News
England planning news, July 2018
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Headline news |
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Law |
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Policy |
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06
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Headline news |
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Letwin Review: Draft Analysis of the Independent Review of Build Out Rates published
- what the build out rate on large sites in areas of high housing demand actually is;
- why the rate of build out on these sites is as it is; and
- which factors would be most likely to increase the rate of build out on these sites without having other, untoward effects.
- Resolution of major infrastructure matters and provision of utilities would open-up large sites more quickly (and therefore require Government attention), but would not affect build out rates once construction has begun;
- Because remediation is usually required prior to commencement of development (i.e. prior to a permission being 'implementable'), there is no contrast between the build out rates of brownfield and greenfield sites;
- There is no evidence of capital constraints, although if SME builders were able to develop elements of large sites they might experience finance constraints that would require attention. A lack of access to large sites is also recognised as the main barrier to entry for Build to Rent;
- Greater assurances regarding the level of building materials required would lead to increased domestic production of the necessary building materials, with gaps in the interim filled by imports, and modular components reducing dependence on some materials in the medium term; and
- Ministers must consider now the need for measures to achieve a rapid expansion in the number of bricklayers.
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Quote of the month |
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Consultations are meaningless if the Government has no intention of listening to the feedback it receives.
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Law |
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Secondary legislation
The Town and Country Planning and Infrastructure Planning (Environmental Impact Assessment) (Amendment) Regulations 2018
The New Towns Act 1981 (Local Authority Oversight) Regulations 2018
- where the oversight authority is the local planning authority for the area, approval of the plans for development of the new town by the new town development corporation;
- the appointment of Board members of the new town development corporation;
- the approval of land acquisitions or disposals by the new town development corporation; and
- consenting to the development corporation’s borrowing.
On the same day that the Regulations were laid, the Ministry of Housing, Communities and Local Government (MHCLG) published the Government’s response to a previous consultation, launched in December last year, that sought views on draft Regulations made under s16 of the Neighbourhood Planning Act 2017. As a result of that consultation, additional provisions include (amongst other things) that the oversight authority must have the aim, in overseeing the development of an area as a new town, of planning from the outset for the ‘participation of the community’ and ‘legacy arrangements following the dissolution of the new town development corporation’. The most significant amendment is that HM Treasury consent for borrowing by the new town development corporation in excess of £100 million is no longer required; borrowing is to be agreed between HM Treasury and the oversight authority.
On 29 June, MHCLG published guidance to accompany the draft Regulations setting out ‘how the Government expects the process of setting up a locally-led new town development corporation to work’. As previously announced by the Housing Minister in response to a series of written questions by Priti Patel MP regarding the New Towns, the guidance provides:
- further details on the mechanisms for ensuring appropriate local authority oversight of locally-led New Town Development Corporations;
- details on the involvement of private sector representatives in the governance of locally-led new town development corporations, and participation by local communities;
- details of the information and preparatory work the Secretary of State for Housing, Communities and Local Government will expect to see from local authorities wishing to designate a new town and create a locally-led new town development corporation, including arrangements for agreeing peak borrowing requirements; and
- details of the process for designating a new town and establishing a locally-led new town development corporation, as well as information on governance arrangements; stewardship and community engagement; making plans for development and other areas.
Planning permission quashed due to failure to have due regard to the public sector equality duty
In R oao Buckley v Bath and North East Somerset Council, Peter Buckley, a long term resident of the estate and representative of the Residents’ Association challenged the decision to grant planning permission on four grounds. Three of the grounds failed, but the first ground, that Bath and North East Somerset Council failed to have due regard to certain matters as required by section 149 of the Equality Act 2010 ('the 2010 Act') which is known as the public sector equality duty (PSED), succeeded. The matters required by the PSED include having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and protected characteristics include age and disability.
The judge, the Honourable Mr Justice Lewis considered:
‘[…] the real issue of substance was whether the defendant could demonstrate that it had had due regard to the impact on the elderly or disabled of the loss of their existing home. Disabled persons may well have had an existing home adapted and can be certain that they can live, and function, in that environment. To lose that environment may give rise to particular considerations as to the impact of such a loss which are different from, and greater than, the impact on other persons.'
