Commercial planning news, October 2018

 

On 1 October, new rules for pre-commencement conditions come into force, as a result of secondary legislation that was made and laid in May this year.

There is now a new procedure in place, whereby applicants have to give their written consent to any pre-commencement condition. It applies to pre-commencement conditions imposed only on a grant of planning permission (but not when granted in outline) on or after 1 October 2018. The new procedure is therefore relevant to planning applications that have already been made and that will be determined from now onwards.

Lichfields has already covered the new procedure and its ramifications extensively; the PPG also explains succinctly how it operates.

 

MCHLG published new Planning Practice Guidance (PPG) on 13 September for ‘Build to Rent’ and ‘plan-making’.

Updated guidance was also issued on the same day, on ‘housing need assessment’, ‘housing and economic land availability assessment’, ‘local plans’ and ‘neighbourhood planning’.

In summary, the new guidance reflects the new National Planning Policy Framework (NPPF) and covers:

Compared with the consultation draft PPG on Build to Rent (from March 2018), there is only new guidance in relation to when affordable homes in such developments are sold off.

Most of the new ‘plan-making’ guidance in the PPG has only been reordered and revised slightly from the March 2018 draft version – specifically to accurately reflect the finalised NPPF and also to subtly emphasise strategic planning, or alter the degree of flexibility at different stages in plan-making.

The most detailed guidance is on Statements of Common Ground; the least elucidating is on plan viability.

The ‘Housing Need Assessment’ PPG has replaced the previous PPG on ‘Housing and economic development needs assessments’. The content relating to economic needs assessment has been removed, suggesting that this may be covered in separate PPG at a later date (although Paragraph 033 of the newly published plan-making PPG gives guidance on ‘gathering evidence to plan for business’ and Paragraph 034 covers how functional economic market areas can be defined).

The PPG has been updated in relation to housing land supply and delivery; it continues to refer to housing and economic land availability assessments.

Much of the content in this part of the PPG has now been moved to form part of plan-making guidance. It now only covers: ‘Local Plans: key issues’; ‘Preparing a Local Plan’; ‘Publication and examination of a Local Plan’; and ‘Local plans - adoption, monitoring and supplementary planning documents’.

There are now new Paragraphs 96-99 (Neighbourhood Plans, and housing policies/allocations) that relate to the revised NPPF’s Paragraph 14.

 

The Local Government and Social Care Ombudsman published guidance on 17 September that is aimed at improving the transparency and clarity of the planning decision-making process, in a bid to reduce the amount of complaints received.

The report considers how authorities often fail to effectively explain: how material planning considerations have been taken into account; and what has been taken into consideration when reaching a decision. The guidance also covers how local planning authorities should provide clear records of planning decisions and the reasons for them, through improved recording procedures.

On 14 September, Chief Planner Steve Quartermain issued a planning update newsletter outlining the Government’s progress on its programme of planning reforms.

The reforms covered include: the revised NPPF; updated PPG; the independent review of planning appeal inquiries; changes to pre-commencement conditions; the 2017/18 Annual Casework Report to Parliament; developer contributions and open data tools; design charrettes (a Call for Expressions of Interest); and the Local Digital Declaration and Fund.

On 13 September, the House of Commons Housing, Communities and Local Government Committee published its report on land value capture (LVC).

The report covers: the background to LVC; how existing methods could be improved; and the potential legislative reforms that would be required to change the current compulsory purchase regime, to remove the landowners' right to be compensated for the 'hope value' of their land (i.e. for planning permissions that could be granted in a ‘no scheme’ world). The Committee recommends that the Land Compensation Act 1961 should be reformed, ‘so that local authorities have the power to compulsorily purchase land at a fairer price’. The Committee argues that the compensation paid to landowners should ‘reflect the costs of providing the affordable housing, infrastructure and services that would make a development viable, as well as capturing a proportion of the profit the landowner will have made’.

On 5 September, Housing Minister Kit Malthouse had spoken at a Committee session and stated that the Government had no immediate plans to bring in new mechanisms to capture increases in land values, although they were open to revisit such measures in the future. He said:

‘We have to be slightly careful in these situations not to choke off land coming forward and also to create a kind of legal game of jeopardy where everything gets snowed up in Supreme Court challenges.’

Commenting on parts of the Neighbourhood Planning Act 2017 that came into force last year, which seek to codify and clarify the ‘no scheme world’, the Housing Minister stated:

‘We are essentially trying to maintain a situation where you are compensated for your land on the same basis as if you have sold it voluntarily, but not necessarily with the benefit of the scheme that the local authority is sponsoring and putting in.  That seems to me to be a sensible balance, so we will see where we get to on that.  If there are still issues once that beds in, we can have a look at the 1961 Act again.’