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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.

Brexit: A week later

flagWhat are the likely effects of the Referendum decision on planning? The real answer is that nobody knows but here is a guess:

  • There will be more devolution to city regions. There is clearly a distrust of Westminster and “experts”. Expect to see devolution being set in more of a sub-regional framework.
  • Although there will be delays, the further drop in interest rates and the need for investment will mean more emphasis on new infrastructure. Now is the time for city regions to refine their infrastructure plans, making sure that they fit comfortably within the National Infrastructure Commission ambitions.
  • More of the investment will be outside London. London has succeeded in part because of the staggering levels of infrastructure investment that have been made. Other regions deserve their turn.
  • The planning system will not change.  There is no “European” element that can be stripped out. Much that is blamed on Europe is, in fact, common sense and best practice around the world. For example, does anyone seriously anticipate that we will not environmentally assess plans for large scale development proposals?  Similarly, we already have international and national commitments on climate change. Expect no change.
  • There will be some siren calls to put the brakes on housing delivery. It will be argued that, with lower levels of immigration, objectively assessed needs will fall. In reality, immigration is unlikely to fall significantly or soon. In fact DCLG figures already assume a material reduction. And, if successful in reducing immigration, the likelihood is that there will be a need to accommodate some of the Brits presently living in Europe.  Expect no change.

Perhaps the greatest effect will be that Parliamentary time will focus on managing the crisis and broader constitutional issues. Hopefully, that means that there will be less time for planning reform and we can all move calmly to a proper plan-led system of the type envisaged by the Local Plan Expert Group.  This should be supported by a slightly simplified CIL regime after the Review with a less febrile property market and one better balanced around the country.

Planning TV – Spotlight on Securing Affordable Housing and S106 Agreements

Planning TV - LOGO PURPLE BACKGROUND

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.

Here we take a look at the securing affordable housing through Section 106 agreements. Roy Pinnock (Dentons),  Tom Dobson (Quod) and Anthony Lee (BNP Paribas) share their thoughts on this issue. They also comment specifically on the end of Section 106BA which gave developers a right to ask councils to review housing obligations and Section 106BC gave a right to appeal against review outcomes.

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

 

 

Ready for Broadband?

Development projects will need to be ready to meet the EU Broadband Cost Reduction Directive (2014/61/EU) requirements this summer. The changes it requires have important implications for the development sector. Tracey Sheehan, partner in our Technology sector, explains the implications of the new directive.

Need for speed

TechnologyThe Directive sets out measures to enable and reduce the costs of deploying high speed broadband networks as well as improving in-building infrastructure.

These new rules must be implemented in the UK by 1 July 2016 and will be transposed by Building Regulations.

Broadband Ready Obligations

Any newly constructed buildings and those undergoing major renovation (for which a building permit application is submitted post 31 December 2016) must be ‘broadband ready’. That means:

  • buildings must be equipped with physical infrastructure (such as mini-ducts) capable of hosting high speed networks in excess of 30Mbit/s. This does not require the installation of cabling but will require an access point for necessary cabling;
  • developers of multi-occupancy buildings (new and major renovations) are required to provide an access point and ducting to each individual dwelling up to the network termination point;
  • communications access points and associated in-building infrastructure must be accessible to all communications network operators (under fair and non-discriminatory terms).

In implementing the new measures, the UK is entitled to allow for exemptions from the broadband ready obligations (e.g. where the costs would be disproportionate or in respect of historic buildings (i.e. listed or specific buildings in conservation areas), etc.)

Broadband Ready Label

To assist potential buyers and tenants, the Directive envisages the development by Member States of a “broadband ready” label for buildings. The label can be given both to buildings equipment with infrastructure and access points complying with the Directive’s standards.

Comment

The construction industry understands the significance of considering broadband connectivity at the outset of any development. The availability of connectivity will impact upon demand, marketability and rental income/price of any new major office, retail or residential development.

