Dr. Malcolm Hockaday
15 Feb 2019
Lichfields is currently monitoring the draft London Plan Examination in Public (EiP), which is scheduled to last until May 2019, and will report on relevant updates as part of a blog series. The second blog of the series focuses on the hearing session for draft policy H2 ‘Small sites’, which took place on 13 February 2019.
The small sites Policy H2 of the draft London Plan is apparently there to encourage small and medium builders to become more involved in housing delivery, with their contribution having dropped from 40% of delivery to only 12% now as a result of the growth of London’s new big players. But there is a lot of cynicism as to whether the theory of easy planning/fast delivery is anywhere near achievable.
With bigger sites running out and the GLA being pressed to higher targets rising from 33kpa to 65k pa or more – and without opening up green belt or MOL – there is nowhere else to go leading to an emphasis on Outer London, to the (mainly) Tory Boroughs, to deliver nearly 40% of London’s overall need through such small sites. It is recognised by the Mayor as a step change but is, rather, a vain hope for sufficient delivery and fast enough delivery. The focus is placed on those areas within 800m of a station or town centre boundary, wherever that is across London.
Worse, though, it passes the buck on that substantial delivery requirement from the centre (Mayor and Inner London Boroughs) to the Outer London Boroughs – making them responsible for the success or failure of the overall strategy. And of meeting the new local delivery tests and ongoing 5-year housing land supply requirements.
The proposed Plan approach is criticised as being, on a daily and application-by-application basis, no great change from existing policy – windfalls plus small allocations – but that it requires many local planning authorities (LPAs) to allocate substantial numbers of small site (up to 25 units and or 0.25Ha) through their plan-making to top up the rate. And that means lengthy discussions for plan-makers with numerous landowners on availability, assessing capacity, considering amenity issues and housing value to get anywhere near the suggested target.
Even a well-performing Council like LB Croydon - which has been achieving just under 600 units per annum on its existing windfall basis, with an SPD suggesting it can up this to 750 per annum – would have a new small sites target of 1500 units per annum.
There would be a target increase of 1% pa for suburban areas, with extra emphasis on detached/semi-detached housing areas – based on a proportion of the 5% annual sales churn across London. So, a 10% uplift in all areas of London over 10 years. The targets themselves are criticised as ‘reverse engineering’, with the justification created to achieve the identified shortfall elsewhere – based on modelling and without evidence base – and leaving the problems to others and/or for another day.
But at the 13 February session of the Examination in Public Outer London Councils suggested life would not be so easy. Firstly, it would involve 20% of all sales each year to go to redevelopment/extension/conversion rather than re-occupation as is. Secondly, small builders would find financing a small redevelopment with lower density houses rather than with flats as involving lower capital outlay at any one time (reducing risk) and with the same residual land value – undermining potential delivery increases. Thirdly, it would reduce the stock of family housing. Fourthly, it would introduce more housing in flood areas. Fifthly, it would change the character of the suburbs.
Small sites would not normally deliver any affordable housing, particularly for sites up to 10 units or even for larger ones with high existing use values. They would be difficult to plan for en masse in terms of real infrastructure delivery – schools planning, etc.
Perhaps more importantly, the intended ‘presumption in favour’ (but subject to conventional amenity testing) was queried as to what it meant in practice. Does it mean lowering the bar for such sites in order to increase delivery? Outer London Boroughs are already well versed in such matters. LB Bromley said that it is already winning 80% of appeals against overdevelopment. Will the Inspectorate have to lower the bar as well?
There is no Plan B – at least without releasing greenfield land. In this context, negotiating a good consent and with a much larger quantum of housing and faster annual delivery rates is said by some Outer London authorities to be more efficient. There is continued pressure from some London LPAs to relax green belt controls, allowing them to do what those outside London are already doing to genuinely achieve increased delivery.
It appears to be a case of kicking the can down the road (familiar at the moment) – to a later shortfall on delivery and the next review of the Plan. Or of kicking the can to someone else and setting them up to fail.
The Panel will have real trouble in resolving the two distinct positions to achieve soundness. Hope versus experience. But it needs to consider the whole picture of major releases, Opportunity Area development, normal windfall development, etc. and then from where delivery can realistically and best be topped up.
Lichfields will publish further analysis on the draft London Plan Examination in Public in due course. Click here to subscribe for updates.
draft policy H2 ‘Small sites
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Image credit: Paul Hudson
The Lichfields Cardiff office has guided some of Wales’ biggest development schemes through the consultation and engagement requirements of major planning applications and Developments of National Significance (DNSs)[i].
This Q&A explores the differences and similarities between the two determination regimes.
What are DNSs and Major Developments in Wales?
