1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

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.

Affordable snakes and ladders on small sites

The judgment in the battle of wills over the Government’s small sites affordable housing and Vacant Building Credit policies has concluded, for now, with the Government victorious in the Court of Appeal. This blog considers the practical impact of the Vacant Building Credit.  What are the wider implications of the judgment for affordable housing decisions and policies?

Policy on the hoof

cartoonThe process by which the policies were introduced was surprising, but not unlawful.  However, two elements of the judgment may prove controversial:

  • firstly, the acceptance of a retrospective Equalities Impact Assessment where complying with the Public Sector Equalities Duty when taking the decision where the assessment was ‘adequate and in good faith’ and original decision “would not have led to a different conclusion“;
  • secondly, that Ministers are not required to have regard to material considerations when making national planning policy given that it relies on the exercise of crown prerogative powers. This will seem obscure to those living outside the legal bubble.

Common sense still allowed

Policy is just policy. The judgment confirms that:

  • government, whether central or local, may state policy ‘rules’ absolutely, but
  • decision takers must consider them without treating them as absolute – their discretion to weigh things in the balance and do something different cannot be fettered by policy.

For applications, that means:

  • complying with the duties to consider all relevant issues and determine in accordance with the development plan unless there are reasons not to (Section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning & Compulsory Purchase Act 2004);
  • local authorities are entitled to weigh the Government’s policy against their own plan policies, the demographic evidence on which they are based and any economic evidence on the viability of specific ‘small sites’.  There will inevitably be an upsurge in appeals as they do so, since applicants will generally expect the Government to follow its own policy on appeal;
  • where there are perfectly sound reasons for a Localist decision, there should be little scope for adverse costs awards.  The difference in weight to the national policy is simply a matter of planning judgment – which the Court of Appeal decision emphasises must be carried out diligently.

Making plans

Local Plan policies could still be promoted on the basis of evidence base and local circumstances which justify the LPA’s proposed thresholds. That will run the gauntlet at Examination in Public given the wider powers to intervene in the Plan-making process now available under the Housing and Planning Act 2016.

The reasoning given for the small sites policy in Government’s evidence (extracted at paragraph 53 of the judgment) provides clear scope for authorities to use evidence to show that their affordable housing policy thresholds are in line with the intended policy objective as long as requirements are:

  • viable, and
  • that contributions will be required at a time when they could not sensibly stall schemes (i.e. pre-occupation).

If local policies are supported by evidence that shows they would deliver Government’s stated intended outcome then they should survive Examination.

Planning for the future – the new Housing and Planning Act 2016

%

Following a lengthy period of debate, the Housing and Planning Act 2016 (HPA 2016) has received Royal Assent and was recently published. We consider the main planning aspects of the new legislation and the implications for local authorities.

The starter homes duties are a challenge for the development and government sectors as a whole. The government is considering the responses to its technical consultation on the starter homes regulations and the development industry needs much more certainty about the product and the process, in particular how open market value and viability exceptions will work. The new product will be accompanied by changes to the National Planning Policy Framework policy on affordable housing so that it will essentially replace existing provision. As well as providing commercial opportunities, this new form of tenure brings its own uncertainties.

See the full article here: Planning for the future the new Housing and Planning Act 2016 – this article was first published on Lexis®PSL Planning on 9 June 2016. Click for a free trial of Lexis®PSL

 

 

Planning permitted development rights – further relaxation

apprv6th April 2016 saw the arrival of The Town and Country Planning (General Permitted Development) England (Amendment) Order 2016.

This signals the latest chapter in the story of greater deregulation of the planning system.

It is also a product of its time, cementing the clear link between the Permitted Development regime and housing delivery.

Read the full article.

This article was first published in Property Law Journal (June 2016) and is also available at 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:

CaptureCapture

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.

Capturetab2

Putting the Neighbourhood Plan cart before the Local Plan horse

newickThe Court of Appeal has granted permission for the first Neighbourhood Plan case to be heard by it on appeal. The appeal is brought by DLA Delivery Limited, who applied for planning permission for 63 houses on the edge of the village of Newick, East Sussex.  DLA promoted its site as part of both the Local Plan, and the Neighbourhood Plan process, which have been running concurrently.  Although DLA’s land was identified as a suitable reserve housing site in the emerging Local Plan, the Neighbourhood Plan did not allocate it.

Accordance with what?

