Category Archives: Development

 

The highs & lows of … planning application submissions, the last 6 months

 

Large housing development aerial view in construction on rural countryside site Scotland UK

Planning professionals across the land have been, and still are, submitting planning applications on all natures and scale on behalf of clients across the country.  Whilst this has been occurring, a forensic analysis has been undertaken by EG Radius Data Exchange.  Some interesting findings have emerged. A subtitle of “silver linings in lockdown” invites interesting reading and reflection.

Reporting on a downward trend towards lockdown (23 March), the numbers in April plunged to the lowest since 2016.  However, the report does highlight a few interesting aspects, such as some parts of the country finding themselves with more large scale proposals, and particular sectors such as telecoms maintaining strong returns.

Some overall numbers to cogitate:

  • Before 2020 there was an average of 6,796 planning decisions per month, so far, in 2020 there has been a 12.5% decline
  • Slim pickings for approvals (up 1%) and refusals down (1%)
  • 2% increase in the number of homes approved compared to the same time last year
  • 1,295 telecom mast applications as the nation gears up for 5G
  • A 15.7% fall, year-on-year in applications submitted in the first 4 months of the year

Within the residential sector, negative figures strike (-25% for new applications, -29.2% for decisions) whilst office and commercial activity shoots up (21.2% new applications and 20.5% for decisions).  Not surprisingly private housing is the largest sector for UK planning, accounting for more than half of decisions last year.  Now its contribution has fallen 41.9%.  A slight silver lining for this cloud is that social housing decisions are up 12.9% and new applications also up albeit at 4%.  Bear in mind though, that social housing represents a total of only 3% of applications and decisions.

Across all sectors for applications, whilst offices and commercial applications leap by over 20% with a more modest 4% for social housing, apart from medical and scientific uses which remained static, all other sectors fell from between 8% (community and amenity) with the residential sector hitting -25%.

So, in an era of lockdown, the industry is looking to build new offices?  Does not seem logical when the vast majority are working from home and find it, er … works!  No, it is not the “office” tag which is resurging, rather the “commercial,” and within that lies the answer telecoms.  With the nationwide ambition being for 5G coverage, our nation requires the relatively innocent telecoms mast.  However, given our geography and the fact that 5G radio waves do not travel as far as 4G, the nation needs many of the innocent masts. In fact, they accounted for a third of all commercial and office decisions at the start of this year and more than 41% of all applications.

This may be the case but, according to the research, “Telecom masts have driven office and commercial activity, but only in certain parts of the country,” as evidenced in their graphic …

Approved telecomms applications

Turning to the residential sector, whilst although the number of new applications (-25.5%) and decisions (-29.2%) are down, approvals are on the up with a 7.2% rise to 210,973.  On a similar level, the number of homes in applications submitted at the start of the year was up 13% on 2019 totalling 373,972.

As a Scot myself, it is rare that across most sectors (other than whisky (not whiskey) and tartan) the country spends much time making positive noises.  However, on the rather nerdier planning front, the country has much to shout about, with Scotland leading the way in planning activity at the start of this year.

A couple of graphic snapshots adequately demonstrate this …

Top 10 council approved applications

UK graph

Whilst is would be rather pleasing to end on a positive, there is of the course the negative, planning permissions being refused with the report highlighting that “Greater London is home to eight of the councils most likely to refuse an application.”

Top Active Councils

So, from the above, it clear that planning has not ground to a halt.  It is also clear that some sectors are holding their ground with one, telecoms, pulling the office and commercial sector to the top of the class.  For the residential sector, whilst new applications and decisions are down, approvals are up for the same time last year.  So, with permissions already in place, applications being submitted, certainly on the residential front it is over to the developers to get back out there and get those permissions implemented, or in real terms, build!


A copy of the analysis by EG Radius Data Exchange can be found here.


 

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Rumination 1 – Starting to Plan for Recovery

 

Construction site face mask must be worn sign

As the nation is starting to come back into circulation, we have all been starting to reflect on how we plan for recovery – both professionally and in managing our businesses.

Inevitably the construction industry has been significantly impacted upon by event and will take some time to recover, however it is also true that it is a vital element of the nation’s economic recovery and as such must be at the forefront of leading the charge. In our collective time of reflection, it is obvious that whilst our confinements have been enforced and at times frustrating, there is also the opportunity for space for inspiration, innovation and change in work practices to emerge as better versions of our pre-COVID selves, with working practices and lifestyles which are potentially healthier for us, our spaces and places as well as the wider environment and economy.

With daily press conferences, constant news bulletins and policy formulation coming by the day, it is at times hard to keep up with the way our worlds and working practices will be changed, but we’ve consolidated a few of the key elements for you.

London

On 15 May, the Mayor of London, Sadiq Khan, and Transport for London (TfL) announced plans to transform parts of central London into one of the largest car-free zones in any world capital city. At the start of  the lockdown,  road activity fell by almost 60 per cent and emission of nitrogen dioxide was reduced by circa 50 per cent on some London roads. The Congestion Charge and Ultra Low Emission Zone (ULEZ) was reintroduced on 18 May.

On the same day, affordable housing delivery statistics showed 17,256 affordable homes were started by 31 March 2020.  This exceeded the Mayors 17,000 dwelling target.

Robert Jenrick, Secretary of State (SoS) for Housing, Communities and Local Government published two written ministerial statements on construction and planning on 13 May. This guidance included temporary measures to make the planning system easier to operate.

Construction Hours

Some useful and interesting matters were highlighted by the SoS, principally that:

  • Greater flexibility in working hours on construction sites to enable social distancing requirements, including, varied start/finish times
  • Planning conditions should not prevent the safe operation of construction sites
  • Council’s should act proportionately in responding to suspected breaches of planning control and also act positively to requests for flexibility on site working hours
  • Any temporary changes to construction working hours conditions granted by local planning authorities should not extend beyond 13 May 2021

https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-05-13/HCWS234/

CiL/S106 Guidance Review

  • The Government will introduce amendments to the Community Infrastructure Levy Regulations 2010 to allow charging authorities to defer payments, to temporarily remove the late payment interest mechanisms
  • A discretion to return interest already charged where appropriate for developers that have an annual turnover of less than £45 million will be allowed.

https://www.gov.uk/guidance/coronavirus-covid-19-community-infrastructure-levy-guidance?pk_campaign=newsletter_3039

Sales

Initiatives on  13 May 2020, sought to:

  • Enable Councils and developers to publicise planning applications via social media instead of site posters and leaflets; and
  • Provide a range of initiatives for sales centres, agents and purchasers to follow to comply with social distancing whilst allowing the sales market to continue.

Appeals & Examinations

Inspectorate announcements were issued on 24 March 2020 regarding:

  • Video conferencing
  • Webcast/recording
  • Electronic bundles

PINs is moving towards a more electronic based system in the knowledge that there will be at least six months of restrictions on gathering and as such they have started looking at elements of:

  • Virtual inquiries
  • Statements of common ground
  • Proofs of Evidence
  • Cross Examination procedures, and
  • Roundtable

The new guidance seeks a more frontload evidence base restriction on documents size and extent of appendices. The Rosewell Review (February 2019), highlighted that the Inquiry process delivers about 20,000 dwellings per annum and acknowledged that it takes on average, about 1 year for an appeal to be determined.

The Inspectorate had just started to introduce case management conferences when the COVID crisis hit, the idea of this was to:

  • Speed up process – 16 weeks plus six weeks for a decision
  • Usual element of cross examinations, but also roundtable sessions lead by the Inspector
  • Case management conferences – new to the planning system but is familiar to other aspects of the courts, providing the opportunity to consider the inquiry structure

The planning bar are set to support PINS to trial inquiries by video conference. As we know, planning committees are now continuing in a virtual manner, some with greater success than others.

