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Planning Law Speed Read – February 2017

As news broke of the publication of the much anticipated Housing White Paper we produced an article summarising the key messages and commitments from the Government.

A copy of the article can be read here. In the coming editions of the Speed Read alongside our usual planning law update we will focus each month on a different aspect of the reform and bring you up to speed on the Government’s latest thinking.

White Paper Focus – Local Plans

The Government wants to simplify and speed up local plan making. Many of the Government’s proposals relating to local plans are now being consulted upon, with the deadline for responses being 2 May 2017.

The consultation document is an appendix to the Housing White Paper, which is located here.

Key proposals are:

  • Removal of the policy expectation that each local planning authority should produce a single local plan. Instead, authorities should consider the most efficient way of setting out their key strategic priorities, which may be jointly with other authorities via a Spatial Development Strategy.
  • A standard methodology for assessing housing requirements in order to simplify the plan-making process and standardise a suitable baseline for housing land supply. This new methodology would apply as the baseline for assessing 5-year housing land supply from April 2018 where local plans are not up to date. The White Paper promises further consultation on a standardised methodology at the earliest opportunity this year, although this does not form part of the current consultation.
  • A new requirement to review local plan documents every 5 years.
  • Amending the NPPF to make it clear that all local planning authorities (“LPAs”) are expected to have clear policies for addressing the housing requirements of particular groups, for example older people and disabled people.
  • Amending the NPPF to indicate that “great weight” should be given to the value of using brownfield land within settlements for homes.
  • LPAs are to be encouraged to consider the benefits of estate regeneration and use their planning powers to deliver a high standard of regeneration.
  • In attempts to increase more diversity within the housing market, the White Paper proposes that at least 10% of the sites allocated for residential development in local plans should be of sites of half a hectare or less, and that LPAs are expected to work with developers to encourage the sub-division of larger sites.
  • The Government is keen to ensure greater certainty in whether a local plan should be considered out of date and reduce the number of appeals, particularly in areas with a marginal 5-year housing land supply. In order to achieve this certainty, in addition to incorporating into the NPPF the Written Ministerial Statement of 12 December 2016 in relation to Neighbourhood Plans, the White Paper proposes that LPAs can elect to have their 5-year housing land supply assessed on an annual basis and fixed for one year. If a 5-year supply was established at this point, that would apply for the coming 12-month period. Any such assessment must be made in consultation with developers and other interested parties, and any LPAs wishing to pursue this will have to provide for a 10% buffer on their 5-year supply.

If all, or indeed many, of these proposals take effect, it would seem that the local plan making process will once again be subject to considerable change. It remains to be seen what the impact of these changes will have (if any) on local plans already adopted.

Housing Minister promises a lull after the storm

Members of our team attended a Q&A session with Gavin Barwell in Gateshead on 23 February 2017, where the Housing Minister was answering questions on the White Paper.

One of the key pieces of information to come out of the session was that a revised NPPF will be published in the summer of 2017, after which a period of calm on the planning front is intended.

The White Paper identified various issues that will be addressed through a revised NPPF, including a new definition of Affordable Housing, polices in relation to plan making and housing land supply.

According to Mr Barwell, the revised NPPF will also include examples as to when “very special circumstances” may apply to allow development on the Green Belt.

CIL Review and an end to pooling restrictions

The purpose of the review, set up in November 2015, 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 report was published as part of the Housing White Paper suite of documents on 7 February 2017.

Of note, the review found that CIL is not raising as much funding as anticipated and that in some instances is only yielding approximately 5-20% of the funding required for new infrastructure. The review was also critical of the system of exemptions and reliefs, along with the s106 pooling restrictions.

As an alternative way forward, the review has recommended a twin track system of s106 Agreements for larger sites (10+ units) with a new low level tariff to be applied across the board to ensure that all development (almost without exception) makes a contribution to infrastructure. The proposal is that the new low level tariff will be calculated using a national formula based on local market value. The proposals also abolish any pooling restrictions.

The Government has stated that it intends to issue its response to the review in the 2017 Autumn Statement, so we will need to wait until later in the year to see which proposals (if any) will be taken forward.

Flexibility for a S 73 Application to broaden the scope of an original consent

Section 73 of the Town and County Planning Act 1990 makes provisions to apply for the removal of conditions previously attached to a planning consent. Case law had determined that conditions cannot be removed where to do so would fundamentally alter the original planning consent.

In the case of R (on the application of Vue Entertainment Ltd) v City of York Council the Court has recently allowed a s73 application for a development which included (under the original planning permission) permission for a 12 screen cinema seating 2,000 people. Under the s73 application, this was amended to permission for a 13 screen cinema seating 2,400 people.

Of note was the fact that the increase in floor space and 20% increase in seats were not considered a fundamental change to the original planning permission on the basis that the original permission did not mention or define the size of the cinema. The case is therefore interesting for the potential scope of a s73 application where details have not necessarily been fixed by an existing planning permission.

A new approach to Great Crested Newt licensing

Tucked away in the White Paper was an acknowledgement that the need to protect species like great crested newts causes delays to development and that the Government will take action to address these issues.

On the same day as the publication of the White Paper, Natural England announced the rolling out of a new approach to the conservation of the species. Under the new scheme, Local Authorities will be awarded an organisational licence, which appears to allow them to authorise conservation operations on development sites as planning permission is issued, instead of applying for individual licences on a site by site basis. It is hoped that the effect of this new approach will save developers both time and money.

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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