009 of the business rate supplement and Crossrail, have been able to bring forward property owner BIDs earlier than anyone else.

The note, prepared by Dentons and the BIDsBusiness, sets out some of the challenges and opportunities that the draft legislation offers.  Most importantly it argues that it would be helpful to be able to separate ratepayer and property owner BIDs.  In many areas they will overlap but there should be an ability for a property owner BID to come forward without a ratepayer BID.  Separately there are issues in relation to BID set up, information requests and governance that need to be settled for both ratepayer and property owner BIDs.  The legislation could be used to address those issues.

With some refinement the Bill could genuinely help BID areas and provide a new energy for BIDs, an encouragement of long term vision and significantly deeper pockets to fund change.  Let’s hope that the opportunity is seized.

Simply the best? A review of what ‘best consideration’ means in practice and how it is affecting the property market

In a world of increasing devolution and local responsibility, local authorities still need ministerial consent to dispose of land at less than best consideration. Why is this the case, and what does this mean in practice?

Read the full article

This article was first published in Property Law Journal (September 2016) and is also available at http://www.lawjournals.co.uk/

Planning TV – Spotlight on Viability in Planning

Planning TV - LOGO PURPLE BACKGROUND

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

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In this episode of Planning TV we take a look at viability in planning. Stephen Ashworth (Dentons),  Alice Lester (PAS) and Anthony Lee (BNP Paribas) share their thoughts on this issue.

Homes for London

London is falling lamentably short of delivering the number of homes that the city needs.  The mayoral election campaign was dominated by the housing crisis – and rightly so.  The chronic under-supply is a crippling social issue and a threat to London’s economic competitiveness.  London must double its rate of house building if it is to adequately house a growing population and maintain the city’s global competitiveness.  There is no silver bullet – increasing supply requires action on multiple fronts.

Homes-for-Londoners-212x300During the campaign the new Mayor, Sadiq Khan, made it clear that he wanted to see more homes built, particularly affordable homes.  The Mayor proposed the setting up of “Homes for Londoners” to bring together the Mayor’s housing, planning, funding and land powers.  Working together, London First and Dentons today launched “Homes for Londoners – A blueprint for how the Mayor can deliver the homes London needs”.  The report sets out the first steps that we believe the Mayor should take to deliver on his manifesto promise and to deliver much-needed housing in London.

We support the creation of Homes for Londoners – a body with the simple objective of ensuring that all of London government plays an effective part in increasing housing in London to 50,000 homes a year.

We believe that the initial focus of Homes for Londoners should be to bring public land forward for development.  The main pipeline of land under the Mayor’s control is owned by Transport for London (TfL).  Homes for Londoners should help to advise the Mayor in establishing a strategy to identify and release TfL sites for development from the perspective of maximising housing supply.  As part of the wider agenda of securing an effective pipeline of public land, Homes for Londoners should support the work of the London Land Commission by putting in place a strategy to ensure the disposal of land on the brownfield register.  A key focus should be on assembling sites around core public land-holdings by acquiring adjacent privately owned land.  Those sites should be released to the market with clearly prescribed density, quantum and mix (including affordable housing) requirements.

The recommendations in the report are predicated on the GLA evolving from being an organisation that sets policies and distributes funds, into an organisation that pushes, and where necessary, directly intervenes to support the delivery of more homes.  As part of this, we suggest a bolder approach to the use of compulsory acquisition powers is needed.  This should be supported by a loan fund for acquisition and compensation costs to de-risk the process for boroughs and other public bodies.

Delivering the steps set out in the report will need energy, conviction and muscle on the part of the Mayor.  This can be done.  It should be done and we ask the Mayor to step up and ensure that it is done.

Brexit: A week later

flagWhat are the likely effects of the Referendum decision on planning? The real answer is that nobody knows but here is a guess:

  • There will be more devolution to city regions. There is clearly a distrust of Westminster and “experts”. Expect to see devolution being set in more of a sub-regional framework.
  • Although there will be delays, the further drop in interest rates and the need for investment will mean more emphasis on new infrastructure. Now is the time for city regions to refine their infrastructure plans, making sure that they fit comfortably within the National Infrastructure Commission ambitions.
  • More of the investment will be outside London. London has succeeded in part because of the staggering levels of infrastructure investment that have been made. Other regions deserve their turn.
  • The planning system will not change.  There is no “European” element that can be stripped out. Much that is blamed on Europe is, in fact, common sense and best practice around the world. For example, does anyone seriously anticipate that we will not environmentally assess plans for large scale development proposals?  Similarly, we already have international and national commitments on climate change. Expect no change.
  • There will be some siren calls to put the brakes on housing delivery. It will be argued that, with lower levels of immigration, objectively assessed needs will fall. In reality, immigration is unlikely to fall significantly or soon. In fact DCLG figures already assume a material reduction. And, if successful in reducing immigration, the likelihood is that there will be a need to accommodate some of the Brits presently living in Europe.  Expect no change.

