Planning Law Speed Read – May 2017
31st May, 2017
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.
General Election update
With the 2017 General Election just over one week away, and all party manifestos published, we have put together a list of the major housing and planning proposals made by the Conservatives, Labour and the Liberal Democrats.
In their manifesto, the Conservatives pledge to implement the proposals set out in the Housing White Paper, released in February (which we previously covered in our speed read here). In addition to this, the Conservatives are also sticking to one of their previous manifesto promises by pledging to build 1 million homes by the end of 2020, with a further 500,000 being built by the end of 2022. This will include 160,000 homes built on government owned land. In order to encourage house building, particularly from the public sector, the Conservatives intend to introduce Council Housing Deals that will encourage the building of social housing. These will allow Council’s to access low-cost funding and introduce a mandatory sale period after 10 – 15 years, with an automatic Right-to-Buy.
The Labour manifesto focusses mainly around the provision and retention of social housing.
Labour have pledged to build 1 million homes by the end of the Parliament, with half being Council and Housing Association owned, all of which are to be built to new minimum space and quality requirements. In an attempt to ensure that these homes can be bought by those who need them, Labour have guaranteed Help to Buy funding until 2027 and pledged to give first time buyers priority over any new homes built in their local area.
In order to accommodate these homes, a Labour government would create a number of New Towns to reduce the effect of urban sprawl on existing settlements. Despite this commitment to housebuilding, Labour has still pledged to protect the green belt by prioritising brownfield sites as locations for development.
The commitment to building new homes will be introduced in tandem with a suspension of the Right-to-Buy scheme. Local Authorities will be prevented from allowing their homes to be sold under the Right-to-Buy scheme until they are able to demonstrate an ability to replace them on a like-for-like basis.
In order to ensure compliance with their policies, Labour intends to create a dedicated housing ministry, taking housing out of the control of Department for Communities and Local Government. This ministry would be tasked with ensuring that the number, quality and affordability of homes are all increased, whilst overseeing an overhaul to the Homes and Communities Agency in order for it to become “Labour’s housing delivery body”.
The Liberal Democrats have pledged to build 300,000 homes per year, with 100,000 being affordable housing, by the end of the Parliament. Funding for this will come from the £100 billion infrastructure fund. This, in tandem with a new £5 billion government backed ‘British Housing and Infrastructure Development Bank’, should, the Liberal Democrats tell us, help boost and diversify the housebuilding sector. In order to ensure that these homes are built in the best locations, the Liberal Democrats propose to build 10 new garden cities in partnership with housebuilders, local authorities and housing associations.
The Liberal Democrats have also pledged to strengthen the ability for local authorities to prevent land-banking and “buy to leave empty” properties by allowing for a 200% Council Tax levy on overseas investment properties that are not lived in and giving Authorities powers to penalise developers whose planning permission is not implemented after 3 years. This would tie into a requirement for local authority plans to take into account a 15 year housing need, rather than the current 5, in order to ensure that there are sufficient numbers of housing in local authority areas for the long-term future.
The Liberal Democrats propose to end the small development exemption with regards to the provision of Affordable Housing as well as increasing the power of local authorities to punish those who do not fulfil their obligations under section 106 agreements. In an attempt to ensure land is not vacant or unused, local authorities would also be given the powers to compel house-building on unwanted publically owned land and to end the Right to Buy scheme in their area.
White Paper focus – holding councils and developers to account
As promised in our previous speed reads, we have set out below a more focused look at part of the Housing White Paper. However, the looming General Election will no doubt have major implications on the extent to which these proposals will be implemented.
In order to overcome blockages in the planning system the White Paper calls for transparency, certainty and accountability through the implementation of the following proposals:-
- The track record of developers – when determining applications Councils will be able to ask for information regarding the timing and pace of delivery and could take this into account as part of their decision of whether to grant planning permission. If previous planning permissions have not been implemented they could take this into account as well.
- Data on delivery – the DCLG will publish data on delivery against plan targets and developments in the pipeline to achieve greater transparency.
- Build out rates – housebuilders could be required to publish information on build out rates and it is further suggested that their track record for housing delivery could become a material planning consideration.
- Shorter planning permissions – the life of planning permissions may be shortened from three years to two years (except where shorter timescales could hinder the viability or deliverability of a development).
- Withdrawal of permissions – councils may be able to withdraw planning permission for the remainder of a site where development has stopped and there is no prospect of completion.
- Greater use of CPO – guidance will be published to encourage local authorities to use their compulsory purchase powers to support the build out of stalled sites. It is also proposed that the HCA (to be renamed Homes England) will work more closely with local authorities in the use of their compulsory purchase powers.
- Housing delivery tests – local authorities will be subject to housing delivery tests to highlight whether the number of homes being built is below target, provide a mechanism for establishing the reasons why and trigger policy responses (where available) to address the issue. A phased approach is being proposed commencing in November 2017. If housing delivery falls below 95% of the local authority’s annual housing requirement at this date, then the local authority will be required to publish an action plan identifying the issues and how it proposes to address them.
Many of the above proposals are to be brought forward following further consultation. They are of particular relevance to housebuilders whose build out rates and previous record on delivery will be exposed to greater scrutiny as a result of the proposals. The White Paper includes at Annex A a consultation on the proposals which closed on 2 May 2017.
The Government had previously announced its intent to publish a revised NPPF later this year. Due to the uncertainty caused by the upcoming General Election, the future of a revised NPPF is uncertain. Ward Hadaway will be keeping this under review and will provide updates to you when further information is available.
PINS admits “Errors in approach and judgement” over Affordable Housing requirements
The Planning Inspectorate (PINS) have circulated a letter that seeks to address inconsistencies in recent PINS decisions concerning the small site exemption from Affordable Housing.
Readers will recall that the written ministerial statement (WMS) from November 2014 was found by the Court to be a material planning consideration when assessing the level of affordable housing to be provided from a site.
In their letter PINS commented on the weight attached to the WMS by 5 recent appeal decisions. Three of the appeal decisions were said to be reasonable, whilst the remaining two had “errors in approach and judgment”.
The letter makes clear that the WMS will not automatically negate a robust and up to date local plan policy. It is possible for an LPA to legitimately depart from the WMS with sufficient justification. Developers should therefore ensure that these justifications are given in any decision and that they are balanced against the WMS as a material consideration.
Since this letter was issued by PINS, Reading Borough Council has also sent a letter to PINS complaining about Inspectors’ inconsistent approaches in relation to the Council’s policy to secure affordable housing contributions from all housing developers.
A Supreme Court ruling clarifies the approach to paragraph 49 of the NPPF
In the recent case of Suffolk Coastal District Council v Hopkins Homes Ltd  UKSC 37 the Supreme Court has agreed with the ruling of the Court of Appeal regarding the application of paragraph 49 of the NPPF.
The purpose of paragraph 49 is to assess whether the “tilted balance” under paragraph 14 of the NPPF (the presumption in favour of granting planning permission where an authority’s plan is out of date) should be engaged where an authority does not have a 5 year housing supply.
Paragraph 49 of the NPPF provides:
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
The Supreme Court held that the correct approach is to consider whether the policies in question result in a five year housing land supply. If they do not then, regardless of the reasons why, paragraph 14 will be triggered.
The Supreme Court also noted that the other policies contained in local development plans should not be regarded as out-of-date purely because the overall plan fails to meet the 5 year housing land supply. However, the Court declared that this would be a consideration that affected the weight of the policies when applying the paragraph 14 tilted balance.
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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