“Modernising planning committees” is one of the promised objectives of the Planning and Infrastructure Bill, likely to be introduced into Parliament this Autumn.
The Government has not yet provided any colour as to what modernisation means in this context but the general assumption is that it is likely to include moving to a national scheme of delegation, setting out which categories of planning applications should not be determined by planning committee but should instead be taken by planning officers by way of delegated powers.
Appropriate use of delegation is a good thing. Indeed, that is already reflected in the Government’s Planning Practice Guidance, unchanged for the last ten years:
The exercise of the power to delegate planning functions is generally a matter for individual local planning authorities, having regard to practical considerations including the need for efficient decision-taking and local transparency. It is in the public interest for the local planning authority to have effective delegation arrangements in place to ensure that decisions on planning applications that raise no significant planning issues are made quickly and that resources are appropriately concentrated on the applications of greatest significance to the local area.
Local planning authority delegation arrangements may include conditions or limitations as to the extent of the delegation, or the circumstances in which it may be exercised.
Paragraph: 015 Reference ID: 21b-015-20140306
Revision date: 06 03 2014”
The Local Government Association has published this piece which sets out examples of categories of applications included in individual authorities’ schemes of delegation as requiring determination by committee – together with a brief analysis of the advantages and disadvantages of including each category. As we know, almost every authority has a slightly different set of rules – and sometimes it takes some website burrowing (a particular curse upon every authority which does not a clear index to its constitution) to ascertain what they are…
However, despite what it may seem like to practitioners focused on larger applications, nearly all planning applications are of course already delegated to officers. This is a list of the authorities which last year delegated the lowest proportion of decisions to officers:
And yet still there is the sense that even more applications could be determined by officers. For instance, the RTPI published this press statement on the day of the King’s Speech (17 July 2024):
“The Institute believes planning committees need modernisation and could include a national scheme of delegation, allowing planning officers to make some decisions themselves. Qualified planners should be able to implement agreed planning policy, freeing up councillors’ time to focus on the most challenging planning cases. This change would help to unblock many applications and speed up the planning process.”
Definitely, in a more perfect system, with clear policies in an up-to-date local plan, surely applications for planning permission which accorded with the local plan should be able to be approved by officers without reference to committee, and those not in accordance refused. Local democracy should be focused on the plan rather than its implementation.
The previous Government’s 2022 Planning For The Future white paper of course took this to the max, envisaging allocations which had the effect of granting the equivalent of outline planning permission and that thereafter “the delegation of detailed planning decisions to planning officers where the principle of development has been established, as detailed matters for consideration should be principally a matter for professional planning judgement”.
Maybe indeed, we should be heading in that direction (although it is all of course predicated on having that clear, up-to-date, plan!). Is legislation required to achieve greater delegation of decision making? I’m not sure. I shall be interested to see the “one size fits all” outcome. And as with any suggested legislative change, have we looked at whether behaviour can be changed without resorting to the law? By all means come up with a scheme of delegation template – but why not then include it immediately in Planning Practice Guidance and advise authorities that they adopt it? That could make a difference by as early as next year. Legislation won’t.
In the meantime, two of the many things which keep planning lawyers busy are (1) the behaviour at meetings of planning committee members and (2) the interpretation of local authority constitutions as to how committee meetings should be run. Two recent cases of interest:
Read about the agony of prolonged debate of a contentious application at a committee meeting, allegations of predetermination and bullying and a councillor changing their mind at the last moment…
More agony, with successive planning committee meetings in relation to another contentious application and arguments as to which members could participate. The Court of Appeal (and before that the High Court) determined that was lawful for a local authority’s constitution to restrict voting by members on a deferred application for planning permission to those who had been present at the meeting(s) at which the application had previously been considered. However, the Supreme Court heard the subsequent appeal on 25 July 2024 and we await its final ruling.
There was a case that I missed when it was handed down: Mylward v Weldon (Chancery Court of England, 15 February 1595). Thank you to Major Clanger (whoever you may be) and barrister Jacob Gifford Head who brought it my attention via Bluesky. It’s regularly referred to in the context of over-long legal documents eg see David Hart KC’s Should lawyers get named and shamed for being boring? (5 December 2011) and Gordon Exall’s Useless Bundles (10 July 2014)
In Mylward v Weldon the court was faced with a party that had filed a pleading which was 120 pages in length which the court considered could have been confined to 16 pages and which it found to have been motivated by the “malicious purpose” of increasing the costs of the other party in the litigation. The court, in an admirably concise one-paragraph judgment, found that: “such an abuse is not in any sort to be tolerated, proceeding of a malicious purpose to increase the defendant’s charge, and being fraught with much impertinent matter not fit for this Court; it is therefore ordered, that the Warden of the Fleet shall take the said Richard Mylward, alias Alexander, into his custody, and shall bring him into Westminster Hall, on Saturday next, about ten of the clock in the forenoon, and then and there shall cut a hole in the myddest of the same engrossed replication (which is delivered unto him for that purpose), and put the said Richard’s head through the same hole, and so let the same replication hang about his shoulders, with the written side outward; and then, the same so hanging, shall lead the same Richard, bare headed and bare faced, round about Westminster Hall, whilst the Courts are sitting, and shall shew him at the bar of every of the three Courts within the Hall, and shall then take him back again to the Fleet, and keep him prisoner, until he shall have paid 10l. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse, which fine and costs are now adjudged and imposed upon him by this Court, for the abuse aforesaid.”
Basically, a hole was to be cut in the middle of the document, the document (“with the written side outwards”) was then to be put over the offending party’s head and he was then to be led around the courts before he was then imprisoned until a large fine had been paid.
I would like this a lot if I didn’t have half an eye on the risk of being the one paraded.
But it did bring me back to how the planning system might be reformed so as to be faster and simpler.
On Bluesky I made the only half-serious suggestion that the principle in Mylward v Weldon should apply to every document in the planning system.
This, briefly, is the serious half of that suggestion (which, before you ask, does not apply to blog posts):
Most documents can be halved in length by ensuring that they are not internally repetitious or do not quote at length from well-known sources and other documents in the same pack. Why for instance do design and access statements have long passages on policy which replicate the planning statement? Why for instance do environmental statements quote policies at length when there is no reference at all to policy within Schedule 4 of the Environmental Impact Assessment Regulations? Why are the longest chapters in an environmental statement often in relation to the issues that are least relevant to the eventual decision or cover matters that are to be addressed in a straight-forward way by means of condition or indeed other regulatory controls?
