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Planning matters

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Right to rise: extending purpose-built residential blocks upwards
From 1 August a new permitted development right (PDR) will allow up to two storeys to be added to residential buildings. As anticipated, this will be in certain circumstances and subject to a successful prior approval application. The PDR has been inserted into the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) by the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020. When upwards extensions in London were consulted on by the Cameron Government and the then Mayor of London (a certain Boris Johnson), the consultation outcome opined that prior approval would have been no less onerous than a planning application and instead a supportive paragraph was to be included in national policy (see paragraph 118e of the National Planning Policy Framework (NPPF)). Indeed, the additional storeys PDR and its associated limitations, restrictions and conditions, including its own prior approval procedure, is more than 2,000 words long. In my view, this new PDR is most comparable to the PDR to change from retail to residential, which effectively requires a mini retail assessment. That PDR has had relatively low take up, but forms a fallback position for redevelopment or larger change of use schemes if it can be demonstrated that prior approval was likely to have been granted. This PDR is also very likely to be used to create a fallback position, both for sites that can benefit directly and – to a lesser extent - for development sites nearby that might indirectly benefit from successfully demonstrating that a neighbouring building extending by two storeys via PDRs is a realistic short-term future urban context. This blog provides an overview of the additional storeys PDR or “right to rise”. We will cover separately the other provisions introduced by the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 – some of which are already in force. What will this new PDR provide? New Part 20 Class A grants planning permission for self-contained flats to be constructed on top of certain existing, purpose-built blocks of flats together with limited associated works, subject to conditions, limitations and restrictions. What types of building will benefit? The PDR will apply to purpose-built, detached blocks of flats, built after 1 July 1948 and before 5 July 2018, when consultation on this new PDR was announced.  The Order expressly excludes buildings converted to residential via certain PDRs, but ‘purpose-built’ is defined – so buildings converted from the use for which they were built, whether with planning permission or not, do not benefit.  This also suggests that where one of the flats was in non-residential use at the time of construction none of the block benefits, but this would need to be considered on a site by site basis. As one might expect, the existing flats must not be or form part of a listed building or scheduled monument or land within its curtilage and they must not lie in a conservation area. Flats in other locations commonly prohibited from permitted development may not be extended via Part 20 Class A either, including: areas of outstanding natural beauty, site of special scientific interest, the Broads, National Parks, and World Heritage Sites, a safety hazard area, a military explosives storage area, or land within 3 kilometres of the perimeter of an aerodrome. Notwithstanding, our Heritage Director, Nick Bridgland, notes that the additional storeys PDR will change not only the skyline, but the potential skyline.  The baseline for determining the impact of a new building on a heritage asset or conservation area will change if the skyline in the vicinity could increase by two storeys without planning permission.  This would need to be taken into account in assessments of heritage and visual impact. It might also affect landscape and visual impact assessments for the same reason. Can these types of residential building be of any height to benefit from the PDR? No; there are maximum and minimum heights. Buildings must be at least three storeys, measured from ground level, and the finished extended building must not be more than 30 metres high (not including plant). New storeys, measured internally, must be no higher than any of the existing storeys and in any circumstance no higher than three metres. Therefore, the PDR will probably apply to buildings of between circa 12 metres to circa 26 metres. What are the associated works for which prior approval may be granted? The associated works that may be granted planning permission by the PDR if forming part of the prior approval application include: engineering operations within the curtilage of the building that strengthen walls or foundations, or install or replace certain utilities but do not result in visible support structures necessary replacement or additional rooftop plant of the same height as the existing measured from rooftop level, but not new plant where there is none existing. safe access and egress constructed within the curtilage of the existing building works for the construction of storage, waste or other ancillary facilities within the curtilage of the existing building that are reasonably necessary to support the new dwellinghouses, not on land forward of the side elevation fronting a highway or principal elevation of the existing building Is prior approval required? Yes, prior approval is required; it is not a determination as to whether or not prior approval is required – albeit that under Class A’s own prior approval procedures it is acknowledged that sometimes not all (sometimes none?) of the following eight prior approval matters will be applicable: a) transport and highways impacts of the development; b) air traffic and defence asset impacts of the development; c) contamination risks in relation to the building; d) flooding risks in relation to the building; e) the external appearance of the building; f) the provision of adequate natural light in all habitable rooms of the new dwellinghouses; g) impact on the amenity of the existing building and neighbouring premises including overlooking, privacy and the loss of light; and h) whether because of the siting of the building, the development will impact on a protected view Is the decision maker limited to consideration of the above matters? Yes, although paragraph 14 of the prior approval procedure says: “(14)   The