Perhaps the greatest effect will be that Parliamentary time will focus on managing the crisis and broader constitutional issues. Hopefully, that means that there will be less time for planning reform and we can all move calmly to a proper plan-led system of the type envisaged by the Local Plan Expert Group.  This should be supported by a slightly simplified CIL regime after the Review with a less febrile property market and one better balanced around the country.

Planning TV – what’s next for the Community Infrastructure Levy?

Planning TV - LOGO PURPLE BACKGROUND

Dentons Planning TV is a new and innovative platform for engaging in and reacting to the latest developments in the dynamic world of planning. Its mission statement is simple: to provoke debate and facilitate engagement at all levels in the planning process.

Screenshot 2016-04-13 20.03.21Here we take a look at what’s next for the Community Infrastructure Levy.

Tune in to see the thoughts of Stephen Ashworth, Partner at Dentons and Gilian Macinnes of PAS and a member of the Government’s CIL Review Panel.

Development First, Town Centres Second

This blog should perhaps be read with a pinch of salt. We acted for the losing claimant, Sainsbury’s.

Sainsbury’s have a town centre store in South Ruislip that they have permission to redevelop. Asda are promoting an edge of centre store. Asda were refused consent for their store on both impact and sequential test grounds. With minor revisions to the scheme six months later, the Council approved the scheme. Sainsbury’s challenged that approval.

Town Centre SignDove J generously interpreted the Council’s Committee report as reaching a conclusion that Sainsbury’s would proceed, regardless of the Asda development.  In the absence of anything clear in the report on that central point, hisconclusion was a masterpiece of kind inference.  As a consequence the Judge found that there was no adverse impact and that the Sainsbury’s redevelopment site was not sequentially “available”. The small changes to the refused scheme, and marginal revisions to the retail analysis, justified the Council in reaching a different conclusion.  Dove J’s judgment raises four issues of principle.

First, it undermines the sequential test. Paragraphs 24 and 27 of the NPPF are quite clear. They are part of the town centre first policy.  If there are suitable, viable and available sites then out of centre proposals should be refused. The policy is blunt. If there is a sequentially preferable site available for development then it should be given the opportunity to be developed first. It should not be left to build out in competition or following the secondary site.  If the preferred site fails to take advantage of the opportunity then, almost necessarily, it will then remove itself from being sequentially preferable. Dove J’s judgment simply does not respect the policy intention that town centres should be developed first. First should actually mean first.

Secondly, concluding that a site is not sequentially available because it is likely to be built out by a competitor rather misses the point of the sequential test.  If the Sainsbury’s site was available for development (and Dove J decided that the Council thought that was available for development and would be developed) then it must be a sequentially preferable site, even if it is not available to the competing developer.  And should lead to a refusal on the basis of the sequential test – after all, that is the preferred place for development.

Thirdly, the NPPF indicates that where either the sequential test or the impact test is failed then permission “should be refused“. The NPPF uses this diktat rarely. The clear policy intent is that unlike much of the NPPF, where questions of balance and competing interests are rightly highlighted, if either the sequential or impact test fail then the policy presumption is that permission should be refused. The same language is used in relation to a failure to deliver “good design“. Dove J found that the wording “should be refused” is no presumption for refusal, and in effect, gives the key town centre first policy tests no special priority. Clearly, decision-makers must always have the option to take account of the NPPF policy injunctions and decide that other material considerations outweigh them.  That is the essence of decision making.   However, the decision maker should only do so after having properly recognised that in NPPF terms planning permission should be refused. If the town centre first policy is to mean anything it should be that the starting point for a proposal that fails the sequential or impact test is that it should be refused.

Finally, planning decisions are important.  If a scheme is refused and then, with marginal changes, approved only 8 months later that undermines confidence in the planning system.  Planning authorities must always be allowed to change their minds but they should only do so with good and clear reasons.  Since the Courts are the only means of monitoring that when a volte face leads to a permission they should accept the responsibility of testing those reasons.

No more office to resi

Permitted development rights will not be extended.  The new Class O in the general permitted development order (that is to come into force on 15 April 2015) prevents any use of an office for residential purposes from beginning after 30 May 2016.  The recent and contentious approval granting of permitted development rights for Utopia Studios is now looks pyrrhic, as it is unlikely the rights will be able to be exercised before these permitted development rights die.