Most documents obfuscate through lack of clarity (including through imprecise use of grammar or terms) or through seeking to over-analyse matters which are for the decision-maker to determine (contrast (1) the concise conclusions within most inspectors’ decision letters following a written representations appeal with (2) the length of the opposing parties’ statements of case).
Reports to planning committee are not fit for purpose: onerous for officers to prepare; not informative for councillors (how much can they actually read and take in of these massive documents?); often, through their length, adding to the risk of legal error through internal inconsistencies or through the difficulties of ensuring that they are thoroughly proofread for errors, and off-putting to anyone participating in what is meant to be a transparent system, let alone thinking of standing as a local councillor. As long as we can make sure, through improvements in digital planning, that everything is as accessible as possible, why can’t we work to a system where the report focuses on the officers’ analysis and conclusions, simply referring back to a document, available online for all to see before the report is published, which could be agreed between officers and the applicant at a previous stage in the process and which summarises (1) the proposal (2) relevant national and local policies and (3) third party representations and any agreed responses to these representations?
National development management policies to reduce the length of local plans? Standardised lists of conditions checked for plain English and lack of ambiguity? Standardised section 106 agreement templates, similarly checked? Bring them on!
Surely we should, as a general principle, move to a system where the Government provides an indicative word, page or file size limit for each category of document so as to manage expectations, to instil discipline and to be a benchmark against which the reasonableness of parties’ conduct is measured. Of course this has to be applied with some sensitivity but its purpose would be to weed out disproportionately long documents (which not only have to be written, at high cost, but also have to be read, often by many people, at high cost). But none of this is completely new ground:
Similarly, a limit of 3,000 words is usually set for hearing statements submitted in relation to a local plan examination
Proofs of evidence exceeding 1,500 words must be accompanied by a summary.
In Planning Court litigation there are page limits for Statements of Facts and Grounds (40 pages) and for skeleton arguments (25 pages – not less than 12 point font and 1.5 line spacing (including footnotes)). Parties submit overlong document bundles to the court or exceed these size limits at their peril. See for instance the comments of Holgate J (now Holgate LJ following his recent well-deserved appointment to the Court of Appeal) in R (Network Rail Infrastructure Limited) v Secretary of State (Holgate J, 8 September 2017):
“I regret the need to have to make some observations on the inappropriate manner in which the claim was put before the court. I do so in order to make it plain to litigants that the practices that were followed in this case, and regrettably sometimes in others, are not acceptable. Notwithstanding the clear statement by Sullivan J (as he then was) in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 at paragraphs 6-10, this claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material. The Claimant’s skeleton argument was long, diffuse and often confused. It also lacked proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant. The skeleton gave little help to the court.
Shortly before the hearing the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle. Ultimately, as will be seen below, the claim succeeds on one rather obvious point concerned with the effect of the Grampian condition in the 2016 permission. But this had merely been alluded to in paragraph 76 and the first two lines of paragraph 77 of the skeleton. Indeed, the point was buried within the discussion of Ground 3 of the claim, a part of the Claimant’s argument to which it does not belong. Nevertheless, Mr Tim Buley, who appeared on behalf of the Defendant, acknowledged that he had appreciated that this point could be raised. He was ready to respond to it.
Certainly, for applications for statutory review or judicial review of decisions by Planning Inspectors or by the Secretary of State, including many of those cases designated as “significant” under CPR PD 54E, a core bundle of up to about 250 pages is generally sufficient to enable the parties’ legal arguments to be made. In many cases the bundle might well be smaller. Even where the challenge relates to a decision by a local planning authority, the size of the bundle need not be substantially greater in most cases.
Prolix or diffuse “grounds” and skeletons, along with excessively long bundles, impede the efficient handling of business in the Planning Court and are therefore contrary to the rationale for its establishment. Where the fault lies at the door of a claimant, other parties may incur increased costs in having to deal with such a welter of material before they can respond to the Court in a hopefully more incisive manner. Whichever party is at fault, such practices are likely to result in more time needing to be spent by the judge in pre-reading material so as to penetrate or decode the arguments being presented, the hearing may take longer, and the time needed to prepare a judgment may become extended. Consequently, a disproportionate amount of the Court’s finite resources may have to be given to a case prepared in this way and diverted from other litigants waiting for their matters to be dealt with. Such practices do not comply with the overriding objective and the duties of the parties (CPR 1.1 to 1.3). They are unacceptable.
The Court has wide case management powers to deal with such problems (see for example CPR 3.1). For example, it may consider refusing to accept excessively long skeletons or bundles, or skeletons without proper cross-referencing. It may direct the production of a core bundle or limit the length of a skeleton, so that the arguments are set out incisively and without “forensic chaff”. It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns. The principles in the CPR for dealing with the costs of litigation provide further tools by which the Court may deal with the inappropriate conduct of litigation, so that a party who incurs costs in that manner has to bear them.”
Quite the Mylward v Weldon vibe. But shouldn’t we reflect on the extent to which these comments may be applicable to much of the wider planning system?
The simple fact is that there is currently no external discipline being applied in relation to the length of documents. Even the lightest of nudges by way of policy guidance and/or financial consequences in relation to for instance application fees (and appeal fees, if they ever come) and costs awards would have an immediate impact. And a word count brings the discipline of making sure that what is being said is being said clearly and simply, with irrelevant material excised.
I’d better end there. I don’t have that discipline with this blog, sorry. Enjoy the rest of this long weekend; I’ve taken up enough of your time.
The Valentine Brothers original version obviously, rather than Simply Red.
In fact, pardon me if this post feels a little like the extended 12” remix, but I wanted to work out for myself some of the long-running arguments that are out there as to the role of financial viability testing in planning.
The subject has been made topical by the “viability in relation to green belt release” annex to the consultation draft revised National Planning Policy Framework, as well as Labour’s proposals in relation to “no hope value” CPOs (mentioned in my 21 July 2024 blog post Hope/No Hope). But the discussion is vital anyway in present circumstances where, in order to deliver and/or fund necessary housing development (and indeed many other forms of development), the state largely relies on the private sector, which is inevitably motivated by profit.
It’s difficult to have a sensible discussion without trying to establish some basic principles. So here goes…
We want an acceptable environment around us: sufficient social housing for those who need it, health and education facilities, biodiversity and open space, good public transport, footpaths and cycleways.
We no longer seem prepared to pay for this fully through direct taxation or indeed charitable benevolence.
