Planning matters

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Planning (Scotland) Act 2019  - National Planning Framework
The Planning (Scotland) Act 2019 was placed on the statute book at the end of July and this made provisions for the National Planning Framework to be part of the development plan and therefore a consideration when determining planning applications.  The current NPF was adopted in June 2014 and the Act requires Scottish Ministers to review it no later than 23 June 2024 and thereafter every 10 years.  Following the review they must either revise the NPF or make a statement as to why they haven’t.

In preparing a revised framework Scottish Ministers must publish their participation statement and in making the plan must have regard to relevant polices and strategies of Scot Gov including relating to housing, infrastructure investment, transport, climate change, air quality, land and the national marine plan. In addition, the NPF must consider resettling depopulated areas, preserving disused railway infrastructure and preserving peatland.

In preparing the framework Scottish Ministers can direct a planning authority or 2 or more planning authorities to provide information on:

  • the principal physical, cultural, economic, social, built heritage and environmental characteristics of the area;

  • land use;

  • population;

  • housing needs generally and the housing needs of older people and disabled people within the area;

  • the capacity of education services and health services;

  • the health needs of the population;

  • the desirability of allocating land for the purposes of resettlement;

  • the infrastructure and how it is used (including communications, transport and drainage systems and systems for the supply of water and energy); and,

  • any other matters as are prescribed.
In revising the NPF Scottish Ministers must have regard to any adopted Regional Spatial Strategy (RSS).  RSSs will replace Strategic Development Plans and are to be prepared without delay once that provision of the Act comes into force.  RSSs will be prepared by one or more planning authority working together; they will sit outside the development plan and so will not directly influence development management decisions; and, interestingly, Scottish Ministers can direct a planning authority/ies to prepare and adopt an RSS for a particular region or direct a review on an adopted RSS.

Scottish Ministers must consult on their draft NPF and have regard to any representations made within 120 days.  If changes are made there must be a re-consultation.  A statement of consultation is required setting out the representations and any changes made as a result.

Also, there is a new duty that requires Scottish Ministers to report on how the planning system is meeting the needs of older people and disable people every 2 years.

See our other blogs in this series:

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The amendments to the CIL Regulations that will be felt most immediately
The most recent amendments to the Community Infrastructure Levy (CIL) Regulations (2010) come into force on 1 September and the consequences of many of the changes to the Regulations will be felt immediately.  But only in England – this is the second set of amendments to the CIL Regulations that do not apply in Wales (the first were made earlier this year and relate to London only [1])

From a development management perspective (as opposed to the drafting of charging schedules), there are several amendments relating to the calculation of CIL liability that will have immediate effect.  This blog focuses mainly on the lifting of the pooling restriction.

The lifting of the pooling restriction and infrastructure funding statements

Clearly, how noticeable are the changes will vary depending on the development proposed and whether or not it is a section 73 planning application.  However, beyond the introduction of a consolidated schedule for calculating CIL liability, the most noticeable immediate change is likely to be the lifting of the ‘pooling restriction’, which will arise from the deletion of Regulation 123. 

Any development granted planning permission on or after 1 September 2019 may be subject to a section 106 agreement contributing to infrastructure that has already benefited from contributions from five or more planning obligations (since 2010); this has not been possible since 2015 or earlier (where CIL charging schedules took effect sooner).  It also means the end of devising ‘clever ways’ of developments contributing to a piece of infrastructure than has already benefited from five or more planning contributions, such as each development contributing towards a specific classroom of a school.

The intended effect of this is to allow CIL and planning obligations to fund the same piece of infrastructure and accordingly remove what can be a barrier to development.  Whilst many have sought its removal, some in the property sector have raised concern that it will result in ‘double dipping’ (i.e. CIL and s106 contributions from the same scheme paying for the same piece of infrastructure).  But in its response to the consultation ‘Reforming developer contributions’[2], the Government said, in effect, that double dipping doesn’t matter and indeed is a sensible approach if it means the relevant piece of infrastructure will be paid for more swiftly and theoretically come forward more sooner: “This will enable more flexible and faster infrastructure and housing delivery”.

Furthermore, the Government considers that the Infrastructure Funding Statements (IFSs) required annually from 31 December 2020 will allay concerns regarding double dipping by keeping an appropriate audit trail of all contributions to receiving authorities and how they are spent, whether s106 or CIL.  There is no penalty for not producing an IFS; the Government says it will consider further changes to legislation if IFSs are not produced (the matters to include in an IFS are listed in new Schedule 2[3]).  Given that the matters to include have already been diluted in response to concerns about what to include, it is possible that some contribution receiving authorities might not produce an IFS.  That said, given that Plans must set out the contributions expected and the type of infrastructure required (NPPF para 34) and site viability is to be carried out in plan-making, failure to produce an IFS might be a more obvious omission than a failure to address other recent requirements (such as an updated brownfield register or providing sufficient land for everyone on self-build housing waiting list). Before IFSs are produced, the list of infrastructure on which CIL monies are to be spent remains, but no longer needs to be referred to by developers as from 1 September it will be possible to pay s106 contributions towards items on the list.

