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Planning and the General Election: keys to long term success

With the General Election drawing ever closer, planning forms the battleground for a several controversial issues close to voters’ hearts, such as fracking and safeguarding the greenbelt. In particular, persistent difficulties in delivering new housing and infrastructure unite the parties in a common cause. More homes are needed, quickly, together with greater certainty around delivery of supporting infrastructure.

The extent to which the next Government succeeds in solving these problems will be determined by its appetite to grapple with a host of underlying difficulties. These include devising an effective model for land value capture, making the CPO process fit for purpose and addressing the chronic shortfall in local authority resourcing.

Despite obvious distractions elsewhere during this campaign, housing delivery still sits atop the planning agenda, with the manifestos all setting targets and the broad route needed to reach them. The Conservatives will point to steps already taken along this long and winding road – most recently through the Neighbourhood Planning Act 2017 and its predecessor the Housing and Planning Act 2016. Similarly, the Housing White Paper affords us the rare luxury of a detailed annex to the aspirations commonly found in (deliberately) loosely drafted manifesto commitments. Whilst less “radical” than badged, it establishes a framework of policy changes aimed at speeding up housing delivery, through measures such as diversifying the market, getting local plans in place and holding the public and private sectors to account for delivery.

Housing delivery at scale is recognised as being paramount. This requires a commitment to supporting the growth of new towns and garden communities – where the worlds of housing and infrastructure collide most spectacularly. The Liberal Democrats propose at least 10 new garden communities whilst Labour also underline the need to start on a “new generation” of new towns. The current system already supports that drive with the introduction of a potentially significant power in the Neighbourhood Planning Act 2017 allowing Regulations to facilitate the designation of areas as new towns and for development corporations to be established.

Whichever party emerges victorious on 8th June, there is a sense that the keys to long-term success are not entirely in their hands. We are witnessing a shift in emphasis towards the increased role of the public sector as an enabler of development. The extent to which they are willing and able to embrace that role will go a long way towards determining whether the same issues – and proposed fixes – will remain on the planning agenda in 2022.

Permission in principle – draft regulations published

In November 2016 we published a blog, at that stage we thought the Regulations to follow would give further guidance on how permission in principle, PiP, will operate.

The Housing and Planning Act 2016 (Permission in Principle etc.) (Miscellaneous Amendments) (England) Regulations 2017 have now been produced in draft and laid before Parliament. The draft Regulations are scant.  Tweaks are to be made to the Planning (Hazardous Substances) Act 1990, the Commons Act 2006, the Local Government Act 1972 and the Town and Country Planning Act 1990. The changes are largely administrative.

One more interesting change (to s96A of the TCPA) would allow non material amendments to be made to PiPs. The Government consultation envisaged that:

  1. only “in principle matters” be required as part of a PiP: a red line location plan, proposed uses (which must be “housing-led”), and the minimum and maximum quantum of residential development; and
  2. no conditions be attached to PiPs.

On this basis there seems to be little scope for non-material amendments unless the references are also intended to cover the technical details consents which must follow PiPs before there is an implementable permission. An alternative possibility is that more detail will be required for a PiP than originally envisaged.

The change proposed to the Commons Act will mean that an application for PiP is a “trigger event”, creating an exclusion from the right to apply for registration of a village green. This will bring PiP in line with planning permission and the same “terminating events” will once again switch on the right to apply for registration of a village green.

Otherwise, we are no further forward. When more detail emerges we will blog an update.

Permission in Principle – a mild salve for an acute housing shortage

So-called planning red tape has frequently been the scapegoat for the housing crisis. The planning system has also frequently been changed and tweaked with the aim of addressing the crisis.

principle_stamp_logo_cleanrtwertNow the Housing and Planning Act 2016 has introduced, through amendments to the Town and Country Planning Act 1990, permission in principle (PiP). Much of the detail will follow through Regulations.  The consultation earlier this year gives us an indication of what might be included.

What is Permission in Principle?