On 13 May 2020, the Inspectorate also announced that it was to recommence site visits and would be holding more digital case events.  Site visits would only take place if the Inspector could attend safely and the case required a site visit.

With regards to digital events, the guidance is that:

  • “hearings and inquiries for different types of casework (e.g. planning appeals, national infrastructure, local plans etc) [be] held via telephone or video conferencing the Inspector may need to ask questions or hear cross examination for complex issues
  • there is high level of public interest and a public event needs to be held
  • where the legislation governing casework requires, such an event can be held in given circumstances (e.g. national infrastructure and local plan examinations)

We understand that the first fully digital hearing took place on 11 May 2020 as a pilot, and there are a further 20 examinations, hearings and inquiries proposed for May and June 2020. There are also two Local Authorities for who trial Local Plan hearing sessions are being considered.  If successful, this will be rolled out for all examinations.

We have to question whether this is a sign of the new way as the Inspectorate acknowledge that any changes made will need to be sustainable in the longer term…. It will be interesting to see how the process evolves.

https://www.gov.uk/government/news/site-visits-to-recommence-and-more-digital-case-events-planned?pk_campaign=newsletter_3040

RTPI

The RTPI has launched papers to guide the planning profession on its response to the pandemic:

When Local Authorities like St Albans have failed to produce a sound local plan since 1994, it is sometimes hard to think that the planning system can be quickly responsive to need.  With the breadth and scope of positive initiatives that have been implemented in the past couple of months, there are however seemingly reasons to be optimistic.

Whilst there are a lot of strategic initiatives taking place to ensure that the planning systems adapts quickly to the current pandemic, (and is perhaps sufficiently versatile to cope with any future pandemics),  there are a number of issues closer to home that we will also have reflect upon. For example,  will our homes (and gardens) need to be designed to facilitate greater homework and recreating? Have we realised that our gym membership really is a waste of money when we can use our home gym or enjoy a run around our local park for free?  Do we need the daily commute? Do we need to work from offices daily arriving at set hours and leaving at set hours? Can we integrate flexibility into our working lives to ensure productivity/enhance productivity in some instances – whilst also ensuring that the office environment and ‘buzz’ is and can be retained? Will flexible hours be increased to manage rush hour queues? Can our lifestyles and environments improve as we travel by car less and utilise virtual means for connecting? All these such issues will affect how we plan for future new development…

With  us all being used to a new way of interacting, the development sector starting to gear back up again,  and  the sales market being progressed in line with social distancing measures, we have to hope that these seedlings of a return to our new normal develop and grow into green shoots and prosper….strange but interesting time to come….

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Must planning committees follow officers advice in reaching decisions?

 

 

In the news…

The House of Commons research team has issued a document to help answer this question.  Whilst most in the development industry will be aware of the machinations, suspense and in some cases surprising manner in which planning committees reach their decisions, this document offers a step by step guide to those in this industry and the wider public.  In addition, it rolls out many facts and statements such as:

  • In the year ending March 2019, 94% of planning applications in England were delegated to officers
  • For councillors and officers in local authorities, reference is made to the Local Government Association/Planning Advisory Service “Probity in Planning” guide
  • Whilst some may speculate that applications determined against officers recommendations are more likely to be allowed on appeal, Lichfields’ 2018 research demonstrates just that https://lichfields.uk/media/ 4419/refused-for-good-reason- when-councillors-go-against- officer-recommendations.pdf

If you want to discuss any of the topics that we cover in our blog articles, we’d be happy to have a chat. Contact us today.

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‘British housebuilding industry’ – House of Commons to debate

 

British housing debate

British housebuilding news…

**Latest news**

3rd September –  British housebuilding industry – House of Commons debate

With the matter of Brexit appearing to have subsumed all political discourse, I am pleased to report that the House of Commons is still scheduled to debate a motion on the British housebuilding industry this Thursday, 5th September – perhaps MPs will see this debate as welcome respite?

August 12th – On 5th September the House of Commons will debate a motion on the British housebuilding industry.  Taking place in the main Chamber, the debate will be led by Siobhain McDonagh, Labour MP for Mitcham and Morden.  Further details will be made available prior to the debate taking place.”

Watch this space…

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Prime Minister lays down in front of bulldozers in an attempt to stop third runway…

 

Will we see headlines like this soon?

‘Prime Minister lays down in front of bulldozers in an attempt to stop third runway…’

Boris Johnson has now ‘landed’ the role of Prime Minister. Having ‘taken off’ for Afganistan back in June, he missed the day of the government’s key vote on a third runway at Heathrow. With a strong standpoint on the new development could we see Boris be a man of his word?

These words?

“I will lie down in front of those bulldozers and stop the construction of that third runway… Heathrow is just undeliverable, and the sooner we face that the sooner our salvation.”

Boris Johnson – London Mayor, 2015.

The Heathrow expansion…

Over 80 million passengers flew in and out of Heathrow Airport last year, if the third runway goes ahead that number could rise to a staggering 130 million.

Originally a small airfield built in 1929 and developed into an airport in 1946, Heathrow now covers nearly 5 square miles. The airport is used by multiple airlines travelling to 200 destinations in 84 countries with an average 1300 flight movements a day.

The third runway at Heathrow was proposed back in July 2015 when the Airports Commission examined various options to increase UK airport capacity and the Heathrow expansion became their final destination. Suggestions, objections and decisions were made and now the development for a third runway at Heathrow has gone to public consultation until the 13th September 2019.

Development, demolition and blight

At a potential cost of £14 billion, privately financed not through taxpayer’s money, the new runway will bring 180,000 new jobs and 10,000 apprenticeships across the UK. That is great news for people looking for a job but what about those people whose property and homes are affected by the development?

Considerations and compensations have been discussed about the demolition of homes and villages. Most of the homes in the village of Harmondsworth will be demolished and how close properties are to the location of the new runway will determine how much compensation will be given to the owners. The owners of 750 properties will be covered by the ‘compulsory purchase area scheme’ which offer the owners 25% above market value plus legal fees, stamp duty and moving costs. A further 3,750 homeowners will be offered 25% above market value once the runway is built. The government has said that people who choose to remain in affected areas can have their homes or other buildings insulated against noise.

The Secretary of State for Transport designated the Airports National Policy Statement (Airports NPS) on the 26th June 2018. This policy will allow property owners within a certain distance from the potential third runway to ask the Secretary of State for Transport to buy their property, this can be done by the owner serving a ‘blight notice’.

What would a property owner be entitled to if a blight notice is accepted?

  • The market value of the property
  • A property loss payment which could be:

– 10% of the unaffected market value for homes subject to a cap of £63K

– 10% of the unaffected market value for commercial properties subject to a cap of £100K

– 7.5% of the unaffected market value for properties operated by private landlords subject to a cap of £75K

  • Stamp duty costs associated with the purchase of an equivalent value property
  • Reimbursement of reasonable legal fees and removal or other disturbance costs in accordance with the statutory compensation code

Will the third runway affect you and your home?

The Heathrow Expansion website offers all the information a property owner needs to know if they will be affected by the development of the third runway.

Find out how more here.

The Heathrow airport plans and boundaries:

Heathrow expansion plans. Read more.

Airports National Policy Statement (NPS). Read more.

Airports NPS Annex A red line boundary around the runway. Read more.

Find out more about the public consultation here.

How to respond to the public consultation. Read more.

 

Related articles:

How will the Heathrow expansion be affected by a hung parliament?

Return flight to Heathrow 2017 

The Heathrow expansion debate

Contact us for more information about our services.

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Legal Beagle – August 2019 edition

 

11 casework reviews – Allowed or Dismissed?

Welcome to the Urbanissta Legal Beagle’s casework 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.