local planning authority may require the developer to submit such information as the authority may reasonably require in order to determine the application, which may include— (a) assessments of impacts or risks; (b) statements setting out how impacts or risks are to be mitigated, having regard to the National Planning Policy Framework issued by the Ministry of Housing, Communities and Local Government in February 2019; or (c) details of proposed building or other operations”. This paragraph may appear to open the door to requests for documents addressing a wide variety of matters or details, it will not cause difficulties if both parties have the same idea about what the local planning authority (LPA) may ‘reasonably require’ in order to assess the relevant matters. The LPA may refuse the prior approval application if it considers that the development does not benefit from the PDR or meet its conditions, or insufficient information has been submitted with the application to determine whether or not this is the case. In this circumstance the application may be appealed. When determining an application, the LPA must have regard to the National Planning Policy Framework (2019), where relevant to the subject matter of the prior approval, as if the application were a planning application. There is no requirement to refer to the development plan. Is there an application fee? Submission requirements are stipulated under Class A and include ‘any fee required to be paid’. It is very likely that a fee will be introduced for an additional storey PDR prior approval application. What are the design controls relating to height? In addition to the 30 metre height limitation mentioned above, the overall height of the roof of the extended building must not be more than 7 metres higher than the highest part of the existing roof (excluding existing plant). In addition, the additional storeys may only be constructed on the “principal part” of the building, which means the main part of the building excluding any front, side or rear extension of a lower height, whether this forms part of the original building or a subsequent addition. And where the prior approval application relates to the impact on protected views, the local planning authority must consult Historic England, the Mayor of London and any local planning authorities identified in the Directions Relating to Protected Vistas. Must the LPA consult with certain other bodies? The GPDO sets out for each of the prior approval matters except external appearance and daylight and sunlight how to approach consultation and who to consult. With regard to natural light, the GPDO says:  “Where the application relates to prior approval as to natural light, the local planning authority must refuse prior approval if adequate natural light is not provided in all the habitable rooms of the dwellinghouses”. This requirement to consider natural light has now been added to several of the PDRs to change use to residential by the same regulations that will introduce this PDR. Is public consultation required? The proposed upwards extension must be advertised by the LPA by site notice, by serving notice adjoining owners or occupiers and by serving notice on all owners and occupiers of the flats within existing block of flats.  Reaching all owners and occupiers might be difficult for the LPA, so the applicant should consider providing owners’ contact details where owners are not occupiers. The local planning authority must take into account any representations made to them when determining an application. Does the GPDO specify conditions to be attached to the prior approval? Yes, including requiring a construction management plan to be submitted prior to commencement. But the LPA can add more conditions, provided that they are reasonably related to the subject matter of the prior approval. The new dwellings must be self-contained flats and the new flats must remain in C3 use, although ancillary uses are permitted. The GPDO also says the local planning authority may grant prior approval unconditionally, which is presumably the LPA not imposing conditions, rather than permitting the LPA to remove conditions imposed by the GPDO. How long does the prior approval last? The prior approval must be completed within a period of 3 years starting with the date prior approval is granted. As soon as reasonably practicable, the developer must advise the LPA that the development has been completed. Might the proposed development be liable for the Community Infrastructure Levy? Yes, because new floorspace will be created. It might also benefit from certain exemptions and reliefs. Might the proposed development be liable for s106 contributions? Unlikely. At present, Planning Practice Guidance says: “By its nature permitted development should already be generally acceptable in planning terms and therefore planning obligations would ordinarily not be necessary. Any planning obligations entered into should be limited only to matters requiring prior approval and should not, for instance, seek contributions for affordable housing”. This guidance was obviously drafted prior to the current legislation and might be amended to take into account this new PDR, which unlike those before creates brand new residential floorspace rather than converting exiting floorspace to residential. However, the when determining the prior approval application, LPAs will also need to have regard to the National Planning Policy Framework, so far as relevant to the subject matter of the prior approval, as if the application were a planning application; none of the prior approval matters could be linked to the provision of affordable housing. The only way of seeking contributions might be if it were raised by a consultee, because Part 20 Class A prior approval applications will need to take into account any representations made to them as a result of any consultation. Any planning obligation should be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to the development. If the existing building has a planning condition limiting it to a certain number of units or another control related to extending the building can I benefit from the PDR? Please contact us to discuss this. While the GPDO cannot override a condition, the condition may not have been adequately drafted and/or may not apply in the context of a fresh planning permission to extend the building. Image credit: Joshua Mancini via unspalsh


First Homes: discounted market housing that actually delivers?
