Community Benefits

The road to the High Court is paved with good intentions. Who doesn’t want development to deliver all manner of gains to a community? But at the planning application or appeal stage, the developer and decision maker need to be clear in their thinking as to whether each commitment made is material to the decision-making process and, if documented by way of section 106 agreement, meets the statutory tests.

This piece was initially prompted by the High Court’s ruling in Good Energy Generation Limited v Secretary of State (Lang J, 25 May 2018) and the earlier ruling of the Court of Appeal in R (Wright) v Forest of Dean District Council (Court of Appeal, 14 December 2017), which is now heading to the Supreme Court.

I then saw this piece in the Standard on the way home last night which got me thinking as to how blurred the lines are in all of this.

As you might expect, the position is dealt with in a more upfront way in the United States, where the practice has grown up of developers negotiating “community benefits agreements” with local communities to build support for, or at least reduce opposition to, major development projects. There is a good paper published by the New York City Bar, The Role of community benefit agreements in New York City’s land use process (8 March 2010). The scope of the agreements referred to, in relation to projects such as Hudson Yards and the relocation of the Mets and Yankees stadia, sounds remarkably similar to many English section 106 agreements but the agreements are negotiated direct with the communities affected. An additional complication does of course arise as to determining which groups should be included in the negotiation, as well as to how the agreement is to be enforced, but for good or bad the process does not appear to lead to the intellectual agonising engaged in by our courts as to whether particular commitments are or are not to be taken into account in the decision making process.

The traditional position in England, Scotland and Wales is represented by the Supreme Court’s judgment last year in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited (25 October 2017):

“A planning obligation, which required as a pre-condition for commencing development that a developer pay a financial contribution for a purpose which did not relate to the burdened land, could be said to restrict the development of the site, but it would also be unlawful. Were such a restriction lawful, a planning authority could use a planning obligation in the context of an application for planning permission to extract from a developer benefits for the community which were wholly unconnected with the proposed development, thereby undermining the obligation on the planning authority to determine the application on its merits. Similarly, a developer could seek to obtain a planning permission by unilaterally undertaking a planning obligation not to develop its site until it had funded extraneous infrastructure or other community facilities unconnected with its development. This could amount to the buying and selling of a planning permission.”

Furthermore:

The inclusion of a policy in the development plan, that the planning authority will seek such a planning obligation from developers, would not make relevant what otherwise would be irrelevant.”

(For further detail see my 28 October 2017 blog post Aberdeen: Supreme Court, Planning Obligations).

However, that traditional position is now overlaid, in England and Wales, with the additional restriction contained in regulation 122 of the Community Infrastructure Levy Regulations 2010, which provides that a “planning obligation may only constitute a reason for granting planning permission for the development if the obligation is—
(a) necessary to make the development acceptable in planning terms;
(b) directly related to the development; and
(c) fairly and reasonably related in scale and kind to the development.

The two most recent cases that examine the appropriateness of developers’ commitments as to benefits for the local community both involve wind farm projects. That’s probably no surprise because, against the background of frequent local hostility, the Government has encouraged promoters to bring forward community benefits packages (see for example the 2014 DECC guidance, Community Benefits from Onshore Wind Developments: Best Practice for England). The PPG also encourages “community led renewable energy developments” and “community based initiatives“. However the principles from the case law of course apply equally to all types of development.

R (Wright) v Forest of Dean District Council (Court of Appeal, 14 December 2017) considered the “issue of whether, on an application for development proposed to be undertaken by a community benefit society, a proposed donation to the community of a proportion of the turnover derived from the development is a material consideration.” In that case, which concerned a scheme for a single community-scale 500kW wind turbine, it was “proposed that the turbine would be erected and run by a community benefit society, and the application included a promise that an annual donation would be made to a local community fund based on 4% of turnover from the operation of the turbine over its projected life of 25 years, to be achieved by way of a condition that the development be undertaken by such a society with the donation as part of the scheme.” The commitment was not to be delivered by way of section 106 agreement (and so regulation 122 was not relevant) but by way of a condition requiring that the development be undertaken by a community benefit society, details of which were to be provided to the authority prior to commencement.

The local planning authority took that commitment (which looks a pretty loose one to me!) into account as a material consideration in granting planning permission. A local resident challenged the decision on the basis that it was not a material planning consideration. Dove J upheld the challenge and the local planning authority and promoter appealed to the Court of Appeal.

In front of the Court of Appeal, counsel for the local planning authority and the promoter both “accepted that, on a planning application, it would be unlawful for a planning authority to take into consideration a donation to a community benefit fund by a commercial wind farm developer, because such a donation would not be a material consideration. For similar reasons, they accepted that an authority could not require such a donation as a planning obligation, whoever the developer might be. However, they each submitted that the circumstances of this case, notably the voluntary donation derived from a community-led project and made to benefit the community, were materially different“.

Hickinbottom J disagreed, commenting as follows:

where a financial contribution that is not a material consideration is put forward as part of an application for proposed development, it is sometimes said that that is an attempt to “buy” planning permission. In my view, that terminology (or even more pejorative terms such as “bribe”) is generally unhelpful. In respect of materiality, the proper focus is upon the Newbury criteria. No matter how well-intentioned the proposed donor might be (and I accept that, here, Resilient Severndale is well-intentioned), and no matter how publicly desirable such a donation might be (and I accept that, here, the proposed community benefit fund would benefit the community), such a donation will not be material for planning purposes unless it satisfies those criteria.

As I have indicated (paragraph 28(ii) above), a planning purpose is one which relates to the character or use of the land. It is proposed that the donation by the developer here will be put into a community benefit fund, administered by local people for the benefit of the community, but without any other restriction, e.g. a restriction to use it for a planning purpose. I have set out some of the beneficiaries of the similar fund set up in respect of the St Briavels Wind Farm (see paragraph 22 above). I accept that all these are worthy community causes, but the provision of waterproofs for young people, and lunch for older people, do not seem to address any obvious planning purpose. As Dove J found (at [48] of his judgment), “beyond being of some benefit to the local community, as recognised or defined by the local people administering the fund, there is no limitation on how the money might be used”.

He concluded:

In my view, for the reasons I have given, Dove J, who referred to and applied the relevant authorities, was right to proceed on the basis that the nature of the community benefit fund donation, and the vehicle it was proposed would provide it, were not such as to preclude examination of the contributions associated with it to see whether they satisfied the legal requirements of being a material consideration in the planning decision. He was entitled to conclude that “the community donation is an untargeted contribution of off-site community benefits which is not designed to address a planning purpose” (see [55] of his judgment). He was also entitled to conclude that there is “no real connection between the development of a wind turbine and the gift of monies to be used for any purpose which appointed members of the community consider their community would derive benefit” (see [56]). Indeed, he was in my view, undoubtedly right to draw such conclusions: and to conclude that, consequently, the Council was not entitled to take into account as a material consideration the offer of the community benefit fund donation made as part of Resilient Severndale’s proposal, as it did.”

