Monthly Archives: March 2017


Handbrake turn on development plans for new homes


Dunsfold Airfield development public inquiry

Development plans to build 1,800 homes at the Dunsfold Aerodrome have been pulled over and questioned by the Communities Secretary Sajid Javid.

The plans to redevelop the Top Gear test track in Surrey to make way for new homes will now have to go to public inquiry.

The track is currently appearing in the 25th series of Top Gear, hosted by Friends star Matt Le Blanc alongside motoring journalists Chris Harris and Rory Reid.

The Dunsfold Aerodrome has been home to numerous celebrities and many of the world’s fastest cars due to its presence on the popular BBC motoring show since 2001.

The campaigners who opposed the development have taken the fight to the next level after securing that Communities Secretary Sajid Javid opted to ‘call-in’ the plans for a public inquiry. The plans to demolish the site as part of a move to build new homes were approved by Waverley Borough Council in December 2016, but campaigners have continued to fight over claims the local infrastructure cannot handle the extra population.

Julia Potts, leader of Waverley Borough Council, said she was “somewhat surprised and a little disappointed” at the setback, particularly given infrastructure commitments recently secured via negotiations with the applicant.

She added: “We need homes and we are going to need to look at developing near communities. This one ticks all the boxes.”

Supporters of the proposal said the 1,800 homes due to be built at Dunsfold, which make up the largest development planned in the borough for 100 years, are an essential part of the local plan for the area.

The planning proposal includes the following:

  • Around 50% of the 1,800 homes already planned for could be built in five years. If approved, it is intended that construction work could bring the first homes in 2017 with the new village finally completed in 10 years
  • The planning documents state that the main access to the site would be taken from the A281 via a new junction and access road with a bridge over the Wey and Arun Canal
  • The majority of homes proposed are two-bed, making up 40.6% of the development. This is followed by 31.1% being three-bed homes, 19.4% four-bed, and 8.9% one-bed
  • By 2019 it is projected that 332 homes would be built, as well as a one-form entry primary school
  • A year later in 2020 it is planned to have a further 221 homes, as well as a medical and community centre
  • A care home is planned to be built in 2022, with the primary school being extended in the same year
  • More homes and employment/business space would continue to be built over the following years
  • It is envisaged that the village centre would provide for the day-to-day needs of residents and local employees, minimizing the need to travel
  • The planning application states: ‘This village centre is within a 10-minute walk of all residential properties ensuring that it is accessible by walking and cycling’
  • Enhanced bus routes and a cycle route to Cranleigh will be provided for the development to encourage the use of sustainable modes of transport
  • The new development will become a sustainable location given the mix of uses proposed and improvements to transport infrastructure that will be delivered
  • Improvements to three local bus routes are also planned from Dunsfold Park-Guildford, Godalming-Dunsfold Park-Cranleigh and Cranleigh-Dunsfold-Horsham
  • Dunsfold Park is substantially a previously developed site, which is not at risk of flooding and is not physically constrained by archaeological, environmental, landscape or ecological issues, nor designated as green belt or an Area of Outstanding Natural Beauty
  • The site contains the borough’s largest employment area and represents a unique opportunity to co-locate a sustainable new settlement with a significantly enhanced employment site
  • Physically the site is large enough to comfortably accommodate the proposal and the Land Use Parameter Plan demonstrates how key assets such as the 250-acre country park will form an integral part of the scheme

The decision to call-in the application has been welcomed by Health Secretary Jeremy Hunt, who is MP for South West Surrey, and Anne Milton, MP for Guildford.

Mrs Milton said: “I remain concerned that local infrastructure cannot support a development of this scale in this location.” She added, “I am very aware that we need new homes and in particular for those on lower incomes. However, those homes need to be situated in the right locations where the infrastructure, or anticipated infrastructure improvements can support them.”

Bob Lees, Chairman of Protect Our Waverley, said: “We, and the thousands who protested against this proposal, are delighted. It is absolutely right that an independent view be taken of this application.”

When the development was approved in December, Top Gear fans were upset that the country was set to lose one of its most recognisable motoring venues.

There are over 250 airfields in the UK and some are used as motoring venues. Many of them have been re-purposed as housing, there are very few remaining for motorsport.

The Dunsfold development is parked up for now and we are happy to keep watching Matt Le Blanc on our TV screens until further notice! We will make a return journey to this article in due course…

If you need advice on planning or want to discuss anything that you have read on our website, please contact us today.

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Public land for housing – a government’s ambition


Public Land for Housing article

The role of the public sector cannot be underestimated…

Having just got back from attending events associated with the Chartered Institute for Housing Conference in Brighton this week, and in the knowledge of the political emphasis being placed upon housing delivery, the role of the public sector cannot be underestimated. Indeed looking back a 100 years or so, the public housing building programme delivered almost as much housing as the private sector and in such times the shortage of housing was not as prevalent as it is today, many have argued that the principle reason has been the reduction in the public house building sector. In this article, we are going to look at:

The DCLG Public Land for Housing Programme report 2017
• The government-owned body, Transport for London is to create 400 houses

The Department for Communities and Local Government (DCLG) published the first annual report on the Public Land for Housing Programme 2015 to 2020 on 20th February 2017. This report contributes directly towards the government’s ambitious housing programme for the 2015 to 2020 Parliament. Their ambition: To sell land for at least 160,000 homes by the end of March 2020.

The review of the Public Land for Housing Programme report…

Gavin Barwell – Minister of State for Housing and Planning began the document with his ministerial statement:

Increasing the supply of land for new homes is central to this government’s vision of a country that works for everyone. And as a major landowner the government has a crucial role to play in managing its estate more efficiently to secure best value for money for the taxpayer, boost growth and help support the building of new homes.

Here is a summary of the report:
• On the 30th September 2016, the total housing capacity of land either identified for sale or already sold was 145,492. This was 91% of the programme ambition. An increase from 119,928 (75% of the programme ambition) at the end of Year1, leaving land with the capacity for 14,508 homes (9%) unidentified at the end of the first six months of Year 2

Acting on the advice of the Public Accounts Committee and National Audit Office it had made several changes to its approach to delivery, including strengthening the evidence required to demonstrate planning certainty. In addition to that, it will also monitor the building of new homes on land sold in both the 2011-15 and current programmes to help demonstrate the programme’s contribution to boosting housing supply.
• From the period May 2015 – September 2016 all departments sold land with capacity for 13,817 homes. The Homes and Communities Agency sold land with the largest housing capacity (6,618 homes, or 48% of the total sold), followed by the Department of Health (3,516 homes, or 25%)

Departments cannot claim land as sold for housing for the purposes of the programme unless there was evidence of:
• A signed conditional contract, development agreement or building licence with a private sector partner or a freehold transfer having taken place (whichever is sooner)
• Planning certainty that the site would be developed for housing. This could be positive commitment or support from the local planning authority, inclusion in a local plan, outline planning permission or full planning permission

All land identified for the programme was assessed in terms of risks to successful sale within the programme timescales. As from September 2016 it is stated that:
• 42% was identified as ‘high’ risk (where one or more issues where were very unlikely to be resolved before 2020)
• 33% was ‘medium high’ risk (with several issues which could be resolved shortly or an issue which could take time)
• 24% of the land identified and not yet sold was rated ‘low’ or ‘medium low’ risk (having minor issues preventing exchange of contract before 2020 which could be resolved)

In Year 2, the programme focussed on action to address the risk that sites would not be ready for sale by 2020:
• Departments were encouraged to transfer sites to HCA and had moved 14 (capacity for 4,000 homes) by September 2016
• They continued to find more land as a priority to try to meet targets should they not sell high risk sites by 2020, the Department of Health had identified land with capacity for an additional 1,500 homes above target and HCA land with capacity for another 550 homes
• The government’s Accelerated Construction programme should help bring development forward faster

Nearly 950 sites were sold under the 2011-15 programme and over the course of both programmes, DCLG anticipates that over 2,000 sites will be sold.

How will progress of the government’s ambition be monitored?
An external contractor was being appointed to undertake an annual data collection exercise to show a site’s progress through the planning system, when on site construction started, and the number of homes started and completed each year. The next Annual Report will be published this August with more information on sites sold under the 2011-15 and 2015-20 programme. This will include the second half of Year 2 (October 2016 – March 2017) and thereafter annual reports will be published in July each year.

