Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

New Draft London Guidance On Affordable Housing/Viability

The GLA has released consultation drafts of its new London Plan Guidance (LPG) on Affordable Housing and on Development Viability (4 May 2023).  The consultation closes on 24th July 2023.

There is a huge amount of detail to take in.

I am very grateful indeed to my Town Legal colleague Susie Herbert for what follows:

Summary

The updated LPG documents will replace the GLA’s 2017 SPG on Affordable Housing and Viability.  The new LPG comprises two documents with one covering Affordable Housing and the other covering Development Viability.  The Affordable Housing document covers the threshold approach, tenure, grant funding and build to rent while the Development Viability document covers the viability assessment process, principles for undertaking viability assessments, viability assessment information, inputs and sense checking, the review mechanisms and the formulas.

While much of the draft is similar the 2017 SPG with updates to reflect the 2021 London Plan and and to incorporate other guidance that has been released in the interim (such as the 2018 Practice Note on Public Land), some of the proposed changes are of more substance.

These include much more detailed guidance on the process for and the inputs to viability reviews covering a wider range of inputs which suggests a more prescriptive and standardised approach, including more emphasis on optimising the viability of the development including exploring different testing alternative uses; a suggestion that financing costs should be treated differently for different types of developer, and an exclusion of risk items of development costs such as Rights of Light costs or asbestos removal.  It is also made clear throughout the guidance that any public subsidy should be included in the development value but that the target return should not be applied to any public subsidy. 

There is also more prescriptive guidance on section 106 agreements and to monitoring requirements for both applicants and LPAs with information to be reported to the Planning London Datahub.

There is a more prescriptive approach to mid-term reviews which are now expected for schemes over 500 dwellings as well as those expected to have a build programme of more than 5 years or for estate regeneration schemes.  Any surplus return identified in a mid-stage review is expected to be used to deliver affordable housing.

In respect of early stage reviews, the draft guidance effectively rules out force majeure clauses so that the early stage review will apply whatever the reason for delay. 

Turning to eligibility criteria, there is a greater emphasis on provision for key workers and the consultation also states that the GLA is considering raising the £60,000 threshold to £67,000 and comments are invited on this. 

While the threshold approach remains in place, there is a change in respect of scheme changes which will allow schemes which were originally subject to viability review to follow the fast track route in respect of additional dwellings if there additional dwellings include enough affordable provision to meet the relevant threshold.  

While co-living will generally be subject to viability review, there is the potential for it to be assessed under the fast track route if it provides affordable housing meeting the internal space standards and the requirements of policies H5 and H6.

The consultation questions generally ask for comments on and suggestions for improvement for the various sections although there are some specific questions in particular in respect of income caps for intermediate housing. 

Affordable Housing Document

Threshold approach

The “threshold approach” first set out in the 2017 SPG remains.  This means that the Fast Track Route (FTR) is available for schemes with the minimum of 35% or 50% for public-sector land and industrial sites where there would be a net loss of industrial capacity although the 35% no longer states that it has to be achieved without public subsidy.

There is a change compared to the 2017 SPG in respect of scheme changes for developments that did not qualify for the FTR.  Previously any changes would also be subject to viability review but the draft LPG now suggests that if the proposed change is to increase the number of dwellings and that increase would include enough affordable housing meet the relevant threshold, then the FTR is available for the application to make the change to the scheme (paragraph 2.8.3).

The list of applications for which the FTR is specifically expressed not to be available and which must be subject to the Viability Tested Route (VTR) has also been expanded compared to the 2017 version to include co-living (large-scale, purpose-built, shared-living accommodation (LSPBSL) (in accordance with Policy H16) and also applications “where other relevant policy requirements are not met to the satisfaction of the LPA or the Mayor” which reflects Policy H5 C 3).  There is further guidance on this at Appendix 2 of the draft LPG which does allow for the possibility of the FTR for co-living if it provides sufficient affordable housing.

Tenure

The draft LPG states that the Mayor’s preferred affordable housing tenure for low-cost rented homes is Social Rent and not London Affordable Rent as only Social Rent homes are eligible for grant funding under the London Affordable Homes Programme (AHP) 2921-26.  This is slightly different from the London Plan 2021 which lists both Social Rent and London Affordable Rent as preferred affordable housing tenures (para 4.6.3).

Eligibility for intermediate housing

In terms of eligibility for intermediate housing which is currently subject to a maximum income cap of £60,000, the consultation survey states that the GLA is considering raising the income cap to £67,000 in line with changes to median incomes in London since 2017.  Consultees are asked whether they agree with this and to provide comments.

The London Plan requires that intermediate housing is provided for a range of household incomes below the maximum caps for the first three months of marketing. The survey states that the GLA is considering setting out income levels below the maximum level which would apply where the relevant local planning authority has not published local income levels and the survey asks for views on whether this would be a helpful addition to the guidance.

LLR

The section on London Living Rent (LLR) states that rents should not be increased above the rate of the CPI including housing costs within tenancies and that on re-let the rent should revert to the LLR (or lower).  It also states that if no tenant has purchased their current home within 10 years, the RP may sell the home to another eligible purchaser on a shared ownership basis.

Key workers

The draft LPG also “strongly encourages” local authorities and housing providers to prioritise key workers when setting eligibility and prioritisation criteria.

Affordability

The guidance covers the new model for shared ownership (SO) homes introduced by the Government in 2021 (which allows for the initial share to be a minimum of 10% rather than 25%) and confirms that only the new SO model homes will be funded by the AHP 2021-26 so the Mayor will expect SO homes to be provided on that basis.

Service Charges

The draft LPG contains a section on service charges which states that Applicants, LPAs and affordable housing providers should ensure that service charges are affordable for residents, and that they do not exceed the cost of the services provided. It also states that applicants should consult with affordable housing providers at an early stage to minimise service charges as part of design and management strategies.

The LPG also states that residents of affordable housing should be given the same rights of access to amenities and facilities within the scheme as occupiers of market housing at no additional charge other than service charges. If an LPA agrees that access to a facility would make service charges unaffordable for residents of affordable housing, this should be excluded from standard service charges and they should be given full optional rights of access at a fair and reasonable charge.

Key features document

A key features document should be provided to potential tenants and purchasers at the start of the marketing period. This should include detailed information on the tenure of a property and the length of any lease, as well as the full range of potential costs, including any expected service charges, permission fees and any other charges (including those relating to resales).

Grant

The draft LPG describes how the Mayor’s grant funding powers work alongside the threshold approach and describes the AHP 2016-23 and 2021-26.  In terms of maximising delivery, the FTR is available where an applicant commits unconditionally to provide at least 40 per cent affordable housing with grant (or 50% on public or industrial land).  However, if the s106 will allow for a lower level of affordable housing than the relevant threshold if grant is not available, the scheme must follow the VTR.

If grant is not available at the application stage but grant funding subsequently becomes available, the S106 should require that the level of affordable housing proposed in the grant application is provided.

