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Timely delivery for regeneration projects

man building a brick wallThe Winchester Silver Hill scheme was based on a development agreement between Winchester City Council and a developer for a mixed-use retail and residential scheme in the city centre.  While the principle of regeneration for Silver Hill was widely agreed, this scheme was bitterly opposed by some residents (and local businesses and landowners), primarily on the grounds that the design and mass of the development was inappropriate for the historic setting of Winchester’s city centre.

Here we consider some of the legal issues and challenges that local authorities can face as they attempt to regenerate their localities, taking lessons from this well-documented scheme.

Read the full article

This article was first published in the Solicitor’s Journal Half Year Review (June 2016).

Ready, steady… build!

On April Fool’s Day, we suggested – with a perfectly straight face – that the conditions may be in place for a return to the glory days of local authority house building.

Less than four months on, we find ourselves with:

  • a new Prime Minister;
  • a new Secretary of State for Communities and Local Government;
  • a new Minister for Housing and Planning,
  • a new London Mayor; and
  • a newly created Secretary of State for Exiting the European Union.

If a week is a long time in politics, a few months is a lifetime.

man building a brick wallAgainst a background of political instability, one thing has remained – the pressing need for more houses. It is an imperative which no amount of Ministerial reshuffles can dilute. Indeed, our new Prime Minister recognised the importance of addressing the “housing deficit” as part of her recent – and ultimately successful – leadership campaign.

Building sufficient homes to meet a growing need is a challenge that rests not only with the private sector. Local Authorities can – and must – play their part. In some cases, they may choose to go it alone, in others by working together with private sector partners.

With that in mind, we recently held a client seminar with Local Partnerships looking at barriers to local authority housing delivery and how these can be overcome in practice.

The central themes included:

Structures and approaches

From wholly-owned Local Development Companies to Local Asset Backed Vehicles, a multitude of options exist for Local Authorities answering the call to build. A wide menu of legal powers are available, with the chef’s speciality being the general power of competence in s.1 Localism Act 2011.

Naturally, given the nature of Local Authorities as creatures of statute, there are some inherent limitations on the use of those powers. Matters of vires, additional regulatory requirements and governance must all be addressed.

Nevertheless, successful innovation and housing delivery is certainly possible. Indeed it is happening in practice, with some notable examples.

Traps for the unwary

In what is a uniquely high risk environment for local authorities, legal challenges can come from several angles. The use of statutory powers, procurement processes and state aid issues all require careful consideration. The extent to which potential challenges can be anticipated – and mitigated – will be critical to avoiding costly legal roadblocks which could derail best laid plans.

Maximising the chances of success

Not all delivery vehicles will succeed. Clear objectives are essential from inception, allied to the capacity and commitment to deliver outputs over a sustained period of time. That commitment, in particular, must be secured at both officer and member level. Scale is also important – examples to date have seen relatively modest numbers delivered.

Transport and Works Act Order upheld in heritage case

high courtIn Whitby v Secretary for Transport & Ors [2016] EWCA Civ 444 the Court of Appeal has given its reasons for dismissing challenges to the Transport and Works Act 1992 (TWA) Order and related planning permission and listed building consents for the Ordsall Chord rail scheme.  The judgment confirms that the decision-makers are entitled to undertake a wide ranging balancing consideration when considering harm to designated heritage assets.

All in Order

The Secretary of State for Transport made the Network Rail (Ordsall Chord) Order under the TWA and directed that planning permission for the work to be deemed to be granted under section 90(2A) TCPA 1990. The Secretary of State for Communities & Local Government granted ten application for listed building consent (for demolition, partial demolition and alteration of affected listed buildings).  The Inspector and the two Secretaries of State were presented with an alternative alignment to that proposed in the Order.  The scheme was recognised as delivering significant public benefits (at a cost of substantial harm to listed buildings, their settings and the character and appearance of nearby conservation areas).  An alternative option would have avoided this harm, but damaged the regeneration potential of a key development area.

Heritage duties in play

In deciding whether to grant listed building consent and planning permission the Secretaries of State were required to have “special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses” under sections 16(2) and 66(1) of the Planning (Listed Buildings & Conservation Areas) Act 1990.  Effects on conservation areas fell to be considered in the same way (under section 72(1)).  Preservation means doing no harm, with “considerable importance and weight” to be given to avoiding such harm (Barnwell Manor Wind Energy Ltd v East Northamptonshire District Council [2014] EWCA Civ 137). The NPPF recommends that permission should be refused for any schemes that would lead to “substantial harm” to a designated heritage asset, unless there are substantial public benefits of doing so that outweigh the harm (or an absence of alternative uses and viability constraints combined with a beneficial end use of the site as part of the consent).

