2015 – Planning Law Focus

Not many election pundits predicted a landslide victory for the Tories back in May 2015, but fewer still will be surprised at the direction Conservative policy has taken since then. In general terms, the Government have looked to encourage growth in the number of homes built year-on-year, whilst rigidly protecting Britain’s green belts and edging communities ever closer to sustainability.

Britain’s House Building Problem

The Housing and Planning Bill – 2015

Now passing through Parliament, the Housing & Planning Bill contains a number of provisions which will impact the property and construction industries. The focus seems to be the efficient delivery of homes and key items include:

  • Powers for the Secretary of State to step in to speed up local authority progress on Local Plans, with the authority to revise and even prepare a document as they see fit.
  • Starter homes, sold to first-time-buyers at 80% market price.
  • A ‘Permission in Principle’ will be available for land allocation in certain documents, such as development plan documents and neighbourhood plans. Ensuring that a proposed use is acceptable in planning terms.
  • A statutory register of brownfield land that is available for development will be introduced, this will also have the benefit of permission in principle.
  • Local authorities will be encouraged to help self-builders by allocating plots of land in their area with permission in principle.

All of these actions will work towards increasing housing numbers in 2016 and beyond.

Permitted Development

Although permitted development rights to convert office to residential were set to end in May 2016, Housing and Planning Minister, Brandon Lewis, has announced that they will now continue indefinitely. Further, two aspects will be added:

  • the right to allow for the demolition of existing office buildings to make way for new residential properties (though limitations will be made clear in due course)
  • The inclusion of B1(c) (light industrial use) under the same policy, potentially unlocking additional brownfield land

Planning Obligations

Pooling restrictions

As of 6th April 2015, the Government used the Community Infrastructure Levy (CIL) Regulations to restrict the pooling of s. 106 contributions from five or more sources. Specifically, a s. 106 obligation can no longer constitute a reason for granting planning permission if the obligation relates to the ‘funding or provision of an infrastructure project or type of infrastructure’ where five or more separate planning obligations already exist in the local planning authority’s (LPA’s) area for that project or type of infrastructure. Interestingly, that applies even if the Local Authority doesn’t have a CIL charging schedule.

Monitoring fees

Most planning authorities require a fixed monitoring fee, to fund the administrative costs of ensuring that planning obligations under a s. 106 agreement are conformed with. 2015 saw these fees called into question after Cherwell District Council refused a development of 26 units.

In the Cherwell case, the Inspector on appeal judged that the monitoring fee failed the ‘necessity’ test and that judgement was later upheld in the High Court.

The result is that standardised monitoring fees, payable in advance of the development starting, are no longer viable or enforceable.

Affordable Housing

Threshold removal

A High Court ruling back in July 2015 (ref. below), saw the Court agree with two local planning authorities – West Berkshire District and Reading Borough Councils – in the matter of excluding small projects from an affordable housing requirement.

The councils were able to successfully argue that such a one size fits all approach to policy making was irrational and unrealistic and, further, that it was unlawful that the changes to the guidance sought to override the affordable housing policies independently examined and adopted as part of the local plan process.

The judgment was highly critical of the approach taken in introducing the policy, with Holgate J agreeing with the arguments that the inflexible wording of the relevant paragraphs meant that the changes were to be applied nationally, notwithstanding any conflict with individual local plan policies. The relevant paragraphs were removed from the NPPG.

The Compulsory Planning Process

Early in 2015, the Department for Communities and Local Government consulted on proposed changes to the existing Compulsory Purchase regime. This was followed in October by updated guidance and what’s known as the Crichel Down Rules, as well as DCLG’s formal response to the consultation and a commitment to adopt many of the core concepts. The key takeaways are:

  • DCLG will expand the right of certain acquiring authorities to enter and survey prior to a CPO being made.
  • Public authorities will be encouraged to offer good levels of compensation at an earlier stage in the process, with more flexibility in terms of the level of compensation offered at an early stage.
  • DCLG will introduce statutory targets and timescales in respect of the confirmation stage and the timescale for a decision to promote certainty.
  • DCLG will proceed with widening the remedies available to the courts to allow them to quash a decision to confirm a CPO as an alternative to quashing the order itself.
  • DCLG will proceed with proposals in terms of the powers of entry to take possession of acquired land.
  • DCLG will work to extend powers to override easements and restrictive covenants.

Case references

Oxfordshire County Council v Secretary of State for Communities and Local Government & ors [2015] EWHC 186

R (on the application of West Berkshire District Council and Reading Borough Council) v Secretary of State for Communities and Local Government [2015] EWHC 2222

*Back to January 2016 Newsletter*

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