What is a highway?

We look at a recent decision which reiterates what constitutes a ‘highway’. The recent Court of Appeal judgment in the case of London Borough of Southwark v Transport for London [2017] serves as a useful reminder of the common law principles of what constitutes a highway and reaffirms that the extent of a highway authority’s interest in such land is restricted to the ‘top two spits’.

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This article was first published in Property Law Journal (December 2017/ January 2018) and is also available at http://www.lawjournals.co.uk/


The new New Towns Revolution

In May we wrote about Lord Matthew Taylor’s clause in what became the Neighbourhood Planning Act 2017 introducing provision for locally led new towns. The clause provided a skeleton framework.

Flesh is now being put on the bones. Draft regulations have been published by DCLG setting out the way in which local authorities will step into the place of the Secretary of State and oversee locally led new towns. With the exception of the power to confirm CPOs, local authorities will be responsible for guiding and monitoring the new New Towns.

Building on the experience of the old New Towns, local authorities will be required, from the outset, to plan for the long term stewardship of the assets of the new town for the benefit of the community. As described in the consultation paper this should ensure that the powers are used to create places “that are sustainable for the long term, with the resources to reinvest both in the renewal of the physical place and support a thriving and diverse community“.

The only false note in the draft regulations is a requirement for Treasury consent if the outstanding borrowing of a development corporation is in excess of £100 million. Almost any genuine new town will, at least potentially, need more debt than £100 million. The “risk” that the Treasury may refuse consent or impose conditions on it makes it far less likely that the development corporation model will be used. Having committed capital to acquire the land and provide infrastructure, no sensible local authority would want to take the risk of not being able to complete the development and secure a return on that investment.

Since the Chancellor explicitly endorsed the idea of five new towns, without financial recourse to the Treasury, it is assumed that this “hangover” from the old New Towns will be lifted.

Planning – the Big Challenges and Opportunities

As we come up to the end of 2017, Planning TV looks ahead at how we could deal with some of the biggest challenges and opportunities in planning.

Housing has risen to the top of the political agenda, as well as the constant challenge of building the right kind of homes in the right places (which was the title of Government’s white paper that was released earlier in the year). There’s also the perennial issue of under capacity and skills in local planning authorities, which may change once increases in planning fees go up. The increased pressure on space is driving development on brownfield sites that may be potentially contaminated, leading to risks for developers and slowing the rate of housing delivery.

Challenges can also give way to opportunity. Greater density in cities affords new opportunities such as better public transport and more interesting mixes of land use. The way that people live in cities is changing, and so there is no shortage of problems that can be tackled in innovative ways. Alice Lester, Head of Planning at the London Borough of Brent, talks about how local authorities have innovated to build more council housing, whilst balancing housing demand and densification in her part of London.

This episode also features Margot Adele Orr Jones, Masterplanner at Atkins Acuity; and Jennifer Travers and Emma Broad from Dentons Environment and Real Estate teams.

Brought to you by Dentons and Citiesmode 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.

Common Sense Needed to Flush Out SPD Abuse

The High Court has confirmed the need to tread a common sense path through the mire of the Local Plan regulations, in quashing a supplementary planning document (SPD) that strayed into Development Plan Document (DPD) territory in William Davis Ltd & Ors v Charnwood Borough Council [2017] EWHC 3006 (Admin) (23 November 2017).

Light Touch

SPDs escape the examination process needed for DPDs.  They are often seen as simply elaborating on existing policies.  The Town and Country Planning (Local Planning) (England) Regulations 2012 are more nuanced: SPDs are allowed to contain policy, but it must be justified and must not conflict with the adopted development plan (Reg 8(3)).  SPD policy cannot supersede development plan policy and is merely a material consideration.

Substance Over Style

Local Development Documents (LDDs) that have the characteristics listed in regulation 5 must (under reg 6) be prepared as Local Plans (i.e. DPDs).  SPDs are defined negatively (reg 2) as anything that is not a Local Plan. In practice, this means a document containing statements regarding “any environmental, social, design and economic objectives which are relevant to the attainment of the development and use of land encouraged by a [Local Plan]”.

The regime is messy and open to abuse where SPDs stray into Local Plan territory. SPDs cannot contain policy identifying development and use of land which the authority wishes to encourage, making site allocations or site allocation policies or setting development management to guide application decisions.