To read the full report, go to:

The TFL propose to utilise an RAF site in the borough of Greenwich to create 400 homes.
The government owned body Transport for London (TFL) have embarked on a housebuilding venture to raise funds. To work with a developer and housing association to build 400 homes in Kidbrooke. TFL is one of London’s biggest landowners, holding 5,700 acres across 3000 sites. If approved by the TFL’s finance committee, the Kidbrooke development – a former RAF site in the borough of Greenwich, will deliver the first homes from 2020, half will be classed as ‘affordable’. The site was previously part of an RAF base and was then used as operational land during the construction of the A2 road. It has since been largely unoccupied, apart from Henley Cross bus stop.

James Murray the deputy mayor for housing said that the mayor is determined to fast track more public land for development and to ensure at least half the new homes across TFL’s portfolio sites will be genuinely affordable. Also look out for our Girl on Train series starting later this year as this will be tracking development on and around TFL’s interests in London and beyond!

We follow the latest developments in government planning. To find out more about the TFL proposal go to:

Did you read the Housing White Paper 2017? Cast your eyes over our review, a four part series giving you the need to know information. Find out more here… 

How did the 2017 budget affect housing? Read the full budget here. 

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The Urbanissta Legal Beagle is on the case! (March 2017)


Legal Beagle

Welcome to the Urbanissta Legal Beagle’s case law reviews – we’re tracking the decisions on proposed developments to see what precedents have been set in recent judgements and decisions that might be useful to you, day to day.

We provide a summary of recent decisions for your reference below and via the links, or you can download the full decision letters should you wish. This is month two of our updates, so remember to keep any eye out for further iterations, in the weeks to come!

Giles AtkinsonThis month, our guest barrister, Giles Atkinson from 6 Pump Court Chambers has also provided a useful commentary on a recent appeal made against South Cambridgeshire District Council. He discusses the main issues raised in the appeal and how the outcome may be helpful to you, so we hope you find this interesting too.


1 Housing Shortfall Leads to grant approval for rural site

Land off Hitchin Lane, Clifton, Bedfordshire

Appeal ref: APP/P0240/W/16/3154829
Appeal Decision Date: 17th February 2017
Appellant: Gladman Developments
Respondent: Central Bedfordshire Council

The appeal was made under S78 of the Town and County Planning Act 1990 by Gladman Developments against the decision of Central Bedfordshire Council to refuse outline permission for up to 97 residential dwellings (including up to 35% affordable housing).

The appeal site is located outside but adjoining the development southern edge of the village of Clifton in Bedfordshire. The development proposals comprised of the demolition of existing outbuildings with the redevelopment of the site with 97 dwellings, landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation. All matters were reserved except for the main site accesses.

The Inspector considered the main issues to be:
• Whether the proposed development would provide a deliverable contribution towards the identified housing needs of Central Bedfordshire
• The effect of the proposal on the character and appearance of the area

Housing land supply & planning policy
It was agreed at the hearing that the council did not have a five-year supply of land and whilst there was disagreement about the exact figure for the council’s land supply, the Inspector concluded that the shortfall was significant regardless.

The Council’s policy which sought to restrict development in the countryside (Policy DM4) could not be regarded as ‘up to date’ and as such the proposals were assessed against paragraph 14 of the NPPF. The provision of 97 homes including 35% affordable was a matter that weighed significantly in favour of the proposals in accordance with paragraph 14.

The Council argued that to ensure the delivery of the proposed homes to meet the Council’s housing requirements the appellant should include a clause within their Unilateral Undertaking that obligates the developer to deliver the complete development within 5 years. However, there was no substantive Local or National Policy justification for such a clause. The appellant voluntarily proposed reduced timescales for the submission of a reserved matters application and the commencement of the development as a means of promoting early delivery of the scheme.

Character & appearance
The site is located outside of the development boundary but adjacent to it. The Inspector confirmed through a site visit that it is visible from local roads. He accepted that the site had local aesthetic value and development would have an effect on the open character of the appeal site. Views of the development however, would be largely contained by the existing residential properties on Hitchin Lane and the existing established hedgerows. It would have a minimal impact on the overall visual containment of the site.

Having reached the above conclusions, the Inspector states that the proposed development would result in moderate harm to the character and appearance of the area in conflict with Policies CS14, CS16, DM3, DM4 and DM14 of the CSDPD.

Planning obligations
The appellant at the time of the appeal agreed to provide obligations towards education, leisure, off-site sports contribution, highways and a contribution in relation to the improvement of public transport infrastructure to offset the effect of the proposed development. The Inspector agreed these met the tests of CIL Regulation compliance.

Traffic & noise
Concerns were raised regarding the cumulative effect of development on the local road network, however the Inspector was satisfied that any increase in traffic from the proposed development would not result in severe harm to highway safety. He was also not persuaded that the proposed development or its associated traffic would result in harm to the character or appearance of the Clifton Conservation Area.

Whilst the development was noted as being contrary to Central Bedfordshire’s Local Plan and would result in moderate harm to a rural location, the provision of 97 homes towards the Council’s supply of housing was given significant weight particularly given the Council did not have a five-year supply of land. The adverse impacts of granting planning permission were not considered to significantly and demonstrably outweigh the benefits of the proposed development.

Download Decision PDF here

2  420 Dwellings approved after flaws identified in Councils viability assessment

Land south of Winnycroft Lane and north of the M5 motorway

Appeal ref: APP/U1620/W/16/3149412
Appeal Decision Date: 24th February 2017
Appellant: Barwood Development Securities Ltd
Respondent: Gloucester City Council

The appeal was made under section 78 of the Town and Country Planning Act 1990 against the failure to determine the application within the prescribed period.

The appeal site comprises of 20 hectares of Grade 3B3 pastureland on the south-eastern edge of Gloucester. It is in Flood Zone 1. An application was originally submitted in September 2015. In December 2015 and again in April 2016, the Council resolved to grant planning permission subject to the provision of 20% affordable housing (amongst other matters). Following the lodging of the appeal against non-determination, the Council resolved (July 2016) to present evidence at the Inquiry and seek not less than 10% affordable housing with a review mechanism.

The Inspector considered the main issue to be the level to which the development should include affordable housing and whether there should be a review mechanism, in the light of the viability of the development.

The position of the parties
Both parties agreed that development should be approved. However, there was a disagreement over the affordable housing provision as well as details in the Unilateral agreement on contributions towards police and monitoring.

The Council wanted the Inspector to issue a ‘minded to approve’ letter, requiring the completion of a Unilateral Planning Obligation (UPO) seeking not less than 10% affordable housing. The appellants argued that the development was unviable if any affordable housing was included.

Policy context
The site is not covered by an adopted plan or emerging or adopted Neighbourhood Plan. It was not originally allocated in the Council’s emerging plan. However, it has been included in the main modifications of the Council’s Joint Core Strategy (JCS) as a strategic housing site. Due to affordable housing provision on one site being lower than expected, a 5% uplift within the plan area was applied. The key policy related to the viability is SD13 that seeks 40% affordable housing provision on sites of 10 or more, subject to viability.

The Inspector went into detail on viability, primarily because the Council’s view was that other developments in the area had provided affordable housing (to varying levels) and as such that a greenfield development of this scale must be able to provide affordable housing. The Inspector was critical of this approach as it did not equate to a proper consideration of the viability of the appeal scheme, given that no evidence about the other developments was provided. There was disagreement between the parties over:
• Revenue values and the issue of incentives
• Site coverage and unit sizes
• Cash flow and finance
• Abnormal costs

Revenue values
There was uncertainty regarding the Council’s per square footage which varied from £221/sq.ft to £212/sq ft to £233/sqft. The appellant’s position was £207/sq.ft and whilst the Council provided conflicting evidence, the appellants supporting material was consistent and evidence based. The Inspector supported the use of ‘comparable’ developments in close proximity and supported the appellant’s revenue figure.

Viability – site coverage & unit sizes
The parties broadly agreed the appropriate unit sizes for two and three bed units, but there was considerable difference in relation to the size of the four bed units. The Council’s error in calculating the coverage of four bed dwellings was significant resulting in a fall in revenue of £2.98m. This single error reduced the affordable housing potential by around 5% and significantly detracted from the Council’s position.

Viability – cash flow & finance
The delivery trajectory was not agreed by the parties. The appellant used a scheme-specific cost plan and cash flow whereas the Council used the default ‘S’ curve in the Argus software package. The Inspector went with the approach of the appellant to use a scheme-specific cash flow.