Build to Rent

The BtR section has been updated and reflects the London Plan 2021 Policy H11.

Securing delivery

There is a new section on securing delivery which sets out what a section 106 agreement should include such as restrictions on occupation and ensuring that affordable housing is not concentrated in final phases.  It states that the affordable housing should be sold to an RP on a freehold or long (990 years) leasehold basis.  The section 106 agreement should secure obligation in line with the LPG and the Mayor’s standard section 106 clauses such as eligibility, affordability and review mechanisms.  The section 106 should also provide for the recycling of subsidy in the event that a home is no longer provided as affordable housing.

Monitoring and implementation

There is also a section setting out the applicant’s and the LPA’s responsibilities in respect of monitoring and implementation. The applicant should submit information on the affordable housing to be provided and the outcome of any viability review in a standardised format specified by the GLA.

The section also expands on the requirement under London Plan Policy H7 for boroughs to have clear monitoring processes with annual publication of monitoring information.  It is strongly recommended that this monitoring is undertaken by specialist officers or teams wherever possible and the costs of this should be met by applicants.

Development viability

Principles for undertaking viability assessments

The guidance in Section 3 on the principles for undertaking viability assessments is significantly more detailed than the equivalent sections in the 2017 SPG.

There are also additional sections on:

(a) how viability assessments should be objective and realistic with requirements for assessors;

(b) modelling sensitivity testing of assumptions and inputs and value growth and cost inflation;

(c) optimising the viability of development with detail of how applicants should demonstrate that the proposed scheme optimises site capacity through a design-led approach which may include testing different residential typologies such as BtR and build for sale; and

(d) sense-checking.

The consultation survey asks whether the approaches set out in these sections are practical and will help to ensure that viability assessments are robust.

Viability assessment information, inputs and sense-checking

Again there is further additional detail on the inputs for the viability review compared with the 2017 SPG including on affordable housing values.  This section also includes new detailed guidance on sales values, investment values, commercial property, grant and public subsidy, development programme, finance costs and other development costs. There is also a further section on sense checking.

Review mechanisms

Early Stage Reviews

In respect of Early Stage Reviews, there is a new paragraph on substantial implementation which makes it clear that provisions that seek to delay the trigger date for an Early Stage Review should not be included in the section 106 agreement.  The reasoning is that the review is intended to secure additional affordable housing where viability allows, regardless of the reason development may have been delayed.  This means that force majeure clauses which had sometimes been agreed to in light of the disruption caused by the pandemic will no longer be accepted. 

There may be more flexibility on the definition of substantial implementation as the paragraph now makes clear that the description of works is an example of substantial implementation rather than a definition of it.  

Where a payment in lieu of on-site affordable housing is made following an ESR, the guidance states that this can be included as a cost in subsequent reviews.

Mid-Term Reviews

The 2017 SPG stated that LPAs should consider mid-term reviews for larger developments that will be built out over a number of phases.  This is expanded in the draft LPG.  The draft guidance states that Mid-Term Reviews should be provided for larger phased schemes including those that propose 500 or more residential units (or for mixed-use schemes, the equivalent amount of development in floorspace) and that there may be other circumstances where Mid-Term Reviews are required for example where the construction programme is five years or longer or for estate regeneration schemes. 

The timing for Mid-Term Reviews is to be agreed with the LPA or the Mayor as applicable. For outline or hybrid schemes it may be appropriate for reviews to take place as part of reserved matters applications to enable affordable housing to be included within the design of the relevant phase or future phases.

Mid-Term Reviews should assess the scheme as a whole, taking into account actual values and costs for earlier phases, and estimated figures for subsequent phases.  They will not be conditional on reaching a specific level of progress by a trigger date.

Terms of viability review mechanisms

This section sets out more detail on the terms of VRMs to be included in s106 agreements.  This includes that any public subsidy is included in the development value figures but that the target return should not be applied to any public subsidy.

For Mid-Term Reviews, the guidance states that it is most appropriate that they follow Early Stage Reviews in that any surplus return should be applied to the delivery of affordable housing.  For Late Stage Reviews it may be acceptable for an element of surplus return to be retained by the applicant but not exceeding 40%.

There is also an additional requirement to ensure reporting of information to the Planning London Datahub on the number and tenure of affordable housing by unit and habitable room secured in the application and the outcome of reviews including additional affordable housing, changes in tenure and any financial contributions.

The Formulas

Formula 1a – this is unchanged except for a note which states that the review GDV and build-costs figures should include the commercial component where relevant.

Formula 1b – the note now clarifies that the application and review stage GDV figures should include any public subsidy that is available at the time of the assessment but this should be excluded when calculating developer return.

Formula 3 on late stage reviews contains additional guidance on how the assessment should be adjusted for BtR if they were originally assessed as build for sale.

There is a new Formula 5 for Mid-Term Reviews based on Formula 2 but using actual values and costs for completed parts of the development at the time of the review and estimated figures for the rest of the scheme.

There is also a new Formula 6 for converting affordable housing to a more affordable tenure.

The specific BtR formulas from the 2017 SPG (Formulas 5 and 6) are not included.

In terms of viability deficits, the draft guidance states that deficits should not normally be accounted for in review mechanisms and should only be allowed exceptionally where agreed by the LPA (and the GLA). Deficits should not be included in reviews for schemes that have followed the FTR.  The extent of any deficit should be determined by the LPA and the Mayor. A breakeven appraisal can be undertaken at application stage to assess the level of GDV and build costs at which the RLV equates to the BLV. The breakeven GDV and Build Costs should replace the application-stage GDV and build cost figures in the formulas.

Thank goodness we have a long weekend to take all this in! I’ll be testing you on Tuesday.

Simon Ricketts (with thanks again to honorary guest blogger Susie Herbert), 6 May 2023

Personal views, et cetera

May Day, May Day – Labour’s Proposed Approach To Planning Reform

Brave timing, with local elections this week, but it is helpful finally to see some detail today as to Labour’s proposed approach to planning reform in today’s Times piece, Starmer’s growth plan is built on houses (The Times, 1 May 2023 – behind paywall):

“Labour will pledge to restore housebuilding targets and hand more power to local authorities; promise 70 per cent home ownership and hundreds of thousands of new council homes. Given the resistance of so many local authorities to development, that may sound like a contradiction in terms. But I’m told a Starmer government would wield both carrot and stick: councils would be made to work together to come up with plans for development at a regional level, spreading a burden few want to shoulder individually, with cash and infrastructure as the prize for new housing. (Bafflingly, they are under no obligation to work together now.) If proposed developments meet the standards set out in those local plans, they will be approved. So no longer would each town hall have to agree to what one senior Labour source calls “shitty speculative developments” to meet targets arbitrarily imposed upon them. But nor will they be allowed to opt out of building either.

