This is the ACA Member’s page for the ACA Planning Action Group. This page will be used to post items for consultation and discussion with the ACA membership. Additional discussion can be found in the ACA members’ blog.
Planning Update October 2019
Consultations from MHCLG have recently been few and very technical (such as “Proposed reforms to permitted development rights to support the deployment of 5G and extend mobile coverage”), pending a green paper due ‘in the autumn’ on speeding up planning (again!) and following yet another set of personnel changes in the Ministry. The major government planning concerns are Housing Delivery Tests, proposed permitted development rules for building upwards and demolishing redundant commercial buildings, housing standards, a clarification of the rules for short-term lets and airbnbs, possible relaxation of set planning application fees, and so on. All these in abeyance while other matters (guess what?) are resolved.
Meanwhile MHCLG has published a NATIONAL DESIGN GUIDE, subtitled “Planning practice guidance for beautiful, enduring and successful places”, which requires a response from all local authorities with regard to area design codes, design panels, etc. Unfortunately, it’s been criticised and seems to be no more than a comprehensive plea for motherhood and apple pie (with pictures). But it does include the suggestion that councils can use strategies such as “encouraging the retention of key design consultants from the planning application team and using design review as at appropriate intervals” to ensure that the quality of an approved development is not diminished between commission and completion. This is something the ACA has been seeking to promote for many years and will continue so to do. The Building Better Building Beautiful Commission also published an interim report – its final version due ‘by the end of the year’.
The public inquiry (EIP) into the revised NEW LONDON PLAN finished in May/June and the final document is due to be published early next year. For a summary of the main issues, see London Forum’s newsletters 81 and 82.
A supplement to the RAYNSFORD REVIEW, entitled “Planning 2020 in Practice”, is subtitled “A Councillors’ Guide to Implementing the Raynsford Review of Planning in England”. It is aimed at planning committees, but being something of a sceptic, I’m not sure how many councillors will actually read it (let alone follow its recommendations). It proposes seven Actions, from declaring a commitment “to plan positively”, to investing in “the planners of the future” (I’m not sure how councillors on planning committees are supposed to do that). They are laudable but rather vague suggestions, such as “Place people at the centre of plan-making” and “Take an active role in delivering new places and homes”: but (as for the Raynsford Review itself) there’s nothing too controversial or even fundamental proposed.
RECENT LEGISLATION AND OTHER CHANGES
- CIL reforms that came into force on 1st September are mainly based on indexation issues and include greater transparency on how CIL rates are assessed and monies are spent.
- A £96 application fee for prior approval of residential extensions that are carried out under permitted development rights came into force on 19 August (with some exemptions).
- The promised government review of the quality of homes that have been provided by permitted development changes of use is still awaited.
- Permitted development rights for telephone kiosks has been removed and advertising rules have been amended.
- Proposal to create ten “freeports” across the UK, probably with the removal/simplification of planning rules: awaiting further details.
- Amended new towns regulations came into force earlier in the year and proposals for the next round of new garden communities must be submitted by 9th November.
- Final report of a review of England’s ten National Parks and its 34 Areas of Outstanding Natural Beauty due in autumn, but meanwhile the government has issued revised PPG guidance with fresh details on how planners should implement “net environmental gain” requirements when assessing applications, including new advice on protecting wildlife.
- DEFRA has just published the Environment Bill which includes a proposal that developers must deliver 10 per cent net biodiversity gain through their schemes, although with a number of exemptions (eg on brownfield land proposals and for self-builders).
- Housing Minister Esther McVey has announced plans to release data held by local bodies to enable the UK ‘PropTech’ sector to thrive and for them to “bring about a digital revolution in the property sector.” This is apparently in line with the GLA’s London Development Database Automation Project which is aiming to require applicants for planning permission to provide up to 69 specified pieces of information with every application form.
Permitted Development Update April 2019
You may have read about proposed changes to permitted development rights (pdr) which were the subject of a recent consultation and part of the government’s Spring Statement. We are sending this note to explain what is expected to be allowed.
- The upwards extension of certain existing buildings to provide additional homes, and probably extra residential space, subject to design and amenity restrictions.
- The change of use to B1 offices of A1 shops, A2 financial and professional services, pay day loan shops, betting shops, launderettes and A5 hot food takeaways (which may also be able to change to residential use).
- Extension of temporary changes of use between various high street uses, including those noted above and a wider range of community facility uses, to support flexibility and vacancies in the high street (some of these changes already exist but all will now be for three years).