The new requirement to retro-fit in-building infrastructure where major renovation works are carried out is likely to have a much greater impact than the requirement for new buildings. We expect to see much debate in respect of what does or does not amount to a major renovation.

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.

‘Especial speed’ in judicial review

The Court of Appeal’s recent judgment in R(Gerber) v (1) Wiltshire Council and (2) Terraform Power Inc and Norrington Solar Farm Ltd is a blunt reminder on the importance of promptly filing judicial review applications.

Background

skThe claim concerned the grant of permission for a 22 hectare solar farm installation in Broughton Gifford. It was filed almost a year outside the relevant period.  The Council had complied with the statutory publicity requirements.  The High Court judge nonetheless granted an extension of time for bringing the claim.  The claimant owned the Grade II* Gifford Hall near the site. The developer advertised and held two public exhibitions before submitting the application.  The Council then publicised the application by posting newspaper, online and site notices (including at the end of the lane leading to Gifford Hall).

The claimant remained unaware of the application and so did not object. He only realised the site was being developed once works began and wrote to the Council to object to the impact on the setting of his property.  His complaint was rejected and he waited five months to file a claim for judicial review (by which time the developers had spent about £10.5 million installing the solar farm).

High Court decision

Despite the exceptional delay in bringing the claim, the High Court granted an extension of time and quashed the grant of planning permission. Dove J held that:

  • assurances given in the Council’s Statement of Community Involvement (SCI) had created a legitimate expectation that Mr Gerber would be personally notified of the planning application, which the Council breached.  The fact that he needed time to assimilate all the issues and the supposedly incomplete advice received from his first legal advisors was treated as a reasonable explanation for the delay in bringing the claim; and
  • he was required to quash the permission, given failures to consult English Heritage (as was), to properly deal with heritage impacts and to properly screen the application for EIA purposes.

Appeal decision 

The first instance decision led to concern that a planning permission was not “safe” even when the challenge window had passed. The Court of Appeal unanimously rejected this approach and the judgment makes clear that once planning permission is granted a developer is entitled to rely upon it.  There was no reasonable explanation for either the lengthy delay between the grant of permission and the claimant’s objection to the Council or his delay in bringing legal proceedings.

Gerber is nonetheless a blunt reminder that:

  • Compliance with statutory notice procedures is essential, but the Courts will rarely impose more onerous requirements based on legitimate expectation.  Care is needed to ensure that commitments in Statements of Community Involvement have been honoured though.
  • Prompt legal action to challenge the grant of planning permission is required in all cases, unless very special reasons can be shown.  Objectors who have been involved in the planning process throughout should act with “especial speed”.
  • Extending time for bringing a legal challenge should not be allowed simply because an objector did not realise what has happening, where statutory notice requirements are met.
  • Failure to deal properly with EIA and heritage issues can be fatal, where claims are brought in time. Even where there are acknowledged breaches of EIA and heritage duties, though, the effects of exercising the discretion to quash must be weighed up.
  • Quashing of a permission is a discretionary remedy.  The Court of Appeal did not need to decide whether the permission should have been quashed, but made clear that it would not have done so given: the significant delay in bringing the claim without good reason; the prejudice to the solar farm operator (including £1.5m to dismantle the development, plus the £10.5m invested in construction); the lack of real damage to the claimant’s own interests; and the need for good administration.  In a difficult political climate, investors may also take some comfort from the importance given to renewable energy development and investor certainty.
  • The longer the delay after the grant of planning permission the greater the risk and extent of hardship and prejudice to developers if the consent is subsequently set aside. Being able to substantiate the financial costs of development is essential to be able to rely on this prejudice.

Planning TV – Spotlight on the Plan Making Impacts of the Housing and Planning Bill

Planning TV - LOGO PURPLE BACKGROUND

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.

We take a look at the implications of the Housing and Planning Bill (now Act) for plan making. Jamie Mckie (Dentons) and Alice Lester MBE (PAS) highlight key issues and Lisa Fairmaner, Planning Policy Lead from Westminster City Council shares her thoughts on Planning Permission in Principle.

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:

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