Off the back of a lacklustre take-up of Starter Homes (number delivered = zero), the Government has launched a consultation on ‘First Homes’, a form of discounted market housing.  The consultation closes on 3 April 2020. First Homes are to be aimed primarily at first time buyers who are young and local (including local key workers living elsewhere), but there will be exceptions, including serving members of the Armed Forces and recent veterans.  And where the development is comprised solely of housing aimed at a particular sector there may still be a requirement for First Homes. The new product will be enforced, and to some extent its conditions designed, by local authorities – the extent will depend on the combination of policy and law used to introduce it. The consultation document puts forward a series of options for various conditions and controls relating to First Homes, albeit Government’s preferred approach has been made plain by the consultation document, its press release and press interviews with the Secretary of State. The premise of First Homes is to diminish opposition to new housing developments, on the basis that local people will know that they might be able to afford to live in the development where perhaps historically they would not. Below is a summary of what the consultation says on each of the questions set out below, with some commentary: What would the discount off a new home be? A minimum 30 per cent discount off market value with an acknowledgement that this may not be sufficient in certain areas, so local authorities will have the discretion to apply higher discounts.  No maximum discount is proposed. The consultation says that applying higher discounts would be on a site by site basis.  An evidence-based blanket approach to higher discounts across an area would presumably be possible through a local plan or supplementary guidance if First Homes are introduced via policy rather than law, but the document does not indicate this.   Does only the first owner benefit from the discount? The full discount would be retained in perpetuity by placing restrictive covenants on the homes.  However, if the owner defaulted on their mortgage the lender would receive the home without the covenant and the discount would be lost.   How will the planning system be changed in order to deliver First Homes? Two options are put forward: 1. a new planning requirement in law or policy for the delivery of First Homes; or 2. changing the current national entry-level exception site policy to a First Homes exception policy. New law or policy Option 1 comprises two sub-options: a) prescribing that a given percentage of affordable homes secured through a s106 agreement should be First Homes; or b) prescribing that a percentage of all units delivered on housing sites of 10 units or more are to be First Homes. The Government believes (perhaps cynically, but accurately) that Option 1a) might discourage some local authorities from using s106 obligations to deliver affordable housing, which would mean fewer First Homes being delivered. Option 1b) is considered to provide greater assurance of delivery but might impact viability and reduce the potential for other developer contributions on certain sites. The Government estimates that if 40% of affordable homes secured by s106 agreements were First Homes, then 12,000 First Homes would be delivered (it appears to be a per annum figure).  This would increase to 16,000 if 60% of affordable homes were First Homes and 19,000 if 80% of affordable homes were First Homes. The Government acknowledges potential the trade-off between First Homes and other affordable housing tenures and that site viability means that affordable housing requirements are not always met.  Accordingly, legislative changes to ensure the First Homes policy “cannot be sidestepped” are being considered, but because this would this would reduce local discretion the Government is asking whether policy changes would suffice. Delivery through amending the exception sites policy An alternative is to amend the exception sites policy at para 71 of the National Planning Policy Framework (NPPF) as follows: “a. specify that the affordable homes delivered should be First Homes for local, first-time buyers; allow a small proportion of market homes on a site where essential to ensure the development will be deliverable; and remove the threshold on site size set out in footnote 33 of the National Planning Policy Framework but retain that they should be proportionate in size to the existing settlement”. The current exception site policy does not permit a proportion of market housing. The Government estimates that this approach would lead to 4,000 First Homes per year being delivered.  The Government is considering allowing other affordable housing tenures to be built under any new First Homes exception site policy where sufficient First Homes had been provided in an area to meet demand. Amending the Community Infrastructure Levy Regulations The CIL Regulations would be amended to provide a CIL exemption for First Homes.  