‘Major development’ includes residential development of 10 or more dwellings, or with a site area of at least 0.5 ha. For non-residential development it comprises sites with an area of at least 1 ha, those creating at least 1,000 sq m of floorspace, or waste or mineral development, unless it is classified as a DNS. Applications for major development are determined by the relevant local planning authority (unless they are subject to an appeal process).
DNS development includes projects of a specified scale relating to land uses including airports, railways and electricity-generating stations (among others). A full list of DNS project and thresholds is set out in the ‘Specified Criteria’ Regulations[i]. Applications for DNS development are determined by the Welsh Ministers through the Planning Inspectorate (PINS) Wales, with the local authority being a statutory consultee.
A DNS development does not have to be ‘major’ to be of ‘national significance’; it is solely dependent on whether the scale of development exceeds the thresholds set out in the Regulations.
Client image: Valero/ERM
What are the key differences between consultation and engagement for DNS and major development projects?
Both are required to undertake a minimum level of consultation prior to submission however there are key differences in the length and nature of that consultation.
DNS applicants are required to undertake pre-application consultation for 42 days. For major developments this is 28 days.
DNS pre-application consultation must include the publication of a newspaper notice, as well as consultation with other ‘relevant persons’. The exact nature of consultation and publicity will vary depending on the proposal and it is expected that most DNS projects will exceed the minimum requirements.
Post-submission publicity for DNS applications is undertaken by PINS Wales rather than the local planning authority. This includes a further newspaper notice, serving notice on adjoining owners or occupiers and a website. For major development applications a local authority would only need to publish a newspaper notice if the development is an EIA project, if it is not in accordance with planning policy or if it would affect a public right of way.
DNS applications are determined by the Welsh Ministers though the relevant local authority is required to submit a Local Impact Report. Community Councils and other interested local planning authorities may submit a Voluntary Local Impact Report. These are similar in nature to the Officer’s Report associated with major planning applications.
What are the consultation challenges for DNS projects and major developments and how can these be overcome?
Many of the challenges are similar between the two determination routes, albeit they are often amplified for larger scale developments. Below we look at some of the key challenges and how they may be overcome:
Ensuring Compliance: Understanding of the relevant legislative requirements is vital. This is applicable for DNS and major developments, but the complexity of DNS projects means this is particularly important and, if not undertaken correctly, could lead to considerable problems at the determination stage. Make sure that you have a project team that has a proven track record in the relevant consultation process.
Timing & Frequency: Whilst DNS and major development consultations have mandatory elements, going above and beyond the statutory requirements can pay dividends. Ironing out as many issues as possible at the pre-application stage will allow the determination process to focus on the key issues; providing certainty to all and speeding up the decision-making process. Early and regular engagement can therefore have big benefits, but it is important that the engagement is meaningful.
Misinformation & Proportionality: Due to the scale and complexity of major and DNS applications the risk of misinformation, or small issues becoming a major problem is a risk. The use of social media has increased the speed at which this can happen. Lichfields' Smarter Engagement Five Point Plan highlights the need for a consultation strategy to be shaped by an understanding of the various stakeholder groups relevant to the project. It is important that the team responds to potential issues at the earliest opportunity. Ignoring misinformation could compromise the project in the long run.
Managing Volume: the scale of DNS and major development projects makes managing the volume of responses, reviewing and handling them in accordance with the General Data Protection Regulation (GDPR) a significant task in itself. It is vital to have robust and efficient handling procedures in place.
Value of face-to face contact: Neither regime makes it mandatory to meet consultees face-to-face however faceless consultation can fuel misinformation and misunderstanding (see above). Invariably there is a solution to a problem through face-to-face contact and explaining the proposed development.
What tips would you specifically give to applicants for DNS and/or major development projects?
Consultation is key! Think about consultation and engagement early in the process and allow sufficient time in the programme. Specifically for DNS projects, be mindful that the application must be submitted within 1 year of PINS Wales’ acceptance date of the DNS.
Understand the relevant Regulations and what is required at each stage to avoid delay and the potential for future legal challenge.
Make sure to use the correct consultation and notice forms. For DNS projects these are provided as Schedules within the DNS Procedure Order (NB. PINS Wales can provide these forms in English and Welsh on request).
Only undertake mandatory pre-application consultation when you are ready. There is scope to vary the proposed development once the DNS or major development consultation has finished, however if substantial scheme changes are made the process may need to start again.
Remember to include any secondary consents in the DNS application scheme/consultation. This includes Listed Building Consent, Conservation Area Consent and Hazardous Substances Consent, among others.
Ensure that the consultation is accessible to all – including English and Welsh speakers (N.B. Lichfields can provide in-house translation services if required).
Think of the mandatory pre-application consultation website as a tool for disseminating information as well as a consultation portal. This helps to keep everyone updated and encourages communities to become involved in the project.
Image credit: Foster + Partners
 Developments of National Significance, Welsh Government The Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) Regulations 2016