Working through the NPPF policies on heritage assets will generally allow an inference that the statutory duties have been properly taken into account (Jones v Mordue [2016] 1P&CR12).  The practice guidance in force at the time of the Inquiry suggested that there should be no other reasonable means of delivering the same public benefits (including through the useful alternative sites) where substantial harm is justified.

Alternative approaches

The Court held that the Inspector had clearly given considerable importance and weight to the desirability of preservation. Both the Inspector and the Secretary of State were also held to have taken the relevant NPPF policies into account.  Considering the case for the proposals and the harm they involved against the reasonable means of delivering similar public benefits (including through appropriate alternative sites with wider adverse effects) was entirely appropriate.   The ultimate test is whether having rigorously tested the harm it is considered necessary for the purposes of the wholly exceptional policy requirement.  The reasons why the alternative option was not appropriate had to be considered but this did not mean that the burden of proof had been switched to the objector.

The case confirms that whether alternatives that would cause lesser harm to heritage assets would themselves have significant difficulties or cause their own harm (whether to heritage assets or other planning interests) is a perfectly acceptable consideration in addressing the question of appropriate alternatives and the necessity for the harm to the assets. The weight given to the other harm relative to the heritage asset harm is a matter for the decision maker as long as he or she gives considerable weight to the statutory purpose.

Planning TV – Spotlight on Viability in Planning

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.

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In this episode of Planning TV we take a look at viability in planning. Stephen Ashworth (Dentons),  Alice Lester (PAS) and Anthony Lee (BNP Paribas) share their thoughts on this issue.

High Court allows relaxed view of needs on appeal

high courtThe High Court has adopted a flexible approach to dealing with ‘objectively assessed needs’ (OAN) on a planning appeal in Dartford Borough Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 649 (Admin). In considering an appeal against refusal of permission for housing, the Inspector had to decide whether the authority could demonstrate a 5 year supply of deliverable housing sites against OAN.  If not, NPPF policy recommends that restrictive local housing policies are supplanted by the presumption in favour of permission.

The Core Strategy included a ‘maximum’ housing delivery figure (based on environmental constraints) and a lower figure (at which active management of under-delivery would be needed). At the lower figure, the authority could show a 5 year supply. Neither the appellant nor the authority appear to have submitted OAN evidence, despite the ability to do so (West Berkshire District Council v Secretary of State for Communities and Local Government & Anor [2016] EWHC 267 (Admin)).

The Inspector found that the scheme merited approval regardless of the OAN position. He also explained that the authority was not likely to meet full OAN judged against the maximum housing figure and so applied the NPPF presumption. The authority challenged the decision under Section 288 of the Town and Country Planning Act 1990, on the basis that his reasons were inadequate (including why the upper figure was the correct measure of OAN). The High Court dismissed the challenge, on the basis that the upper/lower level figures provided a ‘context for assessing housing need’ and that nothing in the NPPF should prevent decision makers from being able to use a range of figures to assess whether there would still “be advantage in the grant of permission“.

The judgment purposively and pragmatically allows for range-based approach to assessing OAN where there is no real demographic evidence available on appeal, and emphasises the undesirability of appeal Inspectors being diverted into a statistical “sojourn in a garden of delights” on OAN.  Care is needed, though:

  • It does not address the situation where reliance on OAN is required to ‘switch off’ restrictive housing policies and engage the NPPF presumption.
  • It also recognises that “a more thorough analysis would have been required” in those circumstances, consistent with the finding in West Berkshire that the Inspector had to “identify an annual housing requirement in the district. If he failed to do so he would not have been able to identify whether the council was able to demonstrate whether it had a five year supply of housing land.”
  • The maximum figure the Inspector used for the upper limit of the OAN ‘range’ in Dartford appears to have been derived from a historic Regional Spatial Strategy policy set by reference to policy-based environmental constraints.  It is hard to reconcile this with the need to avoid OAN assessments being artificially limited by such ‘policy on’ considerations (St Albans City and District Council v (1) Hunston Properties Limited and (2) Secretary of State for Communities and Local Government [2013] EWCA Civ 1610).

You only get what you ask for – High Court confirms approach to unauthorised building immunity

In R (Waters) v Breckland District Council [2016] EWHC 951 (Admin) the High Court considered whether a planning authority determining an application for a Certificate of Lawfulness in relation to buildings constructed without permission had to consider the lawfulness of their use.  The agricultural operator applied only in respect of the lawfulness of the operational development not the use, and the Council concluded that the four year period for accrued immunity applied under Section 171B(1) TCPA 1990.

high courtThe claimant agreed that the Council should have taken into account that:

  • the erection of a building resulting in a material change of use of land is subject to a ten year – not a four year-time limit; and
  • that buildings which are an integral part of an unauthorised use may be liable to removal even if the buildings themselves become immune.

