Planning matters blog | Lichfields

Planning matters

Our award winning blog gives a fresh perspective on the latest trends in planning and development.

Sadiq Khan has appointed his Mayoral advisors, including housing, transport and Crossrail 2
On 24 May, the new Mayor of London, Sadiq Khan, officially appointed five of his special advisors to support the implementation of his manifesto policies; James Murray will advise the Mayor on housing policy, Val Shawcross has been appointed Deputy Mayor for Transport (and Deputy Chair of Transport for London), while Lord Andrew Adonis has been proposed as Chair of the Crossrail 2 Board.James Murray is currently Executive Member for Housing and Development at Islington Council, a role that he has held since 2010 (he announced his intention to stand down from his role as Islington councillor). During his time as lead member on housing at Islington, he launched a major building programme of homes for social rent; this delivered 1,800 new affordable homes in 2010-2014 (projected to reach ‘at least’ 2,000 homes by 2015), while the Borough’s Housing Strategy 2014-2019 sets the target for 2,000 additional affordable homes in the Borough (including 500 new council homes) to be built in four years. The strategic planning policy objective that Islington Council set for at least 50% of all new homes delivered in the Borough to be affordable has been reflected by Sadiq Khan’s manifesto pledge on affordable housing requirement.During James Murray’s office, Islington was also the first council to publish an Article 4 direction (July 2013) to remove permitted development rights for office to residential conversions. In January 2016, the Borough adopted a supplementary planning guidance (SPD) on Development Viability, requiring that information submitted as a part of a viability assessment ‘should be treated transparently and be available for wider scrutiny’. Val Shawcross has a long-standing experience at London Assembly, having served as a member for Lambeth and Southwark during the last sixteen years, before standing down at this year’s mayoral elections. Her extensive Assembly experience led her to be appointed Chair of the London Fire & Emergency Planning Authority (2000-2008), and alternate Chair and Deputy Chair of the Transport Committee (2008-2014). The Mayor has also announced his intention to propose the appointment of Lord Andrew Adonis, as Chair of the Crossrail 2 Board. Lord Adonis, who has been long-rumoured as potential Deputy Mayor for Transport, is the current chairman of the National Infrastructure Commission (NIC), a position that he has held since October 2015. Before being appointed at the NIC, Lord Adonis has been Transport Secretary (2009-10), Minister of State for Transport (2008-09) and Minister for Schools (2005-08). He was also Head of the No10 Policy Unit from 2001 to 2005. His extensive infrastructure and transport experience has granted him a wide cross-party credibility and respect, which led to his nomination as chairman of the NIC by the Conservative Government.His appointment as Chair of the Crossrail 2 Board is of no surprise, given the work he undertook as chairman of the NIC; Transport for a World City, the second report published by the NIC on 10 March 2016, has called the Government to prioritise Crossrail 2 by granting the needed funds to Transport for London (TfL) and the Department for Transport (DfT) to draw up a business case for it; in the Budget 2016, the Government granted £80 million to help fund development of Crossrail 2. It’s worth noting that the appointment’s statement clarifies that he ‘will continue his role as chair of the National Infrastructure Commission’.The other two appointments announced on 24 May are Sophie Linden, as Deputy Mayor for Policing and Crime, and Fiona Twycross as Chair of the London Fire and Emergency Planning Authority.  