Instead, over the last 25 years or so of my career, Government policy has increasingly supported the indirect taxation of development activity (primarily by way of section 106 agreement planning obligations and the community infrastructure levy) to help pay for all these good things, even where it is not the development itself that is leading to the need for the particular infrastructure or facilities (and before you raise it, regulation 122 of the Community Infrastructure Levy Regulations only provides cover against the most egregious of LPA “asks”).
Affordable housing is the classic example of what I mean by indirect taxation. As I set out in my 28 May 2017 blog post Affordable Housing Tax:
“In requiring the developers of private housing schemes to contribute to the provision of affordable housing, the planning system has become a tax collection system, and an inefficient, opaque one at that.
[…]
“The provision of market housing does not in any way increase the need for affordable housing, indeed over time by increasing supply if anything it should decrease it. It may be said that mixed use communities can only be achieved by requiring the inclusion of affordable housing within market residential schemes, but that in itself does not justify the state putting the cost of the affordable housing at the door of the developer.”
[Think how odd it would be for car makers to be required to sell a large proportion of their product at below market rate, in fact at a loss – or indeed for supermarket chains to be so required – nice as that thought might be. Why is housing so different?]
Add to this the much-reduced availability of grant funding.
You see the same indirect taxation in the case, for instance, of schools: whether or not a particular housing scheme is built, children need schooling somewhere in the country. And yet the cost of delivery of new schools is regularly met in large part by way of contributions and obligations extracted via the planning system.
Most recently, the 10% biodiversity net gain requirement. Laudable – but another indirect tax on development via the planning system.
All of this appears to be implicitly accepted as in the public interest, presumably on the basis that:
It’s a victimless crime – assumed to be paid for out of (a) the receipts the land-owner receives for sale of the land, as long as the requirements are flagged sufficiently far in advance that they can be built into the contractual arrangements between the land owner and developer and can generally manage the land-owner’s expectations; and/or (2) the developer’s profit (for whom the return needs to outweigh the risk).
It sugars the pill for local communities, which is important given the general antipathy towards development (or maybe that’s just my village’s Facebook group….).
It would be politically impractical to meet these costs via the national public purse.
This is all fine if the numbers work out – if the contributions required by policy can be paid for, whilst leaving enough money in the project to ensure that it will still proceed i.e. that between them:
The land-owner receives enough money to persuade them to sell the land, rather than hold onto it or sell it for other purposes
The developer concludes that there is a sufficient slice of profit left to make it worthwhile as a business proposition to proceed to carry out the development, having regard to the availability, and likely cost over time, of development finance and/or of funding partners, and the range of development risks such as the costs of construction, other regulatory costs and uncertainties over time, unforeseen problems along the way and as to the financial return likely to be achieved at the end of it all
The purchaser or renter of the home is protected by operation of market forces against the cost simply being passed onto them.
What happens when the contributions requested in return for planning permission don’t work out? That is where the viability appraisal process comes in.
The Planning Practice Guidance https://www.gov.uk/guidance/viability advises that local plans “should set out the contributions expected from development. This should include setting out the levels and types of affordable housing provision required, along with other infrastructure (such as that needed for education, health, transport, flood and water management, green and digital infrastructure).
These policy requirements should be informed by evidence of infrastructure and affordable housing need, and a proportionate assessment of viability that takes into account all relevant policies, and local and national standards, including the cost implications of the Community Infrastructure Levy (CIL) and section 106. Policy requirements should be clear so that they can be accurately accounted for in the price paid for land.”
Obviously, it is sensible for local plans to give as much certainty as possible as to what contributions will be sought from developers and thereby to serve to dampen the expectations of land-owners. But the reality is that viability assessments at the local plan making stage are inevitably broad-brush, often based on typical development typologies. They become out of date. There is often insufficient push-back from developers – either because they do not yet have a relevant project in mind at the time the plan is being consulted upon and examined, or because they are nervous about losing the potential allocation of their site for development. And so policy aspirations are set high.
When an application for planning permission comes forward for development which is in accordance with the local plan or otherwise in the public interest, save that the full range of policy requirements cannot be met without rendering the project unachievable, what happens then?
To quote paragraph 58 of the current NPPF (which paragraph is not proposed to be amended in the consultation draft):
“Where up-to-date policies have set out the contributions expected from development, planning applications that comply with them should be assumed to be viable. It is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. All viability assessments, including any undertaken at the plan-making stage, should reflect the recommended approach in national planning guidance, including standardised inputs, and should be made publicly available.”
A decision-maker can decide to grant planning permission without commitments on the part of the developer to all of the contributions normally required by policy, if the developer has justified that the development would otherwise be unviable demonstrating that by way of a viability assessment carried out in accordance with the methodology set out in the Government’s Planning Practice Guidance.
The guidance these days is tighter than it was, although there is still much room for debate and disagreement as between the developer’s surveyor and the surveyor engaged by the local planning authority (invariably at the developer’s cost). There is much public discussion about “benchmark land value” in this exercise, i.e. in estimating the costs of carrying out the development, what cost should be assumed for the land itself? But that is by no means the only factor when it comes to viability. In many situations, development may be unviable even assuming little or no land value, simply because of, for instance, the large infrastructure costs which would need to be met by the developer, financing costs and/or low value of the completed development – and this is all made more complicated in relation to longer-term projects, where an internal rate of return model may be more appropriate. But for I’m going to focus here on the land value issue.
It’s been clear for many years that the benchmark land value to be plugged into the viability appraisal is not the price that the developer has actually paid for the land – see for example Parkhurst Road Limited v Secretary of State (Holgate J, 27 April 2018). Instead, the usual approach, according to the Planning Practice Guidance, should be EUV+, i.e. to take the existing use value (ignoring, for example, any development potential) and then to apply a premium. Oh dear, one of the big questions is how big should that premium be? The guidance says this:
“The premium should provide a reasonable incentive for a land owner to bring forward land for development while allowing a sufficient contribution to fully comply with policy requirements.
Plan makers should establish a reasonable premium to the landowner for the purpose of assessing the viability of their plan. This will be an iterative process informed by professional judgement and must be based upon the best available evidence informed by cross sector collaboration. Market evidence can include benchmark land values from other viability assessments. Land transactions can be used but only as a cross check to the other evidence. Any data used should reasonably identify any adjustments necessary to reflect the cost of policy compliance (including for affordable housing), or differences in the quality of land, site scale, market performance of different building use types and reasonable expectations of local landowners. Policy compliance means that the development complies fully with up to date plan policies including any policy requirements for contributions towards affordable housing requirements at the relevant levels set out in the plan. A decision maker can give appropriate weight to emerging policies. Local authorities can request data on the price paid for land (or the price expected to be paid through an option or promotion agreement).”
