News
Thames Valley planning news, June 2018
01 Jun 2018
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Headline news |
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Reassessment of housing options within emerging South Oxfordshire Local Plan
South Oxfordshire District Council (SODC) councillors voted, on 15 May, to reassess all sites capable of forming a strategic allocation within its emerging Local Plan. The decision comes following Cabinet recommendations to undertake further work in order to determine the most suitable locations for housing prior to finalising the Local Plan.
The emerging Local Plan sets out the locations of main housing sites within the District up to 2033. Based on the SHMA evidence, to meet the District’s own housing needs, and accommodate their proportion of Oxford City’s unmet housing need, SODC needs to plan for the provision of approximately 20,800 new homes. However, the viability of a number of the housing sites currently proposed - notably Chalgrove Airfield - has been questioned.
As a result, the Council intends to re-evaluate each of the main housing sites proposed in the current iteration of the Local Plan, in addition to previously considered locations and further sites which have recently been promoted by developers. According to a South Oxfordshire Council press release, the sites are as follows:
‘Current proposed sites: Culham; Wheatley; Berinsfield; and Chalgrove Airfield;
Previously considered (but not progressed) sites: Thornhill; Wick Farm; Lower Elsfield; Grenoble Road; Northfields; Harrington; and land at Great Western Park
Additional sites submitted by developers: land at Emmer Green; Reading; Reading Golf Club; Playhatch at Reading; land off Thame Road, North Weston.’
As part of the Oxfordshire Growth Deal, agreed by all six Oxfordshire Councils and the Housing Minister in March, the authorities’ local plans have to be submitted by 1 April 2019.
Consequently, SODC will now request an extension of time from the Government for their submission deadline to be delayed until up to January 2020, to allow for the housing site reassessment.
Should the Government refuse the request for an extension of time, or if there is an indication that there will be a significant impact on the Oxfordshire Growth Deal, the Council has agreed that Chalgrove Airfield will be retained in the Local Plan as a strategic housing site for 3,000 new homes, with a reserve site or sites added following assessment work.
The implications of SODC’s decision on the forthcoming Joint Statutory Spatial Plan for Oxfordshire, which could be adopted by March 2021, are not yet known.
South Oxfordshire Council, draft minutes of Special Council meeting, 15 May 2018
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Quote of the month |
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‘[…] We cannot keep talking about building more homes unless we have the means and the land to provide them, and we do, if only we all got a backbone and started looking at what we call the Green Belt.’
‘[…] the hon. Member for Mitcham and Morden gave us an iconoclastic blast at the prevailing consensus around green belt, which I will certainly reflect on.’
MP for Mitcham and Morden, Siobhain McDonagh, and Housing and Planning Minister, Dominic Raab, in reply during a ‘Housing and Homes’ debate in the House of Commons on 15 May 2018House of Commons Hansard, Housing and Homes debate, 15 May 2018 |
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Other national news |
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Town and Country Planning Permission in Principle Order 2017
Applications for permission in principle (PiP) for minor residential developments (of between 2 and 9 homes) may be submitted to LPAs from today, 1 June 2018, when the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 comes into force.
The amendment Order provides the necessary procedures for implementing the Housing and Planning Act 2016’s provision for making an application for PiP, for sites where between 2 and 9 new houses are proposed. The site does not need to comprise previously developed land, either in whole or in part.
Applications for PiP cannot be made for major, habitats regulations, householder, or Schedule 1 environmental impact assessment (EIA) developments. PiP can be granted for Schedule 2 EIA development, providing that a screening opinion that the proposal is not EIA development has been adopted or made.
Once a PiP has been granted on application, a technical details consent (TDC) relating to the proposed development has to be sought within three years, after which the PiP expires.
As yet, there is no PiP application form, nor a form for applying for a non-material amendment to a PIP (the link in the Order’s Explanatory Note is to a page that does not appear to be maintained). Perhaps more surprisingly, there is not yet an application form for a TDC, notwithstanding that one may already apply for TDC in respect of a site in Part 2 of a council’s brownfield land register.
