Planning matters

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Take a chance on me: what we know about permission in principle on application
On 1 June 2018 a new route for obtaining planning permission via an application will become available for most small, housing-led developments: an application for permission in principle (PIP) followed by an application for technical details consent (TDC). On that day, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017(‘PIP Amendment Order’) will come into force. And by that time, the PIP and TDC route will have been in primary legislation for over two years, and PIP via local authority brownfield land registers will have been available for several months, so one would hope it will not be a completely new concept for the property sector – and particularly small builders - to grapple with and consider using. Notwithstanding this hoped-for familiarity with PIPs, the new application route is one of the most significant changes to the way planning permission may be achieved since outline planning applications were introduced almost 60 years ago. Our May 2016 Guide to PIPsprovides the background, and our subsequent March 2017 Guide(updated in January 2018) explains how PIPs can be granted via brownfield land registers. Of the three routes to PIP that are provided by s59A of the Town and Country Planning Act 1990, only one is already available a present: permission in principle granted via Part 2 of the brownfield land register. The three routes to PIP will be mutually exclusive; i.e. PIP on application will be available to any site that might accommodate minor housing-led development, provided the development is not habitats development, EIA development or major development (as defined in the PIP Amendment Order). It is not the case that it will be available only to sites in Part 1 of a brownfield land register (sites in Part 2 already have PIP), or (in future) to sites granted PIP via a local plan allocation or a neighbourhood plan allocation (these too will already have PIP). Small sites only Applications for PIP for minor developments (of nine residential units or less, with less than 1000sqm of commercial floorspace, and/or on a site of less than 1ha), the ‘main purpose’ of which is housing development, may be submitted to local planning authorities (LPAs) from 1 June 2018 onwards. ‘Main purpose’ is not defined in the amendment Order; perhaps guidance will indicate that it will relate to the site area proposed for housing, as compared to other proposed uses.  Applications for PIP cannot be made for major, ‘habitats’, householder, or Schedule 1 EIA development. PIP can be granted for Schedule 2 EIA development, providing that a screening opinion that the proposal is not EIA development has been adopted or made. In for a penny… The premise for PIP via the application route is slightly unusual; essentially it is presented as a cheaper way for those taking a chance on smaller (more risky?) sites to establish whether a site is suitable for new homes, or not. According to the Explanatory Memorandum (EM) to the Amendment Order 2017: …we [the Government] estimate a developer of a four dwelling site that chooses to take up the new option to apply for permission in principle will incur an additional cost of £800 in an instance where permission in principle is granted but will save on average £22,000 in an instance where permission in principle is refused. Pre-application advice is the current process for a developer trying to reduce planning risk, which is effectively the benefit PIP provides. Pre-application advice in respect of a PIP on application would add another layer of costs, and does not appear to be envisaged by Government in the estimates above. The Government will provide guidance for PIP applications, including the information to be submitted with an application. And the EM explains that LPAs will be supported by an ‘active programme of continuous engagement to coincide with the coming into force of the Order’. Fees The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2017 - in force from 17 January 2018 – introduce a fee for PIP of £402 per 0.1 of a hectare. This fee will apply to PIP proposals falling within Categories 1-3 of the amendment Fee Regulations: 1. erection of houses; 2. erection of buildings (other than houses, agricultural buildings, glasshouses, plant or machinery and ‘other operations’); and 3. erection of agricultural buildings. It is not clear why the Fee Regulations refer only to these three categories, and why material change of use in particular (categories 11, 12 and 13) is not directly referred to, given that PIP may be sought for a change of use. The fee for non-material amendments to a PIP or TDC is/will be £195. The fee exemptions that will apply to a second application for PIP relating to development on the same site as a first application, and following withdrawal of an application or refusal, are very similar to the exemptions of this type that apply to planning and reserved matters approval applications (see Fee Regulations 8 and 9). An exemption might apply to a TDC application where both the first and second applications were TDC applications (i.e. not to a TDC application that follows the withdrawal or refusal of an application for planning permission that was not a TDC application). The Planning Guarantee of a 26 week determination period (see Fee Regulation 9A) will apply to PIP on application and TDC. Procedure An application for PIP will have to be made on a form published by the Secretary of State (or a form to substantially the same effect). If a decision is not made within 5 weeks of receipt of a valid application, and no extension of time has been agreed, the applicant may appeal to the Secretary of State for non-determination. We can see no reason why from 1 June this year an applications for PIP could not be submitted in respect of a site, or part of a site that is listed in Part 1 of a brownfield land register, and for a different range of units/development to that described in Part 1, providing that all the requirements on site size, number of units etc are met. There will be a right of appeal against refusal of an application for a PIP (but not for refusal to grant PIP via brownfield land register, or via a development plan allocation) (s78(1)(aa)). Once a PIP has been granted, it ‘ceases to have effect’ after three years, unless a longer or shorter time limit is directed on the decision notice. TDC relating to the proposed development must be granted prior to the expiry of the PIP and must be determined in accordance with the PIP unless three years have passed since the PIP came into effect and material circumstances have changed since that time. A TDC will be subject to a standard time limit of three years (as per s91 of the Town and Country Planning Act 1990, as amended), unless a longer or shorter period is imposed by the LPA. As noted above, a non-material amendment may be sought to a PIP or TDC. A minor material amendment, achieved via a s73 application, is possible for a TDC, because it is a planning permission. A PIP is not a planning permission (it is the stage before planning permission), and therefore a s73 planning application may not be made (s73 applies ‘to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted’).  In our view, Pressland v Hammersmith and Fulham LBC (2016), which confirmed the scope of s73, does not assist. In Pressland, it was concluded that conditions attached to a planning permission can be amended however that planning permission was achieved, as can conditions attached to approvals required by a condition of planning permission. Any conditions attached to a PIP will be conditions required of a planning permission i.e. for requirements at TDC application stage. Time for knowledge sharing and best practice? The PIP Amendment Order was originally intended to come into force on the same day as the amendment Fee Regulations, “so that LPAs can charge a fee for PIP applications” (see footnote 1 on page 9 of the Explanatory Memorandum of the draft amendment Fee Regulations). The “active programme of continuous engagement” referred to in the EM to the made Order is probably part of the reason for a delay. Hopefully it is a delay that will initiate discussion and then lead to clarity for all parties on PIP application procedure and process, ready for 1 June.

