England planning news, March 2018
01 Mar 2018
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Print this planning news
Headline news |
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£866 million to help unlock up to 200,000 new homes through 133 Marginal Viability Fund projects
In a House of Commons Written Ministerial Statement made on 1 February, Housing Secretary Sajid Javid announced that 133 council-led projects across England are being awarded funding from the £5bn Housing Infrastructure Fund, to ‘support local work that will make housing developments viable and get much-needed homes built quicker’.
The Written Ministerial Statement –which was also made in the House of Lords - explains:
‘This investment will fund key local infrastructure projects including new roads, cycle paths, flood defences and land remediation work where it is needed for new housing to be built. Without this financial support, these projects would struggle to go ahead or take years for work to begin, delaying the homes these communities need.’
Written Ministerial Statement, 'Housing Infrastructure Fund'MHCLG, £866 million investment to help unlock potential 200,000 new homesMHCLG, More details on the Housing Infrastructure Fund, the list of successful Marginal Viability Fund projects and map showing indicative project locations
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Quote of the month |
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| Foreign Secretary Boris Johnson’s Brexit speech, 14 February 2018 | ||
Law |
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Legislation
Community Infrastructure Levy (Amendment) Regulations 2018
On 9 February, the Community Infrastructure Levy (Amendment) Regulations 2018 came in to force. They provide a ‘clarificatory’ amendment to regulation 128A of the community infrastructure levy (CIL) Regulations.
As the Explanatory Note in the amendment Regulations states:
‘Regulation 128A provides for the case where development is granted planning permission (A) before a CIL comes into force in the area and the conditions of that permission are amended by any later planning permission (B) granted under section 73 of the Town and Country Planning Act 1990 where B is granted after a CIL for the area comes into effect. In these cases regulation 128A provides that the development under B is liable to CIL on any additional liability it introduces to the development such as an increase in floorspace (or change of use) compared to the development under A. The amendment to regulation 128A clarifies that when calculating “Y” (the notional amount of CIL payable for development under A), the index figure (for building cost inflation) to be used is the index figure for B.’
Community Infrastructure Levy (Amendment) Regulations 2018
Town and Country Planning General (Amendment) (England) Regulations 2018
The Town and Country Planning General (Amendment) (England) Regulations 2018 came into force on 23 February 2018. They arise from the Housing White Paper consultation on a proposal (question 5) to allow all local authorities to dispose of land with the benefit of planning permissions they have granted themselves. The February 2018 Government response to this element of the White Paper consultation explains the ‘considerable support’ for the proposal, given for the following reasons:
- ‘it would give local authorities greater flexibility, allowing them to take a more proactive approach to land assembly and to bring forward public sector land for development more quickly and efficiently
- it would allow local authorities to benefit from the uplift in land values arising for the grant of planning permission
- there was no good reason for the current difference in powers and the proposal will bring consistency’
The Explanatory Note in the amendment Regulations provides more detail on their effect. It explains that generally, planning permission runs with the land but regulation 9 of the Town and Country Planning General Regulations 1992 (for England and Wales) makes an exception where an interested planning authority grants itself planning permission for its own development. Here, the permission only enures for the benefit of the authority (or, in the case of a joint development, the authority and the other person specified in the application for planning permission as the joint developer). For England, regulations 9A and 9AA of the 1992 Regulations already disapplied this exception in the case of some categories of authority (unitary authorities and urban development corporations); the new amendment Regulations remove the exception altogether for England.
As set out in the Explanatory Memorandum accompanying the amendment Regulations, they now allow planning permission granted by all interested planning authorities in England – including two-tier authorities - to themselves to run with the land so that, for example, if an authority later sells the land before developing it under the permission, the purchaser will be able to do so instead.
The change will not affect planning permissions granted before the amendment Regulations came into force.
MHCLG, Local authority development – effect of planning permission, Government response to consultationTown and Country Planning General (Amendment) (England) Regulations 2018
Town and Country Planning (Local Authority Consultations etc.)(England) Order 2018
The Town and Country Planning (Local Authority Consultations etc.)(England) Order 2018 comes into force on 1 April (articles 7 and 9), and on 1 June 2018 (for all remaining articles).
