England planning news, February 2020

Planning related announcements in the Queen’s Speech covered:

• ‘First Homes’ 
• a £10 billion Single Housing Infrastructure Fund to provide the roads, schools and GP surgeries needed to support new homes
• A national infrastructure strategy
• White Papers on Planning, Social Housing and Devolution
• HS2 Bill
  
  

‘First Homes’ will be dwellings sold for at least 30 per cent less than market value, discounted in perpetuity and aimed at local first-time buyers. The mechanism for achieving this is currently being consulted on and could be via policy and/or law.  The consultation closes on 3 April 2020.

The consultation document puts forward a series of options for various conditions and controls relating to First Homes, albeit that the consultation document indicates  the preferred approach.

A key objective of First Homes is to diminish opposition to new housing developments, on the basis that local people will know that they might be to afford to live in the development where perhaps historically they would not.

In response to a written question asking how First Homes would differ from Starter Homes, Viscount Younger replied:

“These new ‘First Homes’ will be made available at a discount of at least 30% and will be funded through developer contributions, reducing the cost to both local and national government. Unlike

Starter Homes, First Homes will offer a larger discount to buyers that is retained in perpetuity, so that future generations can also benefit from the discount. Local Authorities will be able to prioritise these homes for local residents and key workers, such as nurses, teachers or police officers”.

In a 16 January written answer regarding the single Housing Infrastructure fund the Housing Minister said that further details would follow “shortly”.

The National Infrastructure Strategy, to be published alongside the Budget on 11 March, will set out how the Government intends to invest £100 million in UK infrastructure. The Strategy will also respond to the July 2018 National Infrastructure Assessment and the March 2019 Infrastructure Finance Review consultation.

The ‘Accelerated Planning’ White Paper was widely anticipated for publication in Autumn 2019. Apparently delayed by the General Election, the Queen’s Speech advised that the White Paper was one of the steps to be taken “in the coming months” towards building one million homes by 2025.  In a subsequent written answer to Baroness Thornhill, Viscount Younger of Leckie said that the Government would publish a Planning White Paper “later this year”.

According to the speech the White Paper “will make the planning process clearer, more accessible and more certain for all users, including homeowners and small businesses. It will also address resourcing and performance in Planning Departments”.

Related to a question about a specific site, the MP for Christchurch, Sir Christopher Chope, asked how the Government was ensuring that that local authorities are using the powers in section 94(1)(a) of the Town and Country Planning Act 1990 to ensure that developers complete developments which have already received planning permission. In a holding answer, the Housing Minister said that the 2017 Housing White Paper ‘Fixing our Broken Housing Market’ had included proposals to speed up and simplify the completion notice process “to give local planning authorities greater confidence, control and certainty in their use. These proposals require changes to primary legislation, and we will consider the scope to make them as we seek to make the planning system simpler and faster as part of the planning White Paper”.

The Government says it is committed to An English Devolution White Paper “setting out our strategy to unleash the potential of our regions, which will include plans for spending and local growth funding”.

In related news, at the end of January, the Sheffield City Region Combined Authority voted to consult on a devolution package that includes strategic planning powers. The consultation is due to run for six weeks from the first week in February.

With regard to High Speed 2 (HS2), the Government commits to the High Speed Rail (West Midlands - Crewe) Bill, a commitment which is said to be without prejudice to the Oakervee Review, which was set up in 2019 following concerns that the proposed north-south rail link was running behind schedule and over budget.

The Conservative’s 2019 manifesto stated:

“We will consider the findings of the Oakervee review into costs and timings and work with leaders of the Midlands and the North to decide the optimal outcome.”

The Government is expected to decide on the future of the HS2 project in the coming weeks, now that it is in receipt of the Oakervee Review’s soon-to-be published report.

The BBC, which is in possession of the Review’s report, has revealed that it strongly advises against cancelling or scaling back the divisive infrastructure project.

According to the BBC, the Review has warned that the project’s costs may rise beyond £100bn, whilst there is a "considerable risk" that its first phase will need additional funding. Despite this, it reports that the Review has concluded that delivering just one section of the project would not deliver value for money on its own.  It also states that if the project is delivered alongside wider regional transport strategies, such as the Midlands Engine Rail, and Northern Powerhouse Rail, the scheme could bring about a much wider economic transformation than in isolation.