The Inspector cited several flaws in the Council’s approach including that the Council’s cash flow and lead in times, and too little cost being expended near the start of the development in comparison to the revenue apparently flowing from the sale of the units.

The Inspector was critical of the Council in that the cash flow bore little resemblance to the reality of scheme development. In contrast, the appellant’s appraisal demonstrated that the scheme could not sustain an affordable housing.

Affordable housing and police contributions did not meet the policy in paragraph 204 of the NPPF and were removed from the Unilateral planning obligation. The monitoring costs were necessary to make the development acceptable in planning terms.

The viability evidence showed the development could not support affordable housing. The Council’s approach of refusing development even if viability work shows affordable housing was considered contrary to the NPPF as the evidence clearly showed that the proposal should not include affordable housing.

Download Decision PDF here

3 Importance of design emphasised as appeal is dismissed on the basis that the scheme failed to deliver the high-quality design sought by National and Local Planning policies

Land at Gibraltar Farm, Ham Lane, Hempstead, Gillingham, Kent ME7 3JJ

Appeal ref: APP/A2280/W/16/3143600
Inspector’s report to SoS: 5th December 2016
Appeal Decision Date: 6th March 2017
Appellant: Messrs KD, JC & MC Attwood
Respondent: Medway Council

The appeal was made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission. It was however recovered by the Secretary of State for determination under Section 79 of, and paragraph 3 of Schedule 6 to, the Town and Country Planning Act 1990.

A public local inquiry opened on 4th October 2016 with the appellants appealing against the against the decision of Medway to refuse planning permission for the erection of up to 450 market and affordable dwellings together with provision of access, estate roads and residential open space, in August 2014. On the 4th August 2016, before the inquiry opened, the appeal was recovered by the Secretary of State (SoS).

The reason for the recovery was stated to be because the development involves proposals for residential development of over 150 units or sites of over five hectares…
“which would significantly impact on the Government’s objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities.”

The Inspector recommended that the appeal be allowed based on revised plans (subject to conditions) and the SoS agreed with the Inspector’s conclusions. The main issues were:

The Planning Policy position
The SoS agreed with the Inspector’s development plan policy, which seeks to restrict (housing) development in the open countryside. He also agreed that the Council does not have a five-year land supply and as such, given the advice in paragraph 49 of the framework, such restrictive policies should be afforded limited weight.

Housing land supply
The SoS and Inspector noted that the main parties agreed that a 5-year housing land supply cannot be demonstrated and the Council acknowledges a supply in the range of 2.21 to 2.79 years. Whilst the appellant thought this to be optimistic the Inspector indicated that it was sufficiently lacking and as such that greenfield land would need to be developed.
Character and appearance of the countryside which is also designated as part of the Capstone and Horsted Valleys Area of Local Landscape Importance (LLLI)
The SoS and Inspector agreed that the proposed development would harm the character and appearance of the immediate area and, therefore, failed to accord with the provisions of key policies, however such harm was considered insufficient to represent “a critical harm” to the function of the Capstone and Horsted Valleys ALLI taken. Furthermore, it was considered that the development plan policy supported development where the social and economic benefits of proposals outweighed the local priority to conserve the area’s landscape and in this sense the benefits were considered to weigh in the appeal schemes favour.

Whether there were other benefits of the scheme?
Significant weight was attached by the Inspector to the 25% affordable housing provision, as well as the economic benefits, open and children’s play space and biodiversity interests. The Secretary of State however agreed that the proposed landscaping/planting and New Homes Bonus Payments attracted little and no additional weight respectively.

In concluding, the SoS states that, “The overall positive balance for the economic and social strands of sustainability from the development contrast with the environmental role where there is clear harm to this area of countryside which is locally designated for protection. However, the development would not lead to coalescence between Lordswood and Hempstead or critical harm to the ALLI’s function…” resulting in the he sustainability of the appeal scheme alongside Local Plan polices being out of date due to land supply constraints, meant that this outweighed landscape harm and other harm. The “adverse impacts of the scheme do not significantly and demonstrably outweigh its benefits when assessed against the policies of the framework taken as a whole”.

Download Decision PDF here

4 Environmental harm outweighed by the benefits of the provision of affordable and market housing

Land and Buildings off Watery Lane, Curborough, Lichfield, WS13 8ES

Appeal ref: APP/K3415/A/14/2224354
Inspector’s report to SoS: 21st March 2016
Appeal Decision Date: 13th Feb 2017
Appellant: IM Properties Development Ltd
Respondent: Lichfield District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant Outline & Full planning permission.

Lichfield District Council refused outline planning permission in January 2014 for the removal of buildings and other structures and construction of up to 750 dwellings, primary school, care village, neighbourhood facilities to include retail development, community building, parking, comprehensive green infrastructure comprising formal and informal open space, footpaths, cycle ways, water areas and landscaping. New access points to Watery Lane and Netherstowe Lane and improvements to Netherstowe Lane (14/00057/OUTMEI).

The matter was recovered for the SoS determination on 24th September 2014 due to the size of the development.

The Inspector considered the main issues to be:
• Highways
• Landscape
• Trees and hedgerows
• Views of Lichfield Cathedral
• Housing supply
• Biodiversity
• Special Areas of Conservation (SACs)

The SoS disagreed with the Inspector’s recommendation to refuse planning and the appeal was allowed and permission was granted.

Highway matters
The SoS decided that permission should not be refused on the grounds of transport. It was agreed that the distance for walking and cycling were longer than desired. However, it was noted that the appeal site was better placed than most in the area and as such, appropriate transport provisions could overcome this issue.

Character and appearance
The Inspector agreed that the impact would be negligible given the size of the LCA. Immediate impacts were key to the weight that contributes to the harm of the landscape character. Secondly, the assessment of harm in the LVIA undervalued the impact of the proposal at the more immediate and localized level. The methodology adopted in the LVIA lead to an under-estimation of visual impact. The SoS, however, when allowing the appeal, noted that the landscape and visual harm from development should not weigh heavily against the appeal proposals.

Trees and hedgerows
The SoS agreed with the Inspector that the method adopted to conserve the historic hedgerows during translocation was a poor option. The visual character however, will not be affected but it was noted that veteran trees would be harmfully diminished. The SoS concluded in agreement with the Inspector that there would be harm to the ancient hedgerow along the west side of Netherstowe Lane, albeit, modestly harmful. It was noted that these could only be retained if very limited works to widen the road were carried out.

(Curborough Grange) Grade II listed building
The SoS agreed that ‘harm’ was presented to the setting of the Grade II listed Curborough Grange Farm House. The farmland setting was considered an important aspect to convey the original function of a working farm. However, it was noted that it was no longer used for that purpose and other farmstead buildings have been converted to dwellings. Any harm was ‘less than substantial’.

Views of Lichfield Cathedral
The SoS agreed with the Inspector in that any development which allows views towards the Cathedral would conflict with Policy CP14 however, given the lack of definition as to what ‘important views’ constitutes, significant weight could not be attached to this objection. It was noted that the harm would be so slight that it would barely cause any harm at all to the significance of the Cathedral as a listed building. However, the SoS gave considerable weight to the ‘slight harm’ of the setting due to the desirability of preserving the setting of the Cathedral. As this ‘harm’ was considered ‘less than substantial’, paragraph 134 of the Framework applied.

Housing requirement
The SoS disagreed with the Inspector and concluded that the local planning authority could demonstrate a 5-year supply with ‘a surplus of 307 dwellings’. Paragraph 49 of the Framework was not engaged and it was noted that the relevant policies of the development plan were ‘up to date’.

It was agreed that as there were no compelling objections on the grounds of biodiversity, this could be subject to suitable conditions.

Special Areas of Conservation (SAC)
The SoS agreed with the Inspector in that the proposal lacked any hydrological connection with the River Mease SAC and the Cannock Extension Canal SAC, as such, the proposal would have no likely significant impact.

In respect of the Cannock Chase SAC, it was considered that an appropriate assessment would be required as the SoS held the view that there would be likely significant effects of the proposal. It was highlighted that mitigation measures would suffice to prevent any adverse effects to Cannock Chase SAC.