While the Local Plan is still emerging, the Neighbourhood Plan has been progressed. DLA sought permission to judicially review the local planning authority’s decision to hold a referendum on the draft Neighbourhood Plan (which has subsequently been formally made, becoming part of the local development plan).  In addition to environmental grounds, DLA claimed that the Neighbourhood Plan was not in conformity with the appropriate strategic policies.  The Neighbourhood Plan had been prepared in accordance with the policies of the emerging Local Plan.  However, as the Local Plan had not yet been adopted,  the plan currently in force covered the period to 2011.  DLA argued that the Neighbourhood Plan could not be in accordance with the strategic policies, and therefore meet the basic conditions to be made, as the plan it related to was not yet in force.

Court of Appeal prepared to look again

The claim was dismissed in the High Court by Foskett J, but granted permission to appeal on one of eight grounds – the need for the Neighbourhood Plan to be in ‘general’ conformity with strategic policies.  Permission to appeal on the other grounds has subsequently been granted by Lord Justice Lindblom in the Court of Appeal.

The case raises interesting points at a time where neighbourhood planning is a political priority, with measures to speed the process included in the Housing and Planning Bill.  Meanwhile, Local Plans with their need for a vast evidence base, may lag behind.  It remains to be seen how the following issues, addressed in the High Court in Woodcock Holdings, will be dealt with by the Court of Appeal.

  • Where Local and Neighbourhood Plans come forward at the same time, should the Neighbourhood Plan look back to the existing plan, or forward to the emerging plan?
  • How can a Neighbourhood Plan, in general conformity with an out of date Local Plan, meet the needs of the community going forward?
  • Should a Local Plan be able to override a Neighbourhood Plan once it has measured its objectively assessed need, if more homes are needed?

Independence day?

A further point of interest raised by the appeal is the appointment of Neighbourhood Plan Examiners. While Local Plans are examined by inspectors appointed by the Planning Inspectorate, Neighbourhood Plan examiners are appointed by the relevant Neighbourhood Plan steering group.  Whilst the claimant emphasised that they made no criticism of the examiner personally, they did suggest that the appointment of the examiner by the parish council gave rise to an appearance of bias.  It will be interesting to see what the Court of Appeal make of this “apparent bias” in the appointment of examiners – should it be another job for the Planning Inspectorate?

The risk of flooding

GLASDIR_2415520bA spate of major floods across the UK, warnings that global warming will lead to more frequent heavy rainfall events and increased risks of flooding have put the topic back at the top of the pile for planners. Recent appeal decisions have highlighted the conflict between planning policy preventing development in high risk areas and the need to build more housing, as well as the importance of mitigation strategies and conditions in securing consent.

Read the full article

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

 

Non-starter? New homes proposals are going to shake things up, if they survive

The Government’s Starter Homes proposals have been around for a while – consultation in 2014 led to new policies in March 2015, backing the commitment to deliver 200,000 by 2020, freeing Starter Homes ‘exceptions sites’ from affordable housing requirements and encouraging authorities to search for sites. The Housing and Planning Bill 2015-16 measures intended to realise that commitment will go well beyond the existing policy, if they survive the House of Lords Report stage.

Big picture

cakeStarter Homes will be new homes [1] for purchase only (and only by first time buyers under 40) to be sold at the lesser of 80% of market value or £450,000 in London (and £250,000 elsewhere).

  • Authorities will be under a statutory ‘general duty’ to promote Starter Homes when considering planning applications
  • A power for the Government to specify the proportion of Starter Homes on specific types of sites, nationally
  • A power for the Secretary of State to issue ‘compliance directions’ requiring Local Plan policies to be disregarded. This is a hitherto unknown command power by central Government and is possible casualty of the House of Lords’ scrutiny.

The Government has already made clear that tenure changes should be accepted without changes to the overall amounts of provision in S106 renegotiations.  The HCA is already putting this into practice, tenure swapping a policy compliant affordable split to Starter Homes on its Lower Graylingwell scheme in West Sussex.

All is (nearly) revealed

The NPPF Review has not been clear about the extent to which Starter Homes will actually be treated as affordable housing (albeit that they will be exempt from providing it).  We understand that the significance of the Starter Homes Technical Consultation on the Regulations which will shape the regime is that:

  • There will be a fixed 20% requirement for most schemes of 10 units or above.  Viability testing will be permitted, but the threshold for exceptions is likely to be a higher bar than hitherto accepted in viability appeals.
  • Starter Homes will be affordable housing in policy terms. In re-opening the NPPF consultation on changes to the definition of affordable housing, the Government is signalling its intention to modify the NPPF to allow Starter Homes to qualify. We understand that they are meant to be a ‘top slice’ of viability, which is intended to ensure that Starter Homes always float to the top of the affordable tenure pile in appraisals.
  • The 8 year ‘restricted period’ during which first time buyers will have restricted selling rights will allow the percentage of market value to taper up (like staircasing Shared Ownership equity).  This responds to concerns by lenders about the effect of sudden pulses of de-restricted units hitting the market at the same time.  These periods are controversial and likely to be significantly amended following the cross-party rebellion in the House of Lords.
  • Units will not be able to be let. The attractiveness of this, alongside a period where the market for re-sales is narrowed to first time buyers under 40 remains to be seen.
  • PRS is likely to benefit from a blanket exemption but will be expected to yield a commuted sum. The Government is likely to require such sums to be calculated based on the gain in value to the developer (and to require authorities to deliver Starter Homes with it). How it will factor in the costs of assembling land to do so is moot.
  • Standard S106 wording is being prepared.