That case will ultimately be considered by the Supreme Court, so watch this space. In the meantime, the High Court last month handed down its judgment in Good Energy Generation Limited v Secretary of State (Lang J, 25 May 2018). Here, an appeal had been dismissed by the Secretary of State (following the recommendations of an inspector) in relation to the proposed development of a wind farm in Cornwall. The promoter challenged the decision on two grounds but for present purposes I am only focusing on the first ground, namely:

The Claimant submitted that, in assessing the planning balance, the Secretary of State and the Inspector erred in law in disregarding the benefits offered by the Claimant in a unilateral undertaking made under section 106 TCPA 1990, as these were material considerations, which were not excluded by regulation 122 of the CIL Regulations 2010.

In summary, the main benefits offered by the Claimant were:


i) financial contributions to a community benefit fund;
ii) a community investment scheme open to local residents; and
iii) a reduced electricity tariff, open to local residents.

The Claimant’s pleaded case was that all three of these community benefits were material planning considerations. They were for a planning purpose since they furthered the Government’s legitimate planning policy objectives of encouraging local community involvement in renewable energy schemes and providing positive local benefit from renewable energy development. They also complied with specific aspects of local development plan policy. Furthermore, the benefits were directly related to, and derived from, the use of the land for the operation of the development.

However, after the claim was issued, the Court of Appeal decided in R (on the application of Peter Wright) v Forest of Dean District Council & Resilient Energy Serverndale Limited [2017] EWCA Civ 2102 that the local planning authority had erred in taking into account a proposed donation to the community (4% of turnover) from the operators of a wind turbine development as a material consideration weighing in favour of the grant of planning permission. It did not serve a planning purpose, nor did it fairly and reasonably relate to the development proposed.

In the light of the decision in Wright, at the hearing before me, the Claimant abandoned its challenge in respect of the community benefit fund, but continued with the challenge in respect of the community investment scheme and the reduced electricity tariff scheme open to local residents.

The Claimant further submitted that, in applying regulation 122 of the CIL Regulations 2010, the Inspector and the Secretary of State failed to exercise their planning judgment in deciding whether or not the obligations were “necessary” on the facts of the case. If they did exercise their planning judgment, they failed to give adequate reasons for their conclusions.”

The community benefits set out in the section 106 agreement included:

“(a) a £5,000 per megawatt of installed capacity community benefit contribution to be paid into a community benefit fund;
(b) a community investment scheme open to local residents; and
(c) a reduced electricity tariff, also open to local residents
.”

Lang J set out the case law and stated that the tests in regulation 122 are “more stringent than the common law tests“. She found that “the inspector and the Secretary of State were entitled to conclude, in the exercise of their judgment, that no weight could be attached to the local tariff and the community investment scheme in determining the appeal as they were not material considerations which complied with regulation 122 of the CIL Regulations 2010.”

She rejected any suggestion that the local tariff (amounting to at least a 20% reduction in electricity bills, funded by the community benefit fund) could be said to be a community-led initiative within the meaning of the PPG: “the local tariff was essentially an inducement to make the proposal more attractive to local residents and to the local planning authority. The scheme was not necessary to make the development acceptable in planning terms under regulation 122 of the CIL Regulations 2010.

She found that the terms of the community investment scheme were uncertain. The section 106 unilateral undertaking simply committed the developer to its establishment within six months of first generation.

The lack of any specific details, combined with uncertainty about the scheme’s commencement and long-term future, meant that the connection between the benefit and the development was remote and uncertain, rather than real.

…It was merely a potential investment opportunity“.

What lessons do we draw?

There is nothing at all wrong with developers making commitments to deliver community benefits. However, be careful to ensure that these are only taken into account in decision making if they are material planning considerations and meet the strict requirements of regulation 122.

Can we do things differently? There is nothing to prevent developers negotiating community benefits agreements, perhaps labelled indeed as such, with communities as long as matters which are not material planning considerations are not taken into account in decision making (although I accept that the position can become pretty artificial, where committee members are asked for the sake of form in their decision making to close their eyes to what is plainly on offer).

At present section 106 agreement negotiations, particularly in relation to major projects, can become somewhat of a fudge, where it can be difficult to separate those commitments which are genuinely required to make the development acceptable from those which are required in practice to secure political and community acceptance. To the extent to which regulation 122 has either introduced an additional JR trip hazard (as it has) or, through leading to caution on the part of promoter and authority alike, discouraged commitments to what would have been worthwhile public benefits, better for all, is regulation 122 causing more harm than good?

Finally, the way in which all of this to be reported to committee will be tidied up as and when section 155 of the Housing and Planning Act 2016 is brought into force, in that “financial benefits information” will need to be included in officers’ reports, including “a list of any financial benefits (whether or not material to the application) which are local finance considerations or benefits of a prescribed description, and which appear to the person making the report to be likely to be obtained” by the authority or third parties within a description to be prescribed, as a result of the proposed development, together with “in relation to each listed financial benefit, a statement of the opinion of the person making the report as to whether the benefit is material to the application” as well as any other prescribed information about each listed financial benefit.

Whether or not section 155 is brought into force, this approach would be a useful discipline and may provide a safer basis for developers who do indeed for a range of reasons (reputation, securing quality outcomes in the longer term, building support and reducing suspicion with local communities and, in some cases such as renewable energy, shale and major transportation projects, seeking to address the perceived unfairness of expecting one community to take all of the adverse effects of development for the wider good) wish to deliver community benefits without unnecessarily adding to the risk of judicial review.

Simon Ricketts, 2 June 2018

Personal views, et cetera

Brownfield Land Registers: A Bit Of Progress

I last blogged about the new brownfield land regime back in April 2017. Back then, the deadline of 31 December 2017 had been set for local planning authorities to publish their first registers. We were also waiting for the final set of regulations that would set out the procedure by which, if your land is listed in part 1 of the register, you can apply for “permission in principle” (if your land is in part 2 of the register it is automatic). 
This blog post takes a quick look at some of the registers that have been published to see the approaches that authorities are taking – after all, whilst authorities had the 31 December deadline for publishing their registers, there was no minimum number of sites to be included, whether on part 1 or part 2 and no procedure for appeal or independent scrutiny if a land owner considers that their land has been wrongly overlooked. 
In the longer term, I hope that something will be done about authorities that only pay lip service to the process, although it is difficult to see what, without a more prescriptive system, or other sticks and carrots being applied. DCLG’s planning update newsletter published on 21 December 2017 stated:
“DCLG will assess progress in January, and it will be important that published registers contain up-to- date information on brownfield land suitable for housing. 