There are some examples of where a premium of many times the EUV has been found to be appropriate. For example:
Long Marston, Pebworth (APP/H1840/S/16/3158916, 16 May 2017): In the particular circumstances there, the inspector found that a premium of around 15 times the EUV was appropriate. (The appeal pre-dated the PPG but turned on a similar earlier concept of EUV+).
Parkhurst Road, Islington (APP/V5570/W/16/3151698, 19 June 2017): The appeal site was a former Territorial Army barracks in north London. The inspector found that the EUV was £2.4m but EUV+ was £6.75m (still less than the developer had paid for the site) . In the subsequent High Court challenge I refer to above, Holgate J the judge said this about EUV+: “Some adherents appear to be promoting a formulaic application of ‘EUV plus.’ But as the RICS advised its members in its 2012 Guidance Note, an uplift of between 10 and 40% on existing use value is an arbitrary number and the method does not reflect the workings of the market…”.
Old Oak and Park Royal local plan examination in public, Inspector’s Interim Finding on Viability (10 September 2019) : In relation to the Car Giant site forming most of the plan area, a very large brownfield site in north London, the inspector found the EUV to be £5.3m. The Old Oak and Park Royal Development Corporation’s surveyors suggested a premium of 20% would be appropriate. The inspector found that the characteristics of the site, including in particular Car Giant’s significant relocation costs, would justify a far larger premium, concluding that EUV+ was “clearly in excess of £240m”.
On the one hand, this sort of exercise may be seen as sensible in that it is seeking to get to the number that can be taken to be the tipping point at which a land-owner might rationally choose to sell rather than stay put. But of course, on the other, the potential range is so wide that the outcome of the process can be very unpredictable and result in high numbers – true but what is the alternative that enables or persuades land-owners (who are often in fact reluctant to sell in any event – their heads only turned by a financial offer they can’t refuse) actually to make their land available, unless there is a market intervention such as compulsory purchase (but (1) that obviously needs careful justification and (2) a careful look is needed at how the compulsory purchase compensation principles work), some targeted form of tax credits or in fact (never thought I’d say this and I still only think this works in theory rather than reality) community land auctions?
I’ll throw in another complication here: the figures in a viability appraisal are in part theoretical. We know that the actual price paid for the land isn’t plugged into the equation. The actual price may have been far higher, meaning that the developer is always going to be struggling to get the project off the ground. It may have been lower – the land may have been held for generations, with a very low current book value, or be held by a body that is prepared to make the land available at an under-value. Similarly as to the efficiencies in construction or financing that a particular developer may be able to bring to the process (versus the greater challenges in this respect an SME may have than a national housebuilder), or preparedness to take a reduced profit, or even a loss with this development, given wider objectives. If we want an objective scrutiny of the financial position, not tied to a particular developer who may of course in any event sell on, this is probably right. But it does mean that there may be two processes underway: (1) what is the objective agreed assessment as to the viability of the project and (2) is this developer for some reason prepared to offer more than what is objectively viable on the basis of that agreed assessment?
Can we at least agree that this subject is not easy, either in macro policy terms or in its detailed application? And that whilst it may be tempting for some to say “get rid of viability testing, development must simply meet all policy requirements”, can we agree that this is unrealistic without (1) up to date realistic local plan policies (unlikely) or (2) an acknowledgement that effect would less development coming forward, particularly in the areas where it is most needed?
At which point I turn to the Government’s proposals.
A new annex is included in its draft revised NPPF, headed “viability in relation to green belt release”, but one of the only two new elements of the proposed approach set out in that annex is what I have put in bold in the following paragraph:
“To determine land value for a viability assessment, a benchmark land value should be established on the basis of the existing use value (EUV) of the land, plus a reasonable and proportionate premium for the landowner. For the purposes of plan-making and decision- taking, it is considered that a benchmark land value of [xxxx] allows an appropriate premium for landowners. Local planning authorities should set benchmark land values informed by this, and by local material considerations.“
These are the key associated paragraphs in the consultation document which explain the “[xxxx]“:
“29. Approaches that government could take to ensure the appropriate use of viability include the following options.
a. Government sets benchmark land values to be used in viability assessments. When assessing whether a scheme is viable, it is necessary to make an allowance for the amount of money to be paid to the landowner. This should currently be set by the local planning authority. Government could set indicative benchmark land values for land released from the Green Belt through national policy, to inform the policies developed on benchmark land value by local planning authorities. These should be set at a fair level, allowing for a premium above the existing use, but reflecting the need for policy delivery against the golden rules. Different approaches to benchmark land value are likely to be appropriate for agricultural land, and for previously developed land.
b. Government sets policy parameters so that where land transacts at a price above benchmark land value, policy requirements should be assumed to be viable. As part of this approach, Government sets out that if land has been sold (or optioned) at a price which exceeds the nationally set benchmark land value, viability negotiation should not be undertaken. Under this approach, the planning authority should not be seeking higher contributions (e.g. 60 per cent affordable housing), but equally the developer should not be seeking lower contributions (e.g. 40 per cent affordable housing), as this would represent a transfer of value from the public to private landholders. Therefore, planning permissions would not generally be granted for proposed developments where land transacts above benchmark land value, and cannot comply with policy.
c. Government sets out that where development proposals comply with benchmark land value requirements, and a viability negotiation to reduce policy delivery occurs, a late-stage review should be undertaken. This would build on the approach to be taken by the Greater London Authority, and tests actual costs and revenues against the assumptions made in the initial viability assessment. If, for example, the development is more viable than initially assumed, due to a rise in house prices, then additional contributions can be secured, to bring the development closer to or up to policy compliance.
30. Benchmark land values are generally set as a multiple of agricultural use values, which are typically in the region of £20,000 – £25,000 per hectare, and as a percentage uplift on non-agricultural brownfield use values. We also note that views of appropriate premia above existing use values vary: for agricultural land, a recent academic paper[footnote 6 ] suggested BLVs of three times existing use value; the Letwin Review of Build Out [footnote 7] suggested ten times existing use value; Lichfields found that local planning authorities set BLVs of between 10- and 40-times existing use value [footnote 8 ]. These BLVs do not necessarily relate to Green Belt land, which is subject to severe restrictions on development, and Government is particularly interested in the impact of setting BLV at the lower end of this spectrum.