Most of the properties on the estate are owned by a registered social housing provider, with others leased from other registered social housing providers, and some privately owned. The development would result in the loss of 204 affordable homes.
The policy that was of primary relevance to the planning application, and which had been subjected to an equalities impact assessment, stated a general presumption to support the redevelopment of social housing where certain criteria were met (policy H8). The policy H8 criterion relied on in this case was that ‘[t]here is a site specific socio-economic justification of re-development led regeneration, considered alongside alternative options for re-modelling or refurbishment'.
The Judge concluded:
- duty in section 149 of the 2010 Act applies to the function of granting outline planning permission pursuant to section 70 of the 1990 Act, and to the function of granted reserved matters approvals;
- policy H8 did not involve an assessment of the needs of particular groups or the impact of the demolition of dwellings of persons with protected characteristics, therefore the case did not involve the application of a policy designed to address the kind of equality considerations that might arise in relation to a particular proposed development and compliance with Policy H8 would not automatically involve compliance with the PSED;
- notwithstanding that the application material included demographic composition of the estate, including the proportion of older persons and disabled persons, living on the estate and explained the steps taken to consult with residents to address the concerns about displacement:
‘[…] the focus was on the impact of displacement, or moving, of residents. The defendant did not specifically address or have regard to the impact on groups with protected characteristics, in particular the elderly and the disabled, of the loss of their existing home. It may well be that not a great deal would have needed to be said on this matter. It may have been sufficient to draw that matter to the decision-maker's attention and then the decision-maker could have decided whether the contemplated benefits of the proposed development did outweigh any negative impacts. Ultimately, however, I am persuaded there were matters relevant to the discharge of the PSED which the relevant decision-maker needed to have due regard to but which were not drawn to the decision-maker's attention. In the circumstances, there was a failure to discharge the duty imposed by section 149 of the 2010 Act'. - the proposal was controversial, with members voting five to four in favour, so it could not be said that if the PSED breach had not occurred it would have been highly likely that the outline planning permission would have been granted in this particular case.
Policy |
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Government policy and guidance
Airport National Policy Statement approved in Commons vote
On 25 June, the House of Commons voted in favour of the proposals for the expansion of Heathrow Airport set out in the Airports National Policy Statement (NPS). Following this, on 26 June Transport Secretary Chris Grayling formally designated the NPS.
The NPS sets out the Government’s policy on the need for extra airport capacity and infrastructure in the South East, and its preferred location and scheme for achieving this, which is a new north-west runway at Heathrow Airport.
The NPS will be used as the primary basis for decision making on development consent applications relating to the new runway at Heathrow, and will also be a material consideration when considering applications for extra runway capacity and infrastructure at other airports in the south east.
If the objectives of the NPS are delivered, Heathrow will see the construction of a runway at least 3,500m long, which will allow for a further 260,000 take-offs and landings each year.
It is understood that the next and formal stage of consultation ahead of the DCO application will take place later in 2018 at which time further information on possible impacts arising from the proposal will be made available for review. It has been suggested that construction of the runway could commence in 2021 with it being operational in 2026.
In the build up to the vote, Transport Secretary Chris Grayling urged MPs to consider the positive impact that the expansion would have on the UK economy, opening up overseas markets, as well as creating thousands of new jobs within the UK. He also set out five pledges which would govern the future expansion:
- The scheme would be privately financed and come at no cost to taxpayers;
- It would provide significant boost to the economy, creating new international routes, more than 100,000 new jobs, doubled freight capacity and deliver benefits of up to £74 billion to passengers and the wider economy;
- It would bring wider benefits for the whole of the UK, with about 15% of new slots allocated for domestic routes, new rail links, and new global opportunities for regional business;
- Environmental protections would be built in, meeting existing air quality and climate change targets; and
- A legal protection on commitments, Heathrow’s pledges to be legally enforceable, with punishment of unlimited fines or grounded planes if broken.