The Order prescribes the circumstances when consultation periods must be extended by one day for each bank holiday or public holiday which falls within the relevant periods. Broadly speaking, the extended periods apply when there is a requirement for local planning authorities to consult with the public for 21 days or less. The Order also extends the relevant periods for certain publicity and notices and makes corresponding extensions to those representation and minimum determination periods.
Town and Country Planning (Local Authority Consultations etc.)(England) Order 2018
In the courts
Appeal Court rules wind turbine impacts do not need to be eliminated
The Court of Appeal has upheld a decision by Gedling Borough Council, ruling that national policy to ensure that planning impacts have been 'addressed' does not mean they have to have been 'eliminated'.
The issue in the appeal was whether in granting planning permission for a wind turbine, the Borough Council had misinterpreted the 18 June 2015 Written Ministerial Statement setting out new considerations for applications for planning permission for wind turbines.
By way of background to the case, the Council had granted planning permission for a 50m wind turbine in April 2016 in the Green Belt in Nottinghamshire. The Appeal Court case transcript describes the determination process that was undertaken as follows:
‘The grant of permission was in accordance with the recommendation of the Council's planning officer in a careful and detailed report on the application for permission. The officer's report advised that the planning committee could conclude that there were ‘very special circumstances’ to justify the grant of permission for the development in the Green Belt, in accordance with the test laid down in paras. 87-88 of the National Planning Policy Framework (‘NPPF’). It also advised that the planning committee could conclude that the development complied with guidance on proposed wind energy developments in the Written Ministerial Statement.’ [Paragraph 4]
The decision was opposed by a local pressure group, ‘Woodborough and Calverton Against Turbines’; one member of the Group had challenged it, had failed in the High Court and was allowed to appeal only in relation to the contention that the officer in his report had misinterpreted the Statement and therefore had given incorrect advice that the Planning Committee was entitled to conclude that the development complied with its guidance.
With reference to the Written Ministerial Statement, as the application had already been lodged when it was made, its last paragraph on transitional provisions applied - this states:
‘Where a valid planning application for a wind energy development has already been submitted to a local planning authority and the development plan does not identify suitable sites, the following transitional provision applies. In such instances, local planning authorities can find the proposal acceptable if, following consultation, they are satisfied it has addressed the planning impacts identified by affected local communities and therefore has their backing.’
The appellant read this as meaning that an authority had ‘to be satisfied that the proposal has resolved (i.e. eliminated) all the negative planning impacts identified by any member of the relevant local community’. The Appeal Court judges did not agree; they instead concluded:
‘In our view, the natural meaning of the relevant phrase in the last sentence of the Statement is that a local planning authority can find the proposal acceptable if it has sufficiently addressed the planning impacts identified through consultation with the relevant local community to the extent that it can properly conclude, in the exercise of its planning judgment, that the balance of opinion in the local community is likely to be in favour of the proposal.’[Paragraph 22]
They added:
‘…in the planning context the natural meaning of ‘addressed’ is ‘sufficiently addressed’; that is to say, sufficiently addressed by taking into account mitigating factors and countervailing benefits.’ [Paragraph 24]
Holder, R (on the application of) v Gedling Borough Council & Ors [2018]
Policy |
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Government policy
PPG updates - local plans and more
Several paragraphs of the national Planning Practice Guidance have been revised and other new ones have been added.
The updates and new paragraphs primarily reflect changes to legislation and provide points of clarification regarding: permitted development; local and neighbourhood plan-making and modification procedures; CIL reliefs; and planning application fees. They also cover: short term lets outside London; pre-application advice services, fee structures and outputs; application fee categories; when planning permission is required for listed buildings; and enforcement (with reference to procedures and deliberate concealment).
There is also updated guidance on building works associated with change of use from agricultural to residential, and whether or not planning permission is required for certain farm works.
The new CIL guidance is for the most part about self-build and residential extension exemptions.
Local plans’ guidance has been revised to reflect Regulation 22(2) of the Town and Country Planning (Local Planning) (England) Regulations 2012 being revoked by the Town and Country Planning (Local Planning) (England) (Amendment) Regulations 2017 on 15 January 2018. The changes relate to local planning authorities no longer as a matter of law having to submit local plans and accompanying documents both electronically and in paper form but the guidance does acknowledge:
‘On an individual basis it may be necessary for local planning authorities to provide the Planning Inspectorate or Inspector both electronic and paper copies of some key documents on request.’
