Commercial planning news, November 2018

A series of planning-related announcements, publications and consultations mentioned in the Autumn Budget have followed up on commitments made earlier in October at the Conservative party conference. 

Of particular note are the following, which are covered where relevant in more detail in other news stories below:

• the Government’s publication of its response to submissions on the developer contributions consultation;
• the publication of Sir Oliver Letwin’s ‘Independent review of build out: final report’; and
• a new consultation regarding a number of matters (including proposals for new permitted development rights and possible changes to the Use Classes Order) under the banner, ‘Planning reform: supporting the high street and increasing the delivery of new homes’.

Housing Minister Kit Malthouse spoke at several Conference fringe events, stating at each one how the Government wants to repeat the Oxfordshire Housing Deal elsewhere i.e. it is encouraging more councils to prepare strategic plans jointly, with Government funding from the Housing Infrastructure Fund (HIF) resulting.  As then announced in the Budget, the Government will now provide additional funds to support housing delivery – specifically:

• an extra £500m for the HIF (now totalling £5.5bn) to support the delivery of up to 650,000 homes;
• the allocation of £291m of the HIF to unlock 18,000 homes in East London; and
• £8.5m to support up to 500 neighbourhood planning areas to allocate or permission land for discounted homes.

The Government also announced that Homes England was to publish a new five-year strategic business plan, which was then published the following day.

The Minister also acknowledged at a 2 October Conference fringe event that the planning system is under-resourced, with too few experienced LA planning officers. He referred to the well-known, widely held view that the development industry would be prepared to pay more in fees, if this were to speed application determination and when a start could be made on-site. This was a reference to the housing White Paper, which mooted a possible further 20% fee increase ‘for those authorities who are delivering the homes their communities need’. There has not yet been a consultation on the detail and the matter is still clearly under consideration.

• Launched on Budget day, MHCLG is now consulting on a 4-part series of proposals set out in a single document but bearing little or no relationship to one another. It includes:

• Part 1: new and amended permitted development rights (PDR) and changes to use classes are set out, to support high street regeneration and for extending existing buildings upwards to create new homes;
• Part 2: proposals for amending the rules for surplus local authority land disposal at less than best value;
• Part 3: a draft listed building consent order to support the work of the Canal & River Trust; and
• Part 4: draft guidance on the compulsory purchase powers of new town development corporations.

Part 1

To support greater diversity and footfall on the high street, and subject to prior approval, Part 1 proposes:

1. a new PDR to allow shops (Use Class A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shops and launderettes to change to office use (B1);

2. a new PDR to allow hot food takeaways (A5) to change to residential use (C3);

3. extending the current temporary change of use PDR for shops (A1) financial and professional services (A2), restaurants and cafes (A3), hot food takeaways (A5), offices (B1), non-residential institutions (D1), assembly and leisure uses (D2), betting shops and pay day loan shops to change to A1, A2, A3 or B1, to also allow changes to a public library, exhibition hall, museum, clinic or health centre. The period of the temporary use would also be extended from 2 to 3 years;

4. changing the A Class in the Use Classes Order, either to:

(a) remove the current named uses and replace them with ‘a broader definition of uses for the sale, display or service to visiting members of the public’; or

(b) create a new use class for a mix of uses within A1, A2 and A3 uses ‘beyond that which is considered to be ancillary’, to replace the existing A1, A2 and A3 and create a single use class to cover shops, financial and professional services, restaurants and cafes;

5. creating a new PDR that would be subject to prior approval (covering design, siting, appearance, impact on amenity, flooding and contamination risks, transport and highways), to allow additional storeys to be built above buildings in commercial, residential (C3) and some other uses (such as out-of-centre retail and leisure parks, or health centres). A total of a five-storey height limit would be imposed (but more for freestanding blocks of flats), with other height restrictions also mooted. Design codes could be used to improve design quality. An application fee per dwelling would be proposed;

6. making permanent the change of use PDR from storage or distribution to residential, and for larger extensions to dwellinghouses;

7. removing the PDR for telephone kiosks, and the deemed consent for an advertisement on a single side; and

8. increasing the existing PDR height limit for an electric vehicle recharging point upstand to no more than 2.3m, from 1.6m.