In July we published planning guidance, a data standard, and a template , to support local planning authorities in preparing and publishing their registers, and to ensure registers are published in a consistent and open format which can be aggregated by users of the data.”
From a quick google, it seems to me that authorities have met the deadline. However:
– the sites included do not appear to go beyond sites which were already in play by virtue of either having permission, an allocation or having featured in the authority’s strategic housing land availability assessment
– sites have not yet been included in part 2

– whilst the government’s data standard and template have been followed, the supporting information is pretty sparse. 

These are three authorities that I chose to look at, by way of a random selection:
Elmbridge Borough Council’s register only contains sites that already have planning permission. 
Milton Keynes Council has decided not to include any sites on part 2 of its register. Its part 1 sites all come from its SHLAA as well as unimplemented planning permissions. 
The notes to Islington Council’s register set out uncertainties as to the required methodology:
“The Regulations and PPG are not clear about whether the 5 dwelling threshold for inclusion on the BLR refers to net or gross dwellings. Regulation 4 of the Regulations merely requires sites to be included if they have an area of at least 0.25 hectares or is capable of supporting at least 5 dwellings. This suggests the threshold is a gross figure. 

However, Schedule 2 of the Regulations requires sites on the BLR to set out the minimum net number of dwellings which, in the authority’s opinion, the land is capable of supporting. 

This is an important distinction as there are several sites – all extant permissions – which are less than 0.25 hectares, and permit 5 or more dwellings gross but less than 5 dwellings net. Hence the decision to enter these sites onto the BLR hinges on whether we assume the 5 dwelling threshold is net or gross. 

Islington have assumed that the Regulations refer to the gross figure in terms of assessing capability under Regulation 4, although a site’s net figure is used for the ‘MinNetDwellings’ column. The council will monitor changes to guidance and other boroughs BLRs for best practice, and may revert to a net figure in future in terms of assessing sites against the Regulations.”

Islington identifies all of the sites on its register as in unknown ownership:
The BLR identifies all sites as unknown ownership, which reflects the lack of access to up-to-date Land Registry records for these sites. Islington will aim to secure ownership data for sites on future iterations of the BLR.”
These approaches are not untypical and it is underwhelming. DCLG will need to turn the thumbscrews in time for the first annual update of the registers if this process is going to do anything other than round up the usual suspect sites. 
The formatting does at least allow for some useful data gathering, such as this map of London brownfield sites.

Barton Willmore have carried out some interesting analysis as to the numbers of homes identified by the Manchester authorities in their register. 

Of course one of the benefits of finding your land within part 1 of the register is the idea that you will be able to apply for “permission in principle” as a supposedly quick route to planning approval. However this is only relevant if the site is very small, given that the cap is nine dwellings – and given that the minimum size for inclusion on the register is five dwellings this is all pretty niche. Be that as it may, the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 was laid before Parliament on 21 December 2017 and will come into force on 1 June 2018. The order sets out the procedure for applying for PiPs. Lichfields’ 2 January 2018 blog post Take a chance on me: what we know about permission in principle on application is a good summary, also covering the fee rates for applications. 

On reading my April 2017 blog post again, I was surprisingly optimistic about the brownfield land registers. Nine months on, I suppose at least we now have the initial registers in place but surely now we need to see:
– greater engagement between land owners and LPAs so as to begin to use the process to unlock sites which are not already in play.

– consultation in relation to moving appropriate sites onto part 2 so that they secure automatic permission in principle (and without the nine units cap there is in relation to part 1, although they must be below the threshold for EIA).

– a real incentive for development of sites on the register, including supportive policies in the forthcoming revised NPPF. 

Simon Ricketts, 5 January 2018
Personal views, et cetera

Local Plan Interventions

As set out in his 16 November 2017 written ministerial statement, the Secretary of State for Communities and Local Government has written to 15 local planning authorities (Basildon, Brentwood, Bolsover, Calderdale, Castle Point, Eastleigh, Liverpool, Mansfield, North East Derbyshire, Northumberland, Runnymede, St Albans, Thanet, Wirral and York), indicating that they have “the opportunity to put forward any exceptional circumstances, by 31 January 2018, which, in their view, justify their failure to produce a Local Plan under the 2004 Act regime.” He will then make a formal decision as to whether formally to intervene in their plan-making. 
His Bristol speech on the same day says this:

“…today is the day that my patience has run out.

Those 15 authorities have left me with no choice but to start the formal process of intervention that we set out in the white paper.

By failing to plan, they have failed the people they are meant to serve.

The people of this country who are crying out for good quality, well-planned housing in the right places, supported by the right infrastructure.

They deserve better, and by stepping in now I’m doing all I can to ensure that they receive it.”

Will this be another empty threat or this time will we actually see some action? Back 20 July 2015 the then minister for housing and planning, Brandon Lewis, announced in a written ministerial statement:

In cases where no Local Plan has been produced by early 2017 – five years after the publication of the NPPF – we will intervene to arrange for the Plan to be written, in consultation with local people, to accelerate production of a Local Plan.”

There was then the February 2016 technical consultation on implementation of planning changes which included within its chapter 6 the Government’s proposed criteria for intervention, namely where:

* the least progress in plan-making had been made;

* policies in plans had not been kept up to date;

* there was higher housing pressure; and

* intervention would have the greatest impact in accelerating local plan production.

Decisions on intervention would be informed by the wider planning context in each area (specifically, the extent to which authorities are working co-operatively to put strategic plans in place, and the potential impact that not having a plan has on neighbourhood planning activity).

The Government confirmed in its February 2017 housing white paper that these criteria would indeed be adopted. 

The February 2016 technical consultation proposed that authorities identified for potential intervention would be given an opportunity to set out exceptional circumstances why that should not happen:

“What constitutes an ‘exceptional circumstance’ cannot, by its very nature, be defined fully in advance, but we think it would be helpful to set out the general tests that will be applied in considering such cases. We propose these should be: 

• whether the issue significantly affects the reasonableness of the conclusions that can be drawn from the data and criteria used to inform decisions on intervention; 

• whether the issue had a significant impact on the authority’s ability to produce a local plan, for reasons that were entirely beyond its control.”

We can assume that those 15 authorities will now be looking very carefully at this passage. 

A political decision to intervene is one thing but what would then be the legal process to be followed?

The Housing and Planning Act 2016 amended the default powers of the Secretary of State within section 27 of the Planning and Compulsory Purchase Act 2004, so that it read as follows:

Under section 9 of the Neighbourhood Planning Act 2017, the Secretary of State can now also order the preparation of joint development plans, giving him a further option in the case of interventions, particularly as he “may apportion liability for the expenditure arising on such basis as he thinks just between the local planning authorities for whom the document has been prepared.”
Of course the practicalities are quite another thing. How is the Government actually going to go about the intervention process? Preparing the document centrally, directing an adjoining authority to take the lead or parachuting in civil servants or consultants to carry out the work (all at the cost of the authority) is surely always going to be a last resort. The process is likely to be locally unpopular, prone to error and obviously liable to litigation. Authorities may also trip over themselves in their belated haste. However, surely after the end of January a few authorities are bound to be identified, pour encourager les autres. 
So how have these authorities found themselves in this position? Here’s just a flavour:
Basildon
Yellow Advertiser (20 April 2017):

“Tory chief Phil Turner has suggested calling in independent analysts to go over the plan, which allocates land for development across the borough until 2034. 