CONTINUE READING

Flexibility over small sites’ s106 affordable housing contributions here to stay - and vacant building credit stages a comeback
Judgement has been handed down in Secretary of State for Communities and Local Government (SoS) v (1) West Berkshire District Council (2) Reading Borough Council.  The Master of the Rolls Lord Dyson, and Lord Justices Laws and Treacy allowed the SoS’ appeal and all four grounds succeeded.  The local authorities could appeal to the Supreme Court, but for the foreseeable future, there is flexibility over how local planning authorities (LPAs) might apply government policy regarding small site affordable housing contributions and the vacant building credit (VBC). Both have made a comeback, with national Planning Practice Guidance (PPG) having just been updated to refer to the ruling. Background The SoS had appealed against West Berkshire DC (WBDC) and Reading BC’s (RBC) successful challenge (in 2015) of national policy introduced in 2014 for a ‘vacant building credit’ and which outlined the circumstances in which contributions for affordable housing and tariff-style planning obligations should not be sought from small scale and self-build development.  The Planning Court judgement led to the removal of guidance from the PPG (see para 24 of the 2015 judgement, and revisions to the PPG, for the wording of the deleted paragraphs). The policy changes had been introduced in November 2014 by Ministerial Statement, and added into the PPG in 2015.  Following the 2015 judgement, ‘policies’ related to small sites not having to make affordable housing contributions and VBC were removed from the PPG; only paragraph 31 of the ‘Planning Obligations’ PPG regarding starter homes exceptions in rural situations continued to refer to the Ministerial Statement. The judges’ conclusions Points 1-4 below summarise the judges’ conclusions on each ground of appeal: Inconsistency with the statutory scheme. The judgement makes clear that a policy does not need to express its openness to exceptions (e.g. where a development plan might be inconsistent with it), and to not do so does not demonstrate that a policy was intended to frustrate the effective operation of the statute (in this case being s38(6) of the Planning and Compulsory purchase Act 2004 and s70(2) of the Town and Country Planning Act 1990).  A decision-maker should ‘bring his mind to bear on every case, he cannot blindly follow a pre-existing policy’ without considering exceptions.  Furthermore, the Court agreed with the SoS’ Counsel that the SoS may express his view as to the weight to be given to his policy, ‘…But he cannot, so to speak, lay down the law about it’.  However, it is not in law that greater weight is to be attached to the development plan than other considerations. Failure to take into account material considerations when policy making. Whilst the statutory planning context prohibits the SoS from making policy that would frustrate the effective operation of s38(6) or s70 (2), and introducing policy matters that are not planning considerations, ‘… his policy choices are for him’.  The planning legislation does not lay down merits’ criteria for planning policy, nor establish what the policy-maker should or should not regard as relevant to the exercise of policy-making.  The SoS did not need to take into account the matters Holgate J considered to be ‘obviously material’ considerations in the 2015 judgement. Inadequate consultation. The judges considered whether the consultation process was so unfair as to be unlawful, and concluded that it was not unfair and the Minister was entitled to consider the range of responses (and relevant information), and form his own conclusion. Breach of the public sector equality duty. The judges acknowledged that the February 2015 Equality Statement takes a ‘relatively broad brush approach’ but concluded that compliance with the terms of s149 of the Equality Act 2010 was achieved. Has national policy/ guidance been restored? If so, how should it be interpreted? Before amending the PPG on 19 May, the government issued a press release indicating that, following the judgement, the policy relating to vacant building credit and small sites not having to make affordable housing contributions in planning obligations had been 'restored'. The PPG’s 19 May updates now provide guidance on self-build and small sites not making affordable housing and tariff-style contributions via s106 obligations, whilst acknowledging that some planning obligations may be necessary to make development acceptable in planning terms.In our view, restoring the PPG was not essential, because the Ministerial Statement still existed and still applied.  While the ‘policy’ in the PPG was being challenged, the weight to be given to the Ministerial Statement as a material consideration was limited - but it remained a matter for the decision-taker to decide how much weight to attach to it.In addition, prior to this judgement, the general interpretation was that the PPG required LPAs not to seek affordable housing contributions for small sites and to apply VBC in certain defined circumstances - which is why the local authorities (LAs) involved challenged the PPG paragraphs and the Ministerial Statement.  Our view is that the judgement indicates that the statement of policy and the PPG paragraphs did not and cannot have this effect because government policy and guidance are no more than ‘other material considerations’ in planning law. This was a key reason for the SoS’ appeal succeeding.  Accordingly, LPAs may continue to seek affordable housing contributions where development sites are for less than ten units, if their development plan has an up-to-date evidence base in support of this approach. Does a ‘blanket approach’ to interpretation of the Ministerial Statement/ the reinstated PPG paragraphs apply? Our view is that the judgement explains that a ‘blanket approach’ to these policies/ PPG paragraphs (or any government planning policy or guidance) is not correct, and that the weight to attach to the PPG’s approach to small sites not having to make s106 affordable housing contributions, and to VBC, would be for the decision-taker to decide.  In this respect, where LPAs’ development plan policies are supported by up-to-date evidence, they will be able to continue to seek affordable housing in relation to small sites.  And as regards VBC, an LPA might demonstrate, for example, that the credit should not be applied because the LPA’s housing requirement is heavily reliant on the re-use of brownfield sites for the delivery of affordable housing. Have Reading BC or West Berkshire DC publically indicated whether or not they intend to appeal? The Councils have issued a joint statement saying that they are ‘considering their options’ in light of the decision, and defending their decision to appeal on the basis of the number of affordable homes secured between the two judgements (they have 28 days from the date of the judgement to decide).  We consider an appeal unlikely. And in any event, NLP’s view is that the decision can be seen in effect as a success for the LPAs concerned, and others, because it makes it clear that there is no ‘blanket approach’ to the application of government policy to decision-taking (see above), or plan-making.  

CONTINUE READING