Starmer’s government would also look anew at the green belt, swathes of which — including a petrol station in Tottenham Hale, north London — are neither green nor pleasant. Those sites would be liberated. Not all politics is local, however. We can also expect to hear more about national projects, driven from the centre too: intensive development on the 50-mile Oxford-Cambridge Arc and a generation of new towns are all under discussion as Starmer’s aides work up plans to be announced at Labour conference in September.”

See also:

Scrapping housebuilding targets could cost tenants £200 a year by 2030 – Labour (The Observer, 30 April 2023)

Keir Starmer: ‘I want Labour to be the party of home ownership’  (Guardian, 29 April 2023)

Obviously, more detail is needed and some policy nuances are lost in this summary – for instance:

  • We still do have targets, it’s just that they will become even more of an advisory starting point than at present.
  • We still have the duty to cooperate, indeed it seems from a Planning Resource story this week it seems that there may even be a re-think as to its replacement, in relation to housing numbers as opposed to infrastructure and nature strategies, by some vague alignment approach. 

But, really, contrast even this thumbnail sketch of Labour thinking with new housing and planning minister’s Rachel Mcclean’s rather defensive and dare I say it unimpressive appearance before Select Committee  this week. Much unsubstantiated assertion, much “we’ll come back to you on that”. NB Advice to any politician, never question Lichfields’ research – you won’t win! 

See for example:

Minister denies planning reforms will stymie homes growth (Housing Today, 25 April 2023)

A full transcript of her appearance is here.

Turn away if you feel uncomfortable about use of the B word, but… 

I was as unconvinced by her explaining away the current wave of local planning authorities which have paused local plan production as I was later in the week during her appearance on BBC’s Question Time when she became animated in response to someone who asserted that Brexit was one of the causes for this country’s current poor economic performance. 

Recognise the issues, own them!

On reflection, perhaps Labour’s unveiling of its approach to housing and planning has come at precisely the right time (although I won’t let that party off the hook on Brexit either…)

Simon Ricketts, 1 May 2023

Personal views, et cetera

Mind Blowing Decisions

“Mind blowing decisions causes head on collisions

Mind blowing decisions causes head on collisions”

(Heatwave, 1978)

Decisions, decisions.

The Secretary of State’s 6 April 2023 decision to refuse planning permission for Berkeley Homes’ proposed development of 165 new dwellings in Cranbrook, Kent (a decision in fact taken by planning minister Rachel Mclean on behalf of the Secretary of State) = a head on collision for sure.

Tunbridge Wells Borough Council had resolved to approve the scheme but Natural England, concerned as to the prospect of harm to the High Weald Area of Outstanding Natural Beauty, secured its call in by the Secretary of State.

The council has slightly less than five years’ housing land supply. The scheme included 40% affordable housing: 50/50 rented and shared ownership.

To cut a long story short (read the decision letter and inspector’s report), the Secretary of State disagreed with the inspector’s recommendation that planning permission be granted.

On the main issues:

⁃ AONB: “Overall the Secretary of State agrees with the Inspector at IR823 that there would be some harm to the HWAONB, which would be limited, and that the harm to the landscape and scenic beauty of the HWAONB attracts great weight.”

Tucked within his conclusions on AONB this turns out to be a crucial passage in the decision:

“The Secretary of State recognises that both the HWAONB Management Plan and the High Weald Housing Design Guide emphasise that housing development in the HWAONB should be landscape-led. Whilst he agrees with the Inspector that the proposed development would deliver landscape enhancements (IR826), he does not find the proposal to be of a high standard which has evolved through thoughtful regard to its context (IR723). Overall, he does not find that the scheme is sensitively designed having regard to its setting. He finds that the design of the proposal does not reflect the expectations of the High Weald Housing Design Guide, being of a generic suburban nature which does not reproduce the constituent elements of local settlements. He also considers that the layout of the scheme does not respond to its AONB setting. Rather than being a benefit of the scheme, as suggested by the Inspector, the Secretary of State considers that the design of the scheme is a neutral factor in the context of paragraphs 176 and 177 of the Framework and the planning balance.”

Not “sensitively designed”? “… of a generic suburban nature”? It’s worth looking at the scheme drawings, design and access statement etc on the council’s planning portal. I would disagree. More fundamentally, there is something very odd about a minister (and civil servants) arriving at a conclusion like this, in the face of the elected local planning authority and hands on consideration, site visits and so on conducted at that stage and in the face of the conclusions reached by an inspector after many inquiry days and a site visit. And in the face of Government assertions that it still wants to see 300,000 homes built annually. Frankly why bother with all that if this is the outcome?

⁃ Air quality: “…there would be very limited harm to air quality, and he affords this very limited weight in the planning balance.”

⁃ Site allocation strategy: Whilst he agreed with the inspector that the local plan policies should be treated as out of date because of the lack of five years’ housing supply, because the shortfall was slight he disagreed with the Inspector’s assessment that both the policies and the conflict with them carry limited weight.

⁃ Historic environment: “For the reasons given at IR767-774 the Secretary of State agrees with the Inspector at IR773 that the proposed development would not harm any significant historic landscape resource and all of the individual features which could be of potential interest would be retained.”

⁃ Sustainable transport: “For the reasons given at IR790-793 the Secretary of State agrees with the Inspector that the development would promote sustainable transport in the terms of the Framework and accord with relevant development plan policy in that regard (IR794).”

Turning to the benefits of the scheme:

⁃ Housing delivery: “For the reasons given at IR763-764 the Secretary of State agrees with the Inspector that there is a clear need for both market and affordable housing in the Borough and that the proposed development would make a significant contribution to the delivery of both (IR764).”

⁃ Biodiversity: “…the proposed development would secure significant BNG such that it would accord with the Framework, including paras 174, 179 and 180 and development plan policy, as well as the eLP, in this regard (IR747).

⁃ Other benefits: “The Secretary of State agrees for the reasons given at IR774, IR720 and IR811 that the proposed reinstatement of hedgerows along historic boundaries and of the shaw in the southern fields would be beneficial to the time-depth character of the HWAONB (IR774). Furthermore, the proposed re-creation of Tanner’s Lane would also be beneficial in heritage terms as it would reinstate a historic feature in the local landscape (IR774). The Secretary of State agrees for the reasons given at IR720 and IR811 that the new woodland planting and management of existing woodland would be to the benefit of the environment and landscape. He further agrees for the reasons given at IR786 that the proposed highway works may result in improving highway safety. In addition, for the reasons given at IR811 the additional footpaths and substantial new publicly accessible amenity space would enhance recreational opportunities.”

Overall conclusion on benefits:

“The Secretary of State has had regard to the Inspector’s view at IR824 as to weight attaching to the benefits of the scheme, and notwithstanding his conclusion at paragraph 36 below that there is not a ‘very compelling case’ for the need for development of this type and in Cranbrook, overall he agrees that the combined weight of the benefits is substantial. However, he does not agree with the Inspector’s characterisation at IR826 that it constitutes ‘a package of exceptional benefits’.”

So “the combined weight of the benefits is substantial”….

