Housing – SIMONICITY

Drop The Pilot: Community Land Auctions

Hey let’s get Joan Armatrading on the Walkman. We’re going back – way back…

The Levelling-up and Regeneration Bill had its first reading in the House of Commons over a year ago on 11 May 2022. It’s not just intervening political chaos which has caused this slow-moving caravan of disparate policy notions to lurch from side to side with occasional abrupt halts Along the way additional bright notions have been loaded onto it, impeding progress still further.

One of those notions is the old chestnut of community land auctions. Clauses 127 to 137 were added to the Bill in November 2022 without prior consultation, once Michael Gove became Secretary of State, so as to allow community land auctions to be piloted for ten years.

Many of you will remember economist Tim Leunig promoting the idea back in the early days of the Coalition Government. See for instance Tim Leunig’s blog post Housing is expensive in Britain. This is because we have built too few houses for the number of new households – land auctions will help give us the homes we need (LSE, 23 March 2011). In fact some of you may even have been at an event I hosted back then where we had a discussion around a swanky breakfast table at the firm I was then at, with property and planning people quizzing him as to how it would actually work. Leunig is now Gove’s senior policy advisor at DLUHC.

CLAs are of course catnip to many political types and economists, for instance supported by Policy Exchange (see eg Alex Morton’s 2013 paper A Right To Build) and the YIMBY Alliance, as part of the wider thinking on land value capture (see eg my 20 May 2017 blog post Money For Nothing? CPO Compensation Reform, Land Value Capture). My conclusion remains that the introduction of community land auctions would inevitably be harmful to the principled operation of the planning system – it’s just too darned complicated – and to the delivery of development in the right places – for instance it introduces a huge conflict of interest for the local planning authority as between whether to plan for the best places or the best returns. In my view primary legislation to allow for a pilot is premature. If there are excess unearned gains for the state (in addition to what is already extracted via the planning system), why not just openly tax them rather than embark on this three cup trick?

The current concept is set out in pages 125 to 133 of the Explanatory Notes to the Bill.

Clause 127 (3) of the Bill:

“A “community land auction arrangement” means an arrangement provided for in CLA regulations under which—

(a) a local planning authority is to invite anyone who has a freehold or leasehold interest in land in the authority’s area to offer to grant a CLA option over the land, with a view to the land being allocated for development in the next local plan for the authority’s area,

(b) any CLA option granted under the arrangement ceases to have effect if the land subject to the option is not so allocated when that plan is adopted or approved (unless the option has already been exercised or been withdrawn or otherwise ceased to have effect), and

(c) the local planning authority may—

(i) exercise the CLA option and dispose of the interest in the land to a person who proposes to develop the land,

(ii) exercise the CLA option with a view to developing the land itself, or

(iii) dispose of the CLA option to a person who proposes to exercise it and then develop the land.”

Clause 128: “Power to permit community land auction arrangements

(1) This section applies where—

(a) the Secretary of State directs that a local planning authority which is to prepare a local plan may put in place a community land auction arrangement in relation to that plan,

(b) the local planning authority resolves to do so (and that resolution has not been rescinded), and

(c) the community land auction arrangement has not come to an end.

(2) The local plan may only allocate land in the authority’s area for development—

(a) if the land is subject to a CLA option or a CLA option has already been exercised in relation to it, or

(b) in circumstances which are prescribed by CLA regulations.

(3) Any financial benefit that the local planning authority has derived, or will or could derive, from a CLA option may be taken into account—

(a) in deciding whether to allocate land which is subject to the option, or in relation to which the option has been exercised, for development in the local plan;

(b) in deciding whether the local plan is sound in an examination under Part 2 of PCPA 2004.

(4) CLA regulations may make provision about how, or to what extent, any financial benefit may be taken into account under subsection (3) (including provision about how any financial benefit is to be weighed against any other considerations which may be relevant to whether the land should be allocated for development in the local plan or to whether the plan is sound).”

Receipts are to be used to support development in an area by funding infrastructure and paying for the administration of the community land auctions process.

The provisions were debated in House of Lords Committee on 18 May 2023 (the relevant part of the debate starts from amendment 364B) and it might put some flesh on the bones to see how a Government minister, Earl Howe, explains how it is all intended to work:

“Community land auctions are an innovative process of identifying land for allocation for development in a local planning authority’s area in a way that seeks to optimise land value capture. Their aim is to introduce transparency and certainty by allowing local planning authorities to know the exact price at which a landowner is willing to sell their land. The crux of our approach is to encourage landowners to compete against each other to secure allocation of their land for development in the local plan by granting a legally binding option over their land to the local planning authority.

The competitive nature of community land auction arrangements incentivises landowners to reveal the true price at which they would willingly part with their land. If the land is allocated in the local plan upon its adoption, the local planning authority can sell the CLA option, keeping the amount that the successful bidder has paid and capturing the value that has accrued to the land as a result of the allocation. The successful bidder must then pay the price set out by the original landowner in the option agreement to purchase the land. The detailed design of community land auction arrangements will be set out in regulations that will be subject to the affirmative procedure.”