31. The Government considers that limited Green Belt release, prioritising grey belt, will provide an excellent opportunity for landowners to sell their land at a fair price, while supporting the development of affordable housing, infrastructure and access to nature. Where such land is not brought forward for development on a voluntary basis, the Government is considering how bodies such as local planning authorities, combined authorities, and Homes England could take a proactive role in the assembly of the land to help bring forward policy compliant schemes, supported where necessary by compulsory purchase powers, with compensation being assessed under the statutory no-scheme principle rules set out in Part 2 of the Land Compensation Act 1961.
32. In such cases, these rules would operate to exclude any increases or decreases in value of land caused by the compulsory purchase scheme, or by the prospect of it, and valuation of the prospect of planning permission (‘hope value’) for alternative development would reflect the golden rules outlined in the NPPF. Use of compulsory purchase powers may also include use of directions to secure ‘no hope value’ compensation where appropriate and justified in the public interest. A comprehensive justification for a no hope value direction (e.g., which includes a high proportion of vital affordable housing being delivered) will strengthen the argument that a direction is in the public interest. This would align with the Government’s aspiration for high levels of affordable housing to be delivered on these sites.”
That emboldening is in the document itself. So, we are looking at a potential approach where, for the purposes of viability appraisals on green belt sites (where there will be the policy requirement of “at least 50% affordable housing, with an appropriate proportion being Social Rent”) the Government caps the potential premium on existing use value more towards 3x than between 10 and 40x. That would provide some clarity, and would in the long term (beyond the gestation of current promotion agreements, option agreements and the like which will have baked in potentially higher figures) dampen land-owner expectations. However, the outcome may be that some potential sites are not released by land-owners because the resultant return is simply not worth it for them – they would prefer to hold the land for its current purposes, or make it available for non-residential development which may result in a higher premium, or wait for a more liberal policy climate to open up in future decades – and in the meantime battle against any threat of compulsory purchase. This is particularly the case at the moment where, as another risk to factor in, there is a dearth of registered providers even willing to build-out or take on the affordable housing element in some areas. The impacts of the approach will also particularly be felt in areas with weaker housing markets, where 50% affordable housing (including, importantly, an as yet unknown proportion of socially rented housing) will be a big drag on viability – and those areas are often the same areas where housing targets will be going up most steeply under the proposed revised standard method.
This proposal to set a blanket cap on existing use values really does need to be stress-tested during the current consultation period. I would particularly urge those with market knowledge to review those papers referred to in paragraph 30 quoted above – I have included the links. For instance, I couldn’t immediately see the workings for 3x EUV in that first paper.
The other change which that annex proposes is in its last line:
“Where a viability negotiation to reduce policy delivery has been undertaken, a late-stage review should be conducted to assess whether further contributions are required.”
Remember, this annex only relates to development in the green belt, but its effect is to advise that where policy compliant development (eg 50% affordable housing), cannot be delivered due to lack of viability, a provision should be included in the section 106 agreement, providing for a review at a later stage, or at later stages, of the development to see whether that is still the position or whether the project is now able to afford to meet those policy commitments, in full or at least in part. Obviously, in London, this has been relatively standard for some time (see eg the Mayor’s May 2023 draft development viability London Plan Guidance), and is often used in negotiations across the country. But the negotiation is never straight-forward, even in London where the provisions are so standardised. What should be the triggers; what is opened up on the review (and is it just a review of what has been developed so far or is it also an updated estimate of what has not yet been built); what proportion of the surplus should be retained by the developer so as to provide any incentive; what should be the cap on what can be secured on review (vital, as all of this is very sensitive to funders and lenders); what should any surplus be applied towards and what say does the developer has in this?
The threat of compulsory purchase in the case of recalcitrant landowners? That takes us back to the issues I covered in that Hope/No Hope blog post. In some cases, perhaps so, but of course as I have mentioned above, even acquisition of land at existing use value (which obviously would lead to protracted wrangling in many cases) does not always guarantee project viability.
Imagine working for a local authority, trying to arrive at a strategy for bringing forward a local plan against a backdrop that is constantly uncertain and evolving in at least four dimensions:
National policy as to plan-making
National policy as to the assessment of local housing need (the so called “standard method”)
Legislative reform to the plan-making system
Politics
Given the shifting nature of the various transitional arrangements, deadlines and targets, the theme of this post isn’t so much the substantive policies and methodological nuances but rather the bigger “real world” question: How does the Government minimise the likelihood that local authority councillors will shrug their shoulders, when advised of the Government’s latest direction of travel and the potential difficulties which authorities without an adequate or up to date plan may face, and say “we’ve heard it all before and will believe it when we see it…”?
After all, given that plan-making is meant to be the very basis of the planning system, the system is in utter crisis. Lichfields’ research paper Timed Out? in July 2023 for the LPDF identified that without immediate action from the Government, over 75% of LPAs in England would have an out-of-date plan for housing delivery by the end of 2025.
The current December 2023 version of the NPPF took a year to be published by the last Government following a consultation draft in December 2022. Authorities, particularly green belt authorities, had every reason to delay their plan-making, whether to avoid abortive work or to take advantage of the flagged likelihood that their local housing targets would become (even more) advisory rather than mandatory. The final version was originally intended to be published in Spring 2023! The final version of the document included transitional arrangements whereby it would only apply to plans which had not reached regulation 19 pre-submission draft stage by 19 March 2024.
As an overlay to that uncertainty during 2023, there was of course the prospect of a whole new system for preparing local plans, the framework for which is set out in the Levelling-up and Regeneration Act 2023 which received Royal Assent in October 2023. The previous Government’s July 2023 consultation on the implementation of the new local plans system repeated a statement in an earlier December 2022 consultation document, that:
“plan makers will have until 30 June 2025 to submit their local plans, neighbourhood plans, minerals and waste plans, and spatial development strategies for independent examination under the existing legal framework…[and]…all independent examinations of local plans, minerals and waste plans and spatial development strategies must be concluded, with plans adopted, by 31 December 2026. These plans will be examined under the current legislation.
… we are setting this out now to provide planning authorities with as much notice as possible of these dates.
We confirm our intention to have in place the regulations, policy and guidance by autumn 2024 to enable the preparation of the first new-style local plans and minerals and waste plans. As set out above, this deadline is contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations.”
And as an overlay to that overlay, there was the prospect of changes to the standard method for assessing housing need, which potentially would have significant implications for many authorities. The current method is still based on 2014-based household projections with, since 2020, the 35% uplift in the 20 largest urban areas. Ostensibly a technical exercise but in reality of course a massive political hot potato, those prospective changes have been continually delayed. The position of the previous Government was as per its 19 December 2023 statement:
“We note the comments received around the continued use of 2014-based household projections within the standard method for assessing housing need, and the calls for more up-to-date projections to be used. Through the consultation we explained that the use of this data provides stability, consistency, and certainty to local planning authorities. Nevertheless, we committed to review the approach to assessing housing need once we have considered the implications of new 2021 Census based household projections, planned to be published by the Office for National Statistics in 2024. The Office for National Statistics recently confirmed that the next set of household projections are now planned for release in 2025. As with all policies we keep the standard method under review, and we intend to review the approach to assessing housing needs once this data is available.”