Rebel Alliance

The defeats suffered by the Government at the Third Reading stage in the House of Lords on 11 April 2016 now cast a shadow over how radical this new tenure is likely to be. Amendments backed by a cross-party alliance of peers would:

  • Extend the protected period to 20 years and force starter homes owners to repay any discount (tapering by 1/20 each year) where selling earlier
  • Return control to local authorities on how many starter homes should be delivered locally, and was backed by a majority of 86 peers.

Both amendments were back by majorities of at least 85 peers and the likelihood of the radical changes envisaged by the flagship policy announcements last year coming into effect in 2016 look limited.

[1] including those constructed but not yet occupied

Sun will go down on section 106BA/BC numbers game appeals

We have commented on the initial impact of the changes to the Section 106 regime made by the Growth and Infrastructure Act 2013 to allow developers to challenge affordable housing obligations on viability grounds.  The new Section 106BA gave developers a right to ask councils to review housing obligations.  Section 106BC gave a right to appeal against review outcomes.  Both came into force on 25 April 2013, subject to a ‘sunset clause’ killing off the changes after 30 April 2016 unless otherwise extended.  They will now die on 30 April but uncertainties remain about the transitional picture.

sunGovernment About Turn

The Spending Review and Autumn Statement 2015 committed to extending the sunset clause. The anticipated Order has not materialised and we understand that the Government has now decided not to do so.  This may simply be a reflection of the fact that we are no longer in recession and stalled schemes should be seen as bad planning rather than bad luck. It may also reflect the odd outcomes that have crept into the process.

Odd Outcomes

The appeal route has been widely used for schemes granted consent in the current market, on the basis of a policy compliant affordable offer or viability assumptions that have then been changed on appeal.  The ability to use the appeal route for schemes that are complete has also begun to be tested.   The recent Chatham Quays case concerned a large multi-phase mixed use scheme approved in 2007 and subject to S106 variations to push back affordable housing contributions to better times. The housing element of the scheme came forward and the commercial phase remained, as accepted by the Council, ‘largely complete’ but not fully complete.  The developer successfully stripped out the remaining payments on appeal and the Inspector’s approach was upheld in the High Court.

The judgment confirms that:

  • developments which are largely complete can take advantage of the S106BA/BC process to eliminate affordable housing requirements even though the time for delivery or payment has long passed and there is no real relationship between the obligation and whether the scheme would be completed;
  • completion should be judged by looking at the whole of a mixed use scheme, not just the housing part. The Inspector failed to consider the Council’s argument that only the housing part should be considered in a mixed use scheme, not the whole. The Judge simply held that the argument was so poor that he could never have properly accepted it if he had considered it though.  It should also be considered on the basis of whether the development is in a state which could generate receipts or return, from the point of view of the developer. Wider claims about its significance should be taken with a pinch of salt;
  • the correct route of challenge to an Inspector’s S106BC decision is by Judicial Review, not S288 statutory challenge.   This point is less novel than assumed in the judgment – it arose in 2014 in the failed Mast Pond Wharf challenge.

The judgment leaves open the question of whether a viability appeal can be entertained after a scheme has been fully completed.  Common sense would suggest not, but the judgment notes that the Act is silent on the point.

Eye of the Needle for New Challenges

We understand that the Government will allow S106BC appeals made before the sun sets on 30 April to proceed. It is hard to see how there would be any jurisdiction to deal with ongoing applications or appeals without express transitional provisions in an order (which the Act allows for).  They are needed either way, not least to be clear about the effect of the sunset clause on modified obligations where the development as a whole has not yet been fully completed, to avoid  successes like Chatham becoming pyrrhic.

It will be interesting to see whether the Government’s viability test for Starter Homes, trailing in the consultation, sets a more rigorous test than that which local authorities have faced under the Sunshine Regime.

Authorities are increasingly using planning conditions as a work around, which are outside the S106BA regime. It would be nice if this willingness to slim down bloated planning agreements survived the sunset.