In summary, the SoS concluded that the appeal scheme was not in accordance with the development plan and conflicted with Core Policies and Policies NR3, NR4, NR5 and BE1 of the adopted Local Plan Strategy, Policies DC1, DC1 or H3, E3 and E18B, and Core Policies 14 and C1 of the Lichfield District Local Plan 1998. Modest weight was given to landscape and visual harm from development. The SoS gave considerable weight to the setting of Curborough Grange and Lichfield Cathedral, albeit that any harm was considered ‘less than substantial’ for the purposes of paragraph 134 of the Framework. Considerable weight was also given to the loss of veteran trees and ancient hedgerows due to the damage that would be sustained by widening the roads.
The above issues however were weighed against the social and economic benefits of providing affordable and market housing. Despite the Council meeting their 5 year land supply target, significant weight was given to the benefits of the provision of affordable and market housing. The SoS considered that this outweighed any environmental harm and the proposal would represent sustainable development.
In light of the above, the appeal was allowed.

Download Decision PDF here

5  Those seeking to challenge the grant of permission will have a strong ground to argue that the permission is unlawful on the basis of the absence of reasons

High Court
Case No: C1/2016/1456
Date: 15th February 2017

Our guest barrister, Giles Atkinsons takes us through a recent appeal made against South Cambridgeshire District Council (SCDC). The appeal raises the issue of whether SCDC ought to have given reasons for granting planning permission for the development by Cambridge City Football Club, a semi-professional club, of a football stadium capable of seating three thousand people in the outskirts of Sawston in Cambridgeshire, on land which is part of the Green Belt.

Giles highlights that under DMPO 2014, Article 35, not only are LPA required to give reasons for refusing planning permission but also must give reasons for any conditions that it imposes if it grants permission.
“35—written notice of decision or determination relating to a planning application
(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters
(a) Where planning permission is granted subject to conditions, the notice must state clearly and precisely their full reasons
(i) For each condition imposed
(ii) In the case of each pre-commencement condition, for the condition being a pre-commencement condition
(b) Where planning permission is refused, the notice must state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision”

The Council’s Senior Planning Officer produced a detailed report on 4th June 2014 and recommended that the permission be refused for a stadium on Green Belt land. The Planning Committee met to consider the application and rejected the officer’s recommendation. The development was accepted in principle and subsequently permission was granted. The decision notice did not explain why permission had been granted.

The member’s decision was challenged in the High Court on the grounds that the failure to give reasons for the grant of permission in these circumstances was contrary to a common-law obligation to do so. The High Court challenge was unsuccessful so the appellant appealed to the Court of Appeal. The appellant succeeded in the Court of Appeal for the reasons set out below.

The main issues considered were:
• Was there a duty to provide reasons?
• Did the failure constitute as a breach of the common law duty to give reasons

There appears to be one glaring omission from the Regulations, which is the duty to give reasons for granting permission. The government did experiment with including this as a requirement between 2003 and 2013, but this was removed. There, it seemed, the matter rested.

In Oakley v South Cambs however, the Court of Appeal considered the circumstances under which an LPA may nevertheless be required to give reasons under common law when granting permission.

The appellant succeeded in the Court of Appeal and it is useful to consider the Court’s reasoning in this case which could have wide implications.
Essentially two arguments were made by the appellant.

First, it was argued that reasons should always be given for planning decisions, including the decision to grant permission, unless it is obvious from publicly available material (primarily the officer report) how the decision has been reached. Clearly, when members reject their officer’s recommendation, as happened in this case, it will be harder to infer their reasoning than in a case where the officer recommendation is followed. So, although the fact of a decision being a ‘member overturn’ is not itself usually likely to give rise to a duty to give reasons, it may be relevant in supporting a conclusion that reasons should be given.

Elias LJ was ‘strongly attracted’ to this first argument and in the Judgment, sets out 6 reasons why. However, in the end he did not determine the case in accordance with the first argument because he found the duty to give reasons arose in accordance with the second argument. He said (at para 55) of the Judgment:
“For these various reasons, I am strongly attracted to the wider submission advanced by Mr Simons (Counsel for the Appellant). It would not mean that any busybody could seek reasons where permission is granted. The rules of standing ensure that only those who have a proper interest in doing so can challenge a decision. However, I would not decide the appeal on this broad principle. The courts develop the common law on a case by case basis, and I do not discount the possibility that there may be particular circumstances, other than where the reasoning is transparent in any event, where there is a justification for not imposing a common-law duty. It is not necessary for me to rely upon the broad argument because in my judgment the duty arises under the alternative argument.”

I turn to the second argument in a moment, but it seems to me that the level of support from the Court for the first argument may well be enough to have opened the door to this area of law. The consequence will be that LPAs may increasingly begin to give reasons when granting planning permission and those seeking to challenge LPAs’ decisions will increasingly ask for them when reasons are not given.

The second argument was that the nature of this particular decision required reasons to be given. This was a decision that was both contrary to the development plan and allowed development in the Green Belt, which enjoys a particular measure of protection in planning policy. Essentially it was argued that because of these conflicts the decision to approve the proposal requires explanation in the shape of reasons. The Court agreed (per Elias LJ at para 60):
“The decision in this case involved development on the Green Belt and was also in breach of the development plan. Public policy requires strong countervailing benefits before such a development can be allowed, and affected member of the public should be told why the committee considers the development to be justified notwithstanding its adverse effect on the countryside. In my judgment these considerations demand that reasons should be given. Even if there are some planning decisions which do not attract the duty to give reasons, there is in my judgment an overwhelming case for imposing the duty here.”

Again, in respect of this second argument, the fact of the decision being a ‘member overturn’ does not itself give rise to the requirement to give reasons – but it supports that conclusion. Without them, the member’s reasoning would remain obscure and the fact that the members take a different view on such important matters needs to be explained.

Necessarily the second argument upon which the appeal succeeded is specific to the facts of the Oakley case. Different facts in different cases may lead to a different conclusion. But in general it may be said that when a member overturn amounts to granting permission for development, either contrary to the development plan or in the Green Belt, the LPA must expect to give its reasons for doing so. It may be that LPAs will as a result of this decision of the Court of Appeal issue their reasons as a matter of course. If they do not, those seeking to challenge the grant of permission will have a strong ground to argue that the permission is unlawful on the basis of the absence of reasons.

Download Decision PDF here

6 Javid Approves 350 Dwelling Scheme in Lancashire

Land off Lytham Road, Warton, Lancashire

Appeal ref: APP/M2325/W/15/3004502
Appeal decision date: 23rd January 2017
Appellant: Warton East Developments Ltd
Respondent: Fylde Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to determine an application within the prescribed period. The application was recovered by the Secretary of State on 12th February 2016 as the appeal related to proposals for residential development over 10 units in an area where a qualifying body has submitted a Neighbourhood Plan.

The site lies to the north of Warton and is approximately 12.78 ha in extent. The proposals were for 375 dwellings with access secured, subsequently changed to 350 dwellings. The application was not determined by the Council as they were choosing to wait for a decision on a scheme close to the appeal site. The Council heard a duplicate appeal in July and this application was also refused against the recommendation of the Council officer.

The reporting Inspector considered the main disputed issues to be:
• The effects of development on the character of Warton
• The capacity of the highway network to accommodate the cumulative effects of development in Warton
• The suitability of Warton as a location for residential development in terms of air quality and the effects of the proposals on the demand for and supply of housing

Planning policy
The Development Plan ran up to 2016 and as such was considered out of date. The site is within a designated countryside area and Policy SP 2 would not permit development in countryside areas. This policy was not referred to in the putative reasons for refusal at appeal or in the Statement of Common Ground. The Bryning-with-Warton Neighbourhood Plan (BWNP) was submitted to Fylde Council on 23rd September 2014. It proposed including the entire appeal site within a new settlement boundary, however the Neighbourhood Plan has not progressed further since the publication of the Examiner’s report in April 2016.

Habitats Regulations Assessment
The appeal proposal would be unlikely to have a significant effect on the designated sites either alone or in combination provided the conditions as proposed by Natural England to secure mitigation were imposed.

The character of Warton, its services and facilities
It was accepted that the appeal proposal contravenes Local Plan Policies SP1 and SP2 which set limits to development for Warton, however these policies were considered out of date. The Secretary of State accepted the Inspector’s conclusion that the proposals complied with Local Plan Policy HL2 (1) which requires housing developments to be acceptable in principle.

The highway network
The Secretary of State accepted that with the recommended conditions, the proposed development would not cause the capacity of the highway network to accommodate the cumulative effects of development in Warton to be exceeded.

Air quality
The appeal proposal would accord with Local Plan Policy EP26 which would not permit development which would give rise to unacceptable levels of air pollution.