Application of policies in the NPPF relating to development in the AONB:

⁃ Great weight should be given to conserving and enhancing landscape and scenic beauty in AONBs – conclusion that limited harm but that harm should be given great weight.

⁃ Planning permission for major development in the AONB should be refused unless there are exceptional circumstances justifying the development, and where it can be demonstrated that the development is in the public interest – no exceptional circumstances, not in the public interest.

Overall conclusions:

“Weighing in favour of the development are the need for and delivery of housing, the Biodiversity Net Gain, enhanced recreation opportunities, improvements in highway safety, heritage benefits to the historic landscape and landscape benefits by way of woodland planting and management, which collectively carry substantial weight.

Weighing against the proposal is the harm to the landscape and the scenic beauty of the HWAONB which attracts great weight. There is further harm by way of conflict with the spatial strategy which attracts moderate weight, harm to air quality which is afforded very limited weight and harm to the plan making process through prematurity which is afforded very limited weight.

The Secretary of State has concluded for the reasons given above that exceptional circumstances do not exist to justify the proposed development in the AONB and that the development would not be in the public interest. Therefore, paragraph 177 of the Framework provides a clear reason for refusing the development proposed and as such under paragraph 11(d)(i) of the Framework the presumption in favour of sustainable development is no longer engaged.

Overall, the Secretary of State’s conclusion on section 38(6) of the Planning and Compulsory Purchase Act 2004 is that the conflict with the development plan and the material considerations in this case indicate that permission should be refused.”

The decision appears to have been the final straw for housebuilders, already riled by the overtly anti-housebuilding theme of the proposed amendments to the NPPF (final version soon to emerge). See for example Builders lambast Michael Gove after he blocks plan for ‘generic’ homes in Kent (The Times, 15 April 2023 – behind paywall).

There were no costs applications in this decision but I do note that costs applications and awards appear to becoming more frequent. Often of course these are in favour of appellants where the case against grant of planning permission simply has not been made out by the relevant local planning authority (particularly where the decision to refuse was against officers’ recommendations) – e.g for one example amongst many this decision letter dated 20 April 2023, plus accompanying costs decision letter in relation to a student housing scheme in Bath.

But it’s not just appellants who achieve costs awards. Did people see this recent costs decision letter where Mid Suffolk District Council achieved a full award of costs against the appellant, arising from flooding and access issues which led the inspector to conclude that the appeal had no reasonable prospect of success? Proceed with caution.

By way of reminder (ok gratuitous plug), if you sign up to our free Town Library appeal decisions service you get a list each week of the most recent major planning appeal decisions (namely all those arising from inquiries as opposed to hearings or the written representations process) with links to the decision letters themselves.

Oh finally, another mind blowing decision: the Government continuing to press on with the proposed Infrastructure Levy. Truly a terrible proposal. You may have logged on to our recent clubhouse discussion (hopefully soon to emerge as a 50 Shades of Planning podcast), ahead of the 9 June deadline for responses to the Government’s current technical consultation. If there is anyone out there who can articulate why IL would be an improvement over the current system I would love to hear from you.

Simon Ricketts, 22 April 2023

Personal views, et cetera

Short Term Thinking

DLUHC published a consultation paper on 13 April 2023 setting out its proposal to create a new use class,  “C5 Short Term Let“,  to cover short term lets, and on related proposals to introduce new permitted development rights. So there will be a distinction between use classes C3  and C5. The Government will at the same time introduce permitted development rights into the General Permitted Development Order to allow changes from C3 to C5 and vice versa without the need for planning permission, unless the relevant local planning authority disapplies one or both of the permitted development rights by way of an article 4 direction.

It is vital that all those engaged in relevant businesses understand what is proposed, for instance serviced apartment operators; Airbnb type businesses and individual hosts, and build to rent businesses where there is a short-term letting element. There are opportunities, but also risks.

The tl:dr appears to be that in principle any flat or house in England (outside London) would be able to be used for Airbnb style short-term accommodation up to 365 days a year without the need for planning permission unless the local planning authority makes, with the necessary justification, an article 4 direction.

But it is all a bit confusing! At least, a number of us at Town Legal have been scratching our heads. Thanks incidentally to my colleague Aline Hyde for much work on this today – and for some of the text which follows.

 I think some of the confusion is down to the way that the proposal is trying to be all things to all people. The press statement is headed:

“New holiday let rules to protect local people and support tourism

New proposals will introduce a requirement for planning permissions for short term lets in tourist hot spots”

It explains:

“The government has listened to calls from local people in tourist hotspots that they are priced out of homes to rent or to buy and need housing that is more affordable so they can continue to work and live in the place they call home. The proposed planning changes would support sustainable communities, supporting local people and businesses and local services.

The proposed planning changes would see a planning use class created for short term lets not used as a sole or main home, alongside new permitted development rights, which will mean planning permission is not needed in areas where local authorities choose not to use these planning controls.

Both of these measures are focussed on short term lets, and therefore the planning changes and the register will not impact on hotels, hostels or B&Bs.”

On the face of it then, the Government is both seeking to regulate use of residential properties as short-term, Airbnb type accommodation but also to liberalise the use of residential properties for that purpose. Hmm.

First word of warning: this is not just about “tourist hot spots”. Subject to the ability for local authorities to make article 4 directions (more below), the proposals cover the whole of England.

Second word of warning: can we first be clear as to what exactly is a “short term let”? The consultation paper states:

“The term “short term let” can encompass a range of activity associated with a dwelling. Some short term lets may be let out for a limited period while the owner themselves go on holiday. Others may be properties that provide for a series of lets for holidays etc or very short term overnight sleeping accommodation including renting an individual bedroom while the owners are in situ.“

So DLUHC envisages the term as covering situations:

  • where a property is let for a limited period whilst the owner is away
  • where the owner remains in situ and rents out an individual bedroom on a short-term basis (NB not longer term lodgers are excluded) or
  • where a property provides for a series of lets to holidaymakers.

However, its proposed wording for the new “short term let” C5 is as follows:

“Use of a dwellinghouse that is not a sole or main residence for temporary sleeping accommodation for the purpose of holiday, leisure, recreation, business or other travel.”

Nothing about short-term lets beyond the title itself. Nothing about the letting out of individual bedrooms on a short-term basis whilst the owner remains in residence , which appears to be unrestricted by the proposals. And why list those purposes except perhaps so that the list excludes reference to asylum…?

The anachronistic word “dwellinghouse” beloved of planning lawyers can confuse as well. It just means “dwelling” and so includes flats as well as houses.

How will it be determined whether a property falls within use class C5? The consultation document explains that at the time of commencement of the proposed secondary legislation, properties used for this purpose will automatically fall within use class C5 and that there will therefore be no need to apply for planning permission, though of course an application for a lawful development certificate may be advisable if there is any uncertainty. Thereafter, where there is no article 4 direction disapplying the permitted development right to switch between C3 and C5, the Government intends to require that the local planning authority is notified by the developer when a change of use occurs, but it does not propose that there be a requirement to seek prior approval. There will be no site size limits and no constraint-based exclusions.

