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

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?

Read the full article

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

Planning TV: Real Estate and Maximising Space

Brexit, political uncertainty and the growth of online shopping have contributed to uncertainty and change in Britain’s real estate market. On one hand, demand for warehousing and distribution is vastly outstripping supply, whilst retail spaces face the challenges of declining consumer spending and getting enough footfall. This uncertainty has meant that real estate investors have concentrated on maximising the value of the spaces or assets that they currently hold.

Abbey Wiggett from Dentons Real Estate teams talks through the creative opportunities for thinking outside the box, such as creating multiple uses out of space or selling the airspace or sub-soil space of existing buildings. Abbey is joined by Jamie McKie from Dentons Planning and Public Law Team, who discusses how these new developments can often be difficult to navigate through the planning process.

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.

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

Neighbourhood Plans and Local Plans – Overtaking ahead?

We reported earlier in the year on the Court of Appeal decision in the DLA Delivery case.  The Court of Appeal considered a neighbourhood plan which had come forward in accordance with the emerging local plan, rather than the out of date strategic plan.

The Court of Appeal upheld the decision of the High Court, finding that Neighbourhood Plans (NPs) can be prepared in accordance with an evolving plan before an up to date Local Plan is in place.  However, as discussed previously, this could be a risky approach for NP groups where a local plan with a higher objectively assessed need is subsequently adopted, and the NP quickly becomes out of date.

This is almost exactly the situation in Farnham. The then draft Farnham Neighbourhood Plan (FNP) survived a judicial review of the decision of Waverley Borough Council that the basic conditions were met, on the basis the plan was prepared in accordance with the emerging local plan, rather than the existing local plan. Lang J in the High Court followed DLA Delivery, finding the test that an NP must be in general conformity with the strategic policies in force is a flexible test, and a matter of planning judgment, dismissing the claim.

Following an 88% “yes” vote at referendum, the FNP was formally made in July 2017, becoming part of the development plan for the local area. The FNP allocated land for approximately 2214 homes for the NP period to 2031, based on a need for 2,300 to 2032 in the 2016 pre-submission draft of the Waverley Borough Local Plan.  The FNP reports close cooperation with the Borough Council on housing need.

However, on examination of the draft Local Plan, the Inspector suggested modifications leading to an increase in the housing target from 519 to 590 homes per year, increasing Farnham’s target to 2,780. The Council’s intention is to address this by considering additional sites in Part 2 of the Local Plan. The modifications to the housing targets have been noted by the Council’s Special Executive committee, and authority given to the Head of Planning to agree the final submission to the Local Plan Inspector.  The report to the Special Executive noted that full weight would continue to be afforded to the FNP, Part 2 of the Local Plan will take precedence where there is a conflict, as the more recently adopted document.  It envisages that additional allocations at Farnham will be made through Part 2 of the Local Plan.

While the Council is supportive of the FNP, it must be disappointing for the FNP group who had worked hard to allocate appropriate housing sites that further sites will now be allocated by the Council. While the FNP body could seek to modify the plan, the amendments facilitating modification in the Neighbourhood Planning Act 2017 are not yet in force, and modification is unlikely to be appealing so soon after the original version was made.  To avoid similar situations in the future, other bodies preparing NPs should consider taking a robust approach and set out a strategy for dealing with increases in housing numbers (perhaps by way of future modifications or identifying white land to be released if required), to avoid the result of their hard work quickly becoming out of date.

As discussed previously, the December 2016 Written Ministerial Statement (WMS) provides additional protection for neighbourhood plans, providing that NPs will not be considered out of date where:

  • The Written Ministerial Statement or the NP are less than two years old;
  • The NP allocates sites for housing; and
  • The LPA can demonstrate a three year housing land supply.

This gives NPs some additional leeway, protecting their position where the LPA can meet some, but not all, of its objectively assessed need. However, the recent Inspector’s decision at Thames Farm, Shiplake near Henley on Thames demonstrates how strictly this can be applied.  The Inspector granted permission contrary to NP policies where the LPA had a three dwelling shortfall against three year housing land supply, suggesting that NP bodies should be cautious about relying on the WMS.

Planning TV: Neighbourhood Planning


Neighbourhood planning is a fast-growing aspect of planning in the UK. What is the neighbourhood planning process like, and how do you pass an examination so that you neighbourhood plan becomes a statutory part of the local plan?

Lucy McDonnell from Dentons’ Planning and Public Law Team and Derek Stebbing from IPe give us their advice for neighbourhood planning forums and planners working with forums.

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.