Category: Housing

When Would Local Plan Policies Be “Out Of Date” For The Purposes Of Para 11(d) Of The Draft Revised NPPF?

This is an important question, given that the consequence is that what is called in the jargon the “tilted balance” applies, namely that planning permission should be granted for any development proposal unless:

  • The application of policies in the NPPF “that protect areas or assets of particular importance provides a clear reason for refusing the development proposed” – those areas and assets being habitats sites, SSSIs, green belt, local green space, AONBs (now “national landscapes”), national parks, Heritage Coast, irreplaceable habitats, designated heritage assets (and some other heritage assets of archaeological value) and areas at risk of flooding or coastal change; or
  • “Any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in [the NPPF] taken as a whole, in particular those for the location and design of development … and for securing affordable homes”; or
  • The proposal would conflict with a neighbourhood plan which is no more than five years old and contains policies and allocations to meet its identified housing requirement.

The new Government is of course not just consulting on the draft revised NPPF but on a revised “standard method” for determining local housing need (see chapter 4 of its consultation document) and that standard method would significantly increase the local housing plan figure for most authorities. The effect for each authority is shown on this MHCLG spreadsheet or visually on Lichfields’ interactive map.

Maybe it’s just me but I found it quite difficult to get straight in my mind when an authority’s failure to demonstrate a five year supply of housing land to meet the new local housing need figure would mean that its local plan is to be treated as “out of date” such that the tilted balance applies. Here’s my thinking and it perhaps points to some areas where the draft revised NPPF needs to be tightened or at least made clearer.

Paragraph references in what follows are to the draft revised document.

  • The reference in paragraph 11 (d) is to “where “the policies for the supply of land are out of date”
  • Footnote 9 explains that:

“This includes, for applications involving the provision of housing, situations where: (a) the local planning authority cannot demonstrate a five year supply of deliverable housing sites (with the appropriate buffer, if applicable, as set out in paragraph 76); or (b) where the Housing Delivery Test indicates that the delivery of housing was substantially below (less than 75% of) the housing requirement over the previous three years.”

  • Paragraph 76 states:

“Strategic policies should include a trajectory illustrating the expected rate of housing delivery over the plan period, and all plans should consider whether it is appropriate to set out the anticipated rate of development for specific sites. Local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide a minimum of five years’ worth of housing against their housing requirement set out in adopted strategic policies, or against their local housing need where the strategic policies are more than five years old. The supply of specific deliverable sites should in addition include a buffer (moved forward from later in the plan period) of:

  1. 5% to ensure choice and competition in the market for land; or
  1. 20% where there has been significant under delivery of housing over the previous three years, to improve the prospect of achieving the planned supply”
  • Paragraphs 224 and 225 state:

“224. The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication. Plans may also need to be revised to reflect policy changes which this Framework has made.

225. However, existing policies should not be considered out-of-date simply because they were adopted or made prior to the publication of this Framework. Due weight should be given to them, according to their degree of consistency with this Framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

  • Accordingly, until it is five years old, an adopted local plan will not be “out of date” on the basis of applying the proposed new standard method for assessing local housing need, but rather on the basis of whether it can demonstrate a five year supply of deliverable housing sites (calculated by reference to the housing requirement set out in strategic policies in the plan), with the appropriate buffer set out in paragraph 76 and has delivered at least 75% of its housing requirement over the last three years. Once the plan is five years old, the tilted balance will apply if there is not at least a five year supply of deliverable housing sites as against their new standard method local housing need figure (and delivery of 75% of its housing requirement over the last three years).
  • This applies to plans submitted for examination or adopted no later than one month after publication of the final version of the draft revised NPPF (see paragraph 226). For plans not adopted by that date the following transitional arrangements apply (in summary) as per paragraphs 226 and 227:

Where a plan was submitted for examination within a month of publication of the revised NPPF with a local housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), once the plan is adopted, the authority will be “expected to commence plan-making in the new plan-making system at the earliest opportunity to address the shortfall in housing need”. [There is no reference in the draft revised NPPF as to how long the authority has to conclude that process before its plan will be treated other than set out in my emboldened paragraph above. Surely this needs to be clarified, because otherwise it is a recipe for confusion at best and gaming of the system at worst].

Where a local plan has reached regulation 19 pre-submission stage with an emerging annual housing requirement that is more than 200 dwellings lower than the relevant local housing need (under the new standard method), the plan should proceed to examination within 18 months of publication of the revised NPPF. [There is no express indication of what the consequences are if this deadline is missed; presumably the need to plan as against the relevant local housing need (under the new standard method) – again, shouldn’t this be clarified?].

Hence presumably why we are seeing some authorities speed up with their emerging plans, with an eye on baking in housing targets based on the current standard method, although of course that is only going to work if their plans do not require significant further work during the examination process to make them sound (see the planning minister’s 30 July 2024 letter to the Planning Inspectorate).

I will try to make next weekend’s post (if there is one: I just remembered it’s the Oxford Joint Planning Law Conference – may see you there) more exciting, sorry.

Simon Ricketts, 14 September 2024

Personal views, et cetera

Oldest example of tilted balance: photo by Manish Tulaskar courtesy of Unsplash

Grenfell Tower Inquiry Report Phase 2: What Implications For The Planning System?

The inquiry’s recommendations are within volume 7, part 14, chapter 113, pages 231 to 249 of its phase 2 report published on 4 September 2024, following publication of its phase 1 report in 2019. After 1,500 or so pages, the recommendations are expressed concisely, with precision and urgency.

The question for this phase of the inquiry to answer was specific:

“In Phase 2 we have set out to answer the question that has been at the forefront of many people’s minds: how was it possible in 21st century London for a reinforced concrete building, itself structurally impervious to fire, to be turned into a death trap that would enable fire to sweep through it in an uncontrollable way in a matter of a few hours despite what were thought to be effective regulations designed to prevent just such an event?”

The conclusions of the report lay bare the tangle of causes:

There is no simple answer to that question, but in this report we identify the many failings of a wide range of institutions, entities and individuals over many years that together brought about that situation.”

These pieces in Inside Housing, ‘Complacent’ government ‘well aware’ of cladding risks before Grenfell fire but ‘failed to act’ and What the Grenfell Tower Inquiry report said about the key players in the disaster draw together those conclusions.

With some humility given the seriousness of the topic and its breadth, I thought that I should at least try to identify some potential consequences for the planning system. This follows two earlier blog posts, Tall Buildings & Fire Safety (7 January 2023) and Safety & Planning (3 July 2021). Themes of those posts included the extent to which human safety, and the safe construction of buildings, are a matter for the planning system rather than Building Regulations and the problems arising where 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.

Partly as a response to phase 1 of the inquiry’s work, the previous Government made 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. This “Planning Gateway One” fire statement is published on the planning register and the Health and Safety Executive must consulted before the grant of planning permission involving a high-rise residential building in certain circumstances.

The Planning Practice Guidance explains:

“The changes are intended to help ensure that applicants and decision-makers consider planning issues relevant to fire safety, bringing forward thinking on fire safety matters as they relate to land use planning to the earliest possible stage in the development process and result in better schemes which fully integrate thinking on fire safety.”