Here are 11 recent planning appeals, giving you insights into the latest precedents:

Case 1:

LB Lambeth v SoS for Housing Communities and Local Government and Others
[2019] UKSC 33

This is an unusual but interesting case about planning permission granted under
section 73, that is without complying with conditions imposed by an earlier
permission.

Despite going all the way to the Supreme Court it is not possible to say precisely how the law in this area has been developed by this case. The case concerns a Homebase in Streatham.

Permission was originally granted for its erection in 1985 and that permission had a condition, number 6 attached which restricted the use to the sale of DIY goods only and no other purposes, including any purpose in Class I of the 1972 Use Classes Order then in force. The effect of this was to restrict food sales, amongst other things. The reason given was because of the greater traffic likely to be attracted to a large retail store without such a restriction.

In 2010 permission was granted for a variation of condition 6 (1985) so as to allow for the sale of a wider range of goods but still not including food. The new restrictions were set out in condition 1 (2010). The reason for the condition was again the concern about traffic generation.

In 2014 the Council granted permission under section 73 for what it intended to be a further loosening of restrictions on what may be sold from the store whilst still preventing the sale of food. However, it sought to do this not by imposing a condition on the 2014 permission restricting the goods that may be sold but by specifying the goods that may be sold in the description of the development in the body of the decision, in these terms:

The retail unit hereby permitted shall be used for the sale and display of non- food goods only and, notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any Order revoking or re-enacting that Order with or without modification), for no other goods.

There were only 3 conditions attached to this permission (that development must be begun within 3 years; details of the staff car parking, and requiring a traffic survey within 12 months). Crucially, the 2014 permission did not repeat Condition 1 or any of the other conditions from the 2010 permission. Spotting that there was, therefore, no condition restricting what may be sold from the store, the developer applied for a CLOPUD under section 192 TCPA for unrestricted use of the store. The Council refused the application but an appeal to the Secretary of State was allowed. The SoS granted a certificate of lawfulness of proposed use for:

The use of the premises … for purposes within Use Class A1 of the Town and Country Planning (Use Classes) Order 1987 (as amended) without restriction on the goods that may be sold.

The reason given by the SoS was that no condition had been imposed on 2014 permission to restrict the nature of the retail use to specific uses in Class A1. The problem for Lambeth arose because of the effect of sections 171A and 55(2)(f) TCPA 1990. The former defines a breach of planning control as either carrying out development without planning permission or failing to comply with a condition or the limitation imposed; the latter provides that use of land or buildings for a different purpose within the same Use Class is not development. The consequence of this is that, so long as the change from one retail use to another remained within the same Use Class (A1), it would not amount to development and, because the purported restrictions on what may be sold in the 2014 permission were not included within a condition, nor would it amount to a breach of condition.

The Council’s challenges to the Secretary of State’s award of the certificate were unsuccessful in the High Court and the Court of Appeal. An interesting feature of this case is that, throughout its passage through these courts, it was clear that everybody knew what Lambeth was trying to do, to restrict sales from the store, particularly of food. But it was held that because they had not sought to achieve that aim by the conventionally accepted way of imposing a condition on the section 73 permission their intention had not been articulated so as to have legal effect. In short, the faulty drafting of the 2014 permission had allowed unrestricted permission to arise and there was nothing the courts could do about it. The Supreme Court did do something about it, however.

Lord Carnwath, with whose judgment the other Law Lords and Lady agreed, began by noting that section 73 applications are often made and granted for development that has already taken place, as in this case. What section 73 does not do is to say what is to happen if an LPA wishes with the grant of new permission to change some conditions but to leave others in place, although there is guidance (and common practice – not followed by Lambeth in this case) that the LPA should repeat the relevant conditions from the original permission.

Under the heading ‘Principles of interpretation,’ Lord Carnwath found that whatever the legal character of the document in question the starting point is to find the ‘natural and ordinary meaning’ of the words used in that document in their context and in light of common sense. With this in mind, he found essentially that the 2014 planning permission has to be read at face value. When this is done it is ‘clear and unambiguous’ that what the council was approving was the ‘variation of one condition from the original wording to the proposed wording, in effect substituting one for the other’. There was nothing, he went on, to indicate an intention to remove the restriction on the sale of other than non- food goods.

Lord Carnwath also noted that the suggested difficulties of interpretation did not arise from any ambiguity in the 2014 permission itself, rather from the supposed inconsistencies, firstly with the statutory context of section 73, and secondly with the treatment of the other conditions in the remainder of the permission document. Addressing the first difficulty, the Court found that since it was common ground that the 2014 permission was for something, it never having been suggested otherwise, the permission must be taken as it is (ie how it was written without a separate condition restricting use). Any reasonable reader, mindful of the common but legally inaccurate understanding of section 73 as conferring a power to ‘vary’ or ‘amend’ the condition would see no conflict with section 73, notwithstanding the absence of a reason for the condition.
In respect of the second difficulty, Lord Carnwath did acknowledge some ‘internal inconsistencies’ in the way the 2014 permission had been worded, particularly the second part of it, but found that reading the document as a whole it could be given sensible meaning without undue distortion.

In short, the Court held that a reasonable reader would read the 2014 permission as simply varying the original permission subject to the additional 3 conditions. The fact that the main change in what may be sold was articulated in the description of development rather than by being controlled by a condition ultimately did not matter, in the SC’s judgment. The Judgment then goes on to give some comment on the other relevant 2010 conditions which had not been repeated in the 2014 permission. It was argued that, although these had not been incorporated into the new permission, they continued to have an effect so far as they were not inconsistent with anything in the 2014 permission. The Court accepted this as correct, although noting that it was always a matter of construction whether later permission is compatible with the continued effect of the earlier permission for the same piece of land. Lord Carnwath put it this way: Accordingly, they would remain valid and binding – not because they were incorporated by implication in the new permission, but because there was nothing in the new permission to affect their continued operation. It is possible that these remarks may cause difficulties in the future where, for example, there are a number of permissions for a site and it may be difficult to ascertain which of the former conditions still apply. I also consider that this undermines the view that a section 73 permission, like any other permission, must be capable of being understood on its own terms without the reader having to undertake extensive planning detective work to be clear about what conditions still apply. That said, and this is what in my opinion is unusual about this case, Lord Carnwath then repeats the advice as currently set out in the PPG that when issuing a fresh permission under section 73 all relevant former conditions from the earlier permission should be repeated in the new.

Download Decision here: LB Lambeth v SoS for Housing and Communities and Local Government

Case notes provided by our guest barrister, Giles Atkinson of 6 Pump Court.

Case 2:

Case re: CO/2135/2018
Decision date: 13th December 2018
Claimant: Giodarno Ltd
Defendant: London Borough of Camden

The claimant, Giordano Limited, is the owner of a six-storey building used for offices and warehousing in Windmill Street in the London Borough of Camden had obtained planning permission to convert it into six flats back in 2011. At that point, Camden Council did not require a CIL payment, the court heard.

The planning permission was implemented and remained extant, but this had not been completed and the building remained vacant and uninhabitable. The owner later decided to apply for a planning application to develop three larger flats, rather than six smaller ones and was granted planning permission for that development in June last year.

However, the council then issued a formal liability notice in January this year demanding a CIL payment of £547,419.09.

In challenging the bill by way of judicial review in the High Court, the owner argued that it was exempt from having to pay CIL by operation of Regulation 40(7)(ii) of the CIL Regulations 2010 because the property was already in residential use.

The issue in the claim is whether, on a proper interpretation and application of regulation 40(7) of the Community Infrastructure Levy Regulations 2010 as amended ‘CIL Regulations’, the Claimant is liable for CIL.

According to the judgement, regulation 40(7)(ii) excludes CIL liability where a development’s existing use is ‘able to be carried on lawfully and permanently without further planning permission’.

The developer claimed that although the works permitted by the six-flat permission had not been completed, it had been validly implemented and the residential use of the building had thus been established.