Cllr Turner said he hoped to ask experts to go over the plan’s policies on green belt and infrastructure. 

He said he hoped the move would help him cut the number of planned houses in the borough, which currently sits at 15,260.

He said: “We can’t review the whole plan but those two points are areas where we think there may be opportunities about reducing our housing numbers. 

“During the consultations, we’ve had a lot of feedback about how people don’t think we are working hard enough to to save the green belt. We don’t want to build on the green belt and we have avoided it as much as possible but I don’t think the public actually believes us.

“So what we are thinking is we should call in some independent people to scrutinise the plan and tell us where we can maybe use the evidence to put up an argument to challenge the housing numbers.”

Cllr Turner was due to present the proposal to all councillors in a secret meeting last night. 

If approved, he said the process could cost a six-figure sum and take up to six months.

Brentwood
Largely green belt authority. Prolonged delays.  

Bolsover

Local Plan withdrawn after it failed examination in 2014. Failure to co-operate with North East Derbyshire District Council and Chesterfield Borough Council with regard to a strategic development site. 
Calderdale

Brighouse Echo (17 November 2017):

 “Councillor Scott Benton, Leader of the Calderdale Conservatives, said: “‘The draft Local Plan published by the Labour Council administration has caused great concern throughout the different communities of Calderdale.

“The Labour Party have clearly been taken aback by the scale of the opposition to their plans and instead of meeting their target of producing a Final Plan in December, they have announced that they are now kicking the issue down the road again until after the elections next summer.

“‘Labour’s first attempt at producing a draft Plan was a disaster. Instead of working with residents and other Councillors to produce a Plan that is fit for purpose they have delayed the process until after elections. This makes a mockery of our local democracy and demonstrates why Calderdale requires fresh leadership.”

Castle Point

Local Plan failed examination in April 2017 – failure adequately to assess housing need, and failure to cooperate with neighbouring councils.
Eastleigh
Eastleigh News (16 November 2017):
“In February 2015, Eastleigh had to go back to the drawing board after its first Local Plan was rejected by the planning inspector because, he said, it didn’t plan for enough new homes – in particular new affordable ones.

On December 11 the council will meet for a crunch vote on their new Local Plan and the council’s preferred options of housing development on land North of Bishopstoke and Fair Oak (Options B and C).

There has been fierce local opposition – not just from the residents most likely to be affected by the development of 5,000 new homes but also from residents close to the route of a proposed M3 link road that will stretch across countryside from Upham to Allbrook.

So far this year three councillors have stood down from the ruling Liberal Democrat group to sit as Independents because of their concerns over the direction of the local plan.

It is likely they will join the opposition Conservative group on December 11 in voting against the council’s favoured options – though this is unlikely to prevent their adoption.”

Liverpool
Prolonged delays. 
 Mansfield

Mansfield 103.2 (17 November 2017):

Hayley Barsby, Interim Chief Executive at Mansfield District Council, said: “We are disappointed to have been named as one of the 15 local authorities.

“We are confident that while we don’t have an up-to-date Local Plan that this hasn’t affected development in the district.

“Mansfield District Council is committed to bringing forward house building – this is demonstrated by the council supporting the Berry Hill development (formerly known as the Lindhurst development) which will create 1,700 new houses for the district.

“Of the 9,024 new homes we need to provide by 2033, planning permission already exists for 4,147.

“Over the past 12 months we have worked hard to bring forward the Local Plan and during this time we have been mindful to undertake feasibility and consultation to ensure it reflects not only the needs of the district but also the views of our communities.

Following an initial consultation in early 2016 on the draft Local Plan, we received 1,477 comments which were then reviewed to ensure the plan is fit for purpose up to 2033.

The council reviewed its position and prepared a new vision and objectives. These have been used to create alternative options for the delivery of sustainable housing and employment to meet future requirements. 

A Preferred Options consultation took place in October and November 2017.”

North East Derbyshire
Derbyshire Times (18 October 2017) quotes the Labour leader of the council in response to criticisms from the local (Conservative) MP:
“We are well aware of the need to protect the character of our area and have done all we can to do this, however the Government’s expectations and targets for housing place significant pressure on our ability to continue this.” 

He added: “As such we’d welcome any moves by the MP to seek a revision to Government policy so that the expectations for north east Derbyshire are realistic and in keeping with those of our residents.”
Northumberland

Northumberland Gazette (16 November 2017):

 “Northumberland’s Local Plan, a key document which details where development should take place, is not likely to be adopted until 2020. In the summer, the county council’s new Conservative administration withdrew the Local Plan Core Strategy – put together by the council’s Labour group before losing the county election in May – to review a number of aspects of the document, primarily due to concerns that numbers for the proposed level of new housing were too high.”

Runnymede
Local plan failed examination in 2014 due to failure to meet housing needs and failure of duty to co-operate. 
 St Albans

Local Plan failed examination in 2016 due to failure of duty to co-operate, council’s subsequent challenge to that decision failed.
Thanet

Prolonged delays but Regulation 19 consultation anticipated in January 2018. 
 Wirral

Wirral Globe (16 February 2017):

Wirral Council’s leader is preparing for battle with Whitehall over plans that could force the authority to turn green belt land into a housebuilding free for all.

The Government has ruled Wirral must produce a blueprint demonstrating how it will hit a target of building nearly 1,000 new homes each year over the next five years.

That’s 500 more than the present annual number.

Councillor Phil Davies says he is adamant that he will not sanction the release of green belt land – and has written to communities secretary Sajid Javid urging him to reconsider.”

York
Prolonged delays. 
York Press (16 November 2017):
City of York Council’s Conservative and Liberal Democrat leaders have pointed to delays caused by the announcement of barracks closures in York, and insisted they are on course to deliver a sound plan by May.

Leader Cllr David Carr said: “We’re making very good progress to deliver a Local Plan which is right for York – one which provides the homes and employment opportunities we need while protecting our city’s greenbelt and special character.

“We rightly reviewed the plan after the Ministry of Defence’s announcement over the future of three very large sites, and consulted once again listen to views from across York.”