Against that context, let’s look at some of the phase 2 report recommendations most relevant to the Town and Country Planning Act system. On a narrow reading, the recommendations focus on the need for improvements to the separate Building Regulations/”building control” system, rather than the planning system (although note my comments later):

  • The Building Regulations system as at the time of the disaster was “seriously deficient” – poorly worded, lack of active monitoring of their performance by Government.
  • The arrangements under which the construction industry are regulated have become too complex and fragmented, as between different government departments, but also: “Building control was partly in the hands of local authorities and partly in the hands of approved inspectors operating as commercial organisations, enforcement of the law relating to the sale of construction products was carried out by Trading Standards and commercial organisations provided testing and certification services to manufacturers of products. UKAS accredited organisations operating as conformity assessment bodies. In our view, this degree of fragmentation was a recipe for inefficiency and an obstacle to effective regulation.”

“In our view all the functions to which we have referred, as well as some others to which we refer below, should be exercised by a single independent body headed by a person whom, for the sake of convenience, we shall call a construction regulator, reporting to a single Secretary of State.”

“We are aware that in the period since the Grenfell Tower fire Parliament has passed the Building Safety Act 2022 to regulate work on higher-risk buildings, to impose particular duties on those involved in the construction and refurbishment of such buildings and to establish a Building Safety Regulator responsible for building control and for overseeing standards of competence. However, responsibility for the range of functions identified above remains dispersed. We therefore recommend that the government draw together under a single regulator all the functions relating to the construction industry to which we have referred.”

  • “For the purpose of this and our other recommendations we have used the expression “higher-risk building” in the sense in which it is used in the Building Safety Act, that is, a building that is at least 18 metres in height (or has at least seven storeys) and contains at least two residential units. However, we do not think that to define a building as “higher-risk” by reference only to its height is satisfactory, being essentially arbitrary in nature. More relevant is the nature of its use and, in particular, the likely presence of vulnerable people, for whom evacuation in the event of a fire or other emergency would be likely to present difficulty. We therefore recommend that the definition of a higher-risk building for the purposes of the Building Safety Act be reviewed urgently.” [my emboldening]
  • “We think that a fresh approach needs to be taken to reviewing and revising the Building Regulations and statutory guidance that is driven primarily by considerations of safety. Fresh minds are needed. We therefore recommend that, as far as possible, membership of bodies advising on changes to the statutory guidance should include representatives of the academic community as well as those with practical experience of the industry (including fire engineers) chosen for their experience and skill and should extend beyond those who have served on similar bodies in the past.”
  • “We […] recommend that it be made a statutory requirement that a fire safety strategy produced by a registered fire engineer (see below) to be submitted with building control applications (at Gateway 2) for the construction or refurbishment of any higher-risk building and for it to be reviewed and re-submitted at the stage of completion (Gateway 3). Such a strategy must take into account the needs of vulnerable people, including the additional time they may require to leave the building or reach a place of safety within it and any additional facilities necessary to ensure their safety.”
  • “We […] recommend that the profession of fire engineer be recognised and protected by law and that an independent body be established to regulate the profession, define the standards required for membership, maintain a register of members and regulate their conduct. In order to speed up the creation of a body of professional fire engineers we also recommend that the government take urgent steps to increase the number of places on high-quality masters level courses in fire engineering accredited by the professional regulator.”
  • “We recognise that both the Architects Registration Board and the Royal Institute of British Architects have taken steps since the Grenfell Tower fire to improve the education and training of architects. We recommend that they should review the changes already made to ensure they are sufficient in the light of our findings.

We also recommend that it be made a statutory requirement that an application for building control approval in relation to the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a statement from a senior manager of the principal designer under the Building Safety Act 2022 that all reasonable steps have been taken to ensure that on completion the building as designed will be as safe as is required by the Building Regulations.”

  • “We […] recommend that a licensing scheme operated by the construction regulator be introduced for principal contractors wishing to undertake the construction or refurbishment of higher-risk buildings and that it be a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the Building Regulations.”
  • “One of the causes of the inappropriate relationship to which we have referred was the introduction into the system of commercial interests. Approved inspectors had a commercial interest in acquiring and retaining customers that conflicted with the performance of their role as guardians of the public interest. Competition for work between approved inspectors and local authority building control departments introduced a similar conflict of interest affecting them. As things stand that underlying conflict of interest will continue to exist and will continue to threaten the integrity of the system. We therefore recommend that the government appoint an independent panel to consider whether it is in the public interest for building control functions to be performed by those who have a commercial interest in the process.

The shortcomings we have identified in local authority building control suggest that in the interests of professionalism and consistency of service all building control functions, including those currently performed by local authorities, should be exercised nationally. Accordingly, we recommend that the same panel consider whether all building control functions should be performed by a national authority.”

The implications for the planning system of the conclusions and recommendations of the report should not be under-estimated:

  • The Grenfell Tower tragedy had a specific factual background: the building had been constructed long ago – the issues arose through its refurbishment. Whilst building control should be the mechanism for ensuring the safety of the works carried out, the position is more complex in the case of the proposed construction in the first place of a higher-risk building. Building control is ultimately the detailed mechanism for ensuring that the development constructed can be safely occupied, but, as recognised by the Government in introducing the Planning Gateway One stage, fire safety needs to be considered at an early stage in the gestation of development proposals – it is too late for effective influence over issues such as emergency escape routes at the building control stage, there does need to be that early opportunity for safety to be built in from the outset. How are we likely to see that Planning Gateway One process change in the light of the recommendations? Clearly there will need to be some consideration as to whether 18 metres should still be the threshold. And what will the single regulator be, which responds at this stage? Will its decision-making be final or one consultation response of potentially many (albeit of significant weight)? How can we make sure that its decision-making is predictable and timely? This is also delicate to say given the potential consequences of a wrong decision, but: what if its decision-making is at times unreasonably prescriptive?
  • How will this changed approach flow through into private sector appetite to embark on multi-storey residential projects, on which any achievement of the new Government’s targeted housing numbers is predicated?
  • In circumstances where registered providers are generally reluctant to take on section 106 affordable housing (see eg The challenges for affordable housing delivery in London (Savills, 27 August 2024)), to what extent will the continuing focus on remedying existing unsafe buildings serve to increase that reluctance?
  • Are there the resources? Anecdotally there is already a lack of fire engineers to advise appropriately on projects. How much will it cost to have a properly staffed and experienced national body for building control and how to move to such as system without creating further uncertainty?

When taken with other recent or current public inquiries, such as the Infected Blood Inquiry and the Post Office Horizon IT Inquiry, aside from the frustratingly long time it takes for the wheels of justice to turn, the themes arising appear to be depressingly recurring: individual greed or complacency; business objectives that have become disconnected from the public interest; how difficult it is to stand up to “the establishment” in its varying forms; inadequate often confusing or ineffective regulatory or administrative systems; ineffective agencies, and inadequate checks and balances on ministers’ actions (and inactions).

My respect goes out not just to Sir Martin Moore-Bick, Ali Akbor OBE and Thouria Istephan for their important work in relation to the Grenfell Tower Inquiry, but to all those affected by the tragedy, many of whose testimonies form such an important part of the reports. It will all unfortunately be forever part of this country’s history. It needs also to shape the future.

Simon Ricketts, 7 September 2024

Personal views, et cetera

What To Look Out For With This Week’s Promised Draft Revised NPPF

As Zack Simons noted in his LinkedIn post this morning (27 July 2024), there was a detailed story in today’s Times as to what will be in the consultation draft revised NPPF. As Zack summarises:

“-  Tuesday’s the day. 

–   8 week consultation, new NPPF adopted late September. 

–   “Mandatory housing targets” going up by 50%. 

–   That’s a circa 100,000 home national increase to what we now call “local housing need”. Changes include: (i) “toughened” affordability ratios “to take account of how many people might move into an area if housing was cheaper”, and (ii) no use of “previous oversupply of housing to reduce future targets”. 