Last but certainly not least and as proposed in the 2017 Budget, views are sought at the end of Part 1 on a new PDR that would promote higher density development – it would be for ‘the high quality redevelopment of commercial sites, including demolition and replacement build as residential’, potentially retaining existing developer contributions. It is acknowledged that the size of site and impacts would influence the form any prior approval might take;

Part 2

In Part 2, the Government is proposing setting a new LA land disposal undervalue threshold of £5 million (currently £2 million) - or alternatively one of £10 million, or even no undervalue - to provide LAs with substantially more, or total flexibility to dispose of land without the involvement of the Secretary of State. Put simply, undervalue disposal is currently possible, if it would improve economic, social or environmental wellbeing, but has to have Secretary of State consent e.g. if above certain thresholds, or if the land is held for planning purposes.

Part 3

Part 3 of the consultation proposes a draft Listed Building Consent Order (in Annex C of the consultation document) that has, with Historic England and the Canal & River Trust, identified work which the Trust routinely undertakes to the listed waterway structures it is responsible for across England. This work would be granted listed building consent by the Order.

Part 4

Part 4 explains new draft guidance on compulsory purchase for locally and nationally overseen new town development corporations; the draft guidance itself is attached to the consultation as Annex D.

The consultation closes on 14 January 2019.

On 1 October, the Government announced (although in some cases, these were repeats) a series of proposed housing-related measures aimed at:

• supporting homebuyers (there will be a New Homes Ombudsman);
• increasing the number of homes built;
• improving the safety of tall buildings (there will be a ban on the use of combustible materials on external walls of high-rise buildings over 18m); and
• creating a legacy for the 2022 Commonwealth Games (via new funding).

Included in an awaited consultation (to be published ‘in due course’) will be the previously announced new permitted development right that would allow upward extensions (since published). Also included would be:

• an intention to require councils to provide clearer guidance for local communities when land is needed for new towns; and
• proposals to give LAs more flexibility over the disposal of surplus public land that is capable of accommodating new homes.

The Government’s response to consultation responses on supporting housing delivery through developer contributions was published on Budget Day. The consultation itself ended in May this year.

In terms of next steps, the Government proposes changes to the Community Infrastructure Levy (CIL) Regulations 2010 (as amended); it is stated that these changes could also be used to incentivise the build out of developments. The Government intends to consult on draft amendment regulations ‘in due course’.

In direct response to consultation responses, the following measures are proposed:

• using existing powers, combined authorities will be able to take forward a Strategic Infrastructure Tariff (groups of charging authorities will also be encouraged to pool CIL receipts);
• the s106 pooling restriction will be lifted in all areas, while the uptake and continued use of the levy will be incentivised;
• the required reporting of developer contributions from CIL and s106 planning obligations, through an Infrastructure Funding Statement, on a statutory basis (to also help prevent ‘double-dipping’);
• it will be possible for s106 planning obligations to collect contributions towards infrastructure also included on a charging authority’s Regulation 123 list (with the new reporting measure above, preventing double-dipping);
• it will be made clear that LAs can seek a fee in a s106 from applicants, towards monitoring obligations;
• for development originally permitted before CIL came into force, levy liabilities will be capable of being balanced between different phases, and abatement for such phased planning permissions will be introduced;
• the indexation applied to development that is both originally permitted and then amended while CIL is in force will be amended, to align with the approach taken in the recently amended Reg. 128A, for s73 permissions;
• new PPG, to assist LAs in preparing CIL charging schedules, particularly in relation to infrastructure requirements, viability assessments and levy data collection; and
• charging authorities will still have to consult on draft charging schedules but the statutory requirement for two separate rounds of consultation in every circumstance will be removed.

A further consultation is proposed on changing the index used for levy rates for residential development to the House Price Index (using local-level data on an annual basis), and for using the Consumer Price Index for indexing CIL for non-residential development.

It should be noted that some other consultation proposals are not being taken forward; there will be no amendments to CIL rules to allow LAs to ‘better to capture increases in land value where this was justified by infrastructure needs’ and there are no changes proposed to current exemptions (although penalties will be modified).

In the longer term, the Government states that it will bring forward proposals for allowing joint planning committees to charge a Strategic Infrastructure Tariff, and will review options for giving other groups the power to levy one as well.

The Government otherwise states rather vaguely that ongoing technical and operational issues with CIL will be considered and addressed.

In relation to the Paddington Cube proposal in London, the Court of Appeal has ruled (in R (Save Britain’s Heritage) v Secretary of State for Communities and Local Government and Westminster City Council and Great Western Developments Ltd.) that the Secretary of State had, in 2001, made an express promise that reasons would be given for decisions not to call in an application under s77 of the Town and Country Planning Act 1990 (as amended) (‘the Act’).