The lifting of the pooling restriction might affect planning applications that have been approved subject to a s106 agreement but before it has been signed and there is not yet a formal permission – most probably where the pooling restriction has caused difficulties that were only just surmountable.  Any changes to the planning contributions might need to be reconsidered by the planning committee, if that was the determination route. 

The lifting of the pooling restriction would not affect planning permissions already granted, including outline permissions, although there might be discussion in some future instances about whether a section 73 planning permission would provide different planning obligations to the original planning permission because previous limitations have been removed.  The Government is to produce guidance on how changes to the Regulations affect historic s106 planning obligations.

Failure to submit commencement notices will no longer lead to the loss of relief

From 1 September, the CIL Regulations will no longer state that a chargeable development ceases to be eligible for social housing relief if the development starts before a commencement notice is submitted.  Similar changes have been made to other types of relief.

Instead, there are new surcharges that relate specifically to developments granted a form of relief, where the development starts without a commencement notice being submitted.  This surcharge must be imposed, and in relation to this, the consultation response provides an interesting insight to the differing approaches of some of the collecting authorities.  Some considered a mandatory surcharge inflexible, while others said the penalty was too small to incentivise submission of a commencement notice.  On concerns about inflexibility, the Regulations are clear that a collecting authority does not have to impose a surcharge when the cost of chasing it would be greater than the surcharge itself.

New abatement provisions for s73 phased planning permissions first permitted before CIL was in effect (‘balancing’ and ‘phasing credits’)

New abatement provisions will be introduced for phased planning permissions first permitted before the Levy came into force in an area, which are subsequently amended after a charging schedule is in effect.  This will include a mechanism to allow for the balancing of liabilities between phases for developments which were first permitted before the Levy came into force.

The Government is considering providing worked examples of these provisions as it is acknowledged that they are complex, particularly with regard to keeping an audit trail of phasing credits and potential difficulties in calculating the “notional” liability of a pre-CIL planning permission.

New schedule 1 seeks to set out clearly which formulas to apply to different scenarios where a planning permission is amended (see below).

The new provisions do not extend to taking into account the floorspace of an ‘in-use building’ when calculating CIL where that building has been demolished by virtue of a pre-CIL planning permission and is therefore not an ‘in-use building’ for the purposes of the subsequent section 73 planning permission.

A future Lichfields’ Planning Matters blog will consider these changes in more detail.

Carrying over of exemption, relief and payment by instalments to s73 planning permissions

The amendment regulations seek to ensure that where a planning permission benefits from exemption or relief, or the right to pay by instalments, this can be carried over into an amended planning permission; currently this is not always the case.

Applying indexation to s73 planning permissions

According to the Government’s response the amended regulations “seek to avoid a new liability for the entire floorspace of the development being calculated at the latest indexed rate where a section 73 application is granted. The regulations ensure that any increases in liability resulting from a section 73 application are charged at the latest rate, including indexation, while previously permissioned floorspace continues to be charged at the rate/rates in place when those elements of the development were permissioned”.

The Government plans to produce guidance to assist interpretation of this amendment.
These amendments are purported to have been introduced in the interests of fairness, but arguably they are only required because some collecting authorities have been seeking to take advantage of potentially unclear drafting in the existing Regulations, when the intention as now set out more clearly was already clear.

Consolidation of key formulas used to calculate the levy

As noted above, the new schedule 1 at the end of the Regulations attempts to consolidate into one place the formulas for calculation of CIL liability and social housing relief, providing various scenarios for amended planning permissions that are clearly identified. 

New indexation arrangements from 1 January 2020

The Government will not go ahead with its proposal to use different indexes for residential and commercial development.  Instead, the Government has asked the Royal Institution of Chartered Surveyors to produce a bespoke index for the Levy, based on the Building Cost Information Service’s (BCIS) All-in Tender Prices Index, to be known as the ‘RICS CIL index’.

This new index will be produced annually, be made publicly available and will not change through the year.  The charging authority will also provide an ‘annual CIL rate summary’.

The Regulations require that the BCIS index applies to planning permissions granted before 1 January 2020.  From 1 January 2020 the RICS CIL index that is to be published at the end of this year will be used for planning permissions granted on or after that date.

The BCIS index will reapply if for any reason the RICS CIL index is not produced in November of any preceding year.