–   Councils “must review protections for the green belt if they cannot meet their housing need on brownfield land”.”

It’s such a detailed story that depressingly the new Government is obviously continuing the previous Government’s routine practice of trailing imminent significant announcements in the weekend newspapers as unattributed news stories rather than first announcing them in Parliament. Easy spin, easy journalism.

However, the story is totally and deliberately useless as anything that can yet be relied upon.

Here are some of the things I’ll be looking to understand on Tuesday (no surprise it’s Tuesday: that’s when the House of Commons rises for the summer):

  • I assume that the consultation document will be accompanied by a ministerial statement setting out the Government’s policy objectives underlying the document. This is important because, subject to anything specified to the contrary, then the statement and at least the direction of travel demonstrated by the draft is capable of being a material consideration in the determination of planning applications and appeals, with the weight to be given to it a matter for the decision maker. Depending on its potential relevance to current applications and appeals, the decision maker may choose to invite representations as to the implications for the particular application or appeal of what has been published, and, indeed, in some circumstances decisions may be susceptible to legal challenge if such an announcement is “obviously material” and not taken into account. So as much as its content, what will be important will be the tone of the consultation (is the consultation just about detailed wording or is it more open-minded, testing alternative potential approaches?) and of the accompanying statement or statements (particularly, what is said about its immediate intended effect). (And incidentally what we don’t want is for decision-makers to conclude that they need to wait for the final version!)
  • What transitional arrangements, if any, are proposed in relation to emerging and adopted local plans before their policies are to be treated as out of date by virtue of the new policies and targets? After all, we still have a plan-led system.
  • To what extent will the requirement that councils “must review protections for the green belt if they cannot meet their housing need on brownfield land” simply be a peeling back of the December 2023 revision to the NPPF?
  • If local housing targets are going to be increased, does this mean that the consultation process will include (long awaited) proposed revisions to the standard method? If so, how extensive will the changes be? For instance will the 35% uplift remain for England’s 20 largest towns and cities?
  • Is this going to be a “big bang” set of NPPF changes delivering on all that has been previously trailed by Labour, for instance giving some reality to the “grey belt” notion, or (possibly more pragmatically) are we to expect a further set of revisions before long, possibly alongside a proposed initial set of national development management policies and/or alongside guidance to reflect the amended local plans system enabled by the Levelling-up and Regeneration Act?
  • What about anything other than housing?
  • When really will we see the final version? Eight weeks’ consultation takes us to the end of September. To avoid an obvious legal challenge, the Government will need to consider properly the representations received (and there will be many). My bet is that the final version will be October at the earliest (12 October is the 100th day after the election and they will be going very fast to publish by then…). 

Anyone else remember the annual Beaujolais Nouveau races? That used to be how the industry routinely did business development, for better or worse, before we all became amateur journalists. These days its more sober and less fun replacement is the “who can get their NPPF text mark-up up first on LinkedIn” game. But that’s a young person’s sport. I’ll be truffle-hunting instead for the answers to those seven questions. 

Simon Ricketts, 27 July 2024

Personal views, et cetera

Photo by Maja Petric courtesy Unsplash

Not Bad For A First Day At Work

That Rachel Reeves speech today (8 July 2024) is here in full. The key passages in relation to planning reform:

“Nowhere is decisive reform needed more urgently than in the case of our planning system.

Planning reform has become a byword for political timidity in the face of vested interests and a graveyard of economic ambition.

Our antiquated planning system leaves too many important projects getting tied up in years and years of red tape before shovels ever get into the ground.

We promised to put planning reform at the centre of our political argument – and we did.

We said we would grasp the nettle of planning reform – and we are doing so.

Today I can tell you that work is underway.

Over the weekend, I met with the Prime Minister and the Deputy Prime Minister to agree the urgent action needed to fix our planning system.

Today, alongside the Deputy Prime Minister, I am taking immediate action to deliver this [political content removed] government’s mission to kickstart economic growth;

And to take the urgent steps necessary to build the infrastructure that we need, including one and a half million homes over the next five years.

The system needs a new signal. This is that signal.

First, we will reform the National Planning Policy Framework, consulting on a new growth-focused approach to the planning system before the end of the month, including restoring mandatory housing targets.

And, as of today, we are ending the absurd ban on new onshore wind in England. We will also go further and consult on bringing onshore wind back into the Nationally Significant Infrastructure Projects regime, meaning decisions on large developments will be taken nationally not locally.

Second, we will give priority to energy projects in the system to ensure they make swift progress…

… and we will build on the spatial plan for Energy by expanding this to other infrastructure sectors. 

Third, we will create a new taskforce to accelerate stalled housing sites in our country…

…beginning with Liverpool Central Docks, Worcester Parkway, Northstowe and Langley Sutton Coldfield, representing more than 14,000 homes.

Fourth, we will also support local authorities with 300 additional planning officers across the country.

Fifth, if we are to put growth at the centre of our planning system, that means changes not only to the system itself, but to the way that ministers use our powers for direct intervention.

The Deputy Prime Minister has said that when she intervenes in the economic planning system, the benefit of development will be a central consideration and that she will not hesitate to review an application where the potential gain for the regional and national economies warrant it.

… and I welcome her decision to recover two planning appeals already, for data centres in Buckinghamshire and in Hertfordshire.

To facilitate this new approach, the Deputy Prime Minister will also write to local mayors and the Office for Investment to ensure that any investment opportunity with important planning considerations that comes across their desks is brought to her attention and also to mine.

The Deputy Prime Minister will also write to Local Planning Authorities alongside the National Planning Policy Framework consultation, making clear what will now be expected of them…

…including universal coverage of local plans, and reviews of greenbelt boundaries. These will prioritise Brownfield and grey belt land for development to meet housing targets where needed.

And our golden rules will make sure the development this frees up will allow us to deliver thousands of the affordable homes too, including more for social rent.

Sixth, as well as unlocking new housing, we will also reform the planning system to deliver the infrastructure that our country needs.

Together, [political content removed] we will ask the Secretaries of State for Transport and Energy Security and Net Zero to prioritise decisions on infrastructure projects that have been sitting unresolved for far too long.

And finally, we will set out new policy intentions for critical infrastructure in the coming months, ahead of updating relevant National Policy Statements within the year.

I know that there will be opposition to this.

I’m not naïve to that;

And we must acknowledge that trade offs always exist: any development may have environmental consequences, place pressure on services, and rouse voices of local opposition.

But we will not succumb to a status quo which responds to the existence of trade-offs by always saying no, and relegates the national interest below other priorities.”

That reference to “ending the absurd ban on new onshore wind in England” has been given effect by a DLUHC policy statement on onshore wind (8 July 2024), removing – with immediate effect – the additional tests that have applied to on-shore wind as opposed to other energy proposals, namely that the proposal has policy and community support.

Simon Ricketts, 8 July 2024

Personal views, et cetera

Courtesy Nik via Unsplash

Coded Hints As To Labour’s New Towns Thinking

Shadow Secretary of State Angela Rayner’s speech at UKREiif in Leeds on 21 May 2024 was interesting, particularly on new settlements. I have emboldened some key passages below:

“New Settlements

And while we work with the grain of local communities and their character, we’ll also consider how urban regeneration and extension can play their part.

We want homes on these sites within the first term of a Labour government.

But these new large settlements must be built in the right place, in partnership with local people.

This is why an expert independent taskforce will be set up to help choose the right sites and a list of projects will be announced within our first 12 months of government, so we can start building the towns of the future within months, not decades.

