England planning news, November 2018

• 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’.

• an extra £500m for the Housing Infrastructure Fund (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.

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‘I do not accept the proposition that a policy which has been promised can be withdrawn simply by a change in the template of letters sent privately to individual LPAs and objectors, particularly where, as here, the alleged change is itself very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 An unequivocal promise was made, and that unequivocal promise should have been publicly withdrawn when (or if) a conscious decision was taken no longer to give reasons for not calling in applications under s.77.’

The Government has published draft regulations that are intended to ensure that, after Brexit, environmental impact assessment (EIA) and strategic environmental assessment (SEA) continue to operate as they do now. 

The draft regulations would not make substantive changes to the law; they propose amendments to update references to other legislation, and to remove references to EU law from the EIA Regulations and other planning-related legislation.

As currently drafted, amendments to two of the regulations, which would be made to reflect existing amendments to two EU Directives, would come into force on 31 December 2018.  The other regulations would come into force on exit day.

The proposed Regulations are amongst the negative statutory instruments introduced under the EU (Withdrawal) Act 2018 that must be ‘sifted’ by the House of Commons European Statutory Instruments Committee and House of Lords Secondary Legislation Scrutiny Committee prior to formally being laid in Parliament. These committees consider whether to recommend that instruments proposed by Ministers in the negative form – which can come into force without a debate in Parliament –should instead be affirmative instruments, meaning a debate is required before they could come into force.  The regulations were open for sifting until 13 November 2018, but on 8 November 2018 it was announced that both sifting committees agree with the government that the statutory instrument does not have to be debated in parliament (but still could be debated).

The Government has also published draft Regulations to ensures that planning-related hazardous substances legislation also continues to operate as it does now.

MHCLG, Planning reform: supporting the high street and increasing the delivery of new homes

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:

1. 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);

2. the s106 pooling restriction will be lifted in all areas, while the uptake and continued use of the levy will be incentivised;

3. 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’);

4. 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);

5. it will be made clear that LAs can seek a fee in a s106 from applicants, towards monitoring obligations;

6. 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;

7. 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;

8. new PPG, to assist LAs in preparing CIL charging schedules, particularly in relation to infrastructure requirements, viability assessments and levy data collection; and

9. 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.

Housing Minister Kit Malthouse on 15 October gave a written parliamentary answer to a question as to whether he would make an assessment of the effect of the figures published by the Office for National Statistics on 20 September 2018 on the determination of a suitable housing figure in local plans that are currently at Regulation 18 and Regulation 19 stage and have not been assessed by an inspector and the Secretary of State.

He replied:

‘In the Government response to consultation, published on 24 July 2018, we stated that following September’s release of figures, we would consider revising the outputs associated with the standard method for calculating local housing need to ensure they are consistent with our aims to get more homes built. We will consult on the specific details of any proposed change as soon as possible (since published for consultation, see below).

The standard method only applies to local plans submitted to the Planning Inspectorate after 24 January 2019. Any plans submitted on or before that date can use their own method for calculating their housing requirement. Where household projections form part of that evidence, the impact of changing projections will need to be considered locally. But this does not automatically mean that housing assessments are rendered outdated every time new projections are issued.’

Elsewhere, and in mid-October, MHCLG Chief Planner Steve Quartermain was reported as confirming that there will be further information before Christmas, relating to a consultation on a proposed revised method that would aim to meet the Government’s overall target of delivering 300,000 homes a year by the mid-2020’s (see below for subsequent consultation launch).

On 26 October, MHCLG launched the expected consultation on changes to the standard method for assessing housing need. It follows the September 2018 publication of ONS 2016-based household projections, that lead to significantly lower housing need than the 300,000 homes per year that the Government intends to achieve in supply terms by the mid-2020’s.

The consultation also proposes several clarifications to national planning policy; subject to responses, it is intended that a revised NPPF will result.

The consultation closes on 7 December 2018.

In summary, the Government has decided not to change the standard methodology and proposes clarifying via national planning practice guidance that:

• In the short-term, the 2014-household projections provide the demographic baseline for local housing need assessment; and
• the 2016-based household projections do not qualify as an exceptional circumstance to depart from the standard methodology.

In the longer term, the Government proposes to review the formula, to establish a new method capable of delivering the Government’s aspirations by the time the next set of projections is issued.

The consultation also seeks views on the approach to take for the application of the standard methodology cap to spatial development strategies, and proposes ‘minor clarifications’ to the NPPF, to:

• paragraph 177 (relating to the Habitats Regulations assessment and the presumption in favour, to reflect the ruling in People over Wind);
• footnote 37 (on local housing need); and
• the definitions of ‘local housing need’ and ‘deliverable’ in a revised glossary.

MHCLG, Independent review to tackle barriers to building

MHCLG, Independent Review of Build Out Final Report