[1] Community Infrastructure Levy (Amendment) (England) Regulations 2019

[2] Government response to reforming developer contributions[3] The Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019

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Goodbye Windy City!

Nuala Wheatley 23 Aug 2019
“Good wind microclimate conditions are necessary for creating outstanding public spaces in the City for all”. (City of London Corporation)
 

Such was the headline of the UK’s first wind microclimate guidelines, published this week by the City of London Corporation (CLC), affecting new development proposals within London’s ever climbing Square Mile.

Strong winds around the base of high-rise structures is a well-documented effect, as is the ‘channelling’ effect of wind being forced through narrow gaps if multiple towers stand close to one another. Now, for the first time, developers will be required to provide a more robust assessment of the impact of new developments over 25m tall, raising the benchmark for acceptable wind conditions in the City and combating the effect of potential wind tunnels on city workers and cyclists.

This year’s New London Architecture London Tall Buildings Survey found that 60 skyscrapers were to be completed in 2019, with an overall pipeline of tall buildings in the capital at 541. Within the Square Mile cluster, another 13 skyscrapers are planned by 2026 with six already under construction and seven having received planning permission from the CLC. Alistair Moss, Chair of the Planning at Transportation Committee at the CLC, acknowledged the need to address the impact of the increasing number of planning applications for tall buildings on microclimate conditions, stating “it is important that the knock-on effects of new developments on wind at street-level are properly considered”. The move has reportedly been supported by many cycling groups.

2026 View from City Hall

Source: GMJ and City of London Corporation

What does this mean for developers and future planning submissions?

The guidelines dictate that developers proposing a tower more than double the height of its surrounding buildings will need to provide both wind tunnel testing and Computational Fluid Dynamics (CFD) assessments. CFD’s should be undertaken by an appointed wind consultant and will test the impacts of a scheme within early design development (i.e. pre-application stage). This can allow proposals to be adapted and necessary solutions to be found early on, preventing costly mistakes further down the line in the determination process of major planning applications.

Developers should take note that proposals for development situated in ‘exposed areas’, such as near the Thames and other sensitive pedestrian areas, transports hubs, hospitals and schools may require more detailed checks. The guidelines encourage early consultation with CLC planning officers, to determine whether their project will be subject to additional requirements.

The CLC also indicate that other factors such as temperature, sunlight, air quality and noise, which also influence our enjoyment of outdoor spaces, may be incorporated into a future edition of the guidelines. Interestingly, this links to the increasing and welcome consideration of pedestrians and cyclists ahead of cars in the City, exemplified by recent publicity surrounding traffic-free-lunchtimes and Sadiq Khan’s car-free day.

Overall, with London’s skyline continuing to head upwards, the new guidelines mark a significant and pioneering step by the CLC. However, other areas of London and ultimately other cities also expanding vertically, will need to follow suit, preparing guidelines or adapting existing policies to address the impacts on microclimate conditions at ground level, supporting the prioritisation of the safety and comfort of pedestrians and cyclists.

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Planning (Scotland) Act 2019  - Regional Planning

The Planning (Scotland) Act 2019 was placed on the statute book at the end of July and after much to-ing and fro-ing on through the debate stages Regional Planning is “in” but will not form part of the Development Plan once the current Strategic Development Plans (SDP) are replaced by the new Regional Spatial Strategies (RSS). 

RSSs are to be prepared without delay once this provision of the Act comes into force.  It is not clear when this will be and Scotland’s chief planner John McNairney has forecast that it will take two years for the new planning system to be up and fully running. 

So what is the role of regional planning now that it is outside of the development plan? 

The RSSs will have a role in informing both the National Planning Framework (NPF) and the Local Development Plans (LDP) both of which will form the Development Plan but RSSs will not directly influence development management decisions.

The RSS must identify:

  1. the need for strategic development; 

  2. the outcomes to which the authority (or authorities) consider that strategic development will contribute;

  3. priorities for the delivery of strategic development; and

  4. proposed locations for strategic development, which must be shown in the strategy in the form of a map or diagram.

Before adopting and RSS a planning authority/ies must publish a draft, the info used in preparing it and a statement inviting representations by a certain date.  There does not seem to be any provision requiring the planning authority to take account of representations made before they adopt the strategy.  There does not appear to be any examination.

Planning authorities must keep their adopted RSS under review and if they consider it appropriate prepare and adopt a replacement strategy. In any event a review is required every 10 years which should be followed by a revised strategy or an explanation as to why a revision is not necessary.

Interestingly, Scottish Ministers can direct a planning authority/ies to prepare and adopt an RSS for a particular region or direct a review on an adopted RSS.

It is my understanding that once a new NPF is in place the current SDPs will cease to be part of the Development Plan.

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