“…sustainable development remains at the heart of our approach. Piloting authorities will decide which land to allocate in their emerging local plans by considering a range of factors, which the Government will set out in guidance. Unlike conventional local plans, when allocating sites, local planning authorities will be able to consider the financial benefits that they are likely to accrue from each site. How, and the extent to which, financial benefits may be taken into account will be determined in regulations. Importantly, the existing requirement to prepare local plans, with the objective of contributing to the achievement of sustainable development under Section 39 of the Planning and Compulsory Purchase Act 2004, will remain.

We are not altering the existing local plan consultation and examination process. Piloting authorities will still be required to consult on the proposed land allocations in their draft local plans, before they are submitted and independently examined in public in accordance with the local plan preparation procedures, as modified by Schedule 7 to the Bill.

… the Secretary of State is required to lay a report before each House of Parliament on the effectiveness of the pilot within the timeframe set out in Clause 134(2). There is a requirement to publish this report, which means that it will be publicly accessible and available to any combined authority that was involved in the pilot.

The noble Baroness, Lady Taylor, asked about whether there had been prior consultations. We will consult on community land auctions shortly, and taking part in the pilot will be voluntary for local authorities. We need the powers in the Bill to enable the pilot to happen.

I appreciate the thought behind my noble friend’s Amendment 366. However, as community land auctions are a new and innovative process for identifying land for allocation for development, our view is that it is right that the Bill makes provision for them to be piloted on a strictly time-limited basis.

If community land auction arrangements are deemed successful, and if there is ambition to extend the approach, further primary legislation would be required to implement them on a permanent basis. As we do not have the evidence about their effectiveness yet, we think it right that the Bill does not include provisions that could make CLAs a permanent fixture. Instead, the Government will take a decision at the relevant point in the future, based on the evidence.”

“The simplest way I can describe this is that community land auctions will be a process of price discovery. In the current system, local planning authorities have to make assumptions about the premium required by a reasonable landowner to release their land for development. For Section 106 agreements, this manifests itself through viability negotiations between the local planning authority and a developer. As these can be negotiated, there is a higher risk that, in effect, higher land prices lead to reduced developer contributions, rather than contributions being fully priced by developers into the amount that they pay for land.

For the community infrastructure levy and the proposed infrastructure levy, a levy rate is set for all development within certain parameters. When setting rates, the local planning authority has to calculate how much value uplift will occur on average, and has to make assumptions about landowner premiums and set a levy rate on that basis. The actual premium required by individual landowners will not be available to local planning authorities and will vary depending on individual circumstances. If the local planning authority makes an inaccurate assumption about landowner premiums, they may either make a lot of sites unviable by setting too high a levy rate, or else they will collect much less than they might have done otherwise by setting too low a levy rate.

Under the CLA process, landowners bid to have their land selected for allocation in an emerging local plan, as I have described, by stating the price at which they would willingly sell their land to the LPA for development. The offer from the landowner, once an option agreement is in place with the LPA, becomes legally binding. The LPA can either exercise it themselves, thereby purchasing the land, or auction it to developers. The competitive nature of CLAs incentivises landowners to reveal the true price at which they would willingly part with their land. If they choose to offer a higher price, they risk another piece of land being allocated for development, in which case they will not secure any value uplift at all.”

But if you’re regularly involved in local plan making and/or the promotion of land for development, obvious points arise, none of which are addressed in the above – or anywhere as far as I can see:

the nature, terms and timing of these “options”. They would need to be investment-grade binding commitments on the owner (or owners – many potential allocations are a patchwork of interests knotted together by land promoters) and the owner’s successors in title, with all those with relevant interests (eg mortgagees, tenants) having consented, legally binding for a very long period of time, until drawdown which would be way past local plan adoption, with no get out if any owner changes its plans.
The above means heavy-duty conveyancing input on the part of the owner but also on the part of the local authority, all within the necessary local plan preparation window. Given the number of sites proposed in any local authority’s “call for sites” this is a truly massive amount of work to be resourced by the authority, even with terms as standardised as possible.
The proposed option price by the land owner is going to be influenced by whether best values are to be achieved (1) blind via this route, (2) by in some way bringing forward a scheme outside the process (if this is ruled out the system is utter nationalisation and state control of development – if that’s what you voted for, fine, but I suspect it’s not) or (3), as has happened with other forms of development land tax, by just waiting it out for a less restrictive regime.
Say two pieces of land are put forward as alternative locations for the expansion of a town, one less sustainable than the other (eg it may be greenfield rather than brownfield, remote from public transport connections). The owner of the less sustainable site may offer to make its land available for a lower price. To what extent can or should the authority take into account the additional monies to be extracted from on-sale of the less sustainable site in deciding which to allocate? My early years as a planning lawyer were in the out of town supermarket wars, where the common situation was the local authority seeking to promote a supermarket on its own, worse, site in opposition to better proposals by others, for obvious reasons that at the time of course had to remain unspoken because having regard to the authority’s potential financial returns was obviously verboten. Just think how this would play out under what is proposed – and with much of the decision making inevitably taking place behind closed doors due to inevitable commercial confidentiality.
How is commercial and mixed used development to be approached and dealt with in valuation terms? Is this how we are going to allocate land for major logistics or industry? It’s a cookie cutter approach as presented: housing, housing, housing.
The local authority is envisaged to be the ring master and banker of the whole processes. Whilst this may be welcome in some ways, capacity building would be required on a huge scale.
In any event, the current system already minimises land values, and will increasingly do that if relatively recent changes to the viability process are allowed to bed down. Every time development comes forward with less affordable housing than required by policy, that is because the authority, or inspector on appeal, has been satisfied, on the basis of valuation advice, that no more affordable housing could be extracted and the scheme still proceed, based on an appraisal that doesn’t feed in the price the developer may actually have paid for the land but, usually, just existing use value with a premium set at the minimum that the valuers agree would have been necessary to persuade the owner to sell. I would like to see an explanation of why the option price offered by a land owner would be likely to be lower than EUV+.
Oh and there’s nothing “community” about it.