The CIL Regulations may also be amended to ensure that CIL charging rates “are not set at a level that would prevent current levels of affordable housing delivered through s106 obligations from being delivered in future”.   Can any new property be bought with the discount? To avoid the purchase of “exceptionally expensive” property being subsidised, a cap on the market value of a property that could benefit from the First Home discount might be put in place.  If set at a national level local authorities could still introduce a more targeted, lower price cap to reflect local circumstances.  An alternative is to introduce regional caps, but the consultation raises concerns that this may not sufficiently reflect local markets, and caps set at a sub-regional level are considered potentially inflexible. Who will be eligible for a First Home? And how will demand be managed? Young, local, first time buyers predominantly and also serving members and “recent” veterans (to be defined) of the Armed Forces.  The definition of local will be determined locally, with reference to current residency or work location.  The consultation acknowledges that older people’s housing would not be suitable for first time buyers and suggests that this is an example of a circumstance where non first time buyers might be eligible – it does not suggest that First Homes would not be required in such a development.  The Government may set an income cap on eligibility, and where demand still exceeds supply local authorities might review an applicant’s income and assets in more detail, in a bid to seek out those most “in need”.  However, unlike Starter Homes, there is no suggestion that First Homes would have to be bought with a mortgage or with a minimum loan-to-value on a mortgage. Related to this, the Government says “it will be important to ensure that decisions about who is prioritised are made in a fair and transparent way, which avoids price inflation and counter-offers”. It suggests selecting those to benefit from the scheme on a first-come, first-served basis, or use of local eligibility criteria perhaps reflecting income and assets.  Unsurprisingly then, the consultation encourages ideas on how to prioritise demand. What if there is no local demand? Prioritisation of those with local connections and first time buyers (and presumably others who are eligible for First Homes) will be time-limited. Will local authorities be provided with additional resources to support the scheme? The Government is minded “to leave the details of the administration to local authorities” and asks how local authorities can be supported and whether additional costs are likely.  There would be a model First Homes agreement, which would reduce the need for lenders to understand local models.  It is difficult to imagine that the Government really considers it likely that there would be negligible costs for local authorities, at least during set up of the controls.   Can First Homes be offered for rent? On the face of it, no. However, the Government proposes that owners of First Homes may let their property for up to two years without seeking the local authority’s permission and for longer periods at local authority discretion.  The example given for when longer term letting might be authorised is where the owner is in long term residential care.  The consultation asks what is an acceptable period of time (including never) to rent out a home without local authority permission.  It is proposed that serving members of the Armed Forces would be able to let their property out while on an assignment more than 50 miles away. It is not clear how letting periods would be monitored or enforced both from a cost perspective and given that it may require the eviction of a tenant.   Are First Homes eligible for Help to Buy? No. Why is the Government introducing this measure? In an interview with Talk Radio Mr Jenrick said: “We think this will get more homes built across the country. The big housebuilders support it because they, like us, think that this will build popular support. You see a housing estate going up near you, you will know that this is an opportunity for you, your children or your grandchildren to get on the housing ladder with a discount that on the average home will be £100,000”. Does the Government comment on the potential impact on other affordable housing tenures? The Equality Impacts section of the consultation acknowledges that delivery of First Homes via s106 agreements could impact the numbers of homes delivered for other affordable housing tenures. In response, the Government claims the prospect of additionality: “However, increasing contributions through entry-level exception sites will lead to the development of additional First Homes as this land would not otherwise have been used to build housing in the short or medium term. This will increase the development of First Homes while mitigating the impact on provision of other types of affordable housing tenures”. The exception site approach might not directly squeeze out other tenures (it would remove the current exception site policy for all forms of affordable housing), but is not plan-led. MHCLG, First Homes: Consultation on the delivery and design of First Homes