Further details can be found in our blog discussing what is known so far about PiP on application, and in our Guide to PiP.
The Town and Country Planning (Permission in Principle) Order 2017The Town and Country Planning (Permission in Principle) (Amendment) Order 2017Lichfields Planning Matters: Take a chance on me: what we know about permission in principle on applicationLichfields Planning Matters: Brownfield land registers and ‘permission in principle': Lichfields’ essential guide
Regulations made for pre-commencement conditions
On 3 May, two statutory instruments were made by the Government in relation to s14 (‘Restrictions on power to impose planning conditions’) of the Neighbourhood Planning Act 2017.
Commencement regulations provide that s14(1) and (3) will come into force on 1 October 2018, bringing into force parts of s100ZA of the Act, which specifies that planning permission for the development of land may not be granted subject to a pre-commencement condition without the written agreement of the applicant.
The related pre-commencement conditions’ Regulations, made in exercise of the powers conferred by s100ZA(6), provide that the requirement for a written response by the applicant does not apply where the local planning authority (or the Secretary of State) has given notice to the applicant of the intention to grant the permission subject to pre-commencement condition(s) and the applicant does not provide a ‘substantive response’ to the notice before the expiry of a 10 working days period from when the notice was served.
The Regulations do not go as far as expected; in the Government response to the consultation, a number of respondents requested that exceptions should be made to the requirement for applicants to agree certain pre-commencement conditions, notably for matters regarding heritage, nature conservation and environmental protection. Such exemptions were originally proposed when the Neighbourhood Planning Bill was published in 2016, but had disappeared by the time of the first ‘indicative draft’ regulations in December 2016. Accordingly, no such exceptions have been made, and where complications arise and an applicant does not agree to a condition relating to such matters, the authority will refuse permission.
For more details of the potential implications of the new secondary legislation when it comes into force, our blog looks at some procedural matters that may well need to be ironed out between applicants and planning authorities.
The Neighbourhood Planning Act 2017 (Commencement No.5) Regulations 2018The Town and Country Planning (Pre-commencement Conditions) Regulations 2018MHCLG, Government response to the consultation on pre-commencement conditions regulationsLichfields Planning Matters: New procedures for pre-commencement conditions come into effect from October 2018
New Housing Secretary sticks to Party lines
On his first day in post, new Housing Secretary James Brokenshire had to answer parliamentary questions on his departmental responsibilities and on affordable homes; reference was made to the Green Belt, council homes, the Hackitt Review and local government finance. He maintained the Party line throughout.
Likewise Parliamentary Under-Secretary of State for Housing, Communities and Local Government Rishi Sunak in a 23 May debate on ‘Planning: Local Communities’ went over the the same ground regarding ‘community participation’, setting out ‘the importance that the Government place on communities when it comes to plan making and planning decisions’. He stressed the value of neighbourhood planning, without going into the detail or reference to any research findings. Lichfields has however looked into the types of places that have progressed plans, how they relate to local plans’ slow progress in many areas, and the role they play in housing delivery.
House of Commons Hansard, MHCLG: Topical Questions debate, 30 April 2018House of Commons Hansard, Affordable Housing debate, 30 April 2018House of Commons Hansard, Planning: Local Communities, 23 May 2018Lichfields, Local Choices? Housing delivery through Neighbourhood Plans
Call for NPPF presumption in favour of homes on Green Belt sites near railway stations
A group submission to MHCLG, signed by parliamentarians, academics and others, was made by Labour MP Siobhain McDonaugh (working alongside think tank Centre for Cities) in response to the since-closed consultation on the revised National Planning Policy Framework (NPPF).
The submission calls for the revised NPPF to include a presumption in favour of residential-led development for sites - whether in the Green Belt or not (but with specified exemptions e.g. for protected areas) – that are within one kilometre of a Transport for London or national rail station that provides access to London’s Zone 1 in less than 45 minutes.