That’s just the outcome 15 minutes’ thought at the kitchen table on a Saturday morning with Joan Armatrading on in the background.

Some people seem to think that the planning system can be used as a sandbox for trying out these over-complicated, theoretical constructs. I set out my brief thoughts on the infrastructure levy last week and see also the “no hope value” thinking. We’re barking up the wrong tree folks. Drop the pilot. We don’t have the time. Get the existing system to work, now, with more resources and less complexity, better guidance and – perish the thought – some political consistency. Use the local plans system for planning and the tax system for taxation rather than creating something which sounds more like a complicated board game. In my humble opinion.

Simon Ricketts, 19 May 2023

Personal views, et cetera

The phrase to “drop the pilot” means to abandon a trustworthy adviser. This 1890 Punch cartoon depicts the dismissal of Otto von Bismarck from the Chancellorship of the German Empire by Wilhelm II.

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.”

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

Tall Buildings & Fire Safety

It’s hard to plan when policies are continually in a state of flux, when there is uncertainty as to where the controls lie – via the planning system or via separate legislation – and when there is the possibility of inconsistency as between the differing regimes.

Take fire safety in relation to buildings for instance. The Government is proposing to tighten the Building Regulations – it published a consultation document on 23 December 2022 proposing various amendments to Approved Document B, which include recommending the inclusion of sprinklers in all new care homes, regardless of building height, as well as introducing a threshold whereby residential buildings above 30 metres in height should be designed and built with two staircases. A “very short” transition period is proposed:

“59. The transition period will allow time for schemes to be completed but should not allow the opportunity for developments to get off the ground ahead of the new requirements coming into effect.

60. We would encourage all developments to prepare for this change now.”

The consultation runs until 17 March 2023.

Why is 30 metres proposed as the threshold?

“56. 30 metres is an accepted threshold for increased safety measures such as increased fire resistance provisions and marks a recognised trigger representing an increase in the level of risks in buildings overall. We therefore propose to introduce a new trigger in Approved Document B making provisions such that new residential buildings more than 30 metres are provided with a second staircase.

57. There is no standard international approach to the provision of staircases within residential buildings of height. The approaches taken by other countries, varies greatly depending on other fire mitigation measures such as travel distances, provision of sprinklers, compartmentation, cavity barriers etc. Where other countries set a maximum height for the provision of single stairs, this ranges from 18m to 75m in height.”

This is all clear – or will be once the amended Approved Document B is published.

However, with operation of the planning system, and the inherent discretion given to decision makers within it, comes additional uncertainty.

My 3 July 2021 blog post Safety & Planning covered the requirements introduced by the Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021, which introduced a requirement for a fire statement to be submitted with applications for planning permission for development involving a building (1) contains two or more dwellings or educational accommodation and (2) contains 7 or more storeys or is 18 metres or more in height and which required consultation with the Health and Safety Executive before the grant of planning permission involving a high-rise residential building in certain circumstances.

In practice, HSE’s responses to local planning authorities provide its substantive response, setting out any specific significant areas of concern arising from the proposal, as well as “supplementary information for the applicant” which is more advisory in nature.

Whilst it is of course open to a decision maker to take into account the advice of a statutory consultee but to determine, with appropriate reasoning, why it is appropriate not to follow the advice, in matters of human safety it would be a brave officer, committee of councillors or inspector who were to take that approach. What the HSE has to say is therefore extremely important. But it is also important to ensure that its requirements do not go beyond what is reasonably required.

Just because the HSE is satisfied gives no certainty that there will be no fire brigade objection. Whilst not statutory consultees, the relevant local fire brigade, for instance, in London, the London Fire Brigade, may also choose to make representations in relation to a proposal and the same considerations apply. Whilst they are a statutory consultee under the Building Regulations, by the time that a proposed development has planning permission it may of course be too late to build into the design the additional measures that are required so one can well understand why it is sensible for concerns to be expressed at this stage, although again, plainly, they should not go beyond what is reasonably required.