However, Camden Council argued that the building was not in residential use at the time of the 2017 permission, so no exemption could be made.

The court held that the Council was correct to conclude that the claimant did not satisfy the conditions in regulation 40(7)(ii) for a statutory deduction, despite the confusing wording of its letter.

In dismissing the claimant’s arguments, however, Mrs Justice Lang noted that, at the time that the permission for the three-flat was granted, the building was a ‘mere shell’ without any of the facilities required to make it fit for habitation.

The fact that no actual residential use had by then occurred was the very reason why the owner had to apply for planning consent in respect of the three-flat development, the judge said, rather than relying on permitted development rights allowing offices and warehouses to be converted into housing.

The Court ruled that the development could not have been carried through lawfully without further planning permission and therefore the local authority was entitled to charge CIL.

 

Download Decision here: Giordano v London Borough of Camden

Case 3:

PINS Appeal ref: APP/E590685
SGC Planning ref: PA/17/01920
Decision date: 10th June 2019
Appellant: Sainsburys Supermarket Ltd
Respondent: London Borough of Tower Hamlets

Housing secretary James Brokenshire has used his ministerial powers to refuse planning permission for a 471-home redevelopment of a supermarket site in east London – against the advice of his planning inspector. The findings of a planning inquiry into Sainsbury’s proposals for its 3.1 ha site at Whitechapel recommended Brokenshire to approve the proposed scheme.

The housing Secretary said the scheme – which in addition to the homes would also have delivered a replacement supermarket, an energy centre and an educational facility – would have an unacceptable impact on light to existing homes and on neighbouring heritage buildings.

The appeal was recovered for the Secretary of State’s determination on 14th December 2017, in pursuant of Section 79, and paragraph 3 of Schedule 6 of Town and Country Planning Act 1990. The Inspector had recommended that the appeal be allowed, and planning permission be granted for the proposed scheme.

The original proposals for the Sainsbury’s Whitechapel site included a 33-storey tower and would have delivered 559 new homes. The tower was subsequently reduced to 28 storeys, however, Tower Hamlets council rejected the development proposal in 2017. The reasons for the refusal included the “substantial harm” the development will cause to the setting of the nearby Grade 1 Listed Trinity Green Alms-houses.

The subsequent version of the eight-block scheme reduced the height of the tallest element to 14 storeys and trimmed the number of homes. Sainsbury’s appealed Tower Hamlets’ non-determination of this application and planning inspector David Nicholson took evidence on it at an inquiry last October.

The report of the planning inspector stated that the public benefits of the scheme outweighed impacts on local heritage assets, however, had accepted that the scheme would result in an “appreciable reduction in daylight and some significant loss of sunlight” for neighbouring homes.

The Secretary of State in reaching its decision has had to give regard to Section 38(6) of the Planning and Compulsory Purchase Act 2004 which requires that development proposals be determined in accordance with the development plan unless material planning considerations indicate otherwise. As a result, Housing Secretary held that, many existing neighbours would experience “a gloomier outlook than they do at present”, and that a large number of windows would be affected, and this would result in the harmful impact that carried “substantial weight” against the application. He further ruled that, whilst the scheme’s design and public-realm improvements tipped the balance in favour of approval, the heritage impacts and daylight issues will be in conflict with the Borough council development plan and the government’s National Planning Policy Framework (NPPF).

Download Decision here: Sainsbury’s v London of Tower Hamlets

Case 4:

Case re: CO/3276/2018
Decision date: 20th January 2019
Claimant: Gladman Developments Ltd
Defendant: Secretary of State for Housing & Central Bedfordshire Council

A High Court judge has overturned a dismissal at the appeal of land promoter Gladman Development’s plans to build 135 homes in Bedfordshire, ruling that a planning inspector had not given ‘anything like adequate’ reasons for his decision.

The Claimants made an application for planning permission to Central Bedfordshire Council for the development of up to 135 residential dwellings (including up to 35% affordable housing) the
introduction of structural planting and landscaping, informal public open space and children’s play area, surface water flood mitigation and attenuation, vehicular access points and other ancillary works at Langford Road, Henlow, Bedfordshire.

The claimants planning application was refused by the Council in October 2016. The Claimants then appealed under Section 78 of the Town and Country Planning Act 1990 and, after a public inquiry, a planning inspector dismissed the company’s appeal against that decision in 2018.

The Claimant made an application to the High Court to challenge the inspector’s decision. As a result, the High Court Judge, Mr Justice Dove has ordered the government to look at the planning application again. The case hinged on a local planning policy – known as ‘DM4’ which strictly limits developments outside existing settlement boundaries.

Gladman contended that there were a number of reasons why policy DM4, and other relevant policy in the Council Core Strategy conflicts with the National Planning Policy Framework, hence, should be afforded less weight or treated less irrelevant to the merits of the development proposal. However, the inspector ruled that the policy was not out of date and that its ‘underlying objectives still hold good’. He gave moderate weight to policy DM4 and declined to apply a ’tilted balance’ in favour of the development.

Overturning that decision, Mr Justice Dove ruled the inspector had not given ‘anything like adequate’ reasons for refusing planning consent and made reference to an earlier planning appeal, concerning a proposed housing development in Meppershall, where another inspector had ruled policy DM4 out of date. The inspector in the Henlow case was obliged to explain why he had reached a different conclusion on ‘precisely the same issue’. He had stated that ‘Where there is a basis for the earlier decision to be distinguished or departed from, then that reason must be identified.’

The Judge found that the inspector did provide ‘anything like adequate’ reasoning to explain why he was distinguishing or departing from the Meppershall decision.

‘He simply did not grapple’ with the issue of whether strict adherence to DM4 would frustrate the council’s ability to achieve a five-year supply of new housing sites.

In overturning the inspector’s decision, the judge also pointed to inconsistencies between policy DM4 and the National Planning Policy Framework.

The ruling means that the Ministry for Housing, Communities and Local Government will have to consider Gladman’s planning application afresh.

Download Decision here: Gladman v Secretary of State for Housing – Central Bedfordshire

Case 5:

Case re: C1/2018/1755
Decision date: 16th May 2019
Appellant: Wiltshire Council
Respondent: Cooper Estates Strategic Land Ltd & Richard Gosnell Royal Wootton Bassett Town Council

The Court of Appeal 6 has overturned the registration of a site in Royal Wootton Bassett in Wiltshire as a town or village green (TVG) after a judge decided that the land had been identified for development in the council’s local plan and was therefore not entitled to the protected status.

The ruling was a victory for the landowner, Cooper Estates Strategic Land, and a costly defeat for Wiltshire Council.

The essentials of a Town and Village Green (TVC) is defined in Section 15 of the Commons Act 2006 are that it consists of land where:  ‘a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years’.

In April 2016, a local campaigner, Mr Richard Gosnell, applied to register the 380 square metre plot, off Vowley View and Highfold, Royal Wootton Bassett as a TVG in 2016. However, Cooper Estates Strategic Land Ltd who owns the land objected to the application on the ground that it was precluded by Section 15C of the Commons Act 2006. However, the council agreed and approved the application.

The grounds for the objection was that the land had been identified for potential development in an adopted development plan document. Accordingly, a trigger event as defined in paragraph 4 of the table had occurred, and there had been no terminating event in relation to that trigger event.

The Council decision was overturned by planning judge, David Elvin QC, in 2018 and the Court of Appeal has now finally overturned the registration.

Having lost its appeal, the court ordered Wiltshire Council to pay £43,000 of legal costs accrued by Cooper Estates in fighting the registration. The case hinged on whether the plot had been identified for potential development in the local development plan, which, under the Growth and Infrastructure Act 2013, would prevent its recognition as a TVG.