Our next generation of New Towns will build homes fit for the future. Creating places where people want to live. Inspired by garden suburbs like Hale in Manchester, Roundhay in Leeds, and the Garden City project

But let me be clear – I will not simply demand “more units, at any cost”.

The reason many local communities resist new homes is often because the housing is of the wrong type, in the wrong place – it doesn’t come with the schools, GP surgeries and green spaces that make communities, not just streets.

Or the affordable and social housing local people need.

Our next generation of New Towns will build homes fit for the future. Creating places where people want to live. Inspired by garden suburbs like Hale in Manchester, Roundhay in Leeds, and the Garden City project.

We will set out a New Towns Code – criteria that developers must meet in these new settlements:

More social and affordable homes – with a gold standard aim of 40%

Buildings with character, in tree-lined streets that fit in with nearby areas

Design that pays attention to local history and identity

Planning fit for the future, with good links to town and city centres

Guaranteed public transport and public services, from doctors’ surgeries to schools

And access to nature, parks, and places for children to play “

New Towns are just one way we get good quality, affordable houses built in the national interest.

Our local housing recovery plan will reverse the Conservatives’ damaging changes to planning, getting stalled sites moving at speed.

We’ll give Mayors the tools they need to deliver homes in their areas, revitalising brownfield first, unlocking ugly, disused grey belt land for housebuilding and setting tough new conditions for releasing that land.

Our ‘golden rules’ will ensure any grey belt development delivers affordable homes, new public services, and improved green spaces.

This means more social and affordable homes and we will ensure that brownfield sites are approved quicker so homes get built fast.

Together, we will unleash the biggest wave of affordable and social housing in a generation.

Because a safe, secure, affordable home is the foundation of a good life.

We can see the consequences when that foundation is taken away.

Today, there is an epidemic of homelessness and rough sleeping in Britain.”

Some intriguing aspects here that go beyond the Labour Party’s Plan to Power-Up Britain that I covered in my 13 April 2024 blog post Powering Up Britain  and beyond Sir Keir Starmer’s party conference speech in October 2023 (see 10 October 2023 BBC piece Keir Starmer promises to build new towns and 1.5m homes). Particularly intriguing that “an expert independent taskforce will be set up to help choose the right sites and a list of projects will be announced within our first 12 months of government, so we can start building the towns of the future within months, not decades.”.

The huge question will be how to avoid previous governments’ false starts and missteps. The last Labour government’s eco-towns programme was similarly ambitious, with preferred sites arrived at on the basis of criteria set out in a prospectus which became hotly contested by those whose sites were not selected and by local campaigners. A High Court challenge to the process failed but, given time slippages, the programme was ultimately overtaken by the 2010 General Election. The judgment in the case, Bard Campaign v Secretary of State (Walker J, 25 February 2009) makes for interesting reading as to the context. For a wider piece setting out subsequent proposals by the present government for “locally-led” new towns see my 11 July 2020 blog post The New Towns Question (Again) .

Full marks for ambition but how to balance speedy top-down decisions as to quantum, potential locations, scale and so on (however “independent” “expert” led) with ensuring that (1) there is a joined up plan to deliver the necessary infrastructure (2) schemes have sufficient local buy-in (3) schemes are commercially viable (4) there is a fit-for-purpose consenting process if building is to start “within months” (polite cough) and (5) all legal trip hazards in terms of, for instance adequate assessment and consultation can successfully be navigated? Those will be some of the questions.

And the “gold standard aim of 40%”  affordable housing is an interesting political phrase!

Simon Ricketts, 25 May 2024

Personal views, et cetera

GB News, Hertfordshire Edition

Some of the planning bar was all-caps aplenty on LinkedIn this week in relation to a couple of Hertfordshire green belt appeal decisions by the Secretary of State:

Before I discuss these (together with in fact a third one – take a bow David Hardy and team), I thought I would share with you some statistics. I have been looking at DLUHC’s list of called in planning application decisions and recovered appeal decisions to get a feel for the recent pass/fail rate and the extent to which the Secretary of State is departing from inspectors’ recommendations (a feature of two out of three of the recent decisions).

In relation to call in decisions over the last year, the Secretary of State has approved 5 out of 8. In 4 of them (half!) he has reached a different decision to that which the inspector recommended – two approvals against recommendation, two refusals against recommendation (although one of the latter – M&S Oxford Street – is of course back for redetermination).

In relation to recovered appeals, there have been 17 decisions – 10 allowed and 7 dismissed. In 5 of them he has reached a different conclusion to that which the inspector recommended – two allowed against recommendation, three dismissed against recommendation.

I’m not sure what you take from this back of the envelope calculation other than how unpredictable the process is. I feel I need to point again to my 9 February 2024 blog post, The Weighting Game .

Turning to these Hertfordshire green belt decisions…

Tring

This was an appeal against Dacorum Borough Council’s refusal of an application for planning permission for up to 1,400 dwellings (including up to 140 falling within use class C2), a new local centre, sports/community hub, primary school, secondary school and public open space on land bound by Bulbourne Road and Station Road, bisected by Marshcroft Lane, Tring, Hertfordshire. The site is in the green belt and surrounded on three sides by the Chiltern area of outstanding natural beauty. By his decision letter dated 15 March 2024 he disagreed with his inspector’s recommendations and refused planning permission.

The Secretary of State found that Dacorum has a significant housing land supply deficit – its supply stands at just 2.06 years. The inspector gave moderate weight to the provision of recreational and sporting facilities, whereas the Secretary of State gave this limited weight but, other than that, his findings did not materially depart from those of the inspector. However, it all came down to that tricky issue of weight:

“In line with paragraph 148 (now 153) of the Framework, the Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and any other harms resulting from the development is clearly outweighed by other considerations. Overall, he considers that the other considerations in this case do not clearly outweigh the harm to the Green Belt and the other identified harms relating to impact on character and appearance, setting of the AONB, harm to designated and non- designated heritage assets and loss of agricultural land. He therefore considers that [very special circumstances] do not exist to justify this development in the Green Belt.”

Chris’ LinkedIn post on the decision is here .

Chiswell Green Lane, St Albans

This was the Secretary of State’s decision letter dated 22 March 2024 in relation to two appeals against refusal by St Albans City and District Council of applications for up to 391 new dwellings, the provision of land for a new school and associated development on land south of Chiswell Green Lane and  for up to 330 discounted affordable homes for key workers, including military personnel, the creation of open space and associated development on land north of Chiswell Green Lane, St. Albans

St Albans’ housing land supply stands at only 1.7 years and its housing delivery test figure stands at 55% (both figures worse at the time of the decision than at the inquiry). Although St Albans’ emerging local plan is still only at regulation 18 stage, the Secretary of State agreed with the inspector that “the Green Belt Review is a material consideration relevant in considering Green Belt matters in the district, and that the relative suitability of strategic sub-area S8 (which both appeal sites fall within), as defined by the Green Belt Review, is an important consideration.” and that the land to be secured for a new school via appeal A should attract significant weight.

In terms of housing:

“The Secretary of State agrees with the Inspector that there is a very substantial need for housing in the district which is persistently going unmet, that the Local Plan housing requirement is hopelessly out of date, and that, using the standard method, the Council can demonstrate just a two-year housing land supply at best. He also notes that the latest HDT has been failed by some margin.  Therefore, the presumption in favour of sustainable development is triggered, in accordance with footnote 8 to paragraph 11(d) of the Framework.

For the reasons given in IR586-591, the Secretary of State agrees with the Inspector that in the context of such a great housing need, very substantial weight should be attached to the proposed housing.”