Clear as mud as to timescales.
So, imagine you’re a councillor with the objective of resisting additional housing in your area, with all this as the backdrop. What has been the incentive to bring forward your plan quickly? Yes you won’t have an up to date plan and may find that you’re facing applications for planning permission on unallocated sites, and subsequent appeals – with applicants relying on the NPPF’s tilted balance – but (1) appeal decisions have regularly demonstrated that the tilted balance is not particularly tilted, it’s certainly no cliff-edge, (2) hey you can always blame the Planning Inspectorate or the Secretary of State and (3) the risk of central Government intervention in your plan-making has always seemed somewhat of a bluff. Add in the large cost of preparing a plan and the flak you may receive. Hmm.
But new government, new direction. How likely is it that your thinking is now going to change in the light of last month’s announcements?
Looking at the draft revised NPPF, the local housing need figure determined via the standard method will no longer just be “an advisory starting point” and there will no longer be a get-out for green belt authorities: where “an authority cannot meet its identified need for housing, commercial or other development through other means….authorities should review green belt boundaries and propose alterations to meet those needs in full, unless the review provides clear evidence that such alterations would fundamentally undermine the function of the Green Belt across the area of the plan as a whole”. The draft replacement standard method would result in a higher local housing need figure for most authorities. In the absence of an up to date plan, there is a greater prospect of planning permission being secured on unallocated land, including on Green Belt sites that can be shown to fall within the “grey belt” definition.
There is a narrow window for authorities to make sufficient progress with their emerging plans so as to fall within the existing NPPF, with numbers guided by the current standard model. Within a month of the publication of the final version of the plan (so, let’s guess, by January 2025) either (1) the local plan must have been submitted for examination or (2) (if the emerging annual housing requirement is no more than 200 dwellings behind what the new policy figures would dictate) the plan must have at least reached Regulation 19 pre-submission consultation. In the case of (1), if the plan’s annual housing requirement is more than 200 dwellings behind what the new policy figures would dictate, the authority “willbe expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need”. In the case of (2) the plan will need to proceed to examination within a maximum of 18 months from the publication date of the revised NPPF, so by, let’s guess, June 2026.
The Secretary of State has made it clear in her 31 July 2024 letter to local authorities that “where there is a significant gap between the plan and the new local housing need figure, we will expect authorities to begin a plan immediately in the new system” and that “local authorities will be expected to make every effort to allocate land in line with their housing need as per the standard method, noting it is possible to justify a lower housing requirement than the figure the method sets on the basis of local constraints on land and delivery, such as flood risk. Any such justification will need to be evidenced and explained through consultation and examination, and local authorities that cannot meet their development needs will have to demonstrate how they have worked with other nearby authorities to share that unmet need.”
The Secretary of State’s letter is also interesting for the warning:
“I will not hesitate to use my powers of intervention should it be necessary to drive progress – including taking over an authority’s plan making directly.”
I suspect she means it (and alternative options for revisions to the policy criteria for local plan intervention are set out in chapter 10 of the 30 July 2024 consultation document).
It will be interesting to see the extent to which all of this influences behaviour. Well-known local plans programme officer Helen Wilson subsequently suggested on LinkedIn that the Planning Inspectorate is “expecting over 120 plans to be submitted over the coming months”. That would be a surprisingly swift response to the emerging announcements.
Will many authorities really seek to proceed quickly to take advantage of the transitional arrangements? Unless they are already well-advanced, it may be challenging unless work is accelerated now during the consultation period itself and are many authorities going to risk that potentially abortive expenditure ahead of the outcome of the current consultation process? I suspect the temptation for many will be to wait it out. And the door has been smartly closed on ideas of rushing forward with a “quick and dirty” version to regulation 19 or submission, given the planning minister’s letter to the Planning Inspectorate, reversing the previous Government’s “expectation that Inspectors should operate “pragmatically” during local plan examinations to allow deficient plans to be ‘fixed’ at examination. This has gone too far and has perversely led to years of delays to local plan examinations without a guarantee that the plans will ever be found sound, or that the local authorities will take the decisions necessary to get them over the line. This has to end.
[…]
Pragmatism should be used only where it is likely a plan is capable of being found sound with limited additional work to address soundness issues. Any pauses to undertake additional work should usually take no more than six months overall. Pragmatism should not be used to address fundamental issues with the soundness of a plan, which would be likely to require pausing or delaying the examination process for more than six months overall. Local authorities should provide regular progress updates of their work to the Planning Inspector during any agreed pause.
Any extensions to the six-month pause should only be allowed at Inspectors’ discretion to deliver adopted local plans under the current system. In agreeing extensions, the Inspector should be confident that the local authority can complete any outstanding work in the agreed timeframe.
This new approach will apply to all plans with immediate effect. Existing pauses already agreed by an Inspector should remain in place unless the Inspector considers there is insufficient progress being made.
This will enable Inspectors to focus their valuable time and resources on those plans that are capable of being found sound and can be adopted quickly to provide certainty to local communities. Where a plan is unable to be found sound, the local authority will need to work in partnership with their local community to bring forward a new plan.”
The Planning Inspectorate’s chief executive responded in support but warned:
“It is inescapable that this fresh approach will lead to an increase in local plans being recommended for withdrawal from examination or being found unsound. But that should not be seen as any sort of failure of pragmatism or of the system more generally.”
What about the new local plans system that had been proposed and those long-established transition deadlines – June 2025 for submission, December 2026 for adoption? Chapter 12 of the 30 July 2024 consultation document addresses this, in part, in that the submission deadline is now pushed back until December 2026. Whilst, as set out in the consultation document, this has “the potential to benefit plans which are at earlier stages of preparation, and providing more time for local planning authorities to reflect on the revised NPPF and progress positive plans that will stand up to scrutiny”, I do have some concern that for a cynic within local government it is just another reinforcement of existing assumptions that these sorts of deadlines always end up being pushed back!