Neither the NPPF nor national planning practice guidance sets out the criteria to be applied. Although this has no Government policy endorsement, the National Fire Chiefs Council’s position is that the maximum height for buildings with a single staircase should be 18 metres, rather than 30 metres. Its Single Staircases Policy Position Statement (15 December 2022) says this:

“NFCC believe, that 18 metres or has at least 7 storeys must become the threshold at which more than one staircase should be required in new residential buildings, and that this threshold should be kept under review alongside other situations addressing these issues, including evacuation management and lifts.”

“Multiple protected staircases create more resilience to support evacuation and firefighting operations. The need for unambiguous guidance is particularly important given the clear problem with culture and competency identified across the design and construction industry since the Grenfell Tower fire tragedy.

An 18 metre or has at least 7 storeys threshold would provide continuity of message and clarity across Government, aligning with definitions in the Building Safety Act as well as thresholds for certain provisions in the Fire Safety (England) Regulations and the Government’s ban on the use of combustible materials. This would also help to synchronise standards across the United Kingdom by aligning to rules in Scotland. While arguments exist for a range of thresholds, both higher and lower, 18 metres or has at least 7 storeys would bring the greatest harmonisation with the wider regulatory environment in the United Kingdom, and the greatest simplicity and certainty for industry at this time.”

So is it to be 30 metres, as consulted upon by the Government, for the purposes of the operation in due course of the Building Regulations – or 18 metres, as advocated by the National Fire Chiefs Council?

Policy D12B of the Mayor of London’s London Plan 2021 goes further than the statutory requirement for a fire statement and requires a separate, more detailed, fire statement to be submitted with any application for planning permission for “major development proposals”. It must be prepared by someone who is “third-party independent and suitably-qualified” – “a qualified engineer with relevant experience in fire safety, such as a chartered engineer registered with the Engineering Council by the Institution of Fire Engineers, or suitably qualified and competent professional with the demonstrable experience to address the complexity of the design being proposed.” The statement must set out how the proposed development will function in terms of:

• The building’s construction method and products and materials used

• Means of escape for all building users and evacuation strategy

• Passive and active fire safety measures

• Access and facilities for the fire and rescue service

• Site access for the fire and rescue service

• Future development of the asset and the ‘Golden Thread’ of information

So two separate fire statements. Appeals have been dismissed where this has not been done (see eg here).

The Mayor’s draft London Plan Guidance on fire safety does not (yet at least) specify in guidance the height of buildings a second staircase is required, but, following the NFCC’s statement, I understand that the Mayor’s office has taken the position last week that, until it has had further discussions with the Government on the issue, it will not take schemes to the Mayor for stage 2 sign off where the proposals are for 18m+ high residential buildings with single staircase access.

Isn’t this area a classic illustration of how, even for the best of reasons (people’s lives), looking to the planning system to address matters which are the proper domain of other legislation is so often a recipe for delay and confusion, particularly where there is no specific national guidance on the issue? Don’t we need:

Clear, robust standards
Clarity as to which regime will set out and police compliance with those standards
Clear signposting of any proposed changes to standards, with appropriate transitional arrangements?

….

In other news:

I hope plenty of people read my Town partner Clare Fielding’s blog post Still IL – if I draw a Venn diagram with a circle around those of you who are interested in the proposed Infrastructure Levy and a circle around those of you who are aficionados of the Smiths and if you are in the intersection between the circles, this is a must-read.

Thanks if you tuned into our clubhouse discussion last week on DLUHC’s 22 December announcements, where we went through the various proposed changes to the NPPF. Over 500 of you have listened so far. The link is here. However I think the best summary of the proposals that I have read so far is by Sam Stafford. His 50 Shades of Planning blog post, National Planning Policy Fudge (4 January 2023), is well worth a read (and I’ve got to be nice to him as he is tidying up the clubhouse recording for subsequent release in his podcast series).

Simon Ricketts, 7 January 2023

Personal views, et cetera

Courtesy Mario La Pergola via Unsplash

It’s Been A Good Year For The ROSEs (& Bloggers Etc)

A tumultuous year ends. Authority after authority in the south east, or the Rest of the South East, as we used to call it before regional planning so as to exclude London, is pausing or going slow with its local plan, given the signals from Government that authorities will soon find it easier to decide not to plan to meet their local housing needs. (It’s not just in the south east I know but I desperately needed to make the Elvis Costello pun work).

In terms of policy, nothing yet has changed at all. But the excuses are already being found.

Planning Resource for instance reported on 19 December 2022 that:

Horsham District Council has delayed its cabinet meeting to consider its proposed Regulation 19 consultation draft plan from 15 December 2022.
Mole Valley District Council has paused preparation of its new local plan/
The Vale of White Horse and South Oxfordshire District Councils have announced an 11 month delay to the preparation of their emerging joint local plan

And this was before Michael Gove’s 22 December 2022 announcements as to proposed reforms to national planning policy that I blogged about that day (and which we will be discussing on clubhouse at 4 pm, 4 January – tune in to blow those cobwebs away! Join via this link – do RSVP in the link and get it in your diaries).