Compare and contrast with that Tring decision – Dacorum 2.06 years versus St Albans 1.7 years – hmmm, not much in it is there?

“The Secretary of State has considered whether the harm to the Green Belt by reason of inappropriateness, and the other harms he has identified, are clearly outweighed by other considerations. He considers that they are, and therefore very special circumstances exist to justify permitting the development. As such, the proposed development accords with Policy S1 of the St Stephen Parish Neighbourhood Plan 2019-2036 and Policy 1 of the St Albans District Local Plan Review 1994, and national planning policy on Green Belt.”

Charlie’s LinkedIn post is here .

Great Wymondley

This was a decision dated 11 March 2024 taken on behalf of the Secretary of State in relation to an application, which he had called in, for a proposed solar array with associated battery storage containers and ancillary development including means of access and grid connection cable on land at Graveley Lane and to the east of Great Wymondley, Hertfordshire. The inspector recommended that the application be refused but the Secretary of State disagreed and granted planning permission.

The Secretary of State placed significant weight on the contribution that the scheme would have to renewable energy targets, including “the generation of sufficient electricity to meet the requirements of about 31% of the homes in” North Hertfordshire. He disagreed with the inspector’s conclusion that the development would cause serious harm to the setting of the grade 1 listed Wymondley Priory and a nearby grade II* listed nearby tithe barn and with the inspector’s concerns as to the inadequacies of the site selection process carried out.

In summary (although as always do read the full letter):

“Weighing against the proposal is harm to the Green Belt which carries substantial weight, harm to heritage which carries great weight and uncertainty about mitigation for displaced Skylarks which carries moderate weight. Further to this, harm is found to the impact on views from Graveley Lane and the Hertfordshire Way which carries considerable weight, to the landscape of the site and its immediate surroundings which carries significant weight and to the effect on landscape character area which carries moderate weight.

The Secretary of State has considered paragraph 208 (formerly paragraph 202) of the Framework. He considers that the public benefits of the proposal do outweigh the less than substantial harm to the designated heritage assets and therefore, in his judgement, the Framework’s heritage balance is favourable to the proposal.

The Secretary of State has considered paragraph 153 (formerly paragraph 148) of the Framework. He considers that the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations, and therefore considers that VSCs exist.”

It is so hard to predict outcomes or to establish reliable patterns: three decisions – one allowed in accordance with the inspector’s recommendations, one refused against the inspector’s recommendations and one allowed against the inspector’s recommendations. Rather dispiriting for any inspector, one imagines.

In return for reading this free blog post….

Chris Young is doing a seriously great thing again this year, running the London marathon dressed as a house, for Shelter. Sponsor this qood cause here .

Town Legal partners, staff and their pressganged families are all running, walking, roller-skating etc at least 5km this weekend in aid of XLP, a charity which does life-changing work for disadvantaged young people. I’m checking internally as to whether tapping out 5k words counts but if not I may go walking tomorrow, either in the direction of the Tring appeal site or in the direction of the St Albans one. Or maybe I’ll just head in the direction of my favourite hefty Belties on Blackbird’s Moor. Please help XLP and give me a bit of impetus to keep typing away by sponsoring this good cause here .

Simon Ricketts, 23 March 2024

Personal views et cetera

The Belted Galloways on Boxmoor, Hertfordshire, pic courtesy of the Boxmoor Trust

Back To Big: Amended Class MA

My 13 February 2024 blog post The RUBR Hits The Road: Residential Urban Brownfield Regeneration covered the various announcements by the Secretary of State that day. But, of course, that afternoon also saw the loosening of significant restrictions on existing permitted development rights to convert commercial buildings into residential use.

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2024 comes into force on 5 March 2024.

It makes two major changes to the class MA right (class E commercial, business and service uses to class C3 residential use) that came into force on 21 April 2021. First, the 1,500 sq m floorspace upper limit for building changing use under the right is removed. Secondly, the removal of the requirement that the building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval.

This has been a topsy turvy ride.

First of all, of course, from 2013 class O allowed conversion of offices to residential with relatively limited matters in respect of which the local planning authority could require prior approval and with no limitation on the size of building that could be converted (initially a temporary mechanism that was made permanent in 2015). In 2017 new permitted development rights were introduced to enable conversion of light industrial buildings as well as those falling within the old use A1 and A2 use classes (500 sq m and 150 sq m respectively).

Once the new commercial use class E was introduced by way of the Town and Country Planning (Use Classes) (Amendment) (England) Regulations 2020 (in force from 1 September 2020), the Government consulted on various proposed new permitted development rights, including the right “for the change of use from any use, or mix of uses, within the Commercial, Business and Service use class (Class E – see paragraph 12 above) to residential use (C3). The right would replace the current rights for the change of use from office to residential (Part 3, Class O of Schedule 2 to the General Permitted Development Order), and from retail etc to residential (Part 3, Class M of the General Permitted Development Order) which remain in force until 31 July 2021. (See also Part 3 of this consultation document in respect of consequential changes.) It will go significantly beyond existing rights, allowing for restaurants, indoor sports, and creches etc to benefit from the change use to residential under permitted development rights for the first time. The protections in respect of pubs, including those with an expanded food offer, theatres, and live music venues, all of which are outside of this use class, continue to apply and a full planning application is always required for the change of use to or from such uses.

The Commercial, Business and Service use class applies everywhere in all cases, not just on the high street or in town centres. In order to benefit from the right premises must have been in the Commercial, Business and Service use class on 1 September 2020 when the new use classes came into effect.”

“Building on the delivery success of the permitted development right for the change of use from office to residential, it is proposed that there be no size limit on the buildings that can benefit from the right. The right would allow for the building, or part of the building, to change use, rather than lying vacant for example. It is recognised that some retail and office buildings in particular could be a substantial size, and therefore result in a significant number of new homes, the impacts of which would be managed through prior approvals. Permitted development rights do not apply to development that is screened as requiring an Environmental Impact Assessment.”

So at that point the Government was considering not imposing any floorspace limitation. However the Government listened to the outcome of that consultation process. From its consultation response (31 March 2021):

“Question 1: Do you agree that there should be no size limit on the buildings that could benefit from the new permitted development right to change use from Commercial, Business and Service (Class E) to residential (C3)?

10 There were 711 responses to the question, with strong opposition to the proposal. Less than a third were supportive of there being no size limit to the right.

11. Views were expressed as to the impact the measure might have on the viability of the high street. For instance, if it encouraged large numbers of residents to move into the area, this would place additional demands on local services, schools, traffic and parking. It was also suggested that this right could support a trend towards ‘out of town’ shopping while town centres became more residential. Views were expressed about the economic impact that the loss of larger commercial units could have on an area. It was also suggested that the lack of size limit could have far reaching and unintended consequences for local areas and could change the character of those areas. There were some suggestions that there should be a size limit, including that it applies only to ‘smaller shops’.

12. Other respondents felt that the right allowed for the more effective use of buildings, addressing the decline in retail, and changing ways of working, and that a size limit would inhibit such development. There was a view that the change of use of vacant buildings should be supported. Some stated that the policy would result in the loss of neighbourhood parades of shops and local facilities, with a threat to “20 Minute Neighbourhoods” – that is, places where residents have easy, convenient access to many of the places and services they use daily. Views were also expressed as to the potential loss of health services, nurseries and day centres and what impact this might have.”