Further to this, it is said to highlight the potential impact that cancelling the scheme would have on the supply chains of the UK’s construction industry.

The news follows the recent publication of the National Audit Office’s (NAO’s) report on the project, which highlighted a number of issues stemming from the management of the programme.

The NAO stated:

“In not fully and openly recognising the programme’s risks from the outset, the Department and HS2 Ltd have not adequately managed the risks to value for money. If these risks had been recognised and managed earlier, then the significant activity in a pressured environment over the past year trying to understand and contain cost increases may not have been necessary.”

As yet, it remains unclear which way the Government will decide. Whilst Boris Johnson has been a long term opponent of the project, the Conservatives have promised to reduce the north-south divide, have stated they are committed to infrastructure spending, and do not have alternative plans that are comparably developed.

A recent Lichfields blog discussed Northern Rail and HS2 and their potential economic benefits.

In Lichfields’ October Planning News we reported on the Warren Farm High Court judgement, which had concluded that the legislation permitting extending the time period for determining a prior approval application does not apply to prior approval applications that have a specified time period for determination (e.g. those with a 56 day determination period); such extensions of time only apply to applications that have a default determination period of 8 weeks because the time period for their determination is not specified.

However, a recent High Court judgement, Gluck v Secretary of State for Housing, Communities and Local Government (SoS), has agreed with the SoS and held that Warren Farm decision was incorrect and should not be followed.

Accordingly, it is no longer the case that Article 7 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO), which permits extensions of time to be agreed in writing between the applicant and the local planning authority, should be construed as only applying where there is no specified time period for determination. All prior approval applications may seek to agree an extension of time.  Gluck also considered whether an agreement had been made “in writing”, given that the extension was agreed verbally and confirmed in writing only by the appellant.  The judge concluded:

The High Court has confirmed that the requirements of paragraphs 89 and 90 of the National Planning Policy Framework (NPPF) should not be interpreted as a presumption or tilted balance; other policies that do require such application in the NPPF expressly say so and must therefore be treated differently.

Asda challenged the decision of Leeds City Council to grant planning permission, against officer recommendation, for an edge of centre retail development proposed adjacent to Asda’s own edge of centre store. One of the proposed anchors was to be a B&M store, resulting in the closure of the existing B&M store in Middleton Centre.

Paragraph 89 of the NPPF sets out the circumstances where a retail impact statement is required and what considerations it should address. Paragraph 90 (NPPF90) says:

“Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the considerations in paragraph 89, it should be refused”.

Local policy reflected the NPPF in this regard.

Counsel for Asda argued that “Members of Leeds City Council wrongly thought that they were applying a simple planning balance, as opposed to a presumption or tilted balance in NPPF90”.

The judgement sets out (at paragraph 20) the Secretary of State’s interpretation of the term “should” in the NPPF and specifically NPPF90, which had been submitted to the Court.

The SoS’s submission is of interest in full, but of particular note he submitted:

“17. Paragraph 90 read in context does not mean that in any case where the sequential test is failed or the proposals are likely to have a significant adverse effect on planned investment or town centre vitality and viability the application must be refused. In this sense, it is not mandatory.

18. Such an interpretation would (a) not give "should" its ordinary meaning, (b) be inconsistent with the duties under section 38(6) and s70(2) to have regard to all material considerations, and (c) fail to read paragraph 90 in its proper context which is within the NPPF section addressing town centres”.

Mrs Justice Lieven DBE agreed with Counsels for the Council and the development, while noting that the terminology used in NPPF90 “is confusing, and seems to set a trap for decision makers”.

The claim failed on all three of its grounds and the judge concluded:

“The NPPF has to be read as a whole, and in a way that makes sense of the document as a whole. In para 11-14 of the NPPF the Secretary of State has used the specific term "presumption" in relation to sustainable development, and has set out a structure by which that presumption is to be applied, and in particular circumstances outweighed […]
By contrast in NPPF90 the word "presumption" is not used, nor is there any suggestion of a tilted balance; or any attempt to tell decision makers that they should put more weight on one factor rather than another”.

Mrs Justice Lieven also noted that Counsel for Asda’s approach would lead to excessive legalism and “create a legal minefield for decision makers with potentially different presumptions pulling in different directions” in a way that the Courts have sought to discourage.