The High Court dismissed the claim on the basis that the law in relation to certificates distinguishes between operational development and use – applicants may specify both in any application. When dealing with an application for a certificate in respect of operational development only, planning authorities are therefore not under any duty to consider the use associated with them.  She distinguished cases dealing with enforcement against unauthorised changes of use where it is recognised that an enforcement notice may require buildings to be removed where they are an integral part of the unauthorised use (Murfitt v Secretary of State for the Environmental (1980) 40P&CR254).  It was relevant that the application for the certificate was for operational development only (and that the building/structures were not solely for the purpose of the alleged industrial intensified use relating to the wider lawful use of the site).  The claimants’ application to require the authority to issue enforcement proceedings also failed.

The key points are that:

  • Applications to regularise the status of new buildings should cover both operational development and the relevant use.
  • Where use is an issue, the ten year immunity period will generally apply.
  • Achieving a certificate for buildings does not rule out subsequent enforcement against the use itself (but is subject to the application of the principle of fairness and good governance that may preclude subsequent enforcement action, noted in Welwyn Hatfield BC v Secretary of State for Communities & Local Government [2011] UKSC15).

Neighbourhood watch

signNeighbourhood Planning remains a political priority and is one of the areas for which Planning Policy Guidance has recently been updated.  Following the Woodcock Holdings decision, relating to the Husterpoint and Sayers Common 2031 Neighbourhood Plan, the recommended approach to Neighbourhood Plans emerging before up to date Local Plans are in place has been clarified.

Already clear?

In Sayers Common, the Secretary of State dismissed an appeal despite his Inspector’s recommendation to allow it.  He concluded that the proposal would conflict with the Neighbourhood Plan, formally made after the Inspector’s report.  Permission was refused as the proposal would conflict with a requirement to enhance the existing settlement pattern, and was considerably in excess of the 30-40 dwellings the Neighbourhood Plan considered could be accommodated during the plan period.

However, this was quashed when Woodcock Holdings Limited successfully challenged the decision, on the basis that the Secretary of State had failed to identify the nature and extent of the conflict with the Neighbourhood Plan, had not applied the presumption in favour of sustainable development, the PPG guidance (that permission would seldom be refused for a pre-examination draft plan had not been complied with), and that the NPPF policy regarding weight to be afforded to an emerging plan had not been followed. The judgment did conclude that a neighbourhood plan could come forward ahead of a Local Plan, but the legal challenge was allowed on all grounds (see our blog on the detail).

Back to the future

The planning application has been re-determined by the Secretary of State, who again refused permission on the basis that it was not in accordance with the Local Plan or the now-made Neighbourhood Plan, to which he gave “careful consideration”.  He also gave the emerging Local Plan “very limited weight”, and reached the same conclusions regarding conflict with the policies as before.

As discussed previously in relation to the DLA Delivery Limited case, which challenged a Neighbourhood Plan prepared in accordance with an emerging local plan (rather than the existing expired core strategy), there has been debate on the treatment of Neighbourhood Plans which come forward in the absence of an up to date Local Plan.  Recent updates to the Planning Policy Guidance clarifies the Government’s position where a Neighbourhood Plan comes forward in advance of a new Local Plan. The Guidance states that:

  • Neighbourhood Plan policies “may become out of date, for example if they conflict with policies in a Local Plan that is adopted after the making of the neighbourhood plan. In such cases, the more recent plan policy takes precedence“.
  • communities may decide to update all or part of their Neighbourhood Plans where they have become out of date, which will require a fresh examination and referendum, putting a considerable burden on Neighbourhood Plan steering groups.

The best way to avoid this is to ensure that Neighbourhood Plan policies either do not interfere with meeting Objectively Assessed Needs or, more difficult where there is no proper assessment of needs on the table, that any restraint policies are consistent with maintaining a 5 year housing land supply. The PPG update does not suggest that a Neighbourhood Plan that is immediately out of date at adoption – because its policies thwart a 5 year Housing Land Supply – should be given more weight than the policy imperative to maintain housing land supply and meet OAN.

In Woodcock Holdings the relevant parts of the Neighbourhood Plan were held to be inconsistent with the NPPF in this sense and so unlikely to survive either examination or allow a finding of prematurity.  The latest Sayers Common decision does not explain how an out of date set of NP settlement policies could be given overriding importance relative to national policy requirements in that sense.

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.