National Planning Practice GuidanceNational Planning Practice Guidance, Paragraph: 021 Reference ID: 12-021-20180201
PM chairs inaugural meeting of Housing Implementation Taskforce
On 5 February, Prime Minister Theresa May chaired the inaugural meeting of the Housing Implementation Taskforce.
The Taskforce were reported as having discussed:
‘… the steps Government has already taken, including further investment at the Budget, planning reform, releasing land faster, the Housing White Paper and building more affordable housing. They emphasised the key role of Homes England in driving forward change, and also focused on the supply of new housing, public sector land sales, land banking, house-building skills and building the infrastructure needed for new housing developments.’
Prime Minister’s Office, No. 10 PM chairs inaugural meeting of the Housing Implementation Taskforce
ONS house prices and private housing rental indice
The latest data from the ONS shows that real house prices are now above their pre-crash peak in the South West (and in London, the South East, the East and the East Midlands). The data also shows that private rent levels are increasing faster in England outside London (+1.7% since last year) than in London (+0.2%).
Lichfields on house prices on TwitterLichfields on housing rental prices on Twitter
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MPs debate housing, planning and the Green Belt
On 6 February, during a debate in the House of Commons on housing, planning and the Green Belt, Housing and Planning Minister Dominic Raab implied that the Government is to look at clarifying national planning policy on Green Belt and housing. He commented when concluding the debate:
‘The determination to build ever more houses has led to some councils being persuaded that they need to build on the Green Belt in order to meet what is assumed to be their assessed housing need. That points to a confusion and contradiction in Green Belt policy. The Government’s planning guidance states that the Green Belt should not be developed other than in ‘exceptional circumstances’, yet it fails to describe what constitutes ‘exceptional circumstances’. The housing White Paper goes on to say:
‘Green Belt boundaries should be amended only in exceptional circumstances when local authorities can demonstrate that they have fully examined all other reasonable options for meeting their identified housing requirements.’
However, crucially for the point I am making, planning guidance also says:
‘Unmet housing need…is unlikely to outweigh the harm to the Green Belt and other harm to constitute the ‘very special circumstances’ justifying inappropriate development on a site within the Green Belt.’
Planning guidance is going around in circles, because in effect it says that the green belt should not be built on unless nowhere else can be found to build the houses, but that unmet housing need is unlikely to outweigh harm to the Green Belt in importance.’
Former Planning Minister Nick Boles also spoke during the debate, setting out a number of ‘key interventions’ needed to deliver more homes:
‘We need to give ourselves the power to acquire land at a price that is fair to the community as well as to the landowner. Why should landowners benefit from the fluke that gives them planning permission to build on their land when none of their neighbours receives it? Why should the taxpayer bear the cost of the infrastructure - the roads, the sewerage and the schools - that makes land developable in the first place? We need to revert to the situation that led to Milton Keynes and the other new towns, where we were able to acquire the land at a reasonable price, a small multiple of its agricultural land value, and then use the uplift in that land value to fund the infrastructure that the community needs.
We also need to intervene with major house builders to ensure that they build out the sites with planning permission on the schedule that they agreed with the planning authority. My suggestion for how we enforce this is to ask them to offer any sites that they had refused to build out to any other house builder to build on…’
Also in concluding the debate, Minister for Housing Dominic Raab responded to various points about regional variations in demand and affordability made earlier by MPs. He stated:
‘We want to encourage homes to be built - we want to clear away those obstacles - and to promote local design, buy-in and support for this national mission. We will therefore publish a revised draft of the NPPF and launch our consultation by Easter. I want to be clear on one issue on which feelings always run high […] Our NPPF makes it clear that most new building on green-belt land is inappropriate and should be refused planning permission, except in very specific circumstances, and only in exceptional circumstances may a local authority alter the Green Belt boundary, after consulting local people and submitting a revised local plan for formal examination. Broadly, since 1997, the proportion of Green Belt land has stayed relatively steady at 13%.
There is a broader point here about home building and the overriding need to carry local communities with us, whether rural, suburban or urban communities. That is why last week the Government announced the first wave of money being allocated from the homes infrastructure fund. Last week alone, we targeted £866 million of investment, or 133 local housing projects, from London to Manchester, Cornwall to County Durham, to unlock building capacity for up to 200,000 new homes. We recognise we need more homes, but we also know that communities worry about new developments […]: what will it mean for congestion on the roads, and what will it mean for pressures on schools and local NHS services? There is certainly a link with pressures from immigration. Once we have left the EU, we will have greater scope and control over that to get the balance right.’