No Mercy

In Charnwood, Gilbart J quashed policies in a housing SPD.  The core strategy contained strategic policies with high level targets for housing types to meet demographic needs, with a “subject to viability” affordable housing target and a requirement that types, tenures and sizes of homes would be appropriate having regard to identified housing needs and character of the area. The SPD prescribed different percentages for all house sizes, and a 60-70% affordable housing requirement for some unit types.

The statements were quashed: they contained policies; and they clearly related to forms of development to be encouraged and imposed development management policies against which applications could be refused (or conditions to control unit mix imposed) (under reg 5). Although there was some legitimate SPD ‘guidance’ that did not save the offending policies (citing R (Skipton Properties Ltd) v Craven District Council [2017] EWHC 534 (Admin)).  They could only be adopted as a Local Plan (DPD), following examination.

Take Heed

The judgment emphasises several points that authorities and affected parties should pay attention to:

  • where an ‘SPD’ is promoted as a “stop gap” in the absence of  saved policies, by definition it cannot be supplementary (and is itself a primary policy assuming DPD status as in the Skipton case);
  • a housing mix policy which could lead to refusal on the grounds that the proposed mix is unacceptable (or an outline application condition imposing a particular mix) is a statement regarding the development of land and development management policy;
  • uncertainty arising from the “very poor” drafting of the Regulations should be dealt with in light of the “realities of development control” and the fundamental importance of robust and independent examination of the development plan;
  • viability impacts were material and had adopting the policies without consideration of those impacts was unlawful;
  • SPD should not be used for making an alteration to plan policy to address new evidence.

So what?

Authorities will need to be far more careful about the statements they include in what purport to be SPDs on issues such as housing mix and affordability but also density, height and other matters.  There is still a tendency to sneak swathes of untested, unjustified and ineffective policy in through the back door via dodgy SPDs.

The judgment comes when the Mayor of London’s Affordable Housing Supplementary Planning Guidance (SPG) document is under legal attack for having strayed into the realms of policy, despite being clearly stated not to constitute policy and arguably not to extending beyond the policies in the London Plan itself.

It remains to be seen whether that challenge will be recast as a challenge to specific decisions which – wrongly – treat the SPG’s contents as a policy or a fixed position (which often feels like it is the case).

Planning TV: Compulsory Purchase Orders (CPO) and Urban Regeneration

The emergence of the Housing White Paper in February 2017 saw increased attention to the role of Compulsory Purchase Orders as a tool for regeneration.

Planning TV spoke to Michele Vas at Dentons to gain a picture of the legal context behind CPOs, the legislation that enables CPOs to happen, and CPO guidance set out the government, outlining proper justifications for the application of CPOs for redevelopment projects.

Tayo Araoye at Westminster City Council spoke to us about CPOs in the Local Authority context and the effective community consultation and engagement processes involved.

We discussed the role of CPO legislation in the NOVA Scheme in Victoria SW1 with Justin Black at Land Securities, a shared vision between Westminster and Land Securities, and how CPO negotiations facilitated engagement with the project.

Brought to you by Dentons and Citiesmode 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.

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.

Planning TV: Planning for Healthy New Towns

In more recent times, there has been a refocus on health in planning and how the built environment can encourage better health outcomes. NHS England’s Healthy New Towns Programmes is looking at how the planning and design of communities could be done in 10 demonstrator sites across England, as well as rethinking how health and care services can be delivered. Associated with the programme was an international design competition to visualise how this could be done, which Citiesmode submitted the winning entry.

Philip Liu at Citiesmode talks about some of the ideas from the bid. Andre Pinto from Public Health England explains some of the challenges of delivering health and care services and what solutions that the built environment could provide. They are both joined by Jamie McKie from Dentons Planning and Public Law team.

Brought to you by Dentons and Citiesmode 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.

Procurement case headed for the Court of Appeal

A leading case on the application of public procurement to public sector real estate scheme is headed to the Court of Appeal, after that court granted permission for the case to be heard.

As you may recall, judgment was given in the back in August 2016 in favour of the defendant local authority, West Berkshire District Council and its chosen development partner St Modwen Development in what was an important case for those involved in local authority development schemes.  (At the time we commented on the judgment).