Someone please post some stats, I can’t immediately find them in my post-Christmas haze, but these delays have of course been building up over the year. Back on 2 September 2022 Planning Resource was reporting on the 19 authorities that have withdrawn or delayed local plans in the past year . Before that on 26 April 2022 Lichfields were reporting on 11 authorities that had either stalled, delayed or withdrawn their local plans. Go back even further to my 12 February 2022 blog post, Local Plan Breaking.

No doubt we will see over the course of 2023 how all this plays out in the light of the two successive waves of changes to the NPPF that we have now been told to expect.

It’s also been a good year for the bloggers and podcasters. Shout outs to Zack the Planorak, Nicola the Gooch, Sam 50 Shades Stafford, Raj Compulsory Reading Gupta and to my colleagues responsible for the Planning Law (With Chickens) podcasts (Victoria McKeegan, Nikita Sellers and Meeta Kaur). You all keep me on my toes and occasionally wondering what I have to add. But in any event thank you everyone for continuing to read and engage – sitting down every week for an hour or two to do these notes to self remains the only way I can hope to keep track for myself of what is happening and for people to find this occasionally useful or entertaining is always an unexpected bonus..

These were my most-read posts of 2022:

New NE Nutrient Neutrality & Recreational Impact Restrictions (+ DEFRA Nature Recovery Green Paper) (18 March 2022)
Running Down That Hillside (2 November 2022)
EZ Does It: Charter Cities, Freeports, Development Corporations (30 July 2022)
Local Plan Breaking (12 February 2022)
It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft (22 December 2022)

Looking back, these were the posts that pretty much wrote themselves in reaction to what was happening all around us: the neutralities issues, the implications of the Supreme Court’s ruling in Hillside, the bizarre happenings within that brief Truss premiership, the local plan making crisis and of course the Government’s planning reform agenda. In fact, at the foot of this post there is a table of month by month views of the blog since it started in June 2016. Views have been dependent not on any writing quality but on subject matter (oh, and the lockdowns certainly helped).

I’m sure there will be plenty of planning law to write about next year, all of it as yet unplanned.

Healthy new year all. And in the wise words of Elvis Costello: Get Happy.

Simon Ricketts. 31 December 2022

Personal views, et cetera

It Will Soon Be Christmas & We Really Don’t Have To Rush To Conclusions On This New NPPF Consultation Draft

Plenty of easy Christmas present jokes to be had but I’ll avoid them – the Government’s consultation document on proposed reforms to national planning policy and indicative mark-up of the NPPF have arrived (22 December 2022).

There is much to take on board. By way of indication, the consultation document lists 58 questions. It’s 32 pages or so long.

But don’t panic!

Consultation doesn’t close until 3 March 2023. There is plenty of time for thinking to percolate and indeed to assist with that we have the special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers. Join the event via this link – do RSVP in the link and get it in your diaries.

I am relieved that for once what we have been presented with is comprehensive and well explained. This is no longer a “prospectus” as to what the nature of the proposed changes but includes the actual proposed wording of the revised NPPF itself (this revision at least – another revision is already promised). The changes are by and large not a surprise, having been heavily trailed since Michael Gove resumed office. I urge you to scroll through the indicative mark-up of the NPPF – the changes are easy to spot, for instance:

watering down of the paragraph 11 (d) tilted balance and of the requirements on local planning authorities to maintain an adequate housing supply and meet housing delivery targets
watering down of the local plan “soundness” test
references to the standard method as only an “advisory starting point“
express references to the needs for retirement housing, housing with care and care homes
References to “beauty” and a weirdly specific passage extolling the virtues of mansard roofs
“Green Belt boundaries are not required to be reviewed and altered if this would be the only means of meeting the objectively assessed need for housing over the plan period“
Changes in relation to climate change and renewable energy
“The availability of agricultural land used for food production should be considered, alongside the other policies in this Framework, when deciding what sites are most appropriate for development“.
Important transitional arrangements in paragraph 225 and 226

But what is being consulted upon does not stop at the proposed changes to the NPPF but also covers various other longer term aspects of the reform agenda.

If one thing shines through the consultation document it is that re-construction of the system is going to be underway for some years. An indicative timeline:

Consultation closes: 3 March 2023

Government response to consultation and publication of revised NPPF: Spring 2023

Changes to take effect that are being consulted upon in the current document as to:

Increasing the emphasis on provision of social rented housing

More older people’s housing

More small sites for small builders

Greater emphasis on the role that community-led development can have in supporting the provision of more locally-led affordable homes

Consultation on proposed changes to the rest of the NPPF and on more detailed policy options and proposals for National Development Management Policies (supported by environmental assessments), once the Levelling-up and Regeneration Bill is passed through all its Parliamentary stages: from Spring 2023 (NB there is much already in the consultation document which helps in setting out more clearly than previously the intended scope of national development management policies, which will be in a separate document to the NPPF)

Three further measures to be introduced, via changes to the NPPF to encourage developers to build out “as soon as possible”:

“a) We will publish data on developers of sites over a certain size in cases where they fail to build out according to their commitments.

b) Developers will be required to explain how they propose to increase the diversity of housing tenures to maximise a development scheme’s absorption rate (which is the rate at which homes are sold or occupied).

c) The National Planning Policy Framework will highlight that delivery can be a material consideration in planning applications. This could mean that applications with trajectories that propose a slow delivery rate may be refused in certain circumstances.”

