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Planning Law Speed Read – April 2018

Welcome to Ward Hadaway's planning law Speed Read. The aim of our bite-sized bulletins is to keep you abreast of the 'hot' topics and key legal issues relevant to you.

The proposed changes to the National Planning Policy Framework (NPPF) could mark a significant change for developers in terms of housing delivery. In this edition we will focus on two areas – viability and land banking and we will look at the remaining proposed changes in next month’s speed read which will be published in good time for when the consultation ends.

Will the new guidance bring an end to the ‘abuse’ of the Viability Assessment process?

The draft revised NPPF proposes a shift in how viability issues are dealt with in planning. The Government is proposing to restrict viability assessments to developments which do not comply with the relevant policies in a council’s local development plan. In this context, the proposal would prevent developers from obtaining planning permission with an agreed level of affordable housing and later using viability claims to negotiate down the number of affordable homes. The draft NPPF also proposes that the evidence on costs and values to inform viability assessment should be secured at the plan-making stage, and without the said evidence, the site should not be allocated. Plans should also set out circumstances in which further viability assessments should be required and viability assessments should be made publicly available except in exceptional circumstances. This comes after the practice has previously been criticised for ‘lacking in transparency.’

Penalising land banking

The new provisions, if implemented, will allow a council when assessing a planning application to weigh in to the balance a developer’s track record for delivery as a material consideration. Theresa May essentially wants councils to blacklist developers who have a poor history of obtaining planning permission and failing to deliver the houses. She has said that she ‘wants to see planning permissions going to people who are actually going to build houses, not just sit on land and watch its values rise.’ Key questions in relation to this are: ‘how is “delivery” to be assessed?’ ‘Can it take in to account the performance of developers outside of a Council’s administrative area?’ ‘Will any account be taken of specific site constraints or conditions that may make delivery unachievable?’

Housing minister announces homes boost for rural families

On 12 March 2018 the Housing Minister announced that rural communities will be allowed more options to convert agricultural buildings into family homes to better meet local housing needs through planning rule changes. The changes to planning rights will mean that up to five new homes can be created from existing agricultural buildings on a farm rather than the maximum of three currently permitted. The Government is also giving applicants an extra year to change the use from storage and distribution buildings to residential use which will help relieve local housing pressures. This has been extended until 10 June 2019.

The Housing Minister has said that ‘we need to be more creative if we are to meet the housing needs of rural communities.’ It is hoped that the changes will help communities make the best use of existing buildings to help meet local housing needs more efficiently but at the same time will keep in line with the character of the area.

Government intervention where councils are failing to adopt a Local Plan – update

The Secretary of State has this week published updated letters to those 15 Local Planning Authorities, (including Northumberland) it wrote to in November 2017 when it notified them that it would consider intervention action in respect of the authorities’ failures to adopt a local plan and asking the Councils to provide progress information by the end of January 2018.

Northumberland County Council has since advised the Secretary of State that its local plan will be published in winter 2018 with adoption of the plan anticipated in summer of 2020. Sajid Javid remains concerned however at the timescales and has asked that the plan preparation programme be escalated by three months. The Council has reaffirmed its commitment to producing a local plan in the shortest timescale possible.

In three of the Councils (Castle Point, Thanet and Wirral), the Government is set to send in its Chief Planner and a team of experts to assess if the Government needs to take over the plan producing process. The Government is also discussing with the relevant county council or combined authority to step in and prepare the plan.

Developer obligations – consultation

Alongside the Revised NPPF, the Secretary of State has published a consultation on developer contributions in line with the proposals within the CIL Review and the Autumn Budget 2017.

Many of the proposals concern the administration of CIL to encourage take up and to make the process more transparent. Key proposals include:

  • Replacing the statutory consultation requirements for adoption of CIL with a “Statement of Engagement” as to how the authority has sought an appropriate level of engagement;
  • Removing the pooling restriction:
    • in areas where CIL is in place;
    • in those authorities where the average of new build house price is in the lowest 10% of those in England; and
    • For strategic sites (although there is no proposed definition of this);
  • Indexing CIL payments to House Price Index in respect of residential development;
  • Removing the requirement for a Regulation 123 list and replacing this with an annual Infrastructure Funding Statement setting out where CIL and s106 obligations have been used over the previous year and the proposes uses over the coming 5 years.
  • The introduction of a 2-month grace period for submitting a Commencement Notice in respect of Exempted Development.

Of note is that the proposals within the consultation are seen as a short-term solution, with the Government considering for the long term whether affordable housing and infrastructure contributions should be set nationally and be non-negotiable.

The consultation is open until 10 May 2018 and comments can be made by clicking here.

Neighbourhood plan funding support

The Government are continuing to promote the uptake of neighbourhood plans and have recently announced a £23 million fund to help local groups develop a neighbourhood plan, with the maximum grant being increased from £2,000 to £17,000. Basic grants of £9,000 can be topped up by up to £8,00 where certain conditions are met, including where the plan allocates sites for housing; involves a cluster of three or more parishes writing a single plan; or where it covers a neighbourhood area with a population of over 25,000 people. Grants of up to £8,000 are also available (subject to conditions) where technical support may be required from experts.

For further information on any of the issues covered in this update, please contact Kamran Hyder.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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