The promise was in a Green Paper, and announced in both Houses as follows:

‘As part of our fundamental review of the planning system, we have decided that as from today we shall give reasons for our decision not to call in planning applications. This decision, which forms part of the raft of measures in our Planning Green Paper published today, is in the interest of transparency, good administration and best practice. The courts have established that there is no legal obligation to provide reasons for not calling in an application […]’

Despite not having been the Government’s practice since 2014, the Judge stated:

‘I do not accept the proposition that a policy which has been promised can be withdrawn simply by a change in the template of letters sent privately to individual LPAs and objectors, particularly where, as here, the alleged change is itself very difficult to discern [...] An unequivocal promise was made, and that unequivocal promise should have been publicly withdrawn when (or if) a conscious decision was taken no longer to give reasons for not calling in applications under s.77.’

Maximus Networks Ltd. is an electronic communications code system operator that has sought to expand service coverage by making applications for telephone kiosks using the prior approval process under the Town and Country Planning (General Permitted Development) (England) Order 2015, Schedule 2, Part 16 Class A (‘the GPDO’). 

This particular case involved 53 out of 367 such applications when the claim commenced (out of a total of 390 proposals); the applications had been made to various London Boroughs in February last year. The claim related to appeals of applications made to LB Southwark that had been validated but undetermined; others in LB Hammersmith and Fulham had not been validated for the reason that they had not been accompanied by evidence that the developer had given notice of the proposed development to any person who was an owner of the land to which the development related before the application was submitted. The claimant contended that there was no need to comply with this GPDO condition, as they were one and the same authority.

In the High Court, it was held by Mr Justice Dove that the Planning Inspectorate had acted appropriately and in line with the statutory discretion provided by s79(1)(b) (‘Determination of appeals’) of the Act, in reaching their decision to decline to accept jurisdiction in respect of the appeals because there had been a failure to comply with the formal requirements in relation to the prior approval permitted development rights’ notice procedure.

It was also held that the applicant should have its application fees refunded.

In Putney Bridge Approach Ltd. v the Secretary of State for Communities, Housing and Local Government and the LB of Hammersmith and Fulham and JC Devaux Ltd., the Court of Appeal has clarified the local planning authority’s (LPA) power to regulate advertisements by serving a notice under regulation 8(1)(a) (‘Discontinuance of deemed consent’) of the Planning (Control of Advertisements) (England) Regulations 2007 (the Regulations).

As the case transcript states:

‘The appeal raises issues about the proper scope of a [discontinuance notice] DN which relates to a particular site, rather than a particular advertisement; the interplay between the 'deemed consent' regime and the 'express consent' regime; and the extent to which an LPA or a planning inspector is obliged to consider hypothetical alternatives to the actual advertisements in place before upholding a DN relating to a site.’

A DN removes the right that would otherwise exist to display advertisements pursuant to ‘deemed consent’ under Part II of the Regulations.

Appeals had been dismissed against a discontinuance notice relating to two advertisements on an office building called Riverbank House, and a High Court challenge had been rejected by Ouseley J.

The Court of Appeal only had to consider one issue, namely whether the inspector had erred in law in that she had:

‘[…] failed to properly apply the test set out in Regulation 8(1) of the 2007 Regulations, namely whether prevention through the DN of the display of any form and size of illuminated advertisement pursuant to deemed consent under Class 12 anywhere within Riverbank House was necessary…to remedy a substantial injury to the amenity of the locality’.’

The test that the inspector had applied had been, ‘whether the continued use of the site for the display of advertisements with deemed consent would be substantially injurious to amenity’. She had concluded that both of the advertisements, with their ‘illumination and moving display’, were extremely prominent. She stated:

‘The test in Regulation 8 requires that there must be 'substantial injury to the amenity to the locality or a danger to members of the public'. There is no danger to members of the public in this case […] The Notice requires the discontinuance of the use of the building for the display of illuminated advertisements with deemed consent pursuant to Class 12 of Part 2 of Schedule 3 for the Regulation. Given the location and orientation of the building as a whole I consider for the reasons given above that any illuminated advertisement on the site would be substantially injurious to the amenity of the locality.’

Coulson LJ held, with regard to the inspector’s decision:

‘In the light of my interpretation of Regulation 8 and the context of deemed consent, I am in no doubt that she applied the correct test.’