There will be “a separate consultation on proposals to introduce a financial penalty against developers who are building out too slowly”.

Changes to the soundness test will apply to local plans which have not reached pre-submission consultation stage within 3 months of the revised NPPF: summer 2023

Further updates to the NPPF: later in 2023

Whilst flexibility as to the use of the standard method will be in place from Spring 2023 as part of the revised NPPF, there will be a review of standard method for calculating local housing need, once 2021 census is published: 2024 (NB “It remains our intention to publish the 2022 Housing Delivery Test results. However, given our proposed changes and consultation on the workings of the Housing Delivery Test, we would like to receive views on whether the test’s consequences should follow from the publication of the 2022 Test or if they should be amended, suspended until the publication of the 2023 Housing Delivery Test, or frozen to reflect the 2021 Housing Delivery Test results while work continues on our proposals to improve it. We will take a decision on the approach to the Housing Delivery Test and the implementation of any the proposed changes in due course, once we have analysed consultation responses”).

Implementation of the LURB plan-making reforms: late 2024

Transitional arrangements will mean that for the purposes of decision-making, “where emerging local plans have been submitted for examination or where they have been subject to a Regulation 18 or 19 consultation which included both a policies map and proposed allocations towards meeting housing need, those authorities will benefit from a reduced housing land supply requirement. This will be a requirement to demonstrate a 4-year supply of land for housing, instead of the usual 5”: two year transitional period, so until Spring 2025

Deadline of 30 June 2025 for plan makers to “submit their local plans, neighbourhood plans, minerals and waste plans, and spatial development strategies for independent examination under the existing legal framework; this will mean that existing legal requirements and duties, for example the Duty to Cooperate, will still apply.

We are also proposing that all independent examinations of local plans, minerals and waste plans and spatial development strategies must be concluded, with plans adopted, by 31 December 2026. These plans will be examined under the current legislation.”

Latest date for any old-style local and minerals and waste plans to be adopted (or in the case of Strategic Development Strategies, published): April 2027

Latest date when LPAs must begin the new style plan-making process (if their previous plan was adopted on 31 December 2026): 31 December 2031

Of course these dates, all of them taken from or derived from the consultation document, could slip (surely not!) and priorities could move in an entirely different direction, but somehow I sense that this is a package of reforms which is more likely to stick. So let’s have a rest for a week or so after a ridiculous year, maybe tune in on 4 January, but in any event do some constructive thinking over the next couple of months ahead of that consultation deadline. It’s a serious set of proposals which deserves a serious response. Since I came off Twitter I think I may be getting a bit soft….

Merry Christmas.

Simon Ricketts, 22 December 2022

Personal views, et cetera

Photo courtesy of Mel Poole via Unsplash

Prospective Prospectus

My 6 December 2022 blog post Gove Gives: Local Housing Need Now Just “Advisory” summarised the contents of his written ministerial statement that day which promised a “National Planning Policy Framework prospectus, which will be put out for consultation by Christmas”.

I mentioned in the blog post a letter which he had written to all MPs the previous day which had gone into more detail that the statement. I hadn’t included a link to the letter. It is here. What is even more interesting is that there is another letter, of the same date, written just to Conservative MPs. The link to that one is here.

The introduction to the letter to Conservative MPs makes the intended policy direction very clear. For instance:

“Whatever we do at a national level, politics is always local and there is no area that demonstrates this more than planning. Through reforms made by Conservative-led governments since 2010, we have a locally-led planning system – for instance, by scrapping policies like top-down regional targets that built nothing but resentment – and introducing neighbourhood planning. These reforms have delivered a record of which Conservatives can be proud. I also do not need to remind you that under the last Labour government, housebuilding reached its lowest rate since the 1920s.

But there is much more to do to ensure we can build enough of the right homes in the right places with the right infrastructure, and to ensure that local representatives can decide where – and where not – to place new development. As Conservatives, we recognise both the fundamental importance of home ownership and that we can only deliver the homes we need if we bring the communities we represent with us. These are the promises on which we stood in our manifesto and ones that I and the Prime Minister are determined to deliver.

I am therefore writing to set out the further changes I will be making to the planning system, alongside the Levelling Up and Regeneration Bill, which address many colleagues’ concerns. They will place local communities at the heart of the planning system.

As you know I share the views of many colleagues about the current system. That it does not provide the right homes in the right places, and at its worst risks imposing ever more stretching housing targets that are out of touch with reality – leading to developers taking advantage through planning by appeal and speculative development. Communities feel that they are under siege, and I am clear that this approach will never be right or sustainable if we want to build the homes that our communities want and need.”