The Building Better, Building Beautiful Commission (BBBBC) has now published its final report “Living with beauty”.

Set up in November 2018, the Commission was tasked with raising the standard of design for new homes and neighbourhoods, ensuring that what is built is both supported by existing communities and valued by future generations to come.

“Living with Beauty” examines beauty at three different scales, from the detailing and design of buildings, to the layout of streets and houses, through to the placement of settlements. Over 45 policy recommendations are put forward that cover 8 key areas where reforms should be prioritised.  

The report argues that the importance of securing beauty and good placemaking should be included within the NPPF’s definition of sustainable development; as well as also being recognised within the relevant legislation as a key aim of the planning system.

It considers that Beauty is “everything that promotes a healthy and happy life, everything that makes a collection of buildings into a place, everything that turns anywhere into somewhere, and nowhere into home”.

The Commission emphasises that “beauty” is not merely a visual characteristic, but is revealed in the deep harmony between a place and those who settle there.  Accordingly beauty should be determined at the local level and guided by community engagement, with detailed area specific policies and guidance setting out clearly what is expected: “Beauty should be the topic of an ongoing debate between the public and the planners, with the developers bound by the result”.

The Commission stresses the importance of early engagement in the plan-making process and suggests how this can be used to better secure local buy-in. Interestingly, it recommends that planning applications that clearly meet the standards set out in local design codes and guidance should be fast-tracked for determination, in order to better encourage developers to factor in good design.

The Government will respond to the Commission’s report “in due course”, and will also consult on a new National Model Design Code which it says is currently in production.  In a press release the Secretary of State said “I am interested in the proposal of a “fast track for beauty”. Where individuals and developers have put in the time to create proposals for well-designed buildings, which use high quality-materials and take account of their local setting, it can’t be right their planning applications are held up”.

The ‘Housing supply; net additional dwellings statistics’ reports the most accurate estimates for new housing supply in England, according to the Government. These statistics inform the Housing Delivery Test (an assessment of housing supply delivery in local authorities).

The Government is consulting on proposals to allow annual revisions of the net additions statistics, which would in turn allow local authorities to provide revisions which would flow through Housing Delivery Test calculations.

The consultation explains that while there is currently scope to correct errors (non-scheduled revisions):

“The scheduled revisions policy does not allow for any regular revisions other than when figures are updated once every ten years to match the latest census figures. The effect of this is that if there are any updates to the local authority figures then they will not be updated for up to ten years when they are adjusted to the latest census data […] available”.

The revisions at the time of the census would still take place, but the consultation anticipates that the necessary adjustments would be much smaller than at present. “

If implemented in November this year, it would provide the ability to revise the 2017-18 and 2018-19 net additional dwelling figures, i.e. two of the three periods relevant to the 2019 Housing Delivery Test results.

The Environment Bill was re-introduced to Parliament on 30 January after its progress was delayed by the general election in December. If it gains Royal Assent, the Bill will introduce into UK law a new environmental framework that will include directions for resource and waste management, improving air quality, as well as securing water services.

The Bill also provides details of the Government’s new Office for Environmental Protection, which will be responsible for taking over the previous functions of the European Union in this respect, as well as holding the Government to account on its commitment to reach net zero emissions by 2050.

Of particular interest are the Bill’s proposals for Biodiversity Net Gain (BNG), which will place a mandatory requirement on developers to guarantee that habitats are enhanced and left in an improved state than they were prior to development. This will be calculated using the recently published BNG metric from the Department for the Environment, Food and Rural Affairs (DEFRA), where an assessment of a site’s existing conditions is compared against the proposed improvements.

Improvements are expected to be delivered onsite, though where this is not possible a charge can be levied to create new habitats or deliver improvements elsewhere. Furthermore, the Bill introduces requirements that new compensatory habitats are to be monitored and managed for a period of at least thirty years.

Last year’s consultation on BNG confirmed that the Government will draft planning guidance providing further detail and clarity as to how to implement the measure, whilst DEFRA will continue to update and make refinements to the Metric to address concerns over viability.

The RICS in consulting on draft guidance that is intended to enable practitioners to consistently apply the government’s NPPF/PPG 2018/19 on viability. Please see our Planning Matters blog for more details.