The case concerned a competition held by the Council to select a development partner to bring forward a valuable development site.  The competition was not conducted in accordance with the procurement regime set out in the Public Contracts Regulations.  The Council (successfully) argued in the High Court that because of the nature of the overall development agreement (in particular because it lacked clear development obligations for the initial phases of the work) there is no “public works contract”, and therefore no need to comply with the Regulations.  As we noted in the article, much of the High Court judgment is sensible and represents a re-statement of existing law, but there we also identified certain aspects of the judgment could be subject to criticism, particularly the process for the drawdown of ground leases (in the latter phases of the development process) which must (apparently) contain obligations to develop, which might be argued to bring those leases dangerously close to the definition of “public works contract”.

The August 2016 judgment was regarded as tremendously helpful by those advising on local authority development scheme, and it is to be hoped that the Court of Appeal leaves intact the key reasoning on which the earlier judgement was based.

The Court has indicated a “hear-by” date of 15 December, so we don’t have too much longer to wait.

20% hike in planning application fees – a step closer

The Government has moved a step closer to delivering one of the Housing White Paper commitments to increase nationally-set planning application fees by 20% by publishing the draft Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 (Regulations) to bring this proposal forward.

Planning Freedoms

In addition to providing for an increase of approximately 20% for all existing fees, the Regulations also:

  1. introduce fees for applications for permission in principle (regulation 3);
  2. allow Mayoral development corporations and urban development corporations to charge for pre-application advice (regulation 4); and
  3. enable fees to be charged where: (i) an LPA has made a direction withdrawing permitted development rights under article 4 of the GDPO; or (ii) permitted development rights have been withdrawn pursuant to a condition imposed on a planning permission (regulation 5(2)).

Certain applications, such as those for listed building consents and demolition of certain buildings in conservation areas, will remain exempt from fees.

Transitional provisions confirm that applications, requests and site visits made before the date on which the Regulations come into will not be subject to the increased fees.

Ring-fencing additional fee income

The Housing White Paper made clear that the 20% uplift in application fees would be conditional on local planning authorities (LPAs) committing to invest the additional fee income into planning services.  The Department for Communities and Local Government (DCLG) invited LPAs to make this commitment and requested budget information to demonstrate how the additional fee income would be spent on planning services.  Unsurprisingly, all of the LPAs elected to make the commitment.

Nonetheless ensuring the additional income is not off-set by cuts in funding, which undermine the resources for dealing with planning applications, remains a key concern. DCLG’s letter made clear that “ the additional revenue should be retained by planning departments and that existing baseline and income assumptions will not be adjusted down as a result during this Parliament.”   Where LPAs fail to comply with the additionality assurances, the letter confirmed that the Government would consider reducing the fee level for that authority back to the original fee level through a change in regulations.  Whether this is simply an empty threat or whether compliance will in practice be policed, will no doubt become clear.

Not far enough?

Given that proposed planning reforms set out in the Housing White Paper place ever increasing demands on LPAs, there is no guarantee that a 20% increase will be sufficient to maintain ‘business as usual’ let alone deliver a more effective, efficient planning service. Particularly given that fees were last increased back in 2012 and have been gradually eroded by inflation ever since.

Indeed, there are concerns in some quarters that the changes do not go far enough. While the increase in fees will no doubt be welcomed by LPAs, the measures fall short of allowing LPAs to set fees at a local level.  As a result, LPAs in some areas will still not recover their full costs for processing planning applications.  In this respect, the Local Government Association recently warned that tax payers will be subsidising the cost of processing planning applications to the tune of £1 billion by 2022.

Next steps

Once the Regulations are approved by both House of Parliament, the Regulations will come into force on the 28th day after they are made. In the meantime, the Consultation ‘Planning for the right homes in the right places’  is seeking views on when LPAs who are delivering the homes their communities need should be allowed to increase fees by a further 20%.  The consultation closes on 9 November 2017.

Permission to land?

We look at the latest tools in the planner’s toolbox, permission in principle and the Brownfield Register, and asks whether they will have the impact that the government hopes and expects. A cynic might ask whether we really need another route to obtaining planning permission – several already exist and the evidence suggests that they are being granted in increasing numbers. Is the sole intention behind the introduction of permission in principle (PiP) to expedite the delivery of more housing?

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