In my view the delay was inevitable. We have seen nothing further yet in relation to the “regulations, policy and guidance” promised by the previous Government although no doubt before long we will have consultation on the proposed national development management policies which will replace at least some of what is currently the subject of local plan making, leaving them to focus on numbers (within the narrower constraints of the revised NPPF when it is finalised), spatial planning and allocating specific sites for development. Will some of the more formal procedural changes set out in LURA be brought into effect or on reflection can equivalent improvements (for instance the early checks as to likely soundness) be made simply by policy rather than secondary legislation? And will we ever see LURA’s environmental outcomes reports system refined and brought into effect to replace and perhaps streamline the current strategic environmental assessment of plans? I don’t know the answer to these questions.
Finally, possibly beyond this round of local plans, we will of course be seeing the reintroduction of a formal strategic tier of plan-making but before that we have the proposed return of the duty to cooperate within the draft revised NPPF, and the announcement in chapter 3 of the consultation paper that the Government will “work in concert with Mayoral Combined Authorities to explore existing powers to develop [a spatial development strategy], which will not rely on primary legislation, and so allow us to get a head start. We intend to identify priority groupings of other authorities where strategic planning – and in particular the sharing of housing need requirements – would provide particular benefits, setting a clear expectation of cooperation that we would help to structure and support this, and to use powers of intervention where necessary”.
How can the Government seek to achieve the swift changes and “universal coverage” in plan making it is looking for, against all of this background? In my view only by keeping up the present pace, relentlessly emphasising the main themes in a way that is meaningful outside the technocratic world of planning professionals, providing local government with the necessary resources and tools (including advice where necessary) and continuing to make sure that all the detailed background preparation is in place.
Shame town and country planning isn’t any longer an Olympic sport isn’t it? It would be nice if we were in contention for that one.
Maybe even this will be more than you or I can chew but for this blog post I am only going to focus on the proposed changes to green belt policy. Much of the text which follows is by my Town Legal colleagues Susannah Herbert and Aline Hyde to whom much thanks…
Green Belt – Plan Making
Local planning authorities will be required “to undertake a review where an authority cannot meet its identified housing, commercial or other need without altering Green Belt boundaries.” (This is in addition to removing the December 2023 additions which set out the circumstances in which local planning authorities would not be required to undertake a Green Belt review). The amendment defines “exceptional circumstances” to “include instances where an authority cannot meet its identified need for housing, commercial or other development through other means”.
A sequential test is proposed, to guide changes to Green Belt boundaries through local plans – “This will ask authorities to give first consideration to PDL [previously developed land] within the Green Belt, before moving on to other grey belt sites, and finally to higher performing Green Belt sites where these can be made sustainable. …, land that is safeguarded by existing environmental designations, for example National Parks, National Landscapes and Sites of Special Scientific Interest, will maintain its protections.
18. The aim of this approach is to ensure that low quality Green Belt is identified first, while not restricting development of specific opportunities which could be made more sustainable (for example, on land around train stations). This is in recognition that not all PDL or ‘Grey Belt’ will be in the most suitable or sustainable location for development. As such, it is right that local planning authorities are empowered to make decisions that best support the development needs and sustainability objectives of their area through the plan-making process. There is clear expectation that local planning authorities should seek to meet their development needs in full. However, we remain clear that the release of land should not be supported where doing so would fundamentally undermine the function of the Green Belt across the area of the plan as a whole. We propose changes to paragraph 147 of the NPPF to achieve this approach.”
The proposed wording is as follows:
142 (previously 144) (comparison to Sept 2023) Once established, Green Belt boundaries should only be altered where exceptional circumstances are fully evidenced and justified, through the preparation or updating of plans. Exceptional circumstances include, but are not limited to, instances where an authority cannot meet its identified need for housing, commercial or other development through other means. In these circumstances authorities should review Green Belt boundaries and propose alterations to meet these needs in full, unless the review provides clear evidence that such alterations would fundamentally undermine the function of the Green Belt across the area of the plan as a whole. Strategic policies should establish the need for any changes to Green Belt boundaries, having regard to their intended permanence in the long term, so they can endure beyond the plan period. Where a need for changes to Green Belt boundaries has been established through strategic policies, detailed amendments to those boundaries may be made through non- strategic policies, including neighbourhood plans.
144.(previously 146) When drawing up or reviewing Green Belt boundaries, the need to promote sustainable patterns of development should be taken into account. Strategic policy- making authorities should consider the consequences for sustainable development of channelling development towards urban areas inside the Green Belt boundary, towards towns and villages inset within the Green Belt or towards locations beyond the outer Green Belt boundary. Where it has been concluded thatit is necessary to release Green Belt land for development, plans should give first consideration to previously-developed land in sustainable locations, then considergrey belt land in sustainable locations which is not already previously-developed, and only then consider other sustainable Green Belt locations. They should alsoset out ways in which the impact of removing land from the Green Belt can be offset through compensatory improvements to the environmental quality and accessibility of remaining Green Belt land.
Grey belt
Grey belt will be defined (in the glossary at Annex 2 to the NPPF) as follows:
“Grey belt: For the purposes of Plan-making and decision-making, grey belt is defined as land in the Green Belt comprising Previously Developed Land and any other parcels and/or areas of Green Belt land that make a limited contribution to the five Green Belt purposes (as defined in para 140 of this Framework) but excluding those areas or assets of particular importance listed in footnote 7 of this Framework (other than land designated as Green Belt).”
The Government is “interested in whether further support is needed to assist authorities in judging whether land makes a limited contribution to the Green Belt purposes. They propose incorporating the following into the glossary appended to the NPPF:
Land which makes a limited contribution to the Green Belt purposes will:
Not strongly perform against any Green Belt purpose; and
Have at least one of the following features: i. Land containing substantial built development or which is fully enclosed by built form ii. Land which makes no or very little contribution to preventing neighbouring towns from merging into one another iii. Land which is dominated by urban land uses, including physical developments iv. Land which contributes little to preserving the setting and special character of historic towns”
Many local planning authorities will have evidence base documents which assess the effectiveness of parcels of land against the purposes of designating land as Green Belt but these documents do not necessarily observe this draft methodology. The extent to which they will be useful in guiding decision-making, at least in the short term until they can be revisited, is then unclear.
[Comment from me – “limited contribution”: huge room for debate!]
Green Belt Decision Making
The definition of “inappropriate development” is to be significantly restricted. At present in order for development on previously developed land not to be “inappropriate development” (and therefore be subject to the “very special circumstances” test) then (unless it would contribute to meeting an identified affordable housing need) it “must not have a greater impact on the openness of the Green Belt than the existing development”. Draft revised paragraph 151 waters down this test to “would not cause substantial harm to the openness of the Green Belt”.