However the announcement has brought criticism from Labour councillors, who say they warned this could happen.”
Themes
Tell me if I am over-simplifying but it seems to me that there are some common, unsurprising, themes within this list:
– Uncertainties as to the calculation of objectively assessed needs and the extent to which authorities can justify not meeting that need to due to green belt issues (nearly all these authorities have areas of green belt within their boundaries). 
– Uncertainties as to the extent to which it may be appropriate for authorities to assist in meeting other authorities’ needs, the duty to co-operate being far too loose a mechanism (which is not necessarily to suggest that a return to regional planning and “top down” numbers is the answer – these are authorities who didn’t manage to adopt a plan even under that regime, which of course had built into it inherent delays at the regional tier). 

– As a result of this wriggle room, housing numbers becoming a political battleground, with members often not accepting officers’ advice or with changes in approach arising from changes in political control. 

– Delays due to plans having been found unsound at the end of, or a long way into, a long process (usually as a result of these factors). 

– Plainly, these authorities haven’t been sufficiently spurred on by the application of the “tilted balance” leading to development taking place in unplanned, unwanted locations – perhaps due to that policy lever being less effective in relation to green belt – or other Government threats to date. 

– Many of the authorities being, on paper at least (their websites tell a good story to their constituents), now close to being able to submit a plan for examination, after (usually) a series of Regulation 18 consultation processes. 

Is slow plan-making the fault of local politicians or of the planning system itself? I would say both. The lack of prescription as to numbers and methodology has inevitably given room for protracted, unending, debate as to different approaches and outcomes. Debate and local choice is surely to be welcomed but the system has been so loose that in some areas this has slowed progress to an extent that anyone would surely say was unacceptable. Accordingly, the proposed tightening of the OAN methodology (see my 20 September 2017 blog post) and of the duty to co-operate is surely welcome, as is this clear threat by Javid of intervention. 

However, if formal intervention is actually required, the outcome will surely be a political, administrative and legal mess. 
…………………..

Meanwhile, it is perhaps unfortunate timing that in the same week the Secretary of State has made a holding direction in relation to the Stevenage local plan, at the request of local Conservative MP Stephen McPartland, despite a favourable Inspector’s report having been received last month. The issue appears to result from a continuing fault line both in Stevenage and more widely: whether to provide homes by way of town centre redevelopment (as per the plan) or outside the town in a new settlement (as per Mr McPartland). 

Whatever the rights and wrongs of the Stevenage position, why allow such political interventions if the plan has been found sound?
Simon Ricketts, 18 November 2017
Personal views, et cetera

(With thanks to Town Legal colleague Rebecca Craig for some background research. Mistakes and opinions all mine). 

Mending The Planning System (Has Anyone Tried Switching It Off And On Again?)

When I recently blogged about the Raynsford review of the planning system, I really wasn’t expecting shadow CLG Secretary of State Roberta Blackman-Woods to announce yet another one at the Labour party conference, at a CPRE fringe event. This is CPRE’s write-up. It will be called “People and Planning”. According to Building magazine we can expect proposals to streamline the compulsory purchase system and “tougher measures to stop developers sitting on sites“, as well as a rethink on CIL and on the Government’s recently announced OAN methodology consultation. 
Labour leader Jeremy Corbyn had the following passages in his conference speech, leading on from references to the Grenfell Tower tragedy:
We have a duty as a country to learn the lessons from this calamity and ensure that a changed world flowers . I hope that the public inquiry will assist. But a decent home is a right for everyone whatever their income or background. And houses should be homes for the many not speculative investments for a few. Look at the Conservative housing record and you understand why Grenfell residents are sceptical about their Conservative council and this Conservative government.

Since 2010: homelessness has doubled, 120,000 children don’t have a home to call their own, home ownership has fallen, thousands are living in homes unfit for human habitation. This is why alongside our Shadow Housing minister John Healey we’re launching a review of social housing policy – its building, planning, regulation and management.

We will listen to tenants across the country and propose a radical programme of action to next year’s conference. But some things are already clear tenants are not being listened to.
We will insist that every home is fit for human habitation, a proposal this Tory government voted down. And we will control rents – when the younger generation’s housing costs are three times more than those of their grandparents, that is not sustainable.

Rent controls exist in many cities across the world and I want our cities to have those powers too and tenants to have those protections. We also need to tax undeveloped land held by developers and have the power to compulsorily purchase. As Ed Miliband said, “Use it or lose it”. Families need homes.

After Grenfell we must think again about what are called regeneration schemes.

Regeneration is a much abused word.

Too often what it really means is forced gentrification and social cleansing, as private developers move in and tenants and leaseholders are moved out. 

We are very clear: we will stop the cuts to social security.

But we need to go further, as conference decided yesterday.

So when councils come forward with proposals for regeneration, we will put down two markers based on one simple principle:
Regeneration under a Labour government will be for the benefit of the local people, not private developers, not property speculators. 

First, people who live on an estate that’s redeveloped must get a home on the same site and the same terms as before.

No social cleansing, no jacking up rents, no exorbitant ground rents. 

And second councils will have to win a ballot of existing tenants and leaseholders before any redevelopment scheme can take place.

Real regeneration, yes, but for the many not the few.

That’s not all that has to change.”

Liberal Democrats’ leader Vince Cable took a similar theme in his own party conference speech:
“If there is any single lesson from the Grenfell disaster, it is that people in poverty aren’t listened to. Nowhere is inequality more marked than in the housing market. Property wealth for the fortunate coexists with growing insecurity and homelessness for many others. Home ownership, which spread wealth for generations, is no longer a realistic prospect for younger people with moderate means.

To put this right, we must end the stranglehold of oligarchs and speculators in our housing market. I want to see fierce tax penalties on the acquisition of property for investment purposes, by overseas residents. And I want to see rural communities protected from the blight of absentee second home ownership, which devastates local economies and pushes young people away from the places where they grew up. 

Homes are to live in; they’re not pieces on a Monopoly board. But whatever we do with existing homes will not be enough. A doubling of annual housing supply to buy and rent is needed. 

For years politicians have waffled about house building while tinkering at the edges of the market. I want to recapture the pioneering spirit that in the mid-20th century brought about developments like Milton Keynes and the new towns…I want to see a new generation of garden cities and garden villages spring up in places where demand presently outstrips supply.

But we know that private developers alone will not make this happen.Just as social reformers in the 1950s and 60s saw government roll up its sleeves and get involved with building, government today has a responsibility to be bold…and to build more of the homes we need for the 21stcentury. It is utterly absurd that councils are allowed to borrow to speculate in commercial property…but are stopped from borrowing to build affordable council houses.”

The shadow of Grenfell of course looms over the politics of planning and social housing. Secretary of State for Communities and Local Government, Sajid Javid, had earlier in the month announced a “green paper on social housing“:
A wide-ranging, top-to-bottom review of the issues facing the sector, the green paper will be the most substantial report of its kind for a generation.

It will kick off a nationwide conversation on social housing.

What works and what doesn’t work.