“47. Reflecting responses to Question 1 that the right should only apply to smaller buildings, the right will provide for up to 1,500 sq m of floorspace to change use. To go further, reflecting comments on the potential impact on business, the building must have been vacant for at least three continuous months. This will help focus the right on smaller buildings that may more easily change use, and which are already vacant, thereby protecting existing businesses. Larger buildings may continue to be brought forward for redevelopment under a planning application, and in such cases may attract affordable housing.”

Accordingly, the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 which came into force on 21 April 2021 imposed a cap of 1,500 sq m on the floorspace that could be converted within a building as well as the requirement that the floorspace should have been vacant for at least three months leading up to the date of the prior approval application.

There was then a further consultation last year on “additional flexibilities to support housing delivery, the agricultural sector, businesses, high streets and open prisons; and a call for evidence on nature-based solutions, farm efficiency projects and diversification” (24 July 2023):

“21. The permitted development right currently allows up to 1,500 square metres of Commercial, Business and Service use to change use to residential; this could allow, for example, the delivery of up to 20 two bed homes. To provide greater flexibility for owners and support housing delivery, it is proposed that the right is amended to allow more floorspace to change to residential use. Increasing the cumulative floorspace that may change use in an existing building could have significant benefits for housing delivery, particularly for larger sites. We are seeking views on whether the size cap should be doubled to 3,000 square metres or removed to provide no limitation on the amount of floorspace that can change use.”

“22. The existing permitted development right requires that the premises be vacant for a continuous period of at least 3 months immediately prior to the date of the application for prior approval. This was introduced to safeguard against businesses being displaced. However, we believe the requirement may be ineffective and could result in property being left vacant for longer periods. In order to provide greater flexibility for owners, enable more premises to change use, and therefore to deliver additional homes, it is proposed that this vacancy requirement is removed.”

The latest changes are the outcome of that consultation although we don’t have any analysis yet of the consultation responses and what may have changed so decisively between the 2021 and 2023 consultation processes. Last week’s statutory instrument was accompanied by an explanatory memorandum  and there is no more detail as to the background to the latest changes than this:

“7.1 Permitted development rights have an important role to play in the planning system. They are an important tool to support growth by providing certainty and removing the time and money needed to submit a planning application. Permitted development rights can incentivise certain forms of development and provide flexibilities and planning freedoms to different users, including businesses, local authorities and local communities.

7.2 There are a number of permitted development rights that allow for the change of use from a variety of existing uses to dwellinghouses. These rights make an important contribution to housing delivery. In the eight years to March 2023, permitted development rights for the change of use have delivered 102,830 new homes to rent or to buy. In the last year 9,492 homes were delivered under these rights, representing 4% of overall housing supply.”

“10.2 There were just under 1,000 consultation responses received. The Government response to the consultation will be published in due course. A summary of responses to the relevant Class MA questions is provided below.

10.3 The consultation sought views on either removing or doubling the limit on the cumulative floor space of an existing building that can change use. Those that supported removing or doubling the floor space limit cited positive impacts on housing supply, with greater flexibility and planning certainty encouraging the delivery of dwellinghouses that might not otherwise have come forward under a planning application. Those that did not support amending the floorspace limit thought that larger schemes would benefit from local authority consideration under a planning application owing to the greater number of planning matters that can inform the decision making process. It was also noted that the permitted development right could impact on the quality of housing delivered.

10.4 The consultation sought views on removing the requirement that a building must have been vacant for a continuous period of at least 3 months immediately prior to the date of an application for prior approval. Those that supported the removal of the vacancy requirement considered that it would streamline the permitted development right for the change of use of commercial, business and service uses to dwellinghouses, speeding up housing delivery, and avoiding unnecessary periods of vacancy. Those that did not support the proposal were concerned that removing the vacancy requirement would result in viable businesses closing or being displaced.”

So, in summary, as from 5 March 2024 any building which has been in lawful class E use for at least 2 years prior to the submission of the prior approval application, may be converted to residential use, as long as various protective designations do not apply, and as long as (if required by the local planning authority) prior approval has been obtained as to:

“(a) transport impacts of the development, particularly to ensure safe site access;

(b) contamination risks in relation to the building;

(c) flooding risks in relation to the building;

(d) impacts of noise from commercial premises on the intended occupiers of the development;

(e) where—

(i) the building is located in a conservation area, and

(ii) the development involves a change of use of the whole or part of the ground floor, the impact of that change of use on the character or sustainability of the conservation area;

(f) the provision of adequate natural light in all habitable rooms of the dwellinghouses;

(g) the impact on intended occupiers of the development of the introduction of residential use in an area the authority considers to be important for general or heavy industry, waste management, storage and distribution, or a mix of such uses; and

(h) where the development involves the loss of services provided by—

(i) a registered nursery, or

(ii) a health centre maintained under section 2 or 3 of the National Health Service Act 2006

the impact on the local provision of the type of services lost.”

The Government’s nationally described space standards must also be met.

By way of reminder, these class MA conversions are not of course subject to requirements as to affordable housing and contributions to schools, health provision and so on.

Desperate measures! No doubt some authorities will contemplate a protective rear-guard action by way of introducing further article 4 directions, although DLUHC has been vigilant in modifying those orders which it considers are wider than is appropriate.

Simon Ricketts, 17 February 2024

Personal views, et cetera

extract from photograph by Sergei Wing via Unsplash

The RUBR Hits The Road: Residential Urban Brownfield Regeneration

“Building homes on brownfield land will be turbocharged under a major shake-up to planning rules to boost housebuilding while protecting the Green Belt. “

For a concise summary of today’s DLUHC announcements and all the links, see my Town Legal colleague Susie Herbert’s post.

I have seen some understandable cynicism about the proposed changes – along the lines of “it’s motivated by the politics” (obviously in part yes); and/or “it’s in dribs and drabs, why couldn’t this have been done as part of the December 2023 NPPF changes?” (well yes, although maybe better late than never?); and/or ”none of it will make a difference” (I’ll declare an interest having assisted British Land and Land Sec in a small way last year with their report More Growth, More Homes, More Jobs: how to reform the planning system to unlock urban regeneration – but I would have said this anyway – I think the announced changes could well make a difference – and in fact there are plenty more within that report that are worthy of consideration!).

There is of course already existing policy encouragement (albeit rather general) in paragraph 124 (c) of the NPPF, which states that planning policies and decisions should “give substantial weight to the value of using suitable brownfield land within settlements for homes and other identified needs.”

The Government proposes to strengthen that message with the following additional wording within paragraph 129 (c):

“local planning authorities should refuse applications which they consider fail to make efficient use of land, taking into account the policies in this Framework, especially where this involves land which is previously developed. In this context, when considering applications for housing, authorities should give significant weight to the benefits of delivering as many homes as possible and take a flexible approach in applying planning policies or guidance relating to daylight and sunlight and  internal layouts of development, where they would otherwise inhibit making the most efficient use of a site (as long as the resulting scheme would provide acceptable living standards).” [new passages underlined]

I do think this does move the dial further with those references to “delivering as many homes as possible” and (particularly in London) the “flexible approach in applying planning policies or guidance relating to …  internal layouts of development”.

The dial will then move into full “tilted balance” paragraph 11 (d) territory for those boroughs in London and those other 19 towns and cities subject to the urban uplift, where their Housing Delivery Test results (to be published in May) indicate that their delivery of housing was below 95% of the housing requirement over the previous 3 years.

For an indication of the potential outturn of those results see Ross Raftery’s excellent Lichfields blog post today, Testing times for England’s big cities – an extended reach for the presumption and other NPPF changes.

This strengthening of the tests is likely to make a difference (even during this consultation period): it will influence the way that planning committees are advised when they come to make decisions; it will focus a broader spread of authorities on the potential consequences of not meeting delivery targets (admittedly not fully within their control, but certainly partly), and it will certainly influence how inspectors and the Secretary of State approach appeals and call-ins.