PiP establishes that a particular scale of housing-led development on a defined site is acceptable.  The aim is for a PiP to minimise the upfront and at-risk work of applicants.   This may be the case where the planning authority or neighbourhood forum is proactive, resourced and pro-development.

PiP can be (1) designated by the planning authority or neighbourhood forum or (2) granted in response to an application.  Designation is made through a “qualifying document”: a register (see below); development plan document; or neighbourhood plan.  A developer can make an application in respect of a site which, if granted, will have almost the same result.  In both cases PiP must be followed by technical details consent before any development can take place.

Designated PiPs will lapse after 5 years and granted PiPs after 3 years (although in both cases the planning authority can set an alternative period). Presumably the rationale for the difference is that (brave) authorities and forums may designate large sites whereas it is currently envisaged (see Consultation document) that a PiP may only be granted for a maximum of 10 homes.

If a planning authority refuses an application for PiP the applicant can lodge an appeal. This should give potential developers of small, contentious sites a quicker route to an inevitable appeal.

Brownfield Register

The 2016 Act introduces the “Register of Land” concept which authorities can be required to compile through Regulations. Known as the brownfield register, as the objective is to identify previously developed land, it is one method through which a PiP may be designated (the aim is to assist achieving the Government aim of 90% of brownfield land having consent for housing by 2020).

The Government has provided guidance for the 73 authorities participating in a brownfield register pilot scheme. Authorities should draw on up to date evidence, such as their Strategic Housing Land Availability Assessment evidence, in identifying sites.  They should then assess suitability for housing by considering availability, capacity and capability.  Sites which meet the criteria should then be compiled into the register (with those which were rejected noted) and published.

Having reviewed a sample of the completed pilot registers, the majority of identified sites already have planning permission. An indicator that other factors are preventing delivery? And that PiPs designated through the register are unlikely to make any significant contribution to housing delivery?

How much detail is required?

The Government’s initial thoughts are that only “in principle matters” be required as part of a PiP: a red line location plan, proposed uses (which must be “housing-led”), and the minimum and maximum quantum of residential development.

As yet, contrary to requirements for outline applications, points of access need not be identified. This is likely to change as robust assessment of a proposal is difficult without such information.  More detail may also be required for EIA development.  In making an EIA development designation,  the authority or forum should be able to make efficient use of information gathered as part of the Strategic Environmental Assessment and run elements of the assessments concurrently.  We may also see more streamlined assessments which properly assess likely significant effects but omit the many other effects often covered.

At the technical details consent stage, full details must be provided (currently to be for the whole PiP development). The planning authority must determine those details in accordance with the PiP, unless it has effectively expired or there has been a material change in circumstance since the PiP came into force.

Why PiP will not facilitate extensive housing delivery

Consistent with determining any other planning application, the planning authority must have regard to the development plan and any other material considerations in exercising either of their powers to create a PiP (see Housing and Planning Act 2016, provisions to introduce TCPA, sn.59(A)(11)).  Whilst this must be right in a plan-led system, and progressive planning authorities may make a designation against the backdrop of an emerging local plan, it leaves developers with the same difficulties they currently experience with outdated policy and an unwilling authority.

Unless thinking changes as a result of consultation, applications will only be allowed for a maximum of 10 homes. If the PiP route genuinely offers a more expedient route than preparing an outline application, limiting applications to 10 homes is a real missed opportunity.  We will not see developers making bold PiP applications for hundreds of homes on unallocated sites based on substantive material considerations.

Government currently considers that technical details consent should come forward for the entire PiP area at once, a disadvantage compared to the operation of a large outline permission.  It is unclear why this measure, which could certainly delay delivery, has been included.  Perhaps the secondary legislation will more sensibly allow for phasing.

At this stage it is unclear whether PiP will achieve the aim of greater certainty and speed in the planning process and whether it offers anything more appealing than allocations, outline planning applications and local development orders.