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Should property developers be using social media to engage with e-citizens?
Traditional consultation events such as public exhibitions often attract time-rich individuals in the community who hold strong views about development (and not always positive ones). However, communities are not single entities and it is important to find ways of encouraging the ‘silent majority’ - those who would not normally participate in the planning process but who could stand to gain from it - to engage.   In today’s 21st cyber century, promoting participation through the use of social media platforms such as Facebook and Twitter is thought to help to ensure that online communities ‘Friend’, ‘Follow’ and ‘Like’ proposed developments. But does the use of social media in the development sector also have unintended consequences that need to be anticipated and addressed?   PROS There is no doubt (particularly to a Generation Y millennial like me) that sharing information and consulting on development proposals via social media platforms is a more relevant way to engage in the ‘digital by default’ world that we live in.   Other pros include:   Inclusivity: Traditional face-to-face methods of engagement are often dominated by the vocal minority. Online, via social media platforms, the silent majority may, however, be more likely to voice their opinions and engage in the consultation process.   Accessibility: Information can be spread quickly and accessed 24 hours a day, 7 days a week. With a tap on a phone or tablet, previously disengaged and underrepresented groups can become involved, respond and comment on consultations on pre-application projects, and on planning applications, with ease and speed.   Reach: In the UK, Facebook has a total of 44 million active users and Twitter 14 million. If used effectively, they can form part of a tailored engagement strategy to reach out to interest groups or to find out what the community at large is thinking.   CONS Although there are clearly a number of pros, social media can also be counterproductive. Cons include:   Fake news: Just as prospective developers might want to set out their case and encourage instant and meaningful online consultation, self-appointed ‘anti-social mediaists’ can try to undermine and disrupt engagement and consultation projects by spreading misinformation, rumours and echo chambers.   Representation: The digital landscape has no geographical boundaries. As such, whilst social media platforms provide the opportunity to reach out to a wider demographic, there is a danger that feedback may not be representative of the local community/ those actually impacted locally.   Cyberactivism: Social media can be used as a way to mobilise NIMBY opposition and achieve digital activism objectives. Although unlike a localised neighbourhood petition gaining momentum as a result of door-to-door canvassing, e-campaigning is fast and far-reaching.   Based on the above pros and cons, should property developers be using social media to engage with the public as part of consultation processes? Interestingly, a survey undertaken by Remarkable Group and pollster YouGov, which involved asking over 1,400 UK councillors their opinions on social media in relation to planning consultation, found that: 75% of the 1,401 councillors interviewed said social media is an important or very important engagement tool; 34% believed public responses gathered via social media should be included as part of a Statement of Community Involvement (SCI); 60% believed developers should be engaging with local communities through social media; and 74% believed social media would add value when reviewing planning applications. The importance and value of social media in planning-related consultations should not be taken for granted, although whether we will see application site notices and local plan and neighbourhood planning letters replaced with push notifications sent direct to smartphones - and church hall public exhibitions superseded by online forums - in the short term remains to be seen. But moving forward, using social media should be considered as a potentially vital component in a developer’s consultation and engagement strategy, whether it’s for monitoring social media activity, or actively engaging with it.   At Lichfields, we recognise the potential power and value of social media platforms and consider that digital outreach cannot be ignored. We know how to capitalise on the pros and combat the cons in development strategies. For more information please contact us.

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