All main parties agreed that the Council did not have a five-year supply. The site represented the equivalent of a year or nearly a year’s requirement, and would clearly represent a highly significant contribution to housing land supply in the Borough. The proposal accorded with the Council’s requirement to supply 30% affordable housing.

Sustainable development economic
The Inspector concurred that even though the site is not located in a town centre, it would enhance or maintain the vitality of a rural community. The proposal scored moderately well in terms of accessibility to local services and agreed that development was located in the right place.

Both the Inspector and the SoS agreed that the site made a highly significant contribution to housing land supply in the borough. Whilst the scheme was in outline, there was no suggestion that there was any inherent obstacle to a good result. The site also scored moderately well in terms of their accessibility to local service.

The Inspector noted that the development of a greenfield site does not protect the natural environment as presently existing but, because the sites are of lesser environmental value, the harm from their loss is also lesser. The SoS accepted the conclusions that given the mitigations and enhancements which could be achieved through conditions, the development of this appeal site would only be moderately adverse.

Planning balance
Given that policies for the supply of housing are out of date, paragraph 14 of the Framework was engaged and permission should be granted unless the adverse impacts of so doing would significantly and demonstrably outweigh the benefits when assessed against policies in the Framework, taken as a whole, or specific policies in the framework indicate that development should be restricted. This was not the case in this appeal.
Download Decision PDF here

7 Javid approves 115 dwelling scheme in Lancashire

Land at Clifton House Farm, Warton, Lancashire

Appeal ref: APP/M2325/W/15/3141398
Appeal Decision Date: 23rd January 2017
Appellant: Hallam Land Management
Respondent: Fylde Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a failure to determine an application within the prescribed period. The application was recovered by the Secretary of State on 12th February 2016 as the appeal related to proposals for residential development over 10 units in an area where a qualifying body has submitted a Neighbourhood Plan.

The site is 3.74 ha in size and proposes of up to 115 dwellings. The Council heard a duplicate appeal in July and this application was refused. Immediately before the Inquiry commenced, agreement was reached between the Council and the appellant on most outstanding matters.

The reporting Inspector considered the main disputed issues to be:
• The effects of development on the character of Warton
• The capacity of the highway network to accommodate the cumulative effects of development in Warton
• The suitability of Warton as a location for residential development in terms of air quality and the effects of the proposals on the demand for and supply of housing in the local housing market area

Planning policy
Policy SP 2 of the development plan would not permit development in countryside areas, however the Development Plan which ran until 2016 was considered out of date. It was agreed that Policy SP2 was met. The Bryning-with-Warton Neighbourhood Plan (BWNP) proposed defining a new settlement boundary including the entire appeal site but the Plan has not progressed further since the publication of the Examiner’s report in April 2016.

Habitats Regulations Assessment
The Inspector noted the development would not result in a significant increase in recreational disturbance. As a precautionary measure, a visitor’s pack was recommended to be prepared and made available to future homeowners, highlighting the sensitivity of the protected sites to recreation and highlighting alternative recreational opportunities in the vicinity.

The character of Warton, its services and facilities
The submitted conventional Landscape and Visual Impact Assessment concluded that although there would be a loss of greenfield land the impact on the landscape would be minor. The proposal was considered to comply with Local Plan Policy HL2 (1) which requires housing developments to be acceptable in principle.

Highway Network
The Secretary of State accepted that with the recommended conditions, the proposed development would not cause the capacity of the highway network to accommodate the cumulative effects of development in Warton to be exceeded.

Air quality
No issues were raised in respect of air pollution.

In light of uncertainties regarding delivery, the Inspector noted that the site represented a highly significant contribution to housing land supply in the Borough. The SoS noted that the proposal accords with the Council’s requirement to supply 30% affordable housing.

Sustainable Development- economic
The SoS agreed that the proposal scores moderately well in terms of accessibility to local services with good access to public transport. The Site is located in the right place as it would either enhance or maintain the vitality of a rural community.

Sustainable Development -Social and Environmental
Both the Inspector and SoS agreed that the site makes a significant contribution to housing land supply in the Borough. Environmentally, the SoS considered that mitigation and enhancement could be achieved through conditions and as such, the development of the appeal site would only be moderately adverse.

Planning Balance
The SoS considered that give policies for the supply of housing were out of date, the Council did not have a five-year land supply and as such, paragraph 14 of the Framework was engaged. With planning obligations in place the appeal proposed complied, or could be made to comply by condition, with all other Local Plan Policies. Permission was granted as the adverse impacts of so doing did not significantly and demonstrably outweigh the benefits when assessed against policies in the Framework.

Download Decision PDF here

8 Passivhaus no Longer Justifies Paragraph 55 Development

Land opposite 1-10 Disraeli Road, Rayleigh

Appeal ref: APP/B1550/W/16/3159712
Appeal Decision Date: 3rd March 2017
Appellant: Mr Steve Mitchell and Peter Spicer
Respondent: Rochford District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission for two detached passivhauses.

The appeal site comprises an area of open paddock land on the outskirts of Rayleigh. The site is within the Green Belt. The area is described by Inspector D. M. Young BSc (Hons) MA MRTPI MIHE as ‘unmistakably rural’.

The Inspector considered the main issues to be:
• Whether or not the proposal is inappropriate development in the Green Belt for the purposes of the National Planning Policy framework (the framework). The effect of the development on the openness of the Green Belt
• If the proposal is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development

Green Belt
Paragraph 89 of the Framework states that construction of new buildings in the Green Belt is inappropriate subject to some exceptions. The Inspector considered that the development proposals failed to meet any of the stated exceptions and is inappropriate development and should not be approved except in ‘very special circumstances’.

The effect of the development on the openness of the Green Belt
The land is identified as open land and contributes to the rural setting to the north of Disraeli Road. Whilst there was some screening in the form of woodland areas, the dwellings would have a prominent location and would be visible from Disraeli Road. The introduction of two dwellings was considered to have the potential to completely change the character of the land. The introduction of domestic boundary treatments, hard surfaced driveways with attendant vehicles would all significantly erode the openness of the Green Belt.

If the proposal is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development.
The Inspector was not convinced that the development was a Paragraph 55 case as it was not isolated dwellings in the countryside. In terms of innovative design, the principles of the Passivehaus movement were not considered to be truly innovative, as these are becoming commonplace. The contemporary appearance of the dwellings would be aesthetically isolated from the modest traditional dwellings on the south side of Disraeli Road, compounded by the bulk and mass of the dwellings which would be decidedly different to anything else in the vicinity. The Inspector noted that the scheme included sustainable drainage measures as well as ecological and landscape enhancements however, these were afforded only modest weight.

The appeal was dismissed because the development would harm the openness of the Green Belt which carries more weight than the modest benefits arising from the proposed ecological/landscape enhancements. These other considerations clearly do not outweigh the identified harm. No very special circumstances existed to justify the development.

Download Decision PDF here

9 Previously collapsed property undermines development potential on seafront

64-65 Central Parade, Herne Bay Kent CT6 5JQ

Appeal ref: APP/J2210/W/16/3160821
Appeal Decision Date: 3rd March 2017
Appellant: Sarjanda Ltd
Respondent: Canterbury City Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.

The proposed development was to demolish the remaining existing building and erect a block of 14 apartments and commercial unit to ground floor with bin and cycle stores.

Main issue
The effect of the proposal on the character and appearance of the Herne Bay Conservation Area.

Impact upon conservation area
Planning permission was granted in 2007 for the change of use of the ground floor to a restaurant, a new shop front, and the extension of the building to provide nine flats. During subsequent conversion works, the building partially collapsed and the remainder was subsequently demolished for safety reasons. The site remained vacant since. The original building comprised a commercial use on the ground floor with residential accommodation above.

The Site is located within the Herne Bay Conservation Area and so special attention was needed to the preservation and enhancement of such, as established by National and Local Plan Policy. Being in a prominent sea-front location opposite a seating area and close to the Grade II Listed Herne Bay Clock Tower. The rear of the site is clearly visible.

Overall the terrace of properties in which the appeal site is located, was considered to have a “slightly neglected appearance” with the appeal site further detracting from the character and appearance of the conservation area. The existing architectural styles are however quite consistent and uniform. The appeal proposals sought to emulate the sea-front more contemporary, architecture within the conservation area. This was not objected to in principle by either the Council or Inspector. However, the design of the proposed development was not considered to represent good design.