Lord Justice Lewison said the plot was not one of 16 strategically important sites specifically
earmarked for housing development in Wiltshire Council’s adopted core strategy. However, the local plan set a target for more than 1,000 new homes to be built within the boundaries of Royal Wootton Basset by 2026. There was ‘a presumption in favour of sustainable development’ within the town, added the judge, who was sitting with Lords Justice Floyd and Henderson.

A map showed the plot lying ‘on the edge of the settlement boundary’ but an adjacent site, outside the boundary, had already been developed for housing.

Dismissing the council’s appeal, the judge concluded ‘In the present case, the development plan
document does show that the land is identified for potential development.’  The plan stated in clear terms that suitable sites within the town would be developed, and that ‘necessarily implied’ that they had been identified for potential development. It is clear from the development plan that the planning authority envisaged that, during the currency of the development plan, over 1,000 new homes would be needed in Royal Wootton Bassett.

The Judge held that to allow the registration of a TVG within the settlement boundary would frustrate the broad objectives of the plan.

This case is believed to be the first in which new rules relating to TVG registrations that were
introduced by the Growth and Infrastructure Act 2013 have come under judicial analysis.

Download Decision here: Wiltshire Council v Cooper Estates Strategic Land Ltd

Case 6:

PINS Appeal ref: APP/P0119/W/17/3189592
SGC Planning ref: PT17/2006/O
Appellant: Bovis Homes
Respondent: South Gloucestershire Council

Permission for 370 homes in the open countryside near Thornbury in Gloucestershire has been
refused by an inspector who ruled that likely harm to nearby listed buildings put the development at odds with the National Planning Policy Framework (NPPF).

Housebuilder, Bovis Homes submitted outline plans to South Gloucestershire Council in April 2017 for the demolition of agricultural buildings and the development of the homes plus a 460 square metre community facility, public open space and associated infrastructure.

The developer subsequently lodged an appeal against non-determination by the local authority. The appeal was held in January and February of 2019 and has now been dismissed by Planning inspector George Baird. South Gloucestershire Council has since indicated to planning inspector George Baird that the application would have been refused.

The reasons given by the Council included: conflict with the council’s core strategy; the scheme’s
potential to undermine growth proposed by the draft West of England joint spatial plan; impact on heritage assets; landscape character and visual amenity; and the walking distance to local facilities.

Bovis had argued that the NPPF’s ‘tilted balance’ in favour of sustainable development applied
because the council’s strategic housing policies were out of date and the NPPF’s policies on
protecting heritage assets do not provide a reason for the refusal.

However, the inspector advised that if harm to a designated heritage asset outweighs the benefits of an application, the NPPF states that its tilted balance would not be engaged, and ‘relevant judgements reiterate that a finding of harm to the setting of a listed building gives rise to a strong presumption against planning permission being granted’.

South Gloucestershire Council had raised concerns about impact on the significance of four listed buildings. The inspector found the scheme would result in varying degrees of less than substantial harm to these buildings and ‘would materially and significantly alter the relationship of these buildings’ with the surrounding area.

The inspector acknowledged the proposal ‘would provide public benefits, particularly in the provision of market and affordable housing, to which I attach significant weight.’

However, the inspector concluded that ‘on balance, the weight that attaches to those benefits does not outweigh the strong presumption against permission being granted and the great weight afforded to the conservation of Morton Grange, Yew Tree Farmhouse, Old Malthouse, Malt Cottage and Manor Farmhouse. Thus, as this scheme fails the Framework paragraph 196 test this disengages the … tilted balance.’

Download Decision here: Bovis Homes v South Gloucestershire Council

Case 7:

Case re: CO/975/2018
Decision date: 16th January 2019
Claimant: Bright Horizons Family Solutions Ltd
Defendant: Secretary of State for Communities and Local Government
Interested Party: Watford Borough Council

A children’ s nursery has failed in its bid to overturn a refusal of consent for two portable buildings on its site after a judge ruled that the premises are not a ‘school’ and therefore does not benefit from permitted development (PD) rights allowing it to expand.

Bright Horizons Family Solutions runs the nursery in a detached former home at 3 Park Avenue,
Watford, where its premises, which have been in use as a nursery since 1997, are a three-storey
former dwelling house in a suburban development of similar houses, mostly Edwardian in date.

The company had previously applied to Watford Borough Council (the interested party) for a
Certificate of Lawful Development in respect of a proposed development by the installation of two linked portable cabins in the garden of the premises, to increase the indoor space available for the nursery. However, Bright Horizons did not wait for a decision before putting the portable buildings in place.

In March 2017, the council refused to grant a certificate and that decision was upheld by planning inspector, Paul Dignan, in January last 2018 and ruled that the nursery is not a school and that provisions within the General Permitted Development Order (GPDO) which enable schools to expand into their grounds without the need for planning permission did not apply to the portacabins.

Bright Horizons challenged that decision at the High Court, insisting that the nursery is
‘predominantly used for education’ and should be categorised as a school.

The High Court Judge, Mark Ockelton dismissed the Claimant appeal and found that the inspector had correctly interpreted the GPDO. He stated that the word ‘school’ in common parlance, indicates an institution where children receive a general education on a considerable number of days a year. He held that the provision of education does not necessarily make an institution a school.  The judge also noted that ‘although riding elephants may be educational, that does not mean that a zoo is a school.’

The commonly used phrase ‘school-age’ encompasses the period of a child’s life when he or she is required by law to attend school. Similarly, the phrase ‘pre-school’ is frequently applied to nurseries and other institutions which provide for children below compulsory school age. He observed that, if an estate agent told a house hunter that at the end of the road there was a good school, the latter would not expect to find a nursery school, however good.

In his judgment, the Judge held that the unqualified use of the word ‘school’ does not in its ordinary meaning include a nursery and rejects the claimant appeal.

The proposition that PD rights that benefit schools apply to all nurseries, or even all registered
nurseries were misplaced.

The rejection of Bright Horizons’s appeal means that the portable buildings were installed in breach of planning control. It will now be for the council to decide whether to grant retrospective planning consent or to take action to enforce the portacabin’s removal.

Download Decision here: Bright Horizons Family Solutions Ltd v Secretary of State for Communities and Local Government

Case 8:

Case re: C1/2017/2947
Decision date: 25th January 2019
Appellants: Emily Shirley and Michael Rundell
Respondent: Secretary of State for Housing, Communities and Local Government
Interested Parties: Canterbury City Council & Corinthian Mountfield Ltd.

The Court of Appeal 8 has ruled that the housing secretary is under no general duty to exercise his planning powers to ensure that particular developments do not breach European air quality standards, opening the way for construction of 4,000 new homes on the outskirts of Canterbury. Canterbury City Council in Kent resolved to grant planning permission for the development off New Dover Road.

This was in the light of a pressing need for more homes in the area and after developers, Corinthian Mountfield Ltd had agreed to spend £3.7 million on air quality measures, including an air monitoring regime, the installation of electric vehicle charging points and the provision of one electric bicycle per dwelling.

The appellants were local campaigners and had appealed against an order dated 23rd
September 2017, dismissing their claim for judicial review of the decision of the respondent, the
Secretary of State, on 29th December 2016, not to call in under section 77 of the Town and Country Planning Act 1990 an application for planning permission for 4,000 dwellings and other development on land at New Dover Road, to the south-east of the city. The interested parties are the local planning authority, Canterbury City Council, and the applicant for planning permission, Corinthian Mountfield Ltd.

They had challenged the secretary of state’s refusal to call in the planning application for central government determination. They argued that the decision not to call it in, was irrational and a breach of his obligations under European Union Directive 2008/50/EC, known as the Air Quality Directive (AQD), and the Air Quality Regulations, known as the regulations, which places a duty on member states to achieve nitrogen dioxide reduction targets in as short a time as possible.
A judicial challenge brought by appellants was, however, dismissed by the High Court. In rejecting their challenge to that ruling, Lord Justice Lindblom noted that air quality is a material planning consideration and can in some cases prove decisive.