DLUHC suggests that, where there is a local problem with the number of short term lets, one or both of these permitted development rights could be removed by way of an Article 4 direction. It is clearly anticipated that most areas will wish to retain the right allowing for change of use from short term let to dwellinghouse, even if they remove the opposing right. The consultation confirms that the policy tests for making an Article 4 direction, to be found within paragraph 53 of the NPPF, will not be amended and so an authority hoping to make one will need to be based on robust evidence and apply to the smallest geographical area possible.

Properties which fall within use class C5 will benefit from the permitted development rights which currently apply to the curtilage of a dwellinghouse such as rear and upward extensions, alterations to the roof, porches and outbuildings.  

Another proposal the subject of consultation is for a limit on the number of nights for which a property within use class C3 and is a sole or main dwellinghouse may be let without there being a material change of use. DLUHC tells us it is open to suggestions as to how many nights this should be, but it will apparently only consider numbers divisible by 30 – listing 30, 60 and 90 as potential options. Two legal mechanisms for achieving this are proposed: the first is to create a new permitted development right allowing for the use of the C3 dwellinghouse for temporary sleeping accommodation for a fixed number of nights per year, the benefit of this being that the right could be removed by Article 4 direction. The second and alternative means is by incorporating the limitation on the number of nights into the wording of use class C3 itself.

DLUHC appears to be trying to be helpful by proposing a specific number of nights for which a property may be let, within which it says a material change of use will not have occurred. There is an obvious attraction to giving homeowners certainty that they may do this without planning consequence. Trying to achieve it in this way, however, reveals what must be a basic misunderstanding as to the law relating to material change of use. Supposing that the Government eventually settles on a limit of 30 days: it is not necessarily the case that the use of a dwellinghouse for short term let for, say 31 or 35 (or any other number of) days, will result in a material change of use. A change of use is only development if it is material, and materiality is assessed with reference to a range of factors which are often site- or proposal-specific. To make the use of a dwellinghouse as a short term let for 31 or 35 days a material change of use, would need specific legislative provision, absent which subjective judgments will remain determinative.  

This has already been done in respect of properties in London, which can already be let for up to 90 days per year. Beyond 90 days, an application for permission to make a material change of use is required and the consultation confirms that this provision will be unaffected by the changes proposed within this consultation. One infers that DLUHC haven’t simply mirrored this approach across the country so that individual local planning authorities may elect to remove the permitted development right to let a main residence for the limited number of nights if they consider it necessary to do so.

Of course, the ability to use a dwellinghouse as a short term let is subject to the planning conditions and obligations which affect the site, and might be separately restricted, for example by way of covenants in a lease. Whether the changes proposed in the consultation affect the operation of existing planning conditions or obligations may depend on their specific wording.

So, stepping back for a moment, how is all this really going to work? So much is going to come down to the extent to which local planning authorities introduce article 4 directions removing the proposed permitted development right to go from C3 to C5 and indeed the Government intervenes (as it has in the past ) to restrict the scope of directions which it considers to be too wide or unjustified.

If there is no article 4 direction in an area, C3 properties will be able to be used for C5 short term let use without the need for planning permission – liberalising the current position where more than ancillary short-term accommodation use (more than 90 days of that use in London – a restriction which would remain) would amount to a material change of use. In such areas, use of properties in Airbnb type use could be maximised.

The onus is going to be on local planning authorities to do the work and justify appropriate article 4 directions.

There is a separate but related consultation currently underway on a registration scheme for short term lets, led by the Department for Culture, Media and Sport. Having conducted a recent call for evidence, it considers that a registration scheme is necessary to enable local authorities to effectively police the limit on the number of nights.

I wrote a blog post Time To Review The “C” Use Classes? back on 1 July 2016. It is obvious that a more comprehensive review is needed than what is currently proposed.

Simon Ricketts, 14 April 2023

Personal views, et cetera

Sinclair C5, courtesy wikipedia

The “We’ve Extended The Conservation Area” Gambit

Once a building is included within a conservation area, the permitted development right to demolish it, by virtue of Schedule 2, Part 11, Class B of the General Permitted Development Order, no longer applies.

What a coincidence it would be if, after redevelopment of a building was proposed (in the face of local opposition), a local authority were to extend an existing conservation area so as to include the building, so as to prevent its demolition without the need for planning permission….

Which brings us to the interesting case this week of Future High Street Living (Staines) Limited v Spelthorne Borough Council (Lane J, 28 March 2023).

The claimant owns the former Debenhams store in Staines. Its application for planning permission for demolition and redevelopment was submitted on 10 November 2021 and elicited 268 objection letters, including objections on the basis that this would represent the “loss of an iconic building” and that there would be “heritage impacts on nearby conservation areas and listed building”. The application was subsequently refused on 6 June 2022, the reasons for refusal including “harm to the significance of designated heritage assets (including the [adjoining Staines Conservation Area]) and non-designated heritage assets” and “overdevelopment causing harm to the character and appearance of the area”.

Prior to the refusal, presumably to narrow the points in contention in relation to the planning application, on 25 February 2022 the claimant made an application to determine whether prior approval was required for the demolition of the building under the GPDO. On 24 March 2022 the council confirmed that prior approval was required (not in itself a big issue in that the prior approval process cannot engage with the principle of demolition as opposed to how it is carried out). But it then extended the Staines Conservation Area to include the building, before refusing prior approval on the basis that the building was now in a conservation area and therefore the GPDO permitted development right to demolish was no longer available.

Before deciding to extend the conservation area, the council had carried out a consultation process and it was reported internally within the council that there were no material objections to the proposal. Somehow, the council had overlooked detailed representations submitted by a heritage specialist (Pegasus’ excellent Gail Stoten) on behalf of the claimant.

When the claimant issued a pre-action protocol letter threatening to judicially review the decision to extend the conservation area, the council then prepared a supplementary report that purported to consider the overlooked set of representations, before concluding that the points made did not change the council’s decision.

The claimant relied on four grounds in its subsequent claim for judicial review:

Ground 1 – The council acted unlawfully in making the decision to extend the conservation area in that its true purpose was to prevent its demolition and redevelopment – an improper purpose and therefore contrary to law.

Ground 2 – The council failed to take into account the claimant’s representations.

Ground 3 – The officers’ reports were seriously misleading in not referring to the fact that Historic England had declined to list the building “on the basis that the Building did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest”.

Ground 4 – The purported reconsideration of the decision by way of the supplementary report was unlawful.

The claimant was represented at the hearing by Paul Tucker KC leading Jonathan Easton (now KC but not earlier in the week when judgment was handed down!).

On the first ground the judge stated:

“Since the purpose of designating or extending conservation areas is to preserve or enhance areas of “special architectural or historic interest”, the designation or extension of a conservation area which is motivated principally by a desire to protect a specific building and prevent its demolition will be unlawful.”