Quoting para 60 of the NPPF the Inspector indicated that, “It is clear that planning policies and decisions should not attempt to impose architectural styles or particular tastes and they should not stifle innovation, originality or initiative through unsubstantiated requirements to conform to certain development forms or styles…. and that whilst design policies should avoid unnecessary prescription or detail, they should concentrate on guiding the overall scale, density, massing, height, landscape, layout, materials and access of new development in relation to neighbouring buildings and the local area more generally. It also confirms that it is proper to seek to promote or reinforce local distinctiveness.”

The contemporary flat road element building levels and relationship between the existing proposed development would introduce “a prominent and discordant feature to the terrace and detract from its appearance as a whole”. The scheme was therefore considered to maintain local distinctiveness.

The proposals failed to deliver the high-quality design sought by National and Local Planning Policies and whilst it was accepted that in its present condition the appeal site detracted from the character of the conservation area, such harm was localised and short term, whilst due to its scale and visual prominence, the appeal proposals were considered to have a, “more enduring and widespread effect on the conservation area.” and should therefore be refused. The appeal was dismissed.

Download Decision PDF here

10 Development in the Green Belt with the potential to bring in social and economic benefits dismissed on the basis that an exceptional circumstance could not be demonstrated

Queens Park Road, Billericay, Essex CM12 0SP

Appeal ref: APP/V1505/W/16/3160138
Appeal Decision Date: 27th February 2017
Appellant: Mr Peachey – Basildon Group Ltd
Respondent: Basildon District Council

The appeal is made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant outline planning permission.

The proposal was for residential development comprising 13 market houses and 6 affordable apartments at Stock Brook Manor Golf and Country Club, Queens Park Road, Billericay, Essex CM12 0SP.Mr Peachey (Basildon Group Ltd) appealed against the decision of Basildon District Council to refuse outline permission.

The Inspector considered the main issues to be:
• Whether the harm by reason of inappropriateness to the Green Belt, and any other harm, is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development

The Inspector dismissed the appeal as the proposed development could not demonstrate an exceptional circumstance.

Green Belt
It was agreed by the parties that the proposed development did not fall within the examples set out in Paragraphs 89 and 90 of the framework whereby a development is not inappropriate. It was therefore considered that by definition, the proposed development was an inappropriate development in the Green Belt. It was noted that the proposed development would erode the openness of the Green Belt even if the proposed dwellings were adequately and appropriately designed and landscaped.

The Council fell significantly short of the five-year housing supply with only 2.8 years supply however, it was considered that although the proposed development would make a contribution to the shortfall and bring in social and economic benefits including the provision for affordable housing – this however, would not outweigh the harm to the Green Belt.

Considering the above, the appeal was dismissed.

Download Decision PDF here

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‘Step into my office’ with Jo Hanslip – coffee and a White Paper


I’m sitting in my office in a comfy chair with a pretty comprehensive 104-page Housing White Paper in front of me. Two coffees and a muffin later – I finish the last page of the document that was finally released on the 7th February!

I was interested and slightly disheartened to see a raft of additional supplementary documents also for review, including:

As such I knew I had quite a lot more reading to go!

All of that information was a lot to take in and a lot to sift through. So, I have decided to pass on a few thoughts in relation to the White Paper and what it means for us planners and developers. I’m going to follow this up with what I hope is an insightful summary of some of the supporting technical documents.

If you don’t have the time to read all the essential documents listed – call me. I will give you a quick synopsis and fill you in on the need to know aspects!

I do sense changing times in the media and political rhetoric in relation to the emphasis placed upon the need for additional housing, especially in a post – Brexit era where the construction industry has the potentially significant role to play in supporting the UK economy going forwards – if it was not already important! This is especially true if the recent Budget is anything to go by! As such the principals underpinning the White Paper can only be welcomed. The question will be the timescales and scale in which the ideas and initiatives proposed take to become reality.

We note that there are significant proposals to review the NPPF and Regulations as well as several consultations proposed, such as:

  • Amendments to the tests of ‘soundness’
  • Consideration given to the standardisation of the methodology for calculating land supply
  • Clarification of the presumption in favour of sustainable development
  • A 5-year review of Local Plans
  • Variation to General Disposal Consent, allowing LPAs to dispose of land without SoS approval
  • Power of direction to require Local Authorities to work together and revisions to the HM Land Registry
  • Revised definition of affordable housing

As so often is the case, ‘the proof will be in the pudding’ as to how such measures are brought into force and the period over which debate and discussion takes place on matters which so often, result in highly politicised discussion at a local level. We must hope that the Government’s intention to deliver on its promise is a strong, and implementation is effective.

There is scope for optimism if the Housing and Planning Minister Gavin Barwell’s recent comments at a speech to the CPRE on the 20th February noting that the links between the CPRE and the department rightly, remained strong, and noting that highlighting that CPRE’s input had been taken on board, issues such as: the protection of the green belt, opposition to speculative development and its insistence on community involvement in planning and design.
Importantly however, he then indicated that whilst the Department had listened to CPRE’s concerns, and adopted many of its ideas, the Department now asked the CPRE to reciprocate with ‘positive and practical support for new homes built in the right places’.
He continued stating that the DCLG ‘counted the CPRE as a friend, because friends could occasionally disagree, they could also have honest conversations and Britain urgently needed to have an honest conversation about housing because the lack of affordable homes was one of the greatest barriers to progress the country faced’.

He indicated that there was a growing consensus about the need to build more homes. This emphasis on the need for delivery of housing and clear political pressure on the CPRE will I am sure not change the CPRE’s position greatly, but I am convinced will show the political focus on housing delivery, might just change the degree of regard had to ‘NIMBY” lobby….

Finally, if you had not read enough already, or perhaps just want to pick up some CPD points, we have summarised three of the more significant consultation documents for your review. We have created 3 summaries on the following consultation documents:

1. Build to Rent – download PDF: Document 5
2. CIL (this is 3 documents) – download 3x PDF: Document 1 | Document 2 | Document 3
3. Starter Homes – download PDF: Document 7

In addition, there are three other documents that we don’t need to summarise but simply provide reference to and offer the link to download the material.

  • Neighbourhood Planning – download PDF: Document 7
  • Rural planning Review Call for evidence – download here: Document 8
  • NPP consultation – download here: Document 6

Summary 1: Build to Rent Consultation 

A consultation paper on Planning and Affordable Housing for Build to Rent was published alongside the White Paper and seeks to make a positive contribution to affordable housing by promoting “family friendly” tenancies of 3 years and longer. The government now intends to revise the NPPF to explicitly make reference to this form of housing so that Local Authorities can consider them when developing local plans.

What are the benefits of Build to Rent housing?

  • Boost housing supply
  • Speed of bringing housing units to the market
  • Quality and choice in the PRS
  • Investment appetite

What are the potential barriers?

  • Policy uncertainty
  • Teething issues
  • Marginal financial viability and unpredictability of planning outcomes

What are the key proposals and considerations?

  • Build to Rent has not yet been formally defined. There are currently ongoing discussions on the size, tenancy length, management and ownership and typology. Although there have been suggestions for the government to include a covenant in relation to the minimum renting period, the government however, is not minded to include a minimum covenant period in the definition
  • The government has introduced a “claw-back” agreement should a developer switch out of the Private Rented Sector and into other tenures. The arrangement would enable developers or owners to change use at any stage provided they make an appropriate contribution towards affordable housing provision in the area
  • The paper seeks views on Affordable Private Rent, a new form of affordable housing, in place of other forms of affordable housing on Build to Rent schemes. There is a proposal that Affordable Private Rent requirement should be set at 20% of a site, with the minimum discount being 20% of market rent in perpetuity
  • Determination of eligibility and nomination criteria for Affordable Private Rent (APR) to negotiation will be decided between developers and LPAs
  • The following suggestions have been proposed, however the paper notes that the government has no plan to consult, or to implement them:
    • Permission in Principle in favour of Build to Rent schemes meeting certain characteristics
    • Presumption in favour of Build to Rent schemes meeting certain characteristics
    • Permitted Development Rights for Build to Rent schemes meeting certain characteristics
    • Creation of a restrictive zone or specific planning use class for Build to Rent

Summary: 2 A New Approach To Developer Contributions

A report by the CIL review team, submitted October 2016.

The Community Infrastructure Levy (CIL) review group was established by the former Communities Secretary, Greg Clark and the former Minister of Housing and Planning, Brandon Lewis MP, in November 2015.