- Making the pdr for larger rear house extensions, due to expire on 30th May 2019, permanent but subject to “a proportionate fee”.
- Amending existing pdr to install electric vehicle charging points to permit taller charging stands, probably up to 2.3 metres.
NB Changes of use between a fairly wide range of different classes are already allowed but these are to be extended.
Please note that the simple things are expected in the next few weeks, but the more complex/controversial things (such as upwards extensions) won’t be enacted until “the Autumn” and others, like replacement of commercial buildings by homes, are still being considered: while pdr for telephone kiosks and conversion of storage spaces to residential use will shortly be withdrawn. Also there will be a review into the quality of residential units being produced by pdr, which may eventually result wider restrictions for the creation of new homes.
Finally it is important to note that these new rights will of course have to comply with Building Regulations; and most will be subject to (often complex) prior notification procedures and approvals, making the original concept of true “permitted development” that does not require a formal planning application somewhat meaningless.
This link to an article from Planning magazine sets out the proposals and reaction to them more fully and can be accessed by subscribing or taking out a free trial:
Planning Update July 2017
The change of government leadership following David Cameron’s departure and the upheaval of the general election and its aftermath (including yet another new Planning Minister) has led to a distinct pause and changes in emphasis for planning. There is more support for rental housing in a shift away from the previous focus on home ownership, the London Mayor has published affordable housing planning guidance that is strong on economic viability, together with a wide-ranging Transport Strategy document – and there seems to be really serious consideration being given on how to supply much-needed new homes.
The Neighbourhood Planning Act 2017, pushed out before the dissolution of parliament, became law on 27 April. It contains new powers to strengthen and simplify neighbourhood planning; for the government to direct local authorities to develop joint plans; for County Councils to prepare local plans where Districts do not have them; for LPAs to keep a planning register of all prior approval and pd decisions; for pre-commencement conditions to be unenforceable unless agreed beforehand in writing*; for further technical changes to the Compulsory Purchase procedures; and (by separate Order) to remove the permitted development rights that allowed the demolition of Class A4 ‘drinking establishments’ (i.e. pubs).
While we await secondary legislation and a government analysis of responses to the Housing White Paper (see box), the High Court has sent down three key decisions: first, in Palmer v Herefordshire Council & Another, it was held that the proper and full consideration of the effect of development on heritage assets (here a listed building) and possible mitigation were sufficient to safeguard a decision; second, Riki Shasha and others v Westminster CC, reinstated the requirement for all planning permissions to include reasons for granting;and third, Eatherley v Camden LBC, ruled that the creation of a basement extension beneath an existing dwelling may not, contrary to what has been generally accepted up to now, be permitted development if significant engineering works (ie deep excavations and underpinning, classified as engineering works and therefore not pd) are required “as a separate activity of substance” in order to create the space to build the extension.
In addition, the Supreme Court has ruled that the absence of a 5-year supply of deliverable housing sites renders out of date only those policies dealing with the numbers and distribution of housing and not those which seek to restrict housing – this means that if an authority has an up-to-date plan it can rely on adopted restrictive policies even if they don’t have a 5-year housing land supply.
The following summary of planning issues in 2016 was presented to London Build at Olympia by me and Brian last October.
HOUSING AND PLANNING ACT 2016 Subject to secondary legislation, still awaited
Starter Homes – must be new; available for “qualifying first time buyers’; sold at a discount of 20% below market cap (£450k in London and £250k outside but with SoS power to amend figures and areas); LPAs have a duty to promote their supply; they may be counted as affordable housing; details will follow current consultation and could apply to all sites of +10 units / 5 ha with possible joint purchasing and various exemptions being considered (including CIL non-payment).
Permission in Principle (PiP) – for housing / housing-led development; will be granted in outline automatically either as Qualifying Development if on a brownfield site / other (eg Neighbourhood Forum) register or by application to the LPA; valid for 5 yrs (QD) or 3 yrs (LPA); subject to approval of technical details (ie ‘reserved matters’; only 5 weeks for determination of approval and 5-10 weeks for technical details; only granted if EIA either (i) screened out or (ii) completed; much further detail is absent from the Act, but secondary legislation is now imminent and it is clear from first drafts as issued that the intention is to reinstate proper outline planning permission subject only to location (red-line site), quantity and use.
Alternative Providers – proposed introduction of competition for processing planning applications, to be tested with pilot schemes, decision remains in the hands of the local authority, opens up likely variable application fees.