In London there is also much good analysis in the excellent report prepared by Christopher Katkowski KC and his panel. From the executive summary:

“6 The consequences of housing under-delivery have significant economic, societal and personal impacts, not least on those who face no alternative option but homelessness (living in temporary accommodation), or who are forced into poor-quality rental accommodation.

7 Public and private sector stakeholders are clear in their view that the London Plan is not the sole source of the problem: wider macro-economic conditions; fire safety; infrastructure constraints; statutory consultees; viability difficulties; and planning resourcing pressures have all contributed.

8 However, there is persuasive evidence that the combined effect of the multiplicity of policies in the London Plan now works to frustrate rather than facilitate the delivery of new homes, not least in creating very real challenges to the viability of schemes. We heard that policy goals in the Plan are being incorrectly applied mechanistically as absolute requirements: as ‘musts’ rather than ‘shoulds’. There is so much to navigate and negotiate that wending one’s way through the application process is expensive and time-consuming, particularly for SMEs who deliver the majority of London’s homes.

9 This position is exacerbated by the change in context since the London Plan was formulated. The London Plan’s ‘Good Growth’ policies were advanced on the basis of public and private sector investment assumptions that were described in 2019 as being “ambitious but realistic” by the London Plan Inspectors. But planning and housing delivery indicators suggest this strategy has not been sufficiently resilient to the subsequent change in circumstances. Housing schemes (and decision makers on applications) have struggled to reconcile the multiple policy exhortations, which create uncertainty and delay in the preparation, submission and determination of planning applications.”

Many will also welcome the Secretary of State including within his consultation paper the question as to whether the threshold for referral of applications to the Mayor should be raised:

“As part of the large scale development theme, a threshold for large scale residential development was first set in the previous regulations in 2000 as development providing more than 500 houses, flats, or houses and flats or residential development on more than 10 hectares. In 2008, this threshold was reduced to 150 houses, flats or houses and flats.

Through engagement, the government is aware that in some instances this threshold is considered to be too low, requiring what may amount to duplicative interactions by developers with the relevant London Borough and with the Greater London Authority which is not always considered proportionate to the nature of the development in question.

The government wants to make sure that this threshold is set at the right level, in order that it adds value to the process of determining applications for potential strategic importance (especially for residential development), and does not inadvertently slow down or disincentivise developments that could be appropriately determined by the London Borough.”

In conclusion, will building homes on brownfield land be “turbocharged under a major shake-up to planning rules”? It’s more a ratcheting-up of policy than a “major shake-up to planning rules” (thankfully). And whilst I refuse to engage with that ridiculous, very Boris Johnson, word “turbocharged” and whilst this is a very late initiative for a Government that is fast running out of road, let’s hope there is at least some acceleration as a result.

Simon Ricketts, 13 February 2024

Personal views, et cetera

Street Votes!

I know we are all trying to wind down, or maybe are slumped there fully unwound already, I do know that, I do see you. However, I couldn’t let a DLUHC consultation paper just slip out unnoticed on 22 December…

The Government’s consultation paper on street votes development orders landed this afternoon. The consultation period closes on 2 February 2024

You will recall that this new potential consenting route for domestic development was teed up by section 106 of the Levelling-up and Regeneration Act 2023, which shoehorns new sections 61QA to 61QM into the 1990 Act.

The consultation paper summarises as follows how SVDOs will work in practice:

“11. A group of residents which meets certain requirements will be able to come together with a proposal for permission to be granted for development on their street, for example the addition of an extra storey to properties. The proposal can be put forward by the group of residents directly or with the assistance of an individual such as an architect.

12. The proposal will be examined by the Planning Inspectorate on behalf of the Secretary of State to check that the proposed development is in scope and that requirements prescribed in secondary legislation are met. These requirements will help ensure that development meets high design standards and that local impacts are taken into account.

13. If the proposal passes the examination, it is then put to a referendum. Where the required threshold of votes is met, subject to any final checks, the Planning Inspectorate will make the street vote development order on behalf of the Secretary of State. Once the street vote development order is made, granting planning permission, a person with control of the land can then decide whether they want to take forward development.

14. Where street vote development takes place, local authorities will be able to capture value from the new development via the Community Infrastructure Levy and, when it is introduced, the new Infrastructure Levy, and use it to fund infrastructure that will support the local area.”

The Government proposes that for the procedure to be available there will need to be at least ten residential properties in the street, with rules as to the minimum size of the qualifying group of voters and percentage of votes required as follows:

It is proposed that any proposal must include:

  • “a signed and witnessed letter from members of the qualifying group declaring that they support the proposal, where a proposal has been submitted on their behalf
  • a map which identifies the street area and the land in that street area to which the proposal relates
  • a draft order which includes a description of the development to which the order relates and any proposed planning conditions
  • any necessary supporting information such as impact assessments or statements. Further information is set out in the “Managing local impacts” section of this consultation
  • details of any consultation with statutory bodies
  • a declaration that the qualifying group has engaged with the local community”

“21. In addition, we propose that qualifying groups (or those acting on their behalf) must submit a street design code that sets out illustrated design parameters for physical development within the street area such as number of floors, plot use and the facade treatment of buildings.

22. We also propose qualifying groups (or those acting on their behalf) will have the option to submit a detailed specification of the elevations visible from public spaces for new or extended buildings that are permitted in the street area. If these are submitted, they must include at least one detailed elevation drawing for facades facing public spaces. Specifications of elevations not facing public spaces are optional. Qualifying groups may provide various façade options if a varied streetscape is desired.

23. If plot widths in the street area vary, the specification must include requirements on how the elevations can be adapted to deal with such variation. If they wish, qualifying groups may also choose to include permitted elevations for wider buildings that can be created by merging plots e.g. an elevation for a small mansion block created by merging three existing plots.”

A ”street area” is to be defined as “the properties on each stretch of road starting or ending at a crossroads or as a minor road at a T-junction or where there is a gap between buildings of more than 50 metres. A street is treated as terminated if the continuous stretch of buildings is broken by a bridge wider than 3 metres. This applies to both the street running beneath and over the bridge. A residential property is counted as being in a street area if any part of its boundary runs along the highway. The street area must have at least 10 residential properties within its boundary. We also propose that adjoining streets could be joined together to form one street area, for example, joining together two streets that have fewer than 10 residential properties.”

Detailed design requirements are set out in a table at paragraph 35 of the consultation document, informed by six design principles:

  • Supporting a gradual evolution in the character of neighbourhoods
  • Limiting impacts on neighbours
  • Preserving green space and increasing outdoor space (including balconies)
  • Celebrating heritage
  • Promoting active travel
  • Creating sociable neighbourhoods

If you look at the paragraph 35 table you will see that there is much detail as to for instance, the maximum number of extra storeys (dependent on the density of the area); setbacks; basements; angled light planes; ceiling heights and corner properties.

It is proposed that “street vote development orders should be permitted to go beyond that which might be permitted under the local development plan where the impacts are broadly acceptable in the view of the Secretary of State according to national policy, and it will not cause problems with the implementation of the local plan.”