The judge considered that on the basis of the case law the question was whether the desire to protect the building from demolition was one impetus for the designation (which would be lawful) or the only impetus (unlawful). This is obviously a high bar for a claimant to clear. On the facts he concluded that it was the former and so ground 1 failed.

However the claim succeeded on the other grounds.

In relation to grounds 2 and 4:

“(i) the defendant failed to take account of the claimant’s representations in response to the consultation at the proper time; (ii) it did not do so in a legally adequate manner in the SR (if that was what the defendant purported to do in the SR); and (iii) having regard to (ii), it cannot be said that it is inevitable or even highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.”

In relation to ground 3:

“…there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building. This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.” It was also obviously material that “in both 2004 and 2016, the Building had not been regarded as sufficiently important to merit even local listing.” Nor could members have been expected to know about these matters. “It has not been shown that their local knowledge extends to being aware of negative decisions on potential listing on the part of Historic England. Likewise, Members may not have been aware (or may have forgotten about), the previous local list review exercises.”

Given a local planning authority’s breadth of discretion in deciding whether to designate or extend conservation areas, this was quite a win for the claimant, basically down to the council’s administrative own goals (full credit to PT KC and JE KC of course…).

Let’s not forget the wider issues swirling around on the question of demolition of buildings, in the context of embodied carbon (we still await the Secretary of State’s M&S Oxford Street decision). See for example this campaigning piece Could a Grade III listing for buildings halt the UK’s tide of demolition? (22 November 2022) by Will Arnold, head of climate action at The Institution of Structural Engineers or this contrary view Why grade III listings should be avoided at all costs (Edward Clarke in The Times, 12 March 2023 (behind a paywall). But it surely brings the heritage system into disrepute when conservation designations are relied upon as a convenient means of controlling demolition for other purposes, whether those may be a reaction to the spectre of redevelopment or arising from laudable concerns about climate change.

Discuss…

Simon Ricketts, 1 April 2023

Personal views, et cetera

Debenhams, Staines

Credit: Ruth Sharville, Wikimedia Commons (Creative Commons Attribution-ShareAlike 2.0 Generic licence)

Join The Club/Environmental Outcomes Reports

I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.

This is going to be a fundamental change to our plan-making and decision-making process.

We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.

By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.

The “non-regression” duty set out in clause 142(1) is an important protection:

“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”

The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:

• inefficiency

• duplication

• risk aversion

• loss of focus

• issues with data

Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:

“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.

(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).

I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:

“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.

– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.

– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.

– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).

– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.

– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.

– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).

– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.

– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”

The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:

• a short introduction (which references the project details in the accompanying Planning Statement)

• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project

• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include

• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed

• the current baseline and relevant trend data, similarly identified

• commentary on levels of uncertainty for that data or indicator set

• proposed mitigation, and

• monitoring proposals

• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.

Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:

• biodiversity

• air quality

• landscape and seascape

• geodiversity, soil and sediment

• noise and vibration

• water

• waste

• cultural heritage and archaeology

The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.

The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.

Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.

Simon Ricketts, 25 March 2023

Personal views, et cetera

Back To Reality

You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…

I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:

Government amendment relating to removal of “hope” value in relation to particular categories of CPO

The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.

Government consultation on environmental outcomes reports – a new approach to environmental assessment

The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.

Government consultation on the proposed infrastructure levy

The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.

Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.

Simon Ricketts, 17 March 2023

Personal views, et cetera

Everybody Needs Good Neighbours

I’m not sure that the architects of the 1947 town and country planning system could have foreseen the extent to which it so frequently ends up being tested to its limits by the need to protect the specific, often legitimate, interests of neighbours and the extent to which the process has become weaponised in neighbour disputes.

I have dealt before with the inevitable mission creep over time, eg in my 4 April 2023 blog post Tate Modern Viewing Platform Supreme Court Ruling: What Is There For Planners To See?

To what extent can and should local planning authorities supplement adjoining owners’ private rights with policies and decision-making that protect those adjoining owners’ interests over matters such as the impact of noise and vibration on a particularly sensitive neighbour – and, if so, how do they make sure that they have the right engineering basis for their interventions? Particularly in London of course these issues arises again and again – see eg my 5 December 2016 blog post First World Problems: Basements and planning officers can get drawn into a neighbour versus neighbour quasi-mediation.

I was reminded by all this again by a case this week, Strongroom Limited v London Borough of Hackney (Deputy High Court Judge Tim Corner KC, 8 March 2023). I only recite the facts by way of illustration of the way these things escalate – the legal issues were settled on the day of the hearing.

The claimant operates a recording studio. The council granted planning permission for redevelopment of an adjoining property, with which the claimant shares a party wall. The claimant had objected to the planning application, submitting a report by consultant Jim Griffiths of the music acoustic consultancy, Vanguardia [pause here for quiet shout out to the excellent Jim] setting out his advice that “unless noise and vibration levels were strictly controlled during construction, the use of the Studios would be subject to harm, impossible to use and might be compelled to close as a result”. He set out the maximum noise and vibration levels that could be tolerated during the construction phase. The developer responded with their own commissioned report. The council in turn commissioned their own report and in consequence planning permission was granted with a detailed condition requiring submission of a “demolition and construction method statement covering all phases of the development to include details of noise control measures” with specific limits on noise and vibration levels set out in the condition.

Once the developer applied to discharge the condition the claimant argued strongly that the developer’s technical work was flawed and commenced proceedings for an injunction to stop construction works from being carried out. That resulted in a settlement agreement allowing, amongst other things, for on-site noise testing and disclosure of testing results. The claimant continued to take issue with the technical work and with some undisclosed testing which had been made available to the council. The council discharged the condition on the basis of the information submitted by the developer and the claimant challenged this by way of judicial review.

In the meantime, the, presumably despairing, developer sought and obtained a separate planning permission simply for change of use of its building, without any condition prescribing numerical noise and vibration limits during construction but requiring a construction management plan to be submitted including details of noise control measures. Again, the council discharged the condition on the basis of information submitted by the developer and again the claimant challenged this by way of judicial review.

So the Deputy High Court Judge had two complicated judicial reviews to determine, both revolving around whether the the council had acted properly in discharging the respective conditions. Unusually, on the very day of the hearing the parties reached a further settlement agreement resolving all of the issues. Even more unusually the one matter the parties had not managed to agree upon was the question of who should bear the costs of the proceedings and so the judge had to proceed with a relatively full analysis of the relative strength of the parties’ arguments before finally determining that (you may have seen this coming) each party should bear its own costs.

What an expenditure of time and money all round, at every stage of the process. Surely there must be a better way?