What has gone right and what has gone wrong,

Why things have gone wrong and – most importantly – how to fix them.”
Shelter also put out a press release, big on hyperbole, short on analysis, referring to the ‘legal loophole’ of ‘secret viability assessments’, focusing on the reduced levels of affordable housing achieved in Kensington and Chelsea compared to the borough’s 50% policy target and making the explicit link to Grenfell:
New research from Shelter reveals that a legal loophole has been used by housing developers to avoid building 706 social homes in Kensington and Chelsea – more than enough to house families made homeless from the Grenfell tower fire.”

How is the government’s position on the role of viability in planning (set out in paragraph 173 of the National Planning Policy Framework, a non-statutory, hardly obscure, planning policy document, now over five years’ old) a “legal loophole“?
Poor Raynsford review, is planning is too political for whatever emerges from it to gain traction? Its recommendations are due to be presented to next year’s party conferences. I hope that clear distinctions are drawn between changes to be made to the basic legislative hardware of the system (is it resilient, efficient, clear for users?) and to be made to the software (the NPPF, PPG structure – is it kept up to date to reflect the Government’s policy priorities and guiding users’ behaviour appropriately?), the purpose of the changes being to influence the content, scale, quality and pace of the data processing: individual plans and decisions actually coursing through the system, leading most importantly to delivery of political priorities, whatever they may be for the next Government. The review is somewhat hamstrung by not being able to set out those priorities as its starting point. 
So, what of the Government’s position? Regardless of what will be said at the forthcoming Conservative party conference, surely the current Government is not currently in a strong position to make further major changes. However, there is much unfinished legislative business, arising from:
– partly implemented enabling legislation (Housing and Planning Act 2016, Neighbourhood Planning Act 2017)

– uncompleted consultation processes (the Housing White Paper and associated documents, February 2017; Planning For The Right Homes In The Right Places, September 2017)

– other previously floated initiatives (for instance in the Conservative Party’s 2017 general election manifesto)

– other previous initiatives, partly overlapping with the above (a House of Commons library briefing paper dated 12 July 2017 lists 22 pre-June 2017 announcements that have not yet been implemented, or cancelled). 

 I have tried to take stock of where we are in terms of legislative as opposed to policy changes. This is a list of where I believe we are with the main planning law provisions of the 2016 and 2017 Acts (with relevant commencement dates indicated, although check the detail: in many cases a provision in primary legislation may have been switched on but still requires further secondary legislation for it to have any practical effect):

 Housing and Planning Act 2016 

 * Starter homes – providing a statutory framework for the delivery of starter homes – not in force, not really needed since the Housing White Paper u-turn

* Self-build and custom housebuilding – requiring local authorities to meet demand for custom‐built and self‐built homes by granting permissions for suitable sites – from 31 October 2016

* Neighbourhood planning changes – from 12 May 2016

* Permission In Principle/Brownfield Land Registers

    * Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments)(England) Regulations 2017 – 6 March 2017

    * Town and Country Planning (Permission in Principle) Order 2017 – 15 April 2017

    * Town and Country Planning (Register of Previously Developed Land) Regulations 2017 – 16 April 2017

* Extension of Government’s ability to designate poorly performing LPAs such that non-major applications can be made direct to the Planning Inspectorate – from 12 July 2016

* Planning freedoms schemes – from 13 July 2016

* Resolution of disputes about planning obligations – not in force

* NSIPs including a housing element where functional link or close geographical link – from 6 April 2017

* Powers for piloting alternative provision of processing services – from 12 May 2016 (but no pilots yet)

* Urban Development Corporations/designation of new town areas – from 13 July 2016

* Compulsory purchase changes – mostly from 3 February 2017

Neighbourhood Planning Act 2017 
 * Neighbourhood planning changes – (partly) from 19 July 2017, subject of a previous blog post)

* Power to direct preparation of joint local development documents – not yet in force

* Restrictions on pre-commencement planning conditions – from 19 July 2017 (although Regulations not yet made)

* Restriction on PD rights re drinking establishments

    * Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017 from 23 May 2017 (subject of a previous blog post)

* More compulsory purchase changes – partly in force, various commencement dates

 And these are the limited areas where we can expect further legislation:

* CIL reform (probably limited reform in this Parliament)

* Further PD rights? Maybe not. There has been silence in relation to upwards extensions in London and further rural PD rights, although limited light industrial to residential PD rights come into force for three years from 1 October 2017, following amendments to the General Permitted Development Order last year. 

* 20% increase in planning application fees (definitely)

* Completion notices reform (maybe, floated in Housing White Paper, subject of a previous blog post)

* Statutory three month deadlines for Secretary of State decisions (maybe, floated in Housing White Paper)

* Planning appeal fees (maybe, floated in Housing White Paper). 

* Regulations as to the “technical details” procedure for permissions in principle (definitely)

 I had to get my head round all of this in preparing to speak at Conference.*

*The RTPI’s Planning Issues For The Housing Agenda conference on 4 October.

Simon Ricketts, 30.9.17

Personal views, et cetera

Great Expectations: Pip & The Brownfield Land Registers

“We changed again, and yet again, and it was now too late and too far to go back, and I went on“. (Charles Dickens, Great Expectations)
Permissions in principle will change our planning system significantly, mark my words. In my 11.6.16 blog post  I posed a series of questions arising from the legislative skeleton that is sections 150 and 151 of the Housing and Planning Act 2016. 
Victorian part-work style, we now have had the Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017  (made 6 March 2017, in force 27 March 2017), the Town and Country Planning (Brownfield Land Register) Regulations 2017  (made 20 March 2017, in force 16 April 2017) and the Town and Country Planning (Permission in Principle) Order 2017 (made 20 March 2017, 15 April 2017). The statutory instruments don’t yet give effect to all of what sections 150 and 151 enable, but we now have some answers. 
This blog post is not a full summary of how the regime will operate. There are various good summaries but I particularly recommend the Lichfields 27 March 2017 ‘essential guide‘.
A few headlines from the new regime:
1. Local planning authorities will be under a statutory duty to publish their brownfield land registers by 31 December 2017 and then maintain them, reviewing the entries at least annually. 
2. The registers will be in two parts:
– Part 1: previously developed land with an area of at least 0.25 hectares that is suitable and available for residential development and where residential development is achievable (all defined terms)
– Part 2: land in Part 1 where the local planning authority has exercised its discretion to enter the land in Part 2 and has decided to allocate the land for residential development having followed defined publicity, notification and consultation procedures. 

3. The information that must be recorded for each entry is specified and includes

– “the minimum and maximum net number of dwellings, given as a range, which in the authority’s opinion, the land is capable of supporting”

– “where the development includes non-housing development, the scale of any such development and the use to which it is to be put“. 

4. Part 2 will not include sites where the development would require environmental impact assessment. So, if the proposed development falls within Schedule 2 column 1 of the 2011 EIA regulations (for most purposes, more than 150 dwellings or on more than 5 hectares), a negative screening opinion or direction must first be obtained (but remember, indicative screening thresholds as to when significant environmental effects are likely to arise allow for the possibility of projects much larger than 150 dwellings). 