However, the Judge held that there was no authority to support the view that the secretary of state was constrained to exercise his very wide discretion in favour of calling in the planning application. Neither the AQD nor the regulations had the effect of narrowing that discretion or transforming it into a duty.

The judge, sitting with Lords Justice Singh and Coulson, also rejected arguments that, as the ‘competent authority’ tasked with enforcing the AQD, the secretary of state owed a general duty to use his powers in respect of individual planning applications to avoid the worsening or prolongation of breaches of prescribed nitrogen oxide limits. His principal duty under the AQD was to prepare and implement a compliant air quality plan.

In addition, the court ruled, the secretary of state’s decision was neither irrational nor perverse, in that he was aware that the council could reconsider the planning application, taking into account any further representations made to it by objectors.

The council had confirmed that it would carry out such reconsideration and would pay particular attention to the likely effects of the development on air quality.

The judge noted that the court’s interpretation of the AQD was clear and that it was thus not necessary to refer the case to the European Court of Justice.

Download Decision here: Shirley & Anor v Secretary of State for Housing, Communities and Local Government

Case 9:

Case re: CO/3140/2018
Decision date: 8th February 2019
Claimant: Mark Jopling
Defendant: Richmond-Upon-Thames London Borough Council and Secretary of State for
Communities and Local Government
Interested Party: Quantum Teddington LLP

Campaigners have scored a High Court 9 victory against a council’s decision not to designate playing fields in west London as a local green space, after a judge ruled that the authority had carried out a ‘plainly inadequate’ and ‘manifestly unfair’ public consultation on the matter.

The Claimant, Mr Mark Jopling challenged the adoption by the First Defendant, Richmond upon Thames London Borough Council (‘the Council’) on 3rd  July 2018 of a Local Plan (‘the Plan’) on the principal ground that a procedural requirement was not complied with, pursuant to s 113 (3)(b) of the Planning and Compulsory Purchase Act 2004 (‘the Act’). The Council does not defend the claim nor does the Second Defendant the Secretary of State for Housing, Communities and Local Government, whose inspector (‘the Inspector’) carried out the statutory examination of the Plan prior to adoption. That examination led to his report dated 26th April 2018 (‘the report’).

The five hectares Udney Park Playing Fields (UPPF) at Teddington were donated to St Mary’s Hospital Medical School by press baron, Lord Beaverbrook, in 1937, but have been owned by a property developer, Quantum Teddington LLP, since 2015, the High Court in London heard. Whilst preserving much of the fields for sporting activities, the company hopes to build 107 flats and a doctor’s surgery on the site. However, the development was opposed by the London Borough of Richmond Upon Thames.

The central issue, in this case, relates to the putative designation by the Council of the Site as Local Green Space (LGS) at a Cabinet Meeting on 13th December 2016. That followed an application for such a designation made by Claimant on behalf of the Teddington Society and the Friends of UPPF (‘FUPP’) which latter organisation he represents in these proceedings. That designation was incorporated into the draft local plan to be submitted thereafter for examination by the Inspector.

At the behest of the campaign group, Friends of UPPF, the council had proposed to designate the playing fields as a local green space in its draft local plan. However, the inspector who carried out the statutory examination of the plan put forward a number of modifications in his April 2018 report to the council.

One of which rejected the field’s designation as a local green space and, whilst disagreeing with him on that point, the council considered itself bound by the report. The end result was that, when the plan was adopted in July last year, the fields were not designated as such. Hence, the Claimant, a member of friends of UPPF Challenged the plan and argued that a procedural requirement had not been complied with.

The modifications proposed by the inspector, which was later circulated for public consultation, did not make clear that they included the de-designation of the fields as a local green space and as a result, the Claimant and other objectors to the proposed development claim that they were not given a proper opportunity to make representations on the point.

The High Court Judge upheld the Claimant’s arguments and held that the public consultation exercise was ‘plainly inadequate’ mainly because it was not clear what was being consulted upon and that, Friends of UPFF had only ‘a very limited opportunity to comment’ on the designation issue. The Judge ruled that ‘The process was manifestly unfair’. He also added that it was ‘certainly conceivable’  that the outcome would have been different had the Claimant been given a proper opportunity to take part in the consultation.

The judge said he would hear further argument as to the relief that Claimant should be granted in the light of his ruling.

Download Decision here: Mark Jopling v Richmond Upon Thames London Borough Council & Secretary of State for Housing, Communities and Local Government

Case: 10

Case re: CO/1279/2018
Decision date: 16th November 2018
Claimant: David Smith-Ryland
Defendant: Warwick District Council

A Warwickshire farmer has failed in a High Court effort to overturn a council’s decision to
discharge a planning condition stipulating that the developer of a neighbouring barn conversion must install acoustic fencing to prevent possible noise complaints from future residents of the property.

Alan Murdoch was granted planning permission for conversion of the barn into residential units in April 2016, subject to a condition that required him to install acoustic fencing to meet the concerns of neighbour David Smith-Ryland, (Claimant) of Plestowes Farm, Barford. The Claimant concern is that any residential occupiers of one of the Barn could bring noise nuisance claims in relation to the use of Its farming tools (dryers) and that the local planning authorities could serve noise abatement notices.

An application for judicial review was brought by the claimant, against the decision of the defendant, Warwick District Council to discharge condition 3 imposed on the planning permission granted on 26th April 2016 which stipulates that acoustic fencing had to be sound-proof enough to ensure that new residents of the barn would not suffer ‘unacceptable disturbance’.

The claimant owns a mixed organic farm involving cattle and grain in Barford, Warwick. On the farm is a shed for 120 cattle, a grain store and a fan shed. The neighbouring property belongs to Alan Murdoch (the interested party) and on the land are three Barns, namely Barn 1, Barn 2 and the long Barn. Barn 1 was used as offices but has planning permission to develop for residential use, subject to condition 3 which is the subject matter for the judicial challenge. The claimant farm operates two dryers both internally and externally, for the drying of grain.

Council planners discharged the condition after Alan Murdoch said (interested party) he would install a fence recommended by acoustic experts. Officers found that the proposed fence would deliver ‘an acceptable acoustic environment’. At the High Court, Smith-Ryland’s lawyers argued that the fence proposed by Murdoch would have been ‘non-compliant’ with the condition had it remained in place. The lifting of the condition meant he would still be exposed to noise nuisance complaints, said his barrister, Paul Cairnes QC.

But dismissing the farmer’s challenge, Mr Justice Jay said that it is clear law that a decision-maker must have regard to relevant considerations and the weight to be given to such considerations is for the planning authority. In this case, a council environmental health officer who approved the fence had clearly taken noise levels into account.

The Judge was quick to remind himself that this was an application for judicial review and not a
Wednesbury challenge in the sense of being a pure irrationality challenge. The Court held that the issue of what would or would not be an ‘unacceptable disturbance is a contextual one involving the application of a planning judgement that cannot be conceptualised in purely mechanistic or numerical terms’.

The council’s decision to lift the condition had not been attacked as irrational and the judge could detect no legal flaw in its conclusions, hence, the Claimant judicial review application was dismissed.

Download Decision here:  David Smith-Ryland v Warwick District Council

 

Case 11:

Appeal re: C1/2018/2122
Appeal Decision date: 24th May 2019
Appellant: Ms Nicola Squire
Council: Shropshire Council

The recent Court of Appeal decision in Squire v Shropshire Council on appeal from the
Administrative Court, Planning Court and Mr Rhodri Price Q.C sitting as a deputy judge of the High Court is an interesting case. It emphasised the need for LPA to properly assess the
environmental effects of odour and dust that would be generated by a development proposal on third parties land.