A layer of complexity, a review of the ramifications of the Localism Act five years on

The Localism Act 2011 obtained royal assent in November 2011, gradually bringing into effect a raft of legislation supporting the government’s communities-based agenda. Following the Conservative Party’s 2010 manifesto, subtitled ‘Invitation to join the government of Britain’, localism remained a focus of the coalition government, and remains a focus of the current government.

Read the full article

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

 

Improving the use of Planning Conditions?

Too many unnecessary and overly restrictive conditions are still routinely attached to planning permissions, driving up costs and impeding development. It is against this backdrop that the Government proposed further reforms in the recently published Neighbourhood Planning Bill aimed at streamlining the use of planning conditions.

Long game

This is not a new objective. Since the Killian Pretty Review in 2008 successive Governments have been on a drive to minimise the use of unnecessary conditions. For instance, in April 2015 the Government introduced the concept of ‘deemed discharge‘, whereby an applicant can treat certain conditions as discharged if the LPA fails to reach a decision in the requisite time frame. Although the intention was admirable, it is debatable whether this reform has been effective given that the power is rarely relied upon in practice.  As we have pointed out before, part of the answer has to be improving the quality of some applications in the first place and giving a less risky route to appeal onerous conditions.

Current proposals

textThe DCLG consultation ‘Improving the Use of Planning Condition’ (the ‘Consultation’), which was launched in conjunction with the Neighbourhood Planning Bill, seeks views on the Government’s proposals to improve the use of planning conditions and closes on 2 November 2016.

There are 2 key elements to the Government’s proposals:

  1. Restriction on the use of pre-commencement conditions without prior approval by the applicant; and
  2. Prohibition of specific types of conditions.

1) Restriction on the use of pre-commencement conditions

LPAs would not be permitted to use pre-commencement conditions without prior approval by the applicant. By giving applicants an earlier opportunity to challenge unnecessary pre-commencement conditions, it is hoped that a consensus can be reached between the parties at the outset and the likelihood of appeals reduced.  Of course, there is a risk that front loading the process will lead to delays in planning applications being determined.  There are several practical implications:

  • Where an applicant refuses to accept a proposed pre-commencement condition the LPA will have a number of options at its disposal: (i) revising the condition so that it is agreeable to the applicant; (ii) allowing compliance with the condition post commencement; (iii) removing the condition in its entirety; or (iv) refusing planning permission.
  • The threat of refusal may do two things. Firstly, force applicants to consider whether they have really included adequate detail in the application itself. The answer will often be ‘no’. Secondly, accept unsatisfactory conditions in order to secure the permission (particularly where the grant of permission is a pre-requisite for the release of funds), and then use Section 73 to seek to remove the offending condition while avoiding an appeal scrutinising the merits of the entire application afresh.
  • The restrictions will not apply to outline permissions. The Consultation does not explain why.  However, the impact of delays caused by pre-commencement conditions is arguably lessened in the case of outline permissions given that development cannot commence until reserved matters have been approved in any event.

2) Prohibition of specific types of conditions

At present, LPAs have a broad power to impose “such conditions as they think fit” providing they meet the tests prescribed in the NPPF, its supporting guidance and case law.

The Government’s proposals are intended to provide greater clarity about conditions that do not meet these policy tests and should therefore be prohibited. The Consultation sets out examples of conditions that are categorised as unacceptable by existing planning practice guidance and seeks consultees’ views on whether such conditions should be expressly prohibited through legislation.

Given the relevant tests for using conditions are already enshrined in the NPPF and the example conditions set out in the Consultation are effectively prohibited (albeit through guidance rather than statute), the purpose served by this aspect of the reforms is questionable. A more productive use of this legislation would be to use the conditions as a benchmark for reasonableness, and allow binding decisions on them, via the mooted Dispute Resolution Service under the Housing and Planning Act 2016.

Conclusions

The reforms are unlikely to herald a new era in which conditions are used conservatively and pre-commencement conditions are consistently agreed upfront without the intention of resorting to Section 73. Bolder reform, providing a quicker right of appeal or up front, binding dispute resolution on this specific point, would be a much better outcome.

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

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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