Planning Quarterly Update - Policy and News Edit

National Planning Policy Framework

The big news for this quarter on the policy front was the publication of the revised NPPF. In our article, The New NPPF - Ten Takeaways, we looked at ten key issues from the revised Framework to give you a broad indication of what's changed.

However, the ink had barely dried on the document before Friends of the Earth mounted a legal challenge on the basis that the government had failed to carry out a strategic environmental assessment (SEA).

Friends of the Earth noted that its intention was to force the government to undertake an SEA, consult the public and modify the framework based on those findings.
Look out for more on this story in one of our future updates.

London Plan

August saw the publication of minor modifications to the London Plan, ahead of its examination in public (EiP) next year.

The changes include more stringent requirements relating to carbon emissions and design scrutiny.

The EiP will open on 15 January 2019 and according to the provisional timetable, will run until 20 May 2019. The report of the panel of inspectors (Roisin Barrett, William Fieldhouse and David Smith) will be prepared between May and July 2019.

Prior to this, technical seminars will take place on 6 and 7 November 2018.

Whilst the Plan will be examined against the 2012 NPPF, James Brokenshire, in his July letter to Sadiq Khan, noted that immediately following adoption, the Plan would need to be reviewed to bring it in line with the 2018 version.

PPG Revisions

In September, it was the turn of the Planning Practice Guidance (PPG) to have an overhaul. Updates were published to the sections dealing with housing need assessments, housing and economic land availability assessments, local plans and neighbourhood planning and new two new sections looking at build to rent and plan-making were also added.
Those operating in the build to rent sector will be pleased to see (in respect of build to rent covenants) the guidance encouraging planning authorities to "recognise that build to rent operators will want sufficient flexibility to respond to changing market conditions and onerous exit clauses may impede development".

The inclusion of a 20 per cent benchmark figure for the level of affordable private rented homes to be provided in a build to rent development should also give certainty to those bringing schemes forward, particularly given the guidance's requirement that "[i]f local authorities wish to set a different proportion they should justify this using the evidence emerging from their local housing need assessment, and set the policy out in their local plan."

In terms of housing need assessments, this is an area in disarray. Whilst the guidance itself notes that the method may well need to be adjusted (following lower than expected population projections which are likely to result in the minimum need numbers generated by the method being subject to a significant reduction), the government is remaining tight-lipped about when a consultation on a revised methodology will be forthcoming.

This is proving problematic for those looking to submit local plans for examination after 24 January 2019. Any plans submitted after this date will need to use the standard method, but the question is, what will the method look like at that point?

Instead of the government tinkering with matters such as pre-commencement conditions, which will have a limited effect on improving the housing market, it would be well advised to focus its efforts on the big issues such as this one, given the potentially far-reaching and significantly detrimental impact these matters can and will have, if not fixed in a timely fashion.

Heathrow Challenges

Last year saw the first attempt in the courts to halt Heathrow's third runway fail but, following the designation of the Airports National Policy Statement early this year, a fresh assault has been launched by a host of parties, including a group of councils and the Mayor of London, private individuals and environmental groups Friends of the Earth and Plan B.

The council group's challenge is based on the grounds of air quality (on the basis that the Government has misunderstood and misapplied the law on air quality), climate change and strategic environmental assessment, including failing properly to deal with noise consequences and surface access impacts.

Friends of the Earth and Plan B, who argue that the proposals are inconsistent with the UK government's greenhouse gas reduction commitments, have already been granted the permission they need to take their claim forward and this will proceed to a full hearing in March 2019.

2019 promises to be yet another tumultuous year in the ongoing battle for airport expansion.

In other news, Heathrow Airport has been fined £1.6m in relation to an attempt to restrict a competitor's parking prices. Look out for a further update from us on this.

Land Value Capture Report

September saw the publication of the Housing, Communities and Local Government Committee's Land Value Capture Report.

The key conclusion from the report was that there was "scope for central and local government to claim a greater proportion of land value increases through reforms to existing taxes and charges, improvements to compulsory purchase powers, or through new mechanisms of land value capture."

Amongst the recommendations in the report were the following:

• The CPO process should be further simplified, to make it faster and less expensive for local authorities, whilst not losing safeguards for those affected.
• The Land Compensation Act 1961 requires reform so that local authorities have the power to compulsorily purchase land at a fairer price.
• 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.
• Local authorities should consider using their existing CPO powers to enforce Local Plan policies, in particular in relation to affordable housing, where some developers seek to use viability assessments to avoid their obligations.
• If the Community Infrastructure Levy (CIL) is to become an effective mechanism for capturing development value for the provision of local infrastructure, it requires considerable reform.

Unsurprisingly, the Local Government Association welcomed the findings, stating that "[g]overnment action on these recommendations would have a significant impact in building more homes with the right infrastructures and places that people want to live and work."

Others, including the British Property Federation, have urged the government to exercise caution when reforming this area, the BPF noting that the recommendations "could have unintended consequences on investment into communities and new housing delivery across the UK."

We too would urge caution in this area. Those involved in the development industry need to be able to invest with certainty. If that certainty is removed, it will not encourage developers to bring forward proposals, nor will it incentivise landowners to release their land for development. Instead of stimulating development, we could see it stifled.

Guidance on Recording Planning Decisions

September saw the Local Government and Social Care Ombudsman (LGSCO) publish guidance for planning practitioners on recording planning decisions.

Backed up by case studies grouped into three key themes (consideration of material planning conditions; information taken into account; and clear records of a decision and reasons), the document looks at the LGSCO's general approach to handling complaints in relation to planning decision making and provides a good practice guide with key points for decision makers to remember when considering and recording planning decisions.

CIL and Retrospective Planning Permission

A recent appeal decision highlights that care must be taken if retrospective planning permission is applied for.

Following the grant of planning permission, a development was built out, but not in accordance with the approved scheme. Therefore retrospective consent was secured.
At the date of the original grant, there was no Community Infrastructure Levy (CIL) charging schedule in place but, prior to the grant of the retrospective consent, one had been adopted.
The development was therefore found to be CIL liable and because a commencement notice had not been served prior to development commencing, the local planning authority was entitled to levy a surcharge for failure to serve the requisite notice.

Although the inspector noted that this was unfortunate, it arose as a result of works not being carried out in accordance with the original permission, so was of the developer's own making.

The decision emphasises that proper consideration should always be given to the potential CIL liability of any proposed development and that a cautious approach should be adopted to ensure that a strategy which protects appropriate exemptions and reliefs is put in place.