5. There are no statutory rights of appeal if the local planning authority refuses to include land on the register (ECHR article 6 compliant?). Judicial review would, as always with any decision of a public body, be available but the decision to include land on Part 2 is at the local planning authority’s discretion so that would not be easy.  

6. Once land is on Part 2 it has automatic “permission in principle” for five years. In order to be able to carry out the development, application for technical details consent is required, particularising “all matters necessary to enable planning permission to be granted”. The statutory determination period for technical details consent is ten weeks for major development and otherwise five weeks, so deliberately shorter than the equivalent periods in relation to “traditional” non-EIA planning applications (thirteen and eight weeks respectively). A section 106 agreement may be required if the usual tests are met. 

7. There is no defined limit on the extent of non-housing development that can benefit from the procedure, alongside residential development. 

8. The procedure applies to conversion and extension of existing buildings as well as development. 

For a wider overview of where this mechanism is heading, there are also useful references in DCLG Planning Update Newsletter March 2017, from which it is clear that further regulations will follow to (1) allow applications for permission in principle to be made for minor development (ie basically less than ten homes) for sites on part 1 of a brownfield land register and to (2) allow automatic permission in principle to stem from allocation in defined categories of statutory development plans rather than just from designation on a brownfield land register. Guidance is also in the offing (dovetailed with the revised NPPF? We can but hope). 
We also await the Government’s response to its February 2016 technical consultation on implementation of planning changes  chapter 2 (permission in principle) and chapter 3 (brownfield register). It was originally promised to be published alongside the regulations. In the meantime, a number of passages in the consultation document are useful in putting flesh on the bones:

“The result of a grant of permission in principle is that the acceptability of the ‘prescribed particulars’ cannot be re-opened when an application for technical details consent is considered by the local planning authority. Local planning authorities will not have the opportunity to impose any conditions when they grant permission in principle. It will therefore be important for the development granted in principle to be described in sufficient detail, to ensure that the parameters within which subsequent application for technical details consent must come forward is absolutely clear.”

“We expect that the parameters of the technical details that need to be agreed, such as essential infrastructure provision, will have been described at the permission in principle stage and will vary from site to site”

“We are proposing that local planning authorities should use existing evidence within an up to date Strategic Housing Land Availability Assessment as the starting point for identifying suitable sites for local brownfield registers. To support this, we will encourage authorities to consider whether their Assessments are up to date and, if not, to undertake prompt reviews. 


While sites contained within the Strategic Housing Land Availability Assessment are a useful starting point, we will encourage local authorities to ensure they have considered any other relevant sources if these are not included in their Assessments. This could include sites with extant planning permission and sites known to the authority that have not previously been considered (for example public sector land). 


We will also expect authorities to use the existing call for sites process to ask members of the public and other interested parties to volunteer potentially suitable sites for inclusion in their registers. We propose that this would be a short targeted exercise aimed at as wide an audience as is practicable. That will enable windfall sites to be put forward by developers and others for consideration by the authority. 

Authorities that have recently undertaken a full Strategic Housing Land Availability Assessment may not consider this to be necessary when initially compiling a register. However, in areas without up to date evidence and for all authorities completing subsequent annual reviews of their register, the process of volunteering potentially suitable sites will play an important role in refreshing the evidence base and help ensure all suitable sites, including windfall sites, are included.”

“We intend to introduce measures that will apply where additional action is needed to ensure that sufficient progress is being made. These measures could include a policy based incentive which would mean that local planning authorities that had failed to make sufficient progress against the brownfield objective would be unable to claim the existence of an up-to-date five year housing land supply when considering applications for brownfield development, and therefore the presumption in favour of sustainable development would apply.

“We propose that the measures we adopt would take effect fully from 2020, and would apply to any local planning authority that had not met the 90% commitment by that date. However, in light of the need for local planning authorities to make continuous progress towards the 90% commitment, we are also interested in views on any intermediate objectives and actions that might apply. “

Be in no doubt, eventually we will have a mechanism that:

– imposes hard statutory deadlines on authorities to publish and regularly update their registers
– whilst light on statutory recourses for developers whose land is not included, will be focused on by Government – woe betide authorities that do not play ball

– will in many cases provide a quicker route to development than the familiar allocation, outline permission, reserved matters approach

– will be potentially relevant for establishing the development credentials of a site even if in due course a traditional planning application is intended

If you have residential development or conversion in mind, the first step is to seek to ensure that your property is on Part 1 of the first round of brownfield land registers, to be published by 31 December 2017. Within the 73 authority pilot areas  this process is well underway. Although care is needed to secure reference to an appropriate scale of development, that’s a pretty immediate way to secure acceptance that your site is suitable for residential development!

Simon Ricketts 1.4.17
Personal views, et cetera

Definitely Maybe: Defining Affordable Housing

Affordable housing is defined in the NPPF as follows:
The Government carried out a consultation  in December 2015, proposing that the definition be expanded so as to include

– low cost ownership models, which “would include products that are analogous to low cost market housing or intermediate rent, such as discount market sales or innovative rent to buy housing”
– starter homes (of which more later). 

Two further changes were proposed in the February 2017 response to consultation:  
* introduction of a household income eligibility cap of £80,000 (£90,000 for London) on starter homes. 

* introduction of affordable private rented housing

The Government is accordingly consulting until 2 May 2017 on the following replacement definition for the NPPF (long isn’t it?):


Starter homes

There were howls of anguish at the starter homes initiative as first unveiled by the Government, the key elements of which were (as set out in chapter 1 of the Housing and Planning Act 2016 and March 2016 technical consultation):
– a legal requirement that 20% of new homes in developments should be starter homes, ie
– to be sold at a discount of at least 20% to open market value to first time buyers aged under 40. 

– Price cap of £250,000 (£450,000 in London)

– The restriction should last for a defined number of years, the first suggestion being five years, replaced with the concept of a tapered restriction to potentially eight years

– Commuted sums in lieu of on site provision for specified categories of development, eg build to rent

The obvious consequence would have been a significant reduction in the potential for schemes to include a meaningful proportion of traditional forms of affordable housing. 
After all of last year’s battles over the Bill, it is now plain from the Government’s response to the technical consultation, that the starter home concept is now much watered down:
– There will be no statutory requirement on local planning authorities to secure starter homes, just a policy requirement in the NPPF, which is to be amended accordingly. 

– Rather than requiring that 20% of new homes be starter homes, the requirement will be that 10% of new homes will be “affordable housing home ownership products” so could include shared equity or indeed low cost home ownership. 

– maximum eligible household income of £80,000 a year or less (or £90,000 a year or less in Greater London 

– 15 year restriction

– No cash buyers, evidence of mortgage of at least 25% loan to value

– It will only be applicable to schemes of ten units or more (or on sites of more than 0.5h). 