House of Commons, Housing, Planning and the Green Belt debate, 6 February 2018
Net internal migration in England and housing need: implications of current forecasts
| Figure 1: net internal migration to England | |||||||||
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The most recent sub-national population projections and household projections available are based on 2014-based national population projections (NPPs) and not the 2016-based NPPs -2016-based sub-national projections and household projections are only due in the summer this year.
The latest household projections (2014-based) project growth of around 210,000 households per annum over the next 25 years across England. Since the EU Referendum, there has been some debate over whether leaving the EU would lead to a reduction in housing need, primarily due to reduced levels of international migration. Lichfields has previously explored the possible impact of Brexit on housing need, by looking at the 2014-based household projections for England. We noted that they already took into account a significant drop in international migration (as shown in Figure 1), down from over 300,000 in 2015/16 to 170,000 by 2021. If net migration were to fall below this level (to ONS’ lower estimate), DCLG estimated that it would only reduce projected household growth by 33,000 per year.
The most recent NPPs (2016-based) revise international migration projections downward slightly, to a long-term average of just over 150,000. However, it remains unlikely that migration will drop to the ‘tens of thousands’ previously envisaged by David Cameron – and it would clearly seem that Housing and Planning Minister Dominic Raab’s comment on ‘pressures from migration’ are not currently well-founded.
Prime Minister’s Office, No. 10 PM chairs inaugural meeting of the Housing Implementation Taskforce
Heritage at Risk study launched by Historic England
Historic England has launched a new study prepared jointly with Lichfields and U+I which illustrates the economic, environmental and social returns offered by Heritage at Risk sites in London.
Ten case studies show that ‘investment into Heritage at Risk can deliver an unrivalled richness of regeneration outcome’, from economic and employment outputs to community education and engagement. A considerable overlap between Heritage at Risk and areas of greatest deprivation in London (and England), highlights how investment into Heritage at Risk can pay a social dividend.
Historic England, Risky Business? Investing in Heritage at Risk, February 2018
Listed Buildings and Curtilage Advice Note
Historic England has published an advice note on assessing the curtilage of listed buildings and provides hypothetical examples.
Historic England, Listed Buildings and Curtilage, February 2018
Funding for councils to help unlock land for new housing
It was announced on 16 February that a £45m Land Release Fund would be used to support 79 projects for building up to 7,280 homes on council-owned land.
The Fund will be administered through a partnership of the Local Government Association and Cabinet Office’s One Public Estate (OPE) programme.
Housing and Planning Minister Dominic Raab said:
‘We are investing £45 million to build roads and provide utilities, so councils can release the land to get up to 7,280 new homes built.
It’s part of our strategy to build the homes Britain needs, and carry local communities with us.
We’re determined to make buying or renting more affordable for young families and those on low or middle incomes.’
MHCLG, £45 million funding boost to support councils unlock land for thousands of homes
Proposed policy
More draft NPPF revision details emerge
Small sites
In addition to Housing and Planning Minister Dominic Raab referring to Green Belt clarifications in the soon-to-be published NPPF draft revisions in a Westminster debate, it has been reported that MHCLG has confirmed that an autumn budget 2017 proposal, to require local authorities to ensure that 20% of their housing supply would be provided by small sites of under 0.5ha, will also be consulted on as part of the revision.
Upward extensions
On 5 February, Housing Secretary Sajid Javid made a House of Commons Written Ministerial Statement on ‘upwards extensions: new homes’, to the effect that ministers are to support upward extensions of existing houses or blocks of flats in cities nationally through changes to the NPPF, rather than new permitted development rights as previously consulted on for London.
The Statement followed a MHCLG announcement the day before, that ‘confirmed government backing to create a new generation of town houses in cities like London and Manchester to ease pressure on valuable open spaces and help growing families’.
On 4 February, the Housing Secretary had said:
‘The answer to building new homes isn’t always an empty plot, or developing on a derelict site. We need to be more creative and make more effective use of the space we already have available.
That’s why we are looking to strengthen planning rules to encourage developers to be more innovative and look at opportunities to build upwards where possible when delivering the homes the country needs.’