The purpose of the review was to:

“Assess the extent to which CIL does or can provide an effective mechanism for funding infrastructure, and to recommend changes that would improve its operation in support of the Government’s wider housing and growth objectives.”

The CIL Review Group were specifically requested to look at:

  • The relationship between CIL and Section 106 in the delivery of infrastructure, including the role of the regulation 123 list and the restriction on pooling planning obligations
  • The impact of CIL on development viability, including any disproportionate impact on particular types or scales of development
  • The exemptions and reliefs from CIL
  • The administrative arrangements and governance associated with charging, collecting and spending CIL
  • The ability of CIL to fund and deliver infrastructure in a timely and transparent way
  • The impact of the neighbourhood portion on local communities’ receptiveness to development
  • The geographical scale at which CIL is collected and charged

The CIL Review details the progress by LPA’s in preparing CIL:

CIL Report October 2016


CIL (this is 3 documents) – download 3x PDF: Document 1 | Document 2 | Document 3

Source: A new approach to developer contributions October 2016

In March 2015 the Department for Communities and Local Government (DCLG) commissioned research into the value, impact and delivery of CIL from the Three Dragons consultancy in conjunction with the University of Reading. The investigation covered five broad areas:

  1. Implementing and operating CIL: The extent to which the levy is simpler and quicker to operate than individually- negotiated Section 106 agreements.
  2. The value of CIL: How much money is being raised and what it is being spent on (or intended to be spent on).
  3. Who is paying CIL: The types of development that are paying the levy.
  4. The neighbourhood portion of CIL: How much money is being passed on to local communities and how the ‘neighbourhood portion’ of CIL is being administered.
  5. The impact of CIL on development viability: What, if any, impact it is having on development viability.

Key Recommendations of The CIL Review Group:

  • Government should replace the Community Infrastructure Levy with a hybrid system of a broad and low level Local Infrastructure Tariff (LIT) and Section 106 for larger developments
  • Combined Authorities should be enabled to set up an additional Mayoral type Strategic Infrastructure Tariff (SIT)

The Local Infrastructure Tariff (LIT)

  • The setting of the LIT should be linked to the Local Plan process wherever possible and should feed into local and ‘bigger than local’ infrastructure plans
  • The LIT should be calculated using a national formula based on local market value set at a rate of £ per square metre
  • They recommend that the LIT should continue to apply to ‘development’ as defined in the existing CIL regulations
  • Further work by government to devise a LIT formula for commercial development that ties it to the residential rate but which does not exceed it
  • There should be a cost of collection cut-off below which local authorities do not have to collect a LIT
  • The LIT should be charged on gross development
  • There should be no (or very few) exemptions to the LIT
  • If needed in the new LIT regime, the process for exemptions and reliefs should be simplified
  • Agricultural buildings should be covered by the LIT but that local authorities should be encouraged to include this type of structure in its low or zero rated bands
  • The examination process should be replaced by a simple mechanism to address any representations on coverage or quantum of the LIT rates
  • The requirement for a Regulation 123 list should be removed and spending of the LIT should be reported through the Authorities’ Monitoring Report
  • Other options should be explored that would enable local authorities to forward fund infrastructure provision

‘Lit LIT’ and section Section 106

  • Small developments (10 units or less) should pay only the LIT and no other obligations, unless exceptional circumstances apply
  • Large/strategic developments local authorities should be able to negotiate additional and specific Section 106 arrangements and that these should be subject to strengthened Regulation 122 tests
  • The pooling restrictions set out in Regulation 123 should be removed
  • Standardised Section 106 obligations should be subjected to particular scrutiny to ensure they meet the Regulation 122 tests and that the NPPG in this area should be strengthened
  • Local authorities should be given the flexibility to offset the LIT against Section 106 and other requirements for their larger/strategic developments
  • Larger developments developers should be able to make infrastructure provision in kind, and if appropriate, the LIT contribution should be able to be delivered by way of in kind provision
  • Further measures are introduced to standardise and streamline the Section 106 process
  • Proposed heads of terms for Section 106 agreements be submitted with planning applications and that local authorities be given clear guidance on the publication requirements for Section 106 agreement

The Strategic Infrastructure Tariff (SIT)

  • Provision is made for Combined Authorities to agree the imposition of a low level ‘Mayoral’ type Strategic Infrastructure Tariff to be imposed across the Combined Authority area
  • Strategic Infrastructure Tariff should be restricted for use on a small number of major projects that will benefit the wider area
  • Further consideration is given to enabling Combined Authorities to use the Strategic Infrastructure Tariff funding as a mechanism for raising additional finance

Specific Supporting Proposals

  • Close integration between local plan-making and planning for LIT/Section 106 contributions so that the latter can properly inform infrastructure funding provision
  • Local authorities engage with delivery and funding bodies as part of their plan-making and infrastructure planning to consider ways of closing the inevitable local infrastructure finding gap
  • Government should incentivise more meaningful cooperation between local authorities over Housing Market Areas/Functional Economic Areas
  • Local authorities provide annual Infrastructure Delivery Plan updates as part of their Authorities’ Monitoring Reports
  • Closer integration at both the Local Plan and Neighbourhood Plan making stages between the local authorities and the community to ensure agreement over how the neighbourhood share of LIT is allocated
  • Local authorities work closely with both parishes and neighbourhoods over the actual spending of any neighbourhood allocation of LIT to ensure that the delivery of infrastructure is supported and best value obtained
  • Government should consider how environmental mitigation for small sites can be addressed as part of reforms to streamline Section 106
  • A new set of consolidated and simplified regulations be drafted
  • Government considers amendments to the regulations as an interim measure to address the most immediate issues arising from CIL
  • LIT should be a mandatory charge except where it would bring in insufficient funds to justify the cost of collection
  • Government allows for sufficient transitional arrangements to be put in place. 2020 would appear to be a sensible date for transition to be completed

Summary 3: Government Responses Toto The Consultation On Starter Homes Regulations

The Housing and Planning Act 2016 provides a statutory framework for the delivery of starter homes. The government technical consultation on starter homes regulations took place between 23rd March to 30thJune 2016. The consultation dealt with post-sales letting and resale restrictions, the starter homes requirement and exemptions, monitoring arrangements and transitional provisions.

Starter homes are one form or affordable housing available to 23-40 year olds with a discount of at least 20% below market value. The max cost for a starter home is £250,000 outside London and £450,000 in London.

In response to the questions asked and the responses received:

  • Government will restrict the sale and sub-letting of starter homes following initial sale and will set out its plans in regulations. The restricted period will be 15 years and the detailed operation of the restricted period will be set out in the regulationsRegulations. Mortgage requirements will also be incorporated into the regulationsRegulations
  • On the matter of age 40 and eligibility for purchase of a starter home, there will be no cap on age if one purchaser is under 40 years old and both are first-time buyers
  • Government will exempt injured military services personnel and those whose partner has died in service from the age restriction
  • Government are consulting on the intention to make clear through the NPPF that starter homes should be available to households with an income of less than £80,000 (£90,000 for London)
  • The government have removed the statutory requirement for starter homes on all sites, given that 78% of respondents preferred the requirement be set at a local level.  The duty of councils to promote starter homes will be triggered through section 4 of the Housing and Planning Act 2016
  • The proposed exemptions, transitional provisions and commuted sums will no longer be required
  • Local authorities will have the option to set out starter homes monitoring through the AMR

In response to concerns regarding market distortion, the government believes that the steps it is taking around the repayment taper will help to address the risks of market distortion. They also believe that allowing more local flexibility will also reduce the likelihood of market distortion.

Phew… that’s it for now, it’s time to step out of my office and into the sunshine!

In conclusion…

There is a new urgency to government policy. Homelessness is rising fast and a whole generation finds itself priced out with eye-watering rents that are crippling finances. Levels of home ownership have been falling sharply since 2003 – to only 51%, no wonder the government is anxious!  All before have failed, for the same fundamental reason – for decades now we have been unable to address, or even understand, the role of land in the economy.

I’m always happy to discuss the topics that we have covered so far and if you haven’t stepped into my office before, here are my most recent articles:

Hello 2017! Read more…

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Heathrow Expansion – The Debate


The government has got the ball rolling with the Heathrow Plan by developing a National Policy Statement (NPS) framework to assess applications despite the on-going legal challenge.

Our very own Legal Beagle Farhana Hussain invites you to have your say. Are you for or against a 3rd runway for Heathrow Airport?