There will be a transitional period of 18 months (to August 2018) rather than the initially intended 6 to 12 months. 
Whilst we now have a more workable arrangement, plainly all that Parliamentary work was a complete waste of time. There was no need for chapter 1 of the 2016 Act – the current proposals can be delivered without any need for legislation. 
We will need to see the degree to which LPAs embrace the starter homes concept in reviewing their local plans. We will also need to be wary that we may lose the only benefit of a national standardised approach, ie the hope that there might be a standard set of section 106 clauses defining the operation of the mechanism (which will not be straightforward – see my 21.6.16 blog post Valuing Starter Homes). 
Affordable Private Rent
One of the documents accompanying the Housing White Paper was a consultation paper: Planning and affordable housing for build to rent.
The term Affordable Private Rent is now used for what we have all previously been calling Discounted Market Rent. Changes to the NPPF are proposed (subject to consultation) advising LPAs to consider asking for Affordable Private Rent in place of other forms of affordable housing in Build to Rent schemes, comprising a minimum of 20% of the homes in the development, at a minimum of 20% discount to local market rent (excluding use of comparables within the scheme itself), provided in perpetuity. The Affordable Private Rent housing would be tenure blind and representative of the development in terms of numbers of bedrooms. Eligible income bands are to be negotiated between developer and LPA. Developers will be able to offer alternative approaches where appropriate (eg greater discount, fewer discounted homes – or different tenures). “Build to Rent” will be defined and it is acknowledged that developers should be able to cease to operate the property as Build To Rent subject to payment of a commuted sum reflecting the affordable housing requirement that would otherwise have been applicable. 
There is also recognition in the consultation paper that factors in London may be different, allowing for an amended response and recognition of Mayor of London’s November 2016 affordable housing and viability draft SPG.
There will be a transitional period of 6 months from the time that the NPPF changes are made. The possibility is held out of model section 106 clauses, which would help minimise unnecessary delays. 

The recognition that Build to Rent is a model that doesn’t sit well with ‘ownership’ forms of affordable housing is what that industry (largely self-defining through scale of scheme and extent of professional management) has been lobbying for. Nor is there any more any reference to off-site starter home provision.
Wider implications
The extensions to the meaning of ‘affordable housing’ are all in the direction of private sector provision. The definition is now very wide indeed. Battles lie ahead once LPAs consider the implications of the changes for their local plan affordable housing requirements against a backdrop of, for example:
– reduced levels of socially rented housing over the last six years or so following the introduction of affordable rent (minimum discount of at least 20% to market rent), vividly demonstrated in the Government’s affordable housing statistics published on 2 March 2017:

– restrictions on housing benefit, for instance ineligibility of 18-21 year olds from 1 April 2017 under the Universal Credit (Housing Costs Element for claimants aged 18 to 21) (Amendment) Regulations 2017  made on 2 March 2017. 
– the continuing, onerous, requirement on registered providers since 2015 to reduce rents by 1% a year for four years resulting in a 12% reduction in average rents by 2020-21. 
– Loss of stock via the Housing and Planning Act 2016’s voluntary right to buy scheme in relation to registered providers and the Act’s provisions requiring local authorities to sell vacant higher value housing (the Government’s most recent statistics on sales date from October 2016 but already show significant numbers). 
A debate took place in the House of Lords this week, on 2 March 2017, on the Economic Affairs Committee’s July 2016 report, Building More Homes  in the context of the Housing White Paper. Lord Young closed for the Government saying many of the right things but, after such a background of continuing changes (I believe it was Adam Challis at JLL who recently counted 180 housing initiatives since 2010), with further uncertainty for at least 18 months, surely we now just need to get on with the matter in hand – ensuring that there are enough homes to meet all social needs, whilst not killing the golden goose without which this will simply not happen under any foreseeable system, ie profitable development by the private sector.
Simon Ricketts 4.3.17
Personal views, et cetera

From The White Paper Mountain, What Do We See?

After so long we have reached the top of the mountain: the white paper and accompanying documents have all been published today, 7 February 2017. However, now we see a series of further peaks on the horizon. 
A good way into the white paper itself, Fixing Our Broken Housing Market, is to start at the back end. From page 72 you have the detailed proposals listed, including a series of proposed changes to the NPPF and other policies which are now the subject of a consultation process from today until 2 May 2017. The consultation focuses on a series of 38 questions but some of the questions are potentially very wide-ranging. Further consultation is proposed on various matters, including 
– housing requirements of older people and the disabled

– Increasing local authorities’ flexibility to dispose of land at less than best consideration and related powers

– Potentially increasing fees for planning appeals (up to a maximum of £2,000 for the largest schemes, recoverable if the appeal is allowed)

– Changes to section 106 processes (with further consideration being given to dispute resolution “in the context of longer term reform”)

– Requiring housebuilders to provide aggregate information on build-out rates and, for large-scale sites, as to the relevance of the applicant’s track record of delivering similar schemes

– Encouragement of use of CPO powers to support the build out of stalled sites. 

There is a supplementary consultation paper on planning and affordable housing for build to rent  containing a further 26 questions, with a consultation deadline of 1 May 2017.
There are responses to previous consultation papers and reports:
– Summary of responses to the technical consultation on implementation of planning changes, consultation on upward extensions and Rural Planning Review Call for Evidence  (including a u-turn on the previous idea of an upwards extensions permitted development right in London, now to be addressed by policy). 
– Government response to the Communities and Local Government Select Committee inquiry into the report of the Local Plans Expert Group 
There is plenty to get to grips with, for example:
– the housing delivery test and new methodology for assessing objectively assessed need

– an understandable focus on whether the applicant will proceed to build out any permission and at what rate, although with a worrying reduction of the default time limit for permissions from three to two years

– Homes and Communities Agency to become “Homes England”. 

It is also reassuring to see the Government applying real focus to build to rent, reducing its emphasis on starter homes – and also reducing its reliance on permitted development rights. 

However, it is surprising how much still remains unresolved. We will apparently have a revised NPPF “later this year” but for much else the start date looks to be April 2018, for example a widened affordable housing definition including watered-down starter homes proposals (no longer a statutory requirement and with reference to a policy target of a minimum of 10% “affordable housing ownership units” rather than the requirement of 20% starter homes previously proposed) and a new methodology for assessing five year housing land supply. 

Liz Peace’s CIL review team’s review of CIL: “A new approach to developer contributions”  (October 2016 but only now published) remains untackled. The Government’s response will be announced at the time of the Autumn Budget 2017. 

Decision-makers will need to grapple very quickly with the question as to the weight they should give to the white paper as a material consideration, given the Government’s clear policy direction now on a range of issues. 


Simon Ricketts, 7.2.17
Personal views, et cetera