One of the problems is that outside the planning system, potential private law remedies in relation to matters such as noise, vibration and potential effects on the structural stability of adjoining buildings do not provide protection in a particularly straightforward and light-touch way. Yes, actions in private nuisance are available but the Tate Modern case is a high profile example of the inherent uncertainties of that expensive process. Yes, there is also the Party Wall Acts process in relation to certain matters but that only covers a narrow range of the issues arising from development and is in itself a rather antiquated system which could do with a thorough statutory review (for a topical description of the system, see another case last week: Power & Kyson v Shah (Court of Appeal, 7 March 2023)).

What’s the solution? I quite like the Australian approach:

Neighbours need to get to know each other. Next door is only a footstep away.

Finally, can I recommend the latest episode of the Planning Law (With Chickens) podcast by my colleagues Victoria McKeegan and Nikita Sellers. They chat through some of the most interesting things in planning law which have happened in the last few months and also have a good interview with James Wickham of Gerald Eve.

Simon Ricketts, 11 March 2023

Personal views, et cetera

Resources Resources Resources

As is the English way, it’s rather more nuanced than Money Money Money. And it’s hardly an Abba singalong, but speak to someone with practical experience of the operation of the planning system about what is needed to improve its operation: these three words constantly ring out – way above any chatter about the changes proposed in the Levelling-up and Regeneration Bill  or by way of the Government’s wider policy reforms.

So it was good to see this week’s DLUHC consultation document Stronger performance of local planning authorities supported through an increase in planning fees (28 February 2023).

This consultation seeks views on improving the performance of English local planning authorities by increasing planning fees, “building capacity and capability” and “introducing a more robust performance regime”

Now you have responded to the last consultation process, you can start on this one! The deadline is 25 April 2023.

The document sets out the Government’s threefold strategy:

  • Financial support

“this consultation proposes an increase in planning application fees for major applications by 35% and for all other applications by 25%, together with an indexation proposal for fees to be adjusted annually in-line with inflation.”

  • Additional resource

“This consultation outlines how we are working with representatives across the planning and development sector to design and deliver a programme of support for building planning capacity and capability within local planning authorities and to seek views on how we can increase capacity and capability in the planning system as quickly as possible.”

  • Improved performance

“This consultation therefore also proposes a new approach to how the performance of local planning authorities is measured across a broader set of quantitative and qualitative measures”

Some examples of proposed fee increases:

Subject to the outcome of the consultation process, the increases will be introduced this summer and will be reviewed within three years.

The consultation raises various specific questions, such as:

  • Whether there are examples of bespoke or ‘fast track’ services which have worked well or could be introduced for an additional fee – and of any schemes that have been particularly effective
  • whether there should be a commitment on the part of authorities to ringfence the fees for spending within their planning departments (surely a no-brainer – and one to be firmly policed).
  • whether the ability for a “free go” repeat application be limited or removed
  • whether the fee for retrospective applications should be doubled.

In terms of increasing resources in the planning system, the consultation document says this:

“43. We want to support and work with local planning authorities to make sure that planners and the planning system are valued, and that there is a culture of proactive delivery, pride in performance and a clear understanding of high-quality customer service; as well as being ready to adapt to the new measures and ways of working methods proposed in the Levelling Up and Regeneration Bill.

44. We must also promote a broader understanding of the value of planning in supporting the country in its Levelling Up ambitions as a positive driver of sustainable economic growth and the development and building of homes and places that communities can be proud of.

45. We have created a cross-sector working group with representatives from local government, the private sector and professional bodies to design and deliver a programme of support to build capacity and capability strategy across local planning authorities. This programme will seek to provide the direct support that is needed now, deliver upskilling opportunities and further develop the future pipeline into the profession in order to continually improve the quality of service delivered and resilience of local planning authorities.

46. To support the development of our planning capacity and capability strategy and programme we would like to hear your views and experience of the specific challenges in recruiting and retaining planning professionals with the right skills and experience and the best ways in which government, working with professional bodies, can boost the capacity and capability of local planning authorities. It is our intention to carry out numerical research in the coming months to support this important strand of work, but in the meantime we would welcome any data and insight that you would like to provide.”

In terms of increasing the performance of local planning authorities:

“48. As we propose to introduce measures to increase fee income relating to planning services specifically, we want to amend the existing metrics that measure performance of local planning authorities for speed of decision-making so that local planning authorities are primarily held to account for the number of applications that are determined within the statutory determination periods rather than through an extension of time agreement. We also propose to tighten the Planning Guarantee period for non-major applications.”

“we propose that where the statutory determination period is 8 weeks the Planning Guarantee should be set at 16 weeks and where the statutory determination period is 13 weeks (or 16 weeks for Environmental Impact Assessment developments) the Planning Guarantee should be retained at 26 weeks.”

[What are your experiences of the Planning Guarantee? The only time I’ve seen someone apply for their money back (with every justification), the local planning authority refused to progress the section 106 agreement until the applicant had agreed in writing to waive his rights to rely on it!]

“We propose that the performance of a local planning authority for speed of decision making should be primarily assessed on the percentage of applications that are determined within the statutory determination period, not an agreed extended period of time. We also believe that the performance of local planning authorities for speed of decision-making should be assessed separately for the following application types:

  • Major applications (10 or more new dwellings, or site area of 0.5 hectares or more and the number of dwellings is unknown; provision of a non-residential building or buildings where the floor space created by the development is 1000sqm or more; development on a site with an area of 1 hectare or more)
  • Non-Major applications (excluding householder applications) (anything smaller than the criteria for major development, including residential development of between 1 and 9 new dwellings on a site with an area less than 1 hectare, or site area is less than 0.5 hectares and the number of dwellings is unknown; non-residential development where the floor space created is less than 1000sqm or where the site area is less than 1 hectare; or other types of non-major development such as change of use)
  • Householder applications (development within the curtilage of a dwelling house which requires an application for planning permission and is not a change of use)
  • Discharge of conditions
  • County matters (minerals and waste) applications”

The document seeks views on the suitability of these individual metrics:

It suggests that there could be a standardised “customer satisfaction survey” (sigh, is “customers” really the right word?).

What do you think? I was quite encouraged by the various proposals although do they really go far enough? I suspect that the fee increases are pitched about right but how much extra money will the Government be committing to this essential service?

The document asks whether there any other application types or planning services which are not currently charged for but should require a fee or for which the current fee level or structure is inadequate. There are no fees at present for listed building consent applications – not mentioned in the consultation document. Is that right? The fee for section 73 applications is very light – currently £234 – when in reality the work involved can be extensive. The consultation does ask as to the appropriate fee for the LURB’s proposed section 73B procedure but not about our familiar friend section 73. Should the fee be higher for EIA development – I would have thought so? (and, by the way, whilst outside the remit of this consultation, there is still no visible progress on introducing fees in relation to planning appeals).

Separately, should there be greater control over non-statutory fees for planning performance agreements and for pre-application advice? I increasingly hear tales of woe from applicants as to large fees paid only for advice to be provided very late – and then sometimes reversed once the application has been submitted.