This Government weaves around planning reform like Kylian Mbappe. First the 2020 white paper, then the u-turn after the Chesham and Amersham by-election, then the Kwarteng “growth growth growth” plan – and now placing house-building delivery firmly in the hands of “communities” – in reality, at root, existing home owners – with a weakened process for local plan examination:

“I will ensure that plans no longer have to be ‘justified’, meaning that there will be a lower bar for assessment, and authorities will no longer have to provide disproportionate amounts of evidence to argue their case.”

Is all of this just another feint, a shimmy past the Tory rebel MPs to ensure that planning reform can actually progress? Or genuine capitulation – genuflection to the election pamphlet needs of political colleagues? Zack Simons doesn’t mince his words in his 8 December 2022 blog post Notes on reform: the Government gives up – essential reading.

The matters to be consulted upon in the forthcoming prospectus are numerous. Steve Quartermain and I were counting them this week and ran out of fingers – the letters include commitments to consultation as to at least the following matters:

Changes to the method for calculating local housing need figures
Dropping the requirement for a 20% buffer to be added to housing land supply numbers for both plan making and decision taking
What should be within the scope of the new National Development Management Policies
Each new National Development Management Policy before it is brought forward
Detailed proposals for increases in planning fees
A New planning performance framework that will monitor local performance across a broader set of measures of planning service delivery, including planning enforcement
Further measures (i) allowing local planning authorities to refuse planning applications from developers who have built out slowly in the past and (ii) making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building
A new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty
How to address the issue of the planning system being “undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their commitments to the community”.
Amending national policy to support development on small sites, particularly with respect to affordable housing
Further measures that would prioritise the use of brownfield land
Details of how a discretionary registration scheme for short term lets in England would be administered
Reviewing the Use Classes Order so that it “enables places such as Devon, Cornwall and the Lake District to better control changes of use to short term lets if they wish“.

There is a lot to take in here – both what is written and what is between the lines. To try to help make sense of the prospectus when it lands, there will be a special Planning Law Unplanned clubhouse discussion at 4pm on 4 January 2023 featuring various planners and planning lawyers, including myself, Zack, Steve and many more. Join the event via this link – do RSVP in the link and get it in your diaries.

Simon Ricketts, 10 December 2022

Personal views, et cetera

Gove Gives: Local Housing Need Now Just “Advisory”

A deal has been reached between the Government and those rebel MPs who had threatened to derail the Levelling-up and Regeneration Bill. And so we have Michael Gove’s written statement to the House of Commons today 6 December 2022, in the wake of a letter written to all MPs on 5 December 2022 and a 5 December 2022 press statement. Of course, when we talk about the Bill, that is short-hand for the reform package as a whole, including most crucially the proposed amendments to the National Planning Policy Framework.

Those proposed amendments are soon to be fleshed out in the National Planning Policy Framework prospectus, “which will be put out for consultation by Christmas” (i.e. by the time that the Commons rises on 20 December 2022). It is going to be thin gruel for those of us who believe that this country has a housing crisis and that part of the solution to that crisis is to build more homes, where they are most needed.

I’ll just summarise here what the written ministerial statement covers. The letter to MPs goes into further detail.

There will be an amended method for calculating local housing need, which will be “advisory”. “It will be up to local authorities, working with their communities, to determine how many homes can actually be built, taking into account what should be protected in each area – be that our precious Green Belt or national parks, the character of an area, or heritage assets. It will also be up to them to increase the proportion of affordable housing if they wish.”

Of course it is not currently mandatory that local authorities plan for the level of local housing need arrived at via the current standard method, but there is a heavy onus on authorities to justify departures.

Paragraph 35 of the current NPPF sets out the “soundness test”, including that plans are “positively prepared”, meaning that they are “providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development.”

Paragraph 61 of the current NPPF says this:

“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”

It is plain that those circumstances are now to be widened, in ways which are more subjective, eg relying on perceived capacity constraints based on “the character of an area” (the letter to MPs gives the example of for instance “new blocks of high-rise flats which are entirely inappropriate in a low-rise neighbourhood” and talks of the need for “gentle densities”). It will be open season for authorities and/or local campaigners to press the case for lower numbers to be adopted and/or for the required proportion of affordable housing to be set at such a financially onerous level that in practice chokes off the prospect of development. The proposed abolition of the duty to cooperate and its replacement by an “alignment” mechanism yet to be articulated just increases the plain jeopardy here. Open question: how will the Government be able to hold to its 300,000 homes a year target if significant numbers of authorities adjust their numbers downwards? Another open question: how important is mitigating the housing crisis to the Government versus fending off internal rebellions and having constituency-friendly developer-phobic policies?

Five year housing land supply requirement:

“We will end the obligation on local authorities to maintain a rolling five-year supply of land for housing where their plans are up-to-date. Therefore for authorities with a local plan, or where authorities are benefitting from transitional arrangements, the presumption in favour of sustainable development and the ‘tilted balance’ will typically not apply in relation to issues affecting land supply.

I also want to consult on dropping the requirement for a 20% buffer to be added for both plan making and decision making – which otherwise effectively means that local authorities need to identify six years of supply rather than five. In addition, I want to recognise that some areas have historically overdelivered on housing – but they are not rewarded for this. My plan will therefore allow local planning authorities to take this into account when preparing a new local plan, lowering the number of houses they need to plan for.”