If the proposal survives examination and the necessary referendum, the Government hasn’t yet decided how long property owners will have to commence development:

  • “Option A: Development must be commenced within 10 years of the order being made. This is longer than is typically allowed for planning permission granted through existing consent routes because the permission will potentially apply to properties under many different owners, some of which may not be able to commence development within a shorter period (e.g. 3 years). The qualifying group would also have the option to propose an increase to this period as part of its proposal if it takes the view more time is needed to commence development;
  • Option B: Development must be commenced within a specified period (e.g.10, 20 or 30) years of the order being made. The qualifying group would also have the option to apply to the local planning authority after the order has been made to extend the commencement period; and
  • Option C: No time period. Permission granted through a street vote development order would be permanent.”

In summary, there’s a lot here for local planning authorities, planning professionals and (above all) home owners to get their heads around. The concept has been widely lobbied for by eg Policy Exchange, Create Streets and YIMBY. I’ll be interested to see the extent to which ultimately there is take-up and, aside from the inevitable definitional problems with any rules-based process such as this, of course there are some open questions as to the extent to which this process, alongside continuing extensions of permitted development rights and the prospect of national development management policies, further marginalises the role of the local planning authority. And does anyone remember neighbourhood development orders and all of that malarkey…?

But something to be picked up again on the other side, as they say.

In the meantime, peace to all in 24 – even to those I may be seeing across a planning inquiry or court room!

Simon Ricketts, 22 December 2023

Personal views, et cetera

Image from YIMBY Street Votes website

In DLUHC Jubilo: NPPF & Much More

God bless planners who have been waiting for this day all year. I hope you participated in the nppfestivities although to my mind the NPPF itself was the least interesting of what was published today (19 December 2023).

This is today’s publication list as it stands at 6 pm (ten items):

  1. The new National Planning Policy Framework and
  2. the Government’s response to consultation on reforms to national planning policy.

I’ve been reading the latest version of the NPPF as against the previous September 2023 version and against the amendments consulted on in December 2022. This is just a first quick take. I’ve just read the lines so far. The interesting bit is of course going back and reading between them. (A Landmark Chambers/Town Legal seminar is planned for 15 January 2024 with exactly this in mind – details here).

As compared to the December 2022 consultation (see my 22 December 2022 blog post) the changes are relatively limited, the main substantive ones being (in broad summary):

  • No further restrictions after all as to when the paragraph 11 tilted balance applies (although for an authority whose plan has reached at least regulation 18 stage the requirement to show five years’ worth supply of housing supply drops to four years). The consultation paper had suggested exclusions where meeting need in full “would mean building at densities significantly out of character with the existing area” and where there is “clear evidence of past over-delivery”.
  • The changes consulted upon to the “soundness” test for local plans, particularly the deletion of the “justified” requirement, are not being taken forward.
  • Whilst as per the consultation draft, the outcome of the standard method for assessing housing requirements for an area is expressed as an “advisory starting point”, the exceptional circumstances for departure make it clear that “the particular characteristics of an area” is in fact the “particular demographic characteristics of an area”.
  • References have been added, supportive of “community-led development”.

The “area character” point has instead been picked up in a new paragraph 130 which advises that “significant uplifts in the average density of residential development may be inappropriate if the resulting built form would be wholly out of character with the existing area. Such circumstances should be evidenced through an authority-wide design code which is adopted or will be adopted as part of the development plan.”

Substantively as per the consultation document, there is “no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated”. How can this possibly work in Green Belt authorities with high levels of unmet housing need?

As per the consultation document there are plenty of exhortations as to beauty.

3. Consequential changes to the advice in the Government’s Planning Practice Guidance about the Green Belt and about traveller sites .

4. The Secretary of State’s Falling Back In Love With The Future speech at the RIBA.

5. The Secretary of State’s written ministerial statement to the House of Commons: The Next Stage in Our Long Term Plan for Housing Update.

Much of the statement simply summarises the other documents covered in this blog post but the section on Cambridge is worth setting out in full:

“Cambridge

Finally, I want to provide an update on the Government’s vision for Cambridge 2040. In July, I outlined plans for a new urban quarter – one adjacent to the existing city – with beautiful Neo-classical buildings, rich parkland, concert halls and museums providing homes for thousands. This would be accompanied by further, ambitious, development around and in the city to liberate its potential with tens of thousands of new homes.

In the intervening months, Peter Freeman, the Chair of the Cambridge Delivery Group, has been developing our vision for the city, in collaboration with a whole host of local leaders and representatives. I am clear that delivering our vision means laying the groundwork for the long-term, and that starts now.

We plan to establish a new development corporation for Cambridge, which we will arm with the right leadership and full range of powers necessary to marshal this huge project over the next two decades, regardless of the shifting sands of Westminster.

We recognise the scale of development we are talking about will require support from across the public and private sectors, to realise our level of ambition.

And we must also ensure we have an approach towards water that reflects the nature of Cambridge’s geography. So today I am also announcing that we will review building regulations in Spring next year to allow local planning authorities to introduce tighter water efficiency standards in new homes. In the meantime, in areas of serious water stress, where water scarcity is inhibiting the adoption of Local Plans or the granting of planning permission for homes, I encourage local planning authorities to work with the Environment Agency and delivery partners to agree standards tighter than the 110 litres per day that is set out in current guidance.”

6. Housebuilding in London: Letter from the Secretary of State for Levelling Up, Housing and Communities – the highlights:

“We agree that housing delivery in London is far below the levels needed. Not only is delivery considerably short of your own London Plan target by approximately 15,000 homes per year, it was approximately 63,500 homes lower than actual need last year, as calculated by the standard method. This is not a national issue. London was the worst performing region in the Housing Delivery Test 2022. Fewer than half of the London Boroughs and Development Corporations delivered more than 95% of their appropriate housing requirement for the test over the three-year monitoring period. Areas like the West Midlands are overdelivering, while London continues to fall short.

This has a significant effect on the availability of homes for those wanting to live and work in the capital, as well as for the standard of housing available. London’s average house prices remain the most expensive in the UK – an average of £537,000 in September 2023. The average price was over 12.5 times average earnings last year. London has the lowest level of home ownership in England. Our capital also has, as you know, the highest proportion of renters. There are 60,040 homeless households in temporary accommodation, including over 80,000 children.

Under your leadership the GLA is failing to provide affordable homes for those that need them most.

While I welcome the commitments you made in your letter, as well as the ideas you have provided for Government to consider, they are not enough to change this woeful picture. In July, I asked my officials to review housing delivery in London to gain a greater understanding of the reasons for this significant under-delivery. We met stakeholders, including planning authorities, developers, and boroughs to identify the challenges they encounter in delivering housing. In the course of those discussions, a number of issues were raised which stakeholders believe are adversely affecting housing delivery in London.

Due to the significant shortfall in housing supply and under delivery of housing in our capital, I have concluded that it may be necessary to take further action now, as a matter of urgency, to make sure London is delivering the homes our capital needs.

With this in mind, I have asked Christopher Katkowski KC to lead a panel of expert advisers comprising Cllr James Jamieson, Paul Monaghan, and Dr Wei Yang, to consider the aspects of your London Plan which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites in the heart of our capital. I have asked them to produce their report by January and will make sure that it is shared with you.

If you cannot do what is needed to deliver the homes that London needs, I will.”

7. Housing Delivery Test: 2022 measurement

8. Local Plan intervention: Secretary of State’s letters to 7 local authorities  directing them to revise their local plan timetables – Amber Valley. Ashfield, Basildon, Castle Point, Medway, St Albans and Uttlesford.

9. Direction preventing West Berkshire Council from withdrawing its emerging local plan at a meeting tonight.

10. Freeports delivery roadmap.

A busy day in Marsham Street…

Simon Ricketts, 19 December 2023

Personal views, et cetera

PS This my 400th post. I’ll get the hang of it soon, I promise.