This case involves the development proposal for the erection of four poultry buildings and associated development at Footbridge Farm, Tasley, near Bridgnorth. Mr Bower was the owner and the applicant for the planning permission and intends to erect the buildings and use them for intensive rearing of poultry. An environmental permit was granted by the Environmental Agency in April 2017.

The development proposal was objected to by Ms Squire a local resident, whose primary concern was that the large quantities of manure from the poultry buildings when stored and spread on agricultural land, would cause an unacceptable level of odour and dust. The farm was capable of producing more than 150,000 broiler chickens annually, together with more than 2,300 tonnes of manure to which half would be spread on third-party land, including fields close to residential areas on the outskirts of Bridgnorth.

The development was granted planning permission in 2017. The planning officers commented that the spreading of manure is a common agricultural practice. Although it was likely to cause odour, it would be temporary if the manure was plough in, including the obnoxious smells that would emanate from manure that has been stockpiled would all have been lost once crust had formed.

The terms of the environmental permit that was issued in respect of the development by the
Environmental Agency was stated to be sufficient in addressing odour issues and was reported to the council.

The appellant, Nicola Squire – who lives nearby to one of the fields on which the manure would be spread – mounted a judicial review challenge to the planning permission. A High Court Judge, Rhodri Price Lewis QC, dismissed the case last year.

In upholding the appellant’s appeal against that decision, Lord Justice Lindblom found that Local
Planning Officers who recommended the grant of planning consent had misunderstood the terms of an Environment Agency letter.

The Environment Agency had made clear that an environmental permit in respect of the farm, related only to Bower’s land, and not to any other land on which manure would be spread. Noise and dust external to the boundaries of the chicken farm would not be covered by the environmental permit and it was clearly stated by the Environmental Agency that they would play no role in policing the storage and spreading of manure outside the boundary of the farm.

The primary concern of the Environmental Agency was to ensure the reduction of the risk of manure permeating into ground or surface water and there was no guarantee that the terms of the permit would control odour and dust pollution on third-party land.

The Master of the Rolls, Lady Justice King, held that there had been a failure to adequately assess the environmental impact of the storage and spreading of manure as an indirect effect of the development.

Also, the failure of the officers to expressly recognise the need for meaningful assessment of the likely effect of odour from the disposal of a huge amount of manure that a farm such as this on unidentified, third-party land. Lord Justice Lindblom quashed the planning permission and urged the Council to ensure that, when Bower’s application is to be reconsidered, thorough compliance with environmental law, especially environmental impact assessment is achieved.

Download Decision here: Squire v Shropshire Council

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The Financial viability in planning: conduct and reporting 1st edition 2019

 

The Financial viability in planning: conduct and reporting professional statement (1st edition) sets out 14 mandatory requirements which chartered surveyors must comply to when carrying out financial viability assessments in planning. The effective date when those processes need to be conducted by will be the 1st of September 2019.

Download: The Financial viability in planning: conduct and reporting (28th May 2019)

What is the aim of the new professional statement?

  • To demonstrate how a reasonable, objective and impartial outcome without interference should be achieved
  • To support the statutory planning decision process
  • To support and complement the government’s reforms to the planning process announced in July 2018 and further updates. This will include an overhaul of the National Planning Policy Framework and Planning Practice Guidance on viability and related matters
  • To ensure that chartered surveyors and regulated firms recognise and adhere to their professional duties when working whilst working with significant public interest obligation mixed with commercial pressure

Surveyors and regulated firms

Surveyors and regulated firms will have to make sure that the terms and conditions of their instructions can accommodate compliance.

Chartered surveyors and viability

Chartered surveyors have had a key role in assessing viability in the planning system, most importantly, in negotiating planning obligations in planning applications.

The Royal Institution of Chartered Surveyors (RICS)

RICS created the  ‘Financial viability in planning’ guidance notes in 2012 to allow the viability policy contained in the National Planning Policy Framework 2012 to be applied in practice.

This guidance was extensively relied upon in the sector. Government has now revised its planning policy through the National Planning Policy Framework (NPPF) 2018 and Planning Practice Guidance (PPG) 2018 (and further updates in 2019). The RICS is in the process of revising their 2012 guidance to align with the new government planning policy and practice statements which seek to address viability much earlier in the process, at the plan-making stage.

Download the: National Planning Policy Framework (NPPF) 2018

Download the: Planning Practice Guidance (PPG) 2018

Delivering development

Delivering 300,000 dwellings a year is the government’s priority. However, it has proven to be a tough target to meet. This is creating pressure on local planning authorities to build more affordable housing. To make sure that the appropriate balance is achieved between the planning policy ambitions and retaining the business case for development, government policy requires a viability assessment to be carried out to ensure the cumulative impact of planning obligations does not restrict delivering the plan objectives.

Stakeholder engagement and concerns

The RICS engaged extensively with stakeholders in the sector and obtained some valuable feedback. Some were dissatisfied about the standards to which viability assessments are being produced. The concerns extend from public representatives, the development sector, community groups and decision makers all of whom rely on viability assessments in a key public interest area. Questions about objectivity, conflicts of interest, transparency and contingency fees among others have been raised about those working for both the private and public sectors.

Individual appeal cases

The professional statement does not reference individual appeal cases. This is because the issues relating to them are often specific to each case, which makes an objective analysis difficult and subject to caveats.

The new professional statement focuses on reporting and process requirements, more explicit detail on development viability in planning and providing greater clarity on reporting will be dealt with in the forthcoming second edition of the RICS guidance note Financial viability in planning.

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‘Land for the many’ – New Labour Party Report contemplates sweeping changes to land policy

 

A new report commissioned by the Labour Party has proposed a number of wide-ranging changes to the land policy in Britain. Authored by a range of academics, economists and land experts, the report argues that many of the problems this country faces are down to land ownership and the way land is controlled being central to many of the existing socio-economic problems in Britain such as economic inequality, ecological breakdown, the housing crisis and repeated financial crisis.

On land and planning, the report recommended:

Complete transparency and publication of all information on land ownership, planning and subsidies as open data with the following recommendations:

  • There should be free and open access to information on who owns land, including the identities of the beneficial owners
  • There should be a fully public register of charges and options over land titles and public databases of the prices paid for all property and of public subsidies paid on land
  • Land should be registered with the Land Registry as a prerequisite for receiving subsidies
  • Local Authority Asset Registers and sales should be published as open data. There should also be a full register of planning permissions, including developer’s commitments

The removal of permitted development rights

It is recommended that the removal of the right to apply for the conversion of officers and agricultural buildings via prior approval should occur with full planning permission being required. It is claimed that the current process often leads to poor quality housing without an affordable component, and restricts the ability of communities and their representatives to shape development also leading to the uncontrolled loss of workspace.

Reform of the planning system to ‘address imbalances of power’

A key measure would be allowing local authorities to determine and adjust planning fees in order to limit ‘deep-pocketed developers exert excessive influence over decision making’. It is suggested that fees could be increased where applications are submitted more than once, particularly where advice has been not been followed, or policy has been ignored.

LAND FOR THE MANY

A formal review of participation in the planning process, with the intention of increasing public and community participation in development. To energise community participation in decisions about land use the five steps that are recommended as follows:

  • A formal review of community participation in planning, with a mandate to move away from tick-box exercises towards genuine co-creation of policy and developments
  • Establish an independent body, the Community Participation Agency, with a mandate to involve communities and under-represented groups in planning at every level
  • Introduce jury service for planning to ensure a wide range of people can influence plan-making
  • Make information on land use and planning accessible to everyone
  • Introduce a new Future Generations Champion or Team in each local authority

The introduction of Compulsory Sale Orders – measures that would permit public authorities to acquire vacant or derelict land to then be sold at public auction.