Whilst the Commons voted 415 to 119, resulting in a majority of 296, the decision to expand Heathrow has faced significant opposition on a number of grounds, predominantly over costs, environmental concerns, and worries over the capacity of supporting infrastructure.
On the 7 June, the London Assembly agreed a motion asserting its opposition to the expansion of Heathrow Airport. Following the results of the vote, Chairman of the London Assembly, Tony Arbour AM, stated:
‘The London Assembly unanimously opposes the expansion of Heathrow airport on the grounds of air pollution, noise and the health impact it will have on Londoners. Together with the Mayor we shall seek to overturn this calamitous decision, which can only increase the environmental harm that the airport already creates.’
Opponents have a six-week window in which to challenge the decision through judicial review. The Mayor of London, Sadiq Khan, has already stated that he will join legal action brought by local councils against Heathrow Airport expansion.
Changes to Planning Practice Guidance made to reflect recent secondary legislation
- Use of planning conditions - Inclusion of new paragraphs 035-039 on the use of pre-commencement conditions, and requirements relating to the Pre-commencement Conditions Regulations 2018.
- When is permission required? - Clarification on the scope of agricultural to residential permitted development rights, to reflect amendments to the General Permitted Development Order 2015.
- Consultation and pre-decision matters - New paragraph 033 to reflect the Town and Country Planning (Local Authority Consultations etc.)(England) Order 2018, in force from 1 February 2018, and related requirements for the extension of public consultation when public holiday occurs during the consultation period.
- Making an application: Clarification on the meaning of ‘sensitive information’ and how to address questions about the use of personal data in applications.
- Permission in Principle - Significant amendments to reflect the coming into force of different pieces of secondary legislation, and procedural matters arising from application for Permission in Principle (fees, consultation requirements, etc).
Chief Planning Officer letter, June 2018
Government launches independent review into planning appeal inquiries
Government reports
Inquiry into childhood obesity calls for tougher stance from LPAs on fast food outlets located near schools
MHCLG Select Committee letter to Raab critical of proposed housing methodology
Planning application fees
Housing revenue account, borrowing cap increase and social housing investment deal
The Government believes that the deal will create around 23,000 affordable homes, of which at least 12,500 will be social rent homes in high cost areas.
House of Commons debates retail sector
- Paul Bloomfield, the Labour MP for Sheffield Central noted that, outside London, the only model for business improvement districts is an occupier or a ratepayer BID, whereas London can have property owner BIDs. He also noted that the Local Government Finance Bill, which was lost in the wash-up included proposals to roll out the opportunity of property owner BIDs across the country, and asked whether the Government have any plans to renew that proposal. The Business Secretary, Greg Clark, acknowledged the benefits of BIDs and said ‘I will raise the point with my colleagues to see where we are on further plans’;
- The Business Secretary said that the retail sector was a major contributor to the industrial strategy;
- The Business Secretary said that in the past 20 years output per hour in the retail sector has doubled, thus increasing faster than the economy as a whole, and productivity in UK retailing is one of the highest of major European nations;
- Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy Andrew Griffiths said the Government is aware of the wider business rates concerns and is looking to address them.
- Concerns over the rate at which retail businesses are closing and the impact on local communities;
- Need for infrastructure investment;
- Need to improve productivity through skills, as well as improving working conditions;
- The benefits of reducing the cost and ease of parking;
- The planning system should evolve to support the changing face of retail;
- Consideration of allowing local authorities to compulsory purchase disused buildings in order to bring them back into use.
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The Lichfields perspective |
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Sir Oliver Letwin's March 2018 letter to the Chancellor regarding the Independent Review of Build Out Rates might have contained the key headline that absorption rates are critical to build out rates, but the Draft Analysis report provides further evidence on this and a suggestion that absorption (and build) rates might be increased through a variation in the housing offer. However, we must wait another four months for recommendations on how to address this issue. The report's other big conclusion that land-banking is not consistent with the business model of major house builders is most welcome and should now put this matter to rest.
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