“…Where authorities are well-advanced in producing a new plan, but the constraints which I have outlined mean that the amount of land to be released needs to be reassessed, I will give those places a two year period to revise their plan against the changes we propose and to get it adopted. And while they are doing this, we will also make sure that these places are less at risk from speculative development, by reducing the amount of land which they need to show is available on a rolling basis (from the current five years to four).”

“I will increase community protections afforded by a neighbourhood plan against developer appeals – increasing those protections from two years to five years…”

Ensuring timely build out:

“I already have a significant package of measures in the Bill to ensure developers build out the developments for which they already have planning. I will consult on two further measures:

i) on allowing local planning authorities to refuse planning applications from developers who have built slowly in the past; and

ii) on making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building.

I will also consult on our new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty.”

Character of a developer:

“I have heard and seen examples of how the planning system is undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their legal commitments to the community. I therefore propose to consult on the best way of addressing this issue, including looking at a similar approach to tackling the slow build out of permissions, where we will give local authorities the power to stop developers getting permissions.”

Brownfield first:

“I will consult to see what more we can do in national policy to support development on small sites particularly with respect to affordable housing and I will launch a review into identifying further measures that would prioritise the use of brownfield land. To help make the most of empty premises, including those above shops, I am reducing the period after which a council tax premium can be charged so that we can make the most of the space we already have. I will also provide further protection in national policy for our important agricultural land for food production, making it harder for developers to build on it.”

Tourist accommodation/short-term lets

“I intend to deliver a new tourist accommodation registration scheme as quickly as possible, working with DCMS, starting with a further short consultation on the exact design of the scheme. I will also consult on going further still and reviewing the Use Classes Order so that it enables places such as Devon, Cornwall, and the Lake District to control changes of use to short term lets if they wish.”

More anon.

Simon Ricketts, 6 December 2022

Personal views, et cetera

Nutrient Neutrality: Possibly Good News & Possibly Bad News

The Government appears to be in negotiation with Tory MPs (46 of them at least) who may be prepared to wreck the Levelling-up and Regeneration Bill unless it includes a provision abolishing housebuilding targets for local authorities and abolishing the policy in the NPPF as to the maintenance of a five years’ supply of housing land. No doubt this will end up with some fudged solution adding further (1) uncertainty, (2) complexity and (3) hurdles in the way of housing provision.

But in another part of the forest, assuming they will overcome that local difficulty (aka huge chasm), the Government has brought forward a further set of amendments to the Bill to seek to address the nutrient neutrality problem which has amounted to a de facto veto on housebuilding in many areas of the country (see eg my 23 July 2022 blog post Neutrality: Government Clambers Off The Fence).

This is what I am categorising as the possible good news. See DLUHC’s 25 November 2022 press statement Government sets out plan to reduce water pollution.

“Government plans announced today will see:

A new legal duty on water companies in England to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels.
A new Nutrient Mitigation Scheme established by Natural England, helping wildlife and boosting access to nature by investing in projects like new and expanded wetlands and woodlands. This will allow local planning authorities to grant planning permission for new developments in areas with nutrient pollution issues, providing for the development of sustainable new homes and ensuring building can go ahead. Defra and DLUHC will provide funding to pump prime the scheme.”

“The new legal duty on water and sewerage companies in England to upgrade certain wastewater plants will be introduced via a Government amendment to the Levelling Up and Regeneration Bill. We want these improvements to be factored in for the purposes of a Habitats Regulation Assessment.”

The nutrient mitigation scheme “will be open to all developers, with priority given to smaller builders who are most affected. Developers can also continue to put their own mitigation schemes in place should they choose. Natural England will work with, not crowd out, new and existing private providers and markets for nutrient offsets wherever they exist.

The scheme is due to open in the Autumn. All affected areas can continue to access practical support from the government and Natural England in meeting nutrient neutrality requirements. Natural England will deliver the scheme by establishing an ‘Accelerator Unit’, with the support of Defra, DLUHC, the Environment Agency and Homes England.

This announcement will support the delivery of the tens of thousands of homes currently in the planning system, by significantly reducing the cost of mitigation requirements. The mitigation scheme will make delivering those requirements much easier for developers.”

The possible bad news? Not so much bad news but an inspector’s appeal decision letter which confirms that the Habitats Regulations’ assessment requirements do not just apply when an application for planning permission is determined but, if an assessment was not carried out at that stage, at reserved matters/ conditions discharge stage. This is of course one of the huge current frustrations.

The decision letter, dated 24 November 2022, is here and is summarised by Landmark Chambers here.

Charlie Banner KC was for the appellant and his submissions were in line with an opinion previously provided for the HBF and widely circulated. The issues are not straight-forward and we wait to see whether the question will now come before the courts.

Short blog post this week – too busy, and to0 much football to watch.

Simon Ricketts, 26 November 2022

Personal views, et cetera

Pic courtesy Four Four Two

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