CSOs are a proposed new statutory power, giving public authorities the power to acquire land that meets certain criteria – for example, left vacant or derelict for a defined period – to be sold by public auction to the highest bidder, with community groups offered the right of first refusal. This proposal is explored in detail in a recent Scottish Land Commission report. Unlike Compulsory Purchase Orders, CSOs have the advantage of not requiring up-front public investment, as public authorities would manage the auction process but not take ownership of land. If coupled with financial support, this could offer an efficient way to transfer land into community ownership.

The creation of Public Development Corporations that would manage the purchase and sale of land in the public interest.

These Development Corporations would not replace private developers altogether but would act as the prime mover in the land market, working with various stakeholders to prepare sites for new housing developments, new towns, garden cities and urban regeneration projects. Once land has been assembled, the Development Corporations would contract out construction to housebuilders, prioritising local small and medium-sized firms, who would compete with each other on the basis of quality and design of house building. This means that the success or failure of private developers would be determined by the quality of build rather than by their ability to navigate the speculative land market.

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The housing and zero emissions report

 

Is it possible to achieve zero carbon dioxide and other greenhouse gasses by 2050?

Time will tell…

The Committee on Climate Change(CCC) recently issued its widely publicised report, ‘Net Zero – the UK’s contribution to stopping global warming”, recommending a new emissions target of net-zero greenhouse gases by 2050.

The report responds to a request from the governments of the UK, Wales and Scotland, asking the Committee to reassess the UK’s long-term emissions targets. The CCC’s new emissions scenarios draw on new research projects, three expert advisory groups, and reviews of the work of the IPCC and others.

Whilst the CCC have no legislative or policy-making powers, they will be influential on government policies.

Read the report here.

Housing and zero emissions…

The Government have said that from 2025 all new builds will not be connected to the gas grid. The CCC has said that by 2035 almost all replacement heating systems for existing homes must be low-carbon or ready for hydrogen. That will be the main consideration for housebuilders and their supply chains. Low-cost heating systems will be in high demand.

Decarbonisation of homes…

The CCC report sets out various scenarios including the decarbonisation of some of the remaining 20% of homes not decarbonised in the central scenario. It said these were mainly homes on the gas grid with limited space and homes that were more difficult to retrofit. However, 10% of homes still did not have low carbon heating under this new scenario. This might prove to be a conservative assumption, depending on progress with decarbonisation of heat.

In the CCC report, there was a lot of uncertainty about which heat decarbonisation pathway(s) would be the most technically, economically and socially feasible but the further ambition scenario made it more likely that hydrogen would play a role– for example in homes with space constraints and decarbonise the demand for peak heating. Technically speaking, the further ambition scenario is feasible but heat decarbonisation, in particular, had a long way to go and required policy action to demonstrate, test and scale up the supply and demand side technologies required.

An advisory group…

The CCC created a net zero advisory group to advise how the UK could reduce emissions to net-zero. The advisory group noted that CCC’s analysis suggested that there should be a reduction in UK GHG emissions of more than 95% by 2050. Based on this analysis and the need to maintain UK leadership, the advisory group’s view was that a net zero GHG target should be set for 2050.

It will all come at a cost…

The report said that action was needed to manage the transition for communities that could be exposed to high economic and social costs because of the need to phase out some industries or infrastructures.

Business Green said,To transition homes and industry to use low-carbon gas, Government needs to provide a long-term vision and joined-up policy framework for heat, industry and transport. But more than anything, we must now continue moving forward; as the Committee makes clear, adopting a ‘net zero’ target means an action is needed urgently. Energy network investment and innovation incentives for decarbonisation, set by the energy regulator Ofgem, should be more ambitious over the next decade, and should work with other government initiatives to support large-scale trials on options for decarbonising gas.”

How will the land be affected?

The rate of which CO2 would be removed from the atmosphere was predicted at a rate of 30,000 hectares per year, similar to the rate of afforestation achieved in the 1980s. The main challenge was whether the land for this would be available, which partly depended on improvements in agricultural productivity and dietary trends.

Other considerations to achieve the zero emission’s goal would be longer policy timetables with a consistent and stable framework and power supplies using a flexible gas plant with Carbon Capture and Storage (CCS) for ‘mid-merit’ power and burning hydrogen to cover peak demand. This depended on CCS being fully commercialised and hydrogen being produced using zero-carbon energy sources. The amount of flexible generation required would depend on the extent of other sources of flexibility which might be cheaper, including demand-side response, storage and interconnectors.

We recently saw the passionate demonstrations in London about the environment, roads were closed and arrests were made. Whether you agree or not with the protestor’s methods, one thing is clear – there needs to be a behavioural change on our part too. Our approach to saving the environment is really important and steps can be taken in your home or with the cars you drive.

You can use the government’s ‘Pathways’ analysis calculator for 2050 to give you key insights into how you can make a difference. Find out about the analysis calculator. 

Urbanissta offers a commercial service, specialising in securing implementable planning permissions and delivering high quality landscaping schemes. For more information about our services, contact us today.

 

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The Planning Directorate newsletter

 

Surveys, tests, schemes and guidance…

In March 2019, MHCLG Chief Planner Steve Quartermain published the Planning Directorate newsletter.

You can read the full newsletter here.

What did we learn from the newsletter?

LPAs get a firm reminder about keeping LDSs up to date…

  • Quatermain took some LPAs to task for not keeping LDSs up to date and failing to advise the Inspectorate of the dates of proposed Local Plan publication and submission dates
  • The LPAs were reminded that they could not refuse to validate planning applications made electronically without paper copies or vice versa
  • Quartermain briefed planners on the Spring Statement and updates to national planning policy and guidance

Survey of planning departments begins…

  • On the 28th February 2019, a survey began of planning departments on behalf of the LGA and MHCLG. The survey was to understand long term resourcing pressures and skills gaps for local authorities
  • The topic of the 20% increase in planning fees for local authorities and what improvements it has facilitated was discussed
  • Local authorities were asked to respond to the survey which was provided on the 5th March, the closing date was the 20th March 2019

The housing delivery test measurement published…

  • On the 19th February 2019, the housing delivery test measurement for 2018 was published and a technical note setting out how the housing delivery test was calculated
  • The housing delivery test provides transparency about where housing is or is not being delivered in relation to the number of homes communities require
  • If a new plan containing a new housing requirement has been adopted, Local Planning Authorities (LPAs) are encouraged to contact planningpolicy@communities.gov.uk to have their result recalculated

Read the 2018 Housing delivery test measurement by the local planning authority and a technical note on the process used in its calculation.

Local development schemes and local plan submission dates reviewed…

  • Local development schemes and plan submission dates Section 15 of the Planning and Compulsory Purchase Act 2004 requires every LPA to put in place a local development scheme (LDS) which should set out the documents which will comprise the local plan for the area
  • The scheme was developed so local communities and interested parties can keep track of plan progress. In addition, the NPPF sets out that plans should be reviewed every 5 years potentially leading to an update. This should be reflected in the LDS
  • In practice, some LPAs are not keeping LDSs up to date which could impact on the ability of the community and key stakeholders to take part in the plan process  

Planning application validations…

  • Quartermain stressed that LPAs could not refuse to validate an application if an applicant who had made an application electronically and did not provide paper copies
  • LPAs could not refuse to validate an application if an applicant did not provide an electronic copy of the application
  • LPAs could not insist that a planning application was only made via the planning portal or any route

Read about planning guidance letters to planning officers.

The revised National Planning Policy Framework was updated on the 19th February 2019 and sets out the government’s planning policies for England and how these are expected to be applied.

This revised Framework replaces the previous National Planning Policy Framework published in March 2012 and revised in July 2018.

Find out more here. 

 

Who is Steve Quatermain? 

Urbanissta offers a commercial service, specialising in securing implementable planning permissions and delivering high quality landscaping schemes. For more information about our services, contact us today.

 

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