In the House of Commons Statement, he was more explicit:
‘As set out in the White Paper, ‘Fixing our broken housing market’, it is important that development uses the space that is available efficiently, and avoids building at low densities especially in areas of high demand such as London. The Government recognise that one of the ways to achieve this is to build up rather than build out, using the space above existing buildings to create new homes.
Planning policies and decisions should respond positively to suitable opportunities to use the airspace above existing residential and commercial premises for new homes. They should allow residential and commercial premises to extend upwards, where such extensions would be consistent with the prevailing height and form of neighbouring properties and the overall street scene, are well-designed—including complying with any local design policies and standards—respect the privacy of neighbours and can maintain safe access and egress for occupiers.
The Government will be consulting on changes to the National Planning Policy Framework, including changes to incorporate building up to ensure effective use of land for current and future homeowners. Appropriate guidance will be produced in due course.’
Written Ministerial Statement, ‘Upwards extensions: new homes’, 5 February 2018MHCLG, Government ushers in a new generation of town houses
Other news |
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Government inquiries and reports
Homes for health workers on surplus NHS land
The Government has announced in its response to the Naylor Review of NHS property and estates that surplus NHS land will be used to deliver affordable housing, to provide homes for up to 3,000 NHS staff ‘particularly in areas where a lack of affordable housing is impacting on workforce recruitment and retention’. The Response continues:
‘The [to be created] NHS Property Board will bring together partners from all relevant sectors to drive delivery of this ambition locally and nationally. This will include a support package to assist NHS landowners to develop ways, in conjunction with local authorities, through which affordable homes built on NHS land could be offered first to NHS staff. We will support ways through which the NHS could work with local planning authorities and developers to ensure that they fulfil this ambition.’
The Government Response to the Naylor Review, January 2018
CLG Committee Housing for Older People
The House of Commons CLG Committee published its report, ‘Housing for Older People’ on 9 February. The Committee’s planning-related conclusions and recommendations include:
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A belief that national planning policy should give greater encouragement to the development of housing for older people and ensuring sites are available for a wider range of developers. The NPPF should be amended to emphasise the key importance of the provision of housing for older people in both local authority plan making and decision taking;
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The new standard approach to assessing housing need should explicitly address ‘the complex and differing housing needs of older people’;
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Older people should be able to choose from a wide choice of housing which can accommodate their needs and preferences. The guidance required under the Neighbourhood Planning Act 2017 should therefore:
a. Make recommendations that local authorities publish a strategy explaining how they intend to meet the housing needs of older people in their area, including the scale and mix of housing and the tenures needed, and setting out the evidence relating to current housing need.
b. Local Plans should, based on an assessment of local need, identify a target proportion of new housing to be developed for older people and identify suitable well-connected sites, close to local amenities.
c. There should be greater collaboration within local authorities between planning, social care, health and housing teams, particularly on the production of Local Plans. Local authority planning, health and social care teams should work together to assess the savings to health and social care budgets which may arise from additional specialist housing in their area and consider this in the context of negotiations over planning charges. -
Local authorities should be more receptive to private developers wishing to build housing for older people in their area; and
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The level of planning contributions on specialist housing, which are increased as a result of the non-saleable communal areas which are a feature of this type of housing, is impeding the delivery of homes. A sub-category of the C2 Use Class should be created for specialist housing, which would reduce the contributions required from developers, or there should be a new use class for specialist housing to have the same effect.
House of Commons CLG Committee Inquiry report, ‘Housing for Older People’, February 2018
House of Commons Library
Housing, Planning and the Green Belt
The House of Commons Library published a debate pack ahead of the debate held in the House of Commons Chamber on 6 February 2018 on housing, planning and the Green Belt.
House of Commons Debate Pack, ‘Housing, Planning and the Green Belt’, 5 February 2018
Housing and Planning Act 2016
On publication of the Housing and Planning Bill 2015-16, the Government said it would kick-start a ‘national crusade to get 1 million homes built by 2020’ and transform ‘generation rent into generation buy’. The report gives an overview of the (somewhat limited) progress that has been made in implementing the Act’s provisions since it received Royal Assent.
House of Commons Library, Implementation of the Housing and Planning Act 2016
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The Lichfields perspective |
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| Margaret Baddeley, Planning Director | ||
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
Image credit: © Andrew / Arg_flickr