Siobhain McDonagh, MP for Mitcham and Morden, London's Non-Green Green Belt and signatories
Government still targets end of July for revised NPPF
It was reported from the National Planning Summit held in early May that the Government still expects to publish the revised NPPF by the end of July, despite an overwhelming volume of responses to the consultation that closed on 10 May.
Chief Planner Steve Quartermain was reported as saying there had been more than 27,000 responses, although this total includes multiple submissions from campaign groups (including 5,000 duplicate responses seeking better protection for veteran trees).
Habitats’ ruling means disregarding mitigation measures at initial screening stage
A recent decision by the European Court of Justice (‘ECJ’) is likely to lead to changes in the way that the Habitats Directive is interpreted for plans and projects.
People over Wind, Peter Sweetman v Coillte Teoranta ruled that Article 6(3) of Council Directive 92/43/EEC ('the Habitats Directive') must be interpreted as meaning that mitigation measures (i.e. measures to reduce or avoid effects) cannot be taken into account at the initial screening stage and should only be assessed within the framework of an Appropriate Assessment (‘AA’). This is contrary to case law established in England and Wales (Hart DC V SSCLG, Luckmore Limited & Barratt Homes Ltd.) that had established that avoidance or reduction measures could be taken into account when considering whether a plan or project would be likely to have a significant effect on a European Site. If the risk of significant effect could be excluded on the basis of objective information at the screening stage, then a full AA (with associated time and consultation requirements) did not need to be undertaken.
The ECJ case relates to grid connection works associated with the Cullenagh wind farm in Co. Laois, Republic of Ireland. Planning permission for the wind farm itself was granted by An Bord Pleanala in June 2014 but did not include the laying of a cable connecting the facility to the electricity grid. Whilst the laying of such a cable would usually be considered ‘exempted development’ not requiring consent, in this case the route of the works had a relationship to two special areas of conservation (‘SAC’) designated under Natura 2000. If the works impacted on the designations, then an AA would be required and the scheme could not be considered exempted development. To determine whether AA was required, the applicant, Coillte, instructed the preparation of a screening pursuant to the requirements of the Habitats Directive. The screening document submitted took account of various ‘protective measures’ to avoid possible impacts in the form of the release of suspended solids into the water bodies that form part of the SACs and that could, if released, negatively impact on the Nore Pearl Mussel (margaritigera durrovensis), which is also protected under the Habitats Directive. Taking the protective measures into account, it was determined that AA was not required in this situation.
This decision was challenged by People over Wind and Peter Sweetman; the High Court determined in March 2017 that the matter should be referred for consideration by the ECJ, noting as it did so that whilst Coillte had suggested that Hart had been ‘incorporated “lock, stock and barrel” into the Irish legal system’, the Court did not see that there had been an ‘unqualified endorsement by the Irish High Court of the reasoning in Hart’.
The ECJ decision concludes that if measures are required to be taken into account at the screening stage to avoid or reduce the harmful effects of a plan or project on the site concerned then ‘it is likely that the site is affected significantly and that, consequently, such an assessment [i.e. an AA] should be carried out’. The decision goes onto state that:
‘Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there could be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive.’
Given the implications of the decision on the approach to be taken where a proposed plan or project is subject to Habitats Regulation Assessment, the Planning Inspectorate issued PINS Note 05/2018 on 9 May 2018; it recommends that for both plan making and in casework, screening decisions already made that have taken into account mitigation measures should be re-examined and AA conducted where necessary. The Government may also write to the ECJ to confirm the implications of its decision in the UK.
People over Wind, Peter Sweetman v Coillte Teoranta
Council Directive 92/43/EEC: 'on the conservation of natural habitats and of wild fauna and flora' (the Habitats Directive)
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The Lichfields perspective |
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South Oxfordshire continues to pursue an independent local plan agenda. Not only is it the only Oxfordshire authority who is not meeting the OGB apportionment of Oxford’s unmet need but the decision to take two steps back in the preparation of their Local Plan casts doubt on the future prospects of the Oxfordshire Growth Deal.
Daniel Lampard, Senior Director and Head of Thames Valley Office |
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Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116