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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withdrawing permitted development rights under article 4 of the GDPO; or (ii) permitted development rights have been withdrawn pursuant to a condition imposed on a planning permission (regulation 5(2)).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

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.

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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.

Planning TV: Designing Liveable Cities

What are the ingredients for a liveable city? This episode of Planning TV discusses the range of aspects that planners need to look out for. From designing walkability to the socio-economic context of the site, planners also need to ensure that there is connectivity and integration built into their vision. Good project management is also key, but bringing in all public and private stakeholders to be included in design processes right from the beginning.

Joining us for this discussion are Gary Rice, Director at Interpolitan Ltd; Margot Orr, Global Masterplanning Lead at Atkins Acuity; and Jamie McKie from Dentons’ Planning and Public Law Team.

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 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.

Free-Standing Sustainable Development Assessment a Mistake

In Reigate and Banstead BC v SoS CLG [2017] EWHC 1562 (Admin), Lang, J quashed permission granted on appeal for development on greenfield land intended for release in the development plan only if needed to boost housing land supply (HLS).

The recently-adopted Local Plan provided for almost a 5 year HLS, constrained so as to be unable to meet full objectively assessed need (OAN). Despite its “urban area first” strategy, the Inspector worked on the basis that sustainable development should be approved in the absence of harm.  He found that there was not basis for dismissing it because the proposal would reduce the HLS shortfall against OAN over the plan period and would not significantly prejudice the spatial strategy given its scale (45 homes).

The authority challenged the decision on the basis that the Inspector had inverted the statutory requirement to determine the appeal in accordance with the development plan, subject to material considerations otherwise (s38(6) PCPA 2004).

The judgment identifies ten key propositions for NPPF14 cases, including:

  • The need to distinguish between local and national policies which describe what qualifies as sustainable development (e.g. NPPF 6, 7, 18 to 219) and policies that determine when a presumption in favour of such development arises.
  • That the NPPF 14 exhaustively defines when a presumption in favour of sustainable development can arise. There is no general presumption outside NPPF 14 (applying Trustees of the Barker Mill Estates v SoS CLG [2016] EWHC 3028 (Admin) and Cheshire East BC v SoS CLG [2016] EWHC 571 (Admin)). The Inspector could – in theory – have reached the same outcome by applying the s38(6) starting point but giving in efforts to close the OAN gap greater weight.  However, the judgment implies that in the absence of something significant – such as evidence that local housing stress had worsened substantially since the Local Plan was adopted – the decision would be have been doomed to the same fate.
  • One proposition seems out of kilter with the rest – that the NPPF14 presumption “does not extend to a proposal which conflicts with the development plan“. Although not relevant in Reigate, NPPF14 is explicit that the presumption does extend to such proposals where (1) the development plan is absent, silent or relevant policies are out‑of‑date and (2) any adverse impacts of granting consent would not significantly and demonstrably outweigh the benefits considered against NPPF policies in the round (and no specific restrictive NPPF policies apply – which should now include ‘related’ development plan policies following Suffolk Coastal District Council v Hopkins Homes Ltd & Onr [2017] 1 WLR 1865).

DCO Decision Confirms Heritage Approach

In R (on the application of John Mars Jones on his own behalf and on behalf of the Pylon The Pressure Group) v The Secretary of State for Business, Energy and Industrial Strategy [2017] EWHC 1111 (Admin), the High Court dismissed the judicial review of a Development Consent Order made under the Planning Act 2008 by the Secretary of State for Business, Energy and Industrial Strategy.  The Order authorised an overhead electricity line to wind farms following developer requests to connect to the network. The Claimant, whose Grade II* listed Tudor farm lay within 125 metres of the route, challenged the decision to make the Order on several grounds, including the treatment of heritage effects.

The Secretary of State was required to regard to two relevant policy statements under section 5 of the 2008 Act – Overarching National Policy Statement for Energy (EN-1) (“EN-1”) and the National Policy Statement for Electricity Networks Infrastructure (EN-5) (“EN-5”).  The policy statements together required careful consideration of the feasibility of alternatives to overhead lines and the protection of heritage assets. He was required to determined the Order application in accordance with them unless, among other things, satisfied that the adverse impact of the proposals would outweigh the benefits.  He was also required to have regard to the desirability of preserving listed buildings or their setting (under regulation 3 of the Infrastructure Planning (Decisions) Regulations 2010).

The Order was approved, on the basis that in the absence of substantial harm, there was no need for the disproportionate costs of undergrounding the cable section.

Dismissing the challenge, Lewis, J held on the main grounds that:

  • The  approach to heritage effects had been correct – identifying the scale of harm and then weighing the scheme benefits against, among other things, the heritage harm.
  • The regulation 3 duty had been complied with looking at the report and decision as a whole. There was no duty to consider alternatives not forming part of the Order scheme and the option of refusal had been properly considered.
  • Permanent extinguishment of private rights – despite the temporary nature of the Order -was not a principal controversial issue and did not require specific reasons to be given on it.
  • The fact that the weighing exercise was in a different part of the  part of the report to the assessment of heritage harm did not matter. It is worth noting that the limited (30 year) duration of the Order was accepted as minimising the impact on the setting of the listed buildings (being for period which would be insubstantial relative to the life of the buildings) and offering a sensitive approach to heritage effects.

Two become one

An examination of the current planning position on amalgamation of units. In recent years there has been a strong trend in the central London residential market for the creation of substantial residential properties through the reconversion of previously subdivided houses, the amalgamation of purpose-built flats or adjoining houses, and lateral amalgamation of units. As a consequence, there has been increased focus on decisions regarding amalgamation.

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