I know that the information gathering in relation to the metrics will entail further work on the part of already busy staff but it will give a much clearer picture than anyone has at the moment – huge delays are masked by routinely agreed time extensions. And the requirement, for instance, for data to be supplied on the “percentage of committee decisions to refuse against officer recommendation that are subsequently allowed at appeal” should certainly focus minds….

Sam Stafford has done wonders via his 50 Shades of Planning podcast series to shine a life on what “life on the frontline” for planning department staff can be like – I recommend his 25 February 2023 Life on the frontline II episode. In the light of these proposals,  Life on the frontline III next year will make for even more interesting listening.

Simon Ricketts, 3 March 2023

Personal views, et cetera

Dead Cert?

This week I wasn’t sure whether to write about the Government’s 21 February 2023 response to its consultation on the proposed biodiversity gain regulations or about the Government’s 23 February 2023 action plan for reforms to the nationally significant infrastructure projects process.

But both of these documents, important as they are, are largely self-explanatory – and have been covered in various summaries which are out there. So I ditched those ideas.

Instead I will focus on another interesting recent case, involving one of my favourite buildings (a “megastructure” according to the judge): the Brunswick Centre, Camden.

Lazari Properties 2 Limited v Secretary of State (Lane J, 21 February 2023) is nothing to do with the architecture of the building, but rather the architecture of the planning system itself. Whilst only a preliminary ruling by Lane J as to whether there were arguable grounds of challenge, some interesting practical issues arise as to:

⁃ the need for precision in framing lawful development certificate applications

⁃ the proper interpretation of conditions restricting uses by reference to superseded Use Classes Order descriptions.

The centre “contains 2 linked blocks of 560 flats above a shopping centre with rows of shops at raised ground level. The shops (which include a supermarket) are situated over a basement, which contains car parking, a service area and a cinema. Ramps and steps provide access to the central boulevard from several surrounding streets.”

Uses in the building are controlled in part by condition 3 of a planning permission in 2003 for the centre’s refurbishment:

“”Up to a maximum of 40 percent of the retail floorspace, equating to 3386m2 (excluding the supermarket and eye-catcher), is permitted to be used within Use Classes A2 and A3 of the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order.”

Old use classes A2 and A3 are now of course subsumed within the new use class E. So, given that retail uses also fall within class E, does that mean that this condition no longer has any effect such that the whole of the retail floorspace can now be used for any purposes falling within class E?

The owner submitted an application to the local planning application for a certificate of lawfulness of existing use or development (“CLEUD”), with a red line around the whole of the centre and with the proposal described as follows:

“Application to certify that the existing use of the Brunswick Shopping Centre within Class E and without compliance with Condition 3 of Planning Permission: PSX0104561 is lawful”.

Uh oh. I wrote about the perils and constraints of CLEUDs and CLOPUDs (certificates of lawfulness of proposed use or development) in my 12 June 2021 blog post I’m Sorry I Haven’t A CLEUD.

Quite aside from the legal question arising as to whether the references to classes A2 and A3 in the condition should now be read as references to class E, was the description of the existing use sufficiently precise?

The London Borough of Camden didn’t determine the application within the statutory period and the owner appealed. The inspector dismissed the appeal in a decision letter dated 27 July 2022:

⁃ the reference to use class E was not a sufficiently precise description of the existing uses of the units within the centre. Whilst the owner’s objective was clearly to establish that class E use of any of the units would not be in breach of the condition, that was not the role of lawful development certificates: “It is a long established principle that LDCs enable owners and others to ascertain whether specific uses, operations or other activities are or would be lawful. They do not enable anyone to ask the general question, “what is or would be lawful?“

⁃ the reference simply to the whole of the centre, which encompassed various uses plainly not falling within class E, was not sufficiently precise, and was not remedied by a plan excluding defined areas.

⁃ In accordance with case law, condition 3 was to be interpreted having regard to the natural and ordinary meaning of the words used, viewed in their particular context (statutory or otherwise) and in the light of common sense. The inspector considered that the purpose of Condition 3 is “clear from its stated reason. It is to safeguard the retail function and character of the Brunswick Centre. It does this by stating a maximum amount of floorspace that is permitted to be used for A2 and A3 purposes.

“Condition 3 only makes sense if there is an implied exclusion of the Use Classes Order or else it has no purpose. The purpose of Condition 3 is clear and it remains enforceable since the uses that are restricted are known, those being the uses set out as falling within Class A2 and A3 when planning permission was granted.”

Both parties made costs applications against the other. The inspector rejected the owner’s costs application and made a partial award of costs in favour of the council.

So what did Lane J make of all this? Without giving any reasoning, he considered that it was arguable that condition 3 was not to be interpreted in the way arrived at by the inspector. However, he found that the inspector’s conclusions as to the inadequacy of simply describing the existing use by reference to class E, as to the inadequacy of the submitted plans and as to costs were all unarguably correct.

An interesting procedural question as to why it was still appropriate for the interpretation question (referred to as grounds 1 and 2) to go to a full hearing, given the fundamental flaws in the formulation of the CLEUD application and appeal:

“I must accordingly explain why I have concluded that, on the facts of the present case, permission should be granted for grounds 1 and 2 to be determined at a substantive hearing. I accept Mr Taylor’s submission that grounds 1 and 2 are, in effect, severable and that there is a real purpose in permitting the claimant to argue them substantively, so that the High Court can reach a decision on the correct interpretation of condition 3. Given that a fresh application by the claimant under section 191 is highly likely, if not inevitable, and that condition 3 is likely to be relevant to the determination of any such application, it plainly makes sense that the issue of interpretation is settled before such a fresh application is made.

I accept that, as matters stand, the claimant has not sought a declaration, which will be needed on the above basis, given that the inspector’s decision should not be quashed. The claimant will need to do so. I do not, however, consider that the claimant’s failure, so far, to seek a declaration should be destructive of its case in respect of grounds 1 and 2.”

Like the judge, I’m not sure that the inspector’s conclusions in respect of condition 3 were necessarily correct and it will be useful to have a final ruling in due course on the issue, which may potentially assist with other interpretation questions arising from the introduction of class E in situations where conditions contain restrictions based on previous use classes. But I’m surprised that the case has gone so far on the basis of such a loose approach to the CLEUD process. Might a simpler approach have been to show all the retail units on a plan and to make a CLOPUD application proposing retail use in respect of each of them? That would have indirectly led to a ruling as to whether condition 3 was legally effective. But as it turns out, maybe the eventual outcome of these proceedings will end up getting to the same position for the owner, albeit at additional expense for all concerned.

Incidentally, if you would like much better summaries than this of planning law cases on a weekly basis, do subscribe to our free Town Library service if you haven’t done so already. Each week my Town Legal colleagues prepare summarise of any rulings handed down the previous week by the Planning Court, together with subsequent appeal rulings. Subscribe here.

Simon Ricketts, 25 February 2023

Personal views, et cetera

Photo of Brunswick Centre courtesy of Wikipedia