  • Should we have a 3rd runway for Heathrow Airport?
  • If in a year’s time, the development of a 3rd runway cannot pass a simple legal test, where will we be? What do you think? We present you with the facts

Source – NPS – additional runway boundary

The Heathrow Expansion – if allowed, it could be completed by 2020.

 Let the debate commence… 

For the development of the third runway:

  • The expansion could potentially create £60 billion of economic benefits
  • We need more capacity! London is growing, we need to meet the requirements now for the future
  • It would give the UK and economic boost. Improving connectivity with the rest of the world. Supporting exports, trade and job opportunities
  • There would be an allocated £700 million for noise insulation. It’s worth noting that there have been 84,000 noise complaints since January 2016…

Have your say!

Against the development of the third runway:

  • The expansion would cost approximately £18.6 Billion
  • It might hamper the UK’s efforts in tackling climate change
  • The GLA suggests that Heathrow Airport would breach the EU regulations on levels of Nitrous Oxide
  • There would be a destruction of communities – potentially the village of Sipson could be destroyed, that would include 700 houses and 10,000 people might need to be re-homed. Richmond Upon Thames and Twickenham noise levels are already over 50 decibels – the level that the world health organisations considers to be problematic. Solutions to which would need to be found.

Have your say!

This isn’t an Urbanissta opinion article. Planning is our business, customers are important to us and we are always interested in your thoughts.

Here’s an interesting question…

Not long after the High Court decision to delay the appeal for a judicial review of the expansion, the government have issued a draft National Policy Statement. The decision to delay the appeal doesn’t halt the development of the scheme – so where will we be in a year’s time? What do you think?

Only time will tell…

The government considered the NPS to be the most appropriate method to put into place the planning framework for the 3rd runway. As the schemes are regarded as nationally significant infrastructure projects pursuant to the Planning Act 1998, the government have decided that a development consent application is the best way forward to deliver the appropriate scheme.

We provide a summary of the NPS below:

Purpose and scope of the Airport NPS

The NPS is an important tool in providing a primary basis for decision making on development consent applications (DCA) and any future airport infrastructure plans going forward. It sets out planning policy which will need to be considered in conjunction with any application made for a significant infrastructure project. The airport NPS sets out the following:

  1. Government policy on the requirement of a third runway
  2. The preferred location and scheme to deliver the development
  3. Considerations given to particular DCA in respect of Airport NPS


Compliance with the NPS is crucial – the SoS in making a decision would expect any proposed development to have regard to a number of components including design, implementation and delivery. In some cases, other NPSs may be relevant to the proposal, however, if a conflict arises, significant weight would be given to the recently designated NPS.

Section 104 (Planning Act 2008)

Similarly, to housing and the consideration of local plans, the SoS will give regard to the relevant NPS when assessing an application for significant infrastructure projects unless they decide that doing so would:

  1. Breach international obligations (eg. Kyoto Protocol)
  2. Be unlawful
  3. Lead the SoS into a breach of duty under any legislation
  4. Adverse impacts outweigh the benefits
  5. Contrary to legislations how decisions are to be taken

It must be noted that there is no provision in the Planning Act 2008 for the requirement of an outline application, followed by reserved matters approval unlike the Town Country Planning Act 1990. Despite this, developments can be phased.

Source; NPS Draft Masterplan of Scheme proposals


Until exit negotiations are complete, the UK remain a full member of the EU and therefore the EU legislation applies to the development of the policy and decision making in respect of the preferred scheme. This may need to be revised once negotiations are complete.

Establishing the need for additional airport capacity

The Airport Commission, in their report dated December 2013 noted that there was a need for an additional runway in the South East of England by 2030.

The following shortlisted schemes were also considered: Gatwick Second Runway scheme, Heathrow Northwest Runway scheme, and Heathrow Extended Northern Runway scheme as well as the option of a new airport in the inner Thames Estuary (this was later dismissed as… “The proposal of a new airport in the inner Thames Estuary as it was did not perform sufficiently well to warrant consideration alongside the three schemes that it decided to shortlist.”)

The Airport Commission concluded their Final Report in July 2015 that the NW Runway at Heathrow presented the strongest case in respect of expansion and was considered to offer the greatest strategic and economic benefits to the UK.

Assessment Principles

General Principle

The NPS covering NW Heathrow scheme establishes the needs case provided that it adheres to the detailed policies set out in the NPS and the legal constraints posed by the PA 2008. Furthermore, the following must be taken into account by the examining authority and SoS:

  • Potential benefits are economic, job creation and environmental improvement
  • Potential adverse impacts and mitigation measures to compensate for such (national, regional and local levels)

Scheme variation

Although the preferred scheme has been identified – NW Runway – variations can still be made to the scheme. It is noted that the NPS does not prejudice the viability or merits of an application, but rather governs the location and limits and nature of such schemes.


The examining authority determining the application will assess significant effects at all stages.

Habitats Regulations Assessment

Before granting consent, the SoS must have regard to the Conservations of Habitats and Species Regulations 2010. If the relevant authority conclude, that the development is likely to have a significant effect on a European site and how it is not directly linked to the management of the site, an appropriate assessment must be carried out to assess the implications.


An objective identified by the Airport Commissions (AC) was to: “Reduce or avoid disproportionate impacts on any social groups.” At the consultation stage, the AC must carry out an equality impact assessment.

Alternative requirements

The applicant must comply with the following legal requirements:

  • EIA Directive
  • Consideration of alternatives e.g Habitats and Water Framework
  • Flood risk sequential test

Criteria for ‘good design’ for airports infrastructure

Good design is an integral consideration. Visual appearance, costs and sustainability all play a significant part in considering the scheme design.

Good design must meet the principle objectives of mitigating or eliminating any issues that may arise from an adverse impact. The scheme must also be functional and fit for purpose.


The scheme must be cost efficient and sustainable and seek to minimise costs to airlines passengers and freight owners.

Climate change adaption

The development must plan to avoid increased vulnerability to the impacts rising from climate change. Any risks must be managed through suitable adaptation measures. Green infrastructure is encouraged.

Pollution control

The SoS will assess whether the development is an acceptable use of land and impacts of the use. The Environmental Agency who issue environmental permits (EP) will review the application to check whether the scheme meets the relevant EP requirements. Pre-applications can be conducted prior to making the application.

Common Law Nuisance

When an application is submitted, the examining authority will assess how the sources of nuisance might be mitigated so that appropriate recommendations are put to the SoS before granting permission.

Security considerations

Proportionate and protective security measures must be designed into new infrastructure projects at an early stage in the development.


Measures to avoid, reduce or compensate for adverse health impacts must be considered.


The development must, in accordance with the legal requirements and best practice, satisfy the following:

  • Include clear details on how plans improve access, address accessibility and need
  • Ensure all bus/train fleets comply with legal access standards by 2020
  • Easy access and car parking provisions for the disabled

Specific impacts requirements

Any application put forward would also need to have regard to the following specific impacts requirements:

  • Surface access
  • Air quality
  • Noise
  • Carbon emissions
  • Biodiversity
  • Land use
  • Resource and waste management
  • Flood Risk
  • Water quality and resources
  • Historic environment
  • Landscape and visual impacts
  • Land instability
  • Dust, odour, artificial light
  • Community compensation
  • Community engagement
  • Skills
  • Ruling out a fourth runway

 What happens next?

  • Following consultation and adoption of the NPS, and assuming any legal challenges are unsuccessful, the NPS will form the basis for the application for the DCO which is required to permit the necessary development of the construction of the new runway
  • The critical aspect will be the impact of increased noise and air pollution and whether the government and Heathrow Airport Ltd are able to demonstrate that they can put together, and rely upon, “A comprehensive package of mitigation measures.” to overcome any harmful impacts
  • If it cannot be demonstrated that an effective and legally binding set of restrictions can be put in place, it may jeopardise the whole project as the government have made it clear that it will be a condition of approval, that the air quality legal requirements will be met

 The residents who will be affected by the expansion want to hear your views! (Read more)

The government want to hear your views! (Read more)

Relevant dates for the expansion (read more)

What’s next? 

Read the planning process (here)

Housing and planning act – changes to legislation (read more) 

The town and country planning act 1990, section 215 – Best practice guide (read more)

That’s a lot of information for you to absorb but we are interested in your opinion. What do you think should happen?

Are you for or against The Heathrow Expansion?

Have your say!

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