[Another comment from me – “substantial harm”: huge room for debate, as it is already in the case of proposed development that would contribute to meeting an identified affordable housing need.]
In terms of the Grey Belt concept, the Government proposes to insert a new paragraph in the NPPF which will make clear that, “in instances where a local planning authority cannot demonstrate a 5-year housing land supply or is delivering less than 75% against the Housing Delivery Test, or where there is unmet commercial or other need, development on the Green Belt will not be considered inappropriate when it is on sustainable ‘grey belt’ land, where golden rules for major development are satisfied, and where development would not fundamentally undermine the function of the Green Belt across the area of the plan as a whole.”
{Comment from me: “unmet commercial or other need“, “fundamentally undermine” – yes you’re there before me.]
This is set out in the new paragraph 152:
“152. In addition to the above, housing, commercial and other development in the Green Belt should not be regarded as inappropriate where:
a. The development would utilise grey belt land in sustainable locations, the contributions set out in paragraph 155 below are provided, and the development would not fundamentally undermine the function of the Green Belt across the area of the plan as a whole; and
b. The local planning authority cannot demonstrate a five year supply of deliverable housing sites (with a buffer, if applicable, as set out in paragraph 76) or where the Housing Delivery Test indicates that the delivery of housing was below 75% of the housing requirement over the previous three years; or there is a demonstrable need for land to be released for development of local, regional or national importance.
c. Development is able to meet the planning policy requirements set out in paragraph 155.”
In terms of development on non-Grey-Belt-Green-Belt, the Government states “Our proposal limits release via this route to grey belt, including PDL — reaffirming our commitment to a plan-led system by maintaining restrictions on the release of wider Green Belt land. It would, as now, be possible for other Green Belt land to be released outside the plan-making process where ‘very special circumstances’ exist, but such cases would remain exceptional.”
Therefore, in theory, the test of “very special circumstances” for Green Belt development remains unchanged but the existence of Grey Belt and the priority given in policy may make it harder to make the case for development on non-Grey-Belt-Green-Belt (although the emphasis on sustainable locations in the sequential test may also benefit some non-Grey-Belt-Green-Belt locations).
Golden Rules and Viability for Green Belt development
The proposed “Golden Rules” for Green Belt development are set out in a new paragraph 155:
“a. In the case of schemes involving the provision of housing, at least 50% affordable housing [with an appropriate proportion being Social Rent], subject to
viability;
b. Necessary improvements to local or national infrastructure; and
c. The provision of new, or improvements to existing, green spaces that are accessible to the public. Where residential development is involved, the objective should be for new residents to be able to access good quality green spaces within a short walk of theirhome, whether through onsite provision or through access to offsite spaces.
156. Regarding the provision of green space, development proposals should meet local standards where these exist in local plans, for example local planning policies on access to green space and / or urban greening factors. Where no locally specific standards exist, development proposals should meet national standards relevant to the development. These include Natural England standards on accessible green space and urban greening factor and Green Flag criteria.”
According to paragraph 155, these will apply “Where major development takes place on land which has been released from the Green Belt through plan preparation or review, or on sites in the Green Belt permitted through development management”. This refers to major development. However, paragraph 152 in respect of Grey Belt appears to refer to all potential development on Grey Belt needing to meet these Golden Rules.
The Government considers that “Green Belt land can deliver more affordable housing, infrastructure and environmental contributions, as the value of the land in its existing use is generally low and the Green Belt designation reduces the hope value associated with the prospect of securing planning permission.” However, it does acknowledge that contributions that can be secured will vary because of varied house prices, abnormal costs, CIL rates or higher existing use values and therefore, they believe that “it is necessary to allow the limited use of viability assessments, where negotiation is genuinely needed for development to come forward, particularly in relation to affordable housing requirements. However, this cannot be an excuse to inflate landowner or developer profits at the expense of the public good”.
Additional guidance on viability considerations for development in the Green Belt is provided in Annex 4. This is headed “Viability in Relation to Green Belt release”. It proposes to set a specific benchmark land value.
It also provides that:
“- if land released from Green Belt is transacted above the benchmark land value and cannot deliver policy-compliant development, then planning permission should not be granted, subject to other material considerations;
– if policy compliant development can be delivered, viability assessment should not be undertaken, irrespective of the price at which land is transacted, and higher levels of affordable housing should not be sought on the grounds of viability;
-Where land is transacted below the benchmark land value but still cannot deliver policy- compliant development, it is up to the applicant to demonstrate whether particular circumstances justify the need for a viability assessment at the application stage. The weight to be given to a viability assessment is a matter for the decision maker, having regard to all the circumstances in the case, including whether the plan and the viability evidence underpinning it is up to date, and any change in site circumstances since the plan was brought into force. Where a viability negotiation to reduce policy delivery has been undertaken, a late-stage review should be conducted to assess whether further contributions are required.”
The consultation notes that there is a spectrum of views of appropriate premia above existing use value ranging between 3 times EUV to 10-40 times EUV. The Government is “particularly interested in the impact of setting BLV at the lower end of this spectrum.”
The consultation then immediately goes on to mention the potential for the use of compulsory purchase powers where such land is not brought forward on a voluntary basis. In this case compensation would be assessed under the statutory no-scheme principle rules set out in Part 2 of the Land Compensation Act 1961 so that any increases or decreases in the value of land caused by the proposed scheme would be ruled out. The “hope value” for alternative development would reflect the “Golden Rules” set out above. However, the consultation also states that “Use of compulsory purchase powers may also include use of directions to secure ‘no hope value’ compensation where appropriate and justified in the public interest. A comprehensive justification for a no hope value direction (e.g., which includes a high proportion of vital affordable housing being delivered) will strengthen the argument that a direction is in the public interest. This would align with the Government’s aspiration for high levels of affordable housing to be delivered on these sites.”
Question 43 asks “Do you have a view on whether the golden rules should apply only to ‘new’ Green Belt release, which occurs following these changes to the NPPF? Are there other transitional arrangements we should consider, including, for example, draft plans at the regulation 19 stage?”. As drafted, it is not clear when the Golden Rules, or the provisions of Annex 4 will apply. At present, when land is released from the Green Belt through the plan making system, Green Belt policies no longer apply. However, the proposed provisions are drafted to apply to “land released from Green Belt” so it will be important to have clear transitional provisions.
The Government’s clear intention expressed through the consultation is that development on Green Belt land is to be held to a higher standard and cannot be permitted without delivering a public benefit in the form of affordable housing, mitigating its own infrastructure impacts, and not undermining the overall strategic function of the designation.
SIMONICITY 