Other General Provisions – powers for the SoS to intervene in the production of Local Plans, proposals for mandatory section 106 dispute resolution process (ie mediation), extension of right to buy to housing associations, proposals for the recovery of abandoned premises, reductions in security of tenure, etc.
PERMITTED DEVELOPMENT (GPDO) CHANGES Came into force 6th April 2016
Previous temporary change of use from office to residential made permanent.
Exempt areas to cease operation on 30th May 2019.
Noise impacts allowed to be considered (along with traffic, flood risk, etc).
Launderettes now allowed to change to residential use as well as shops.
Right to change light industrial use to residential, with time and other restrictions.
Applications for lawful change of use certificate must include unit increase details.
Minerals exploration (incl. fracking) and other detailed/wording clarifications.
HERITAGE PROTECTION REFORM Historic Environment Forum recommendations
Proposals to improve listed building and conservation area applications including
- fees for listed buildings applications
- accredited agents to provide heritage assessment and possibly approvals
- better guidance on heritage/design/conservation statements
COMMUNITY INFRASTRUCTURE LEVY Peace Review due end March 2016, still awaited
Government review to assess the effect/efficiency of CIL led by Liz Peace, who said: “We don’t actually think it’s providing a huge amount of funding for infrastructure, and it most certainly hasn’t provided a faster, simpler, more transparent system.”
PLANNING WHITE PAPER Promised before the end of 2016, published February:
Sajid Javid (Communities Secretary) had threatened a “coherent strategy for how we can get this country building the homes we need”. Gavin Barwell (once Planning Minister, ousted in the election) suggested a policy shift away from focus on home ownership and towards support for a range of housing tenures, including rental, with £1.3 billion allocated in the 2016 Autumn Statement for ‘alternative’ providers to develop affordable housing. This was something of a damp squib, compared with the RTPI’s 16 Ways to Address the Housing Crisis, such as a fiscal regime that would encourage build-to-rent housing, innovative new ways to fund affordable housing, making housing plans a central plank of devolution deals and aligning transport infrastructure with housing delivery.
Finally, with the AJ we’ve produced a questionnaire in an attempt to find out how pre-application procedures are being dealt with in the planning system, with a view to alerting government to perceived abuses, inconsistencies and other failings.
* Conditions, particularly those that are onerous, disproportionate or unreasonable and (often) unnecessarily imposed as having to be discharged prior to any commencement of the development approved, are set to be further outlawed following a comprehensive consultation by the DCLG which the ACA supported in its response. We wait to hear exactly how far the government is prepared to go to stop the proliferation of conditions that has been evident in recent times, but it’s encouraging that a recent consultation document with strong proposals has been almost completely accepted (against some LPA misgivings) and the Act has outlawed pre-commencement conditions unless agreed by the applicant.
Planning Update February 2016
Here is a summary of measures included in the Housing and Planning Bill, currently with the House of Lords having passed through three readings and a Report Stage in the Commons, as well as other recent planning and appeal news:
Housing and Planning Bill: This is at the time of writing being considered by the House of Lords, having passed (with surprising speed) through the Commons using the new procedure whereby measures affecting England are only voted on by English MPs. It proposes various measures to encourage new housing and “simplify” planning:
- The Right to Buy will be extended to social housing – but with the proviso that for every Housing Association property sold a replacement affordable home (and two homes in London) must be built elsewhere.
- There will be amendments to the business to residential permitted development rules allowing this to be made permanent, with a right to demolish existing office buildings for new homes, an extension to include light industrial buildings and launderettes, etc.
- Promotion of ‘starter homes’ will be encouraged by allowing automatic small-scale approvals on suitable land, and by requiring residential developers to provide a proportion of new homes for sale to first time buyers at a discount.
- Planning permission will be granted in principle to sites on new brownfield land registers and where allocated in Local and Neighbourhood Plans.
- Developers will have the ability to submit applications for non-major development directly to the Planning Inspectorate where a council has a very poor record in speed or quality of decision-making.
- Councils will have a duty to state the potential financial benefits of proposed developments when reporting to planning committees; and to grant permission for serviced plots sufficient to meet the demand for self-build housing in their area.
- Finally, there will be a pilot for a new procedure allowing competition in the processing of planning applications – as recommended some years ago by the ACA’s Planning Manifesto.
Many of these changes will be subject to possible adjustment by the Lords and will need secondary legislation, but should become law under the current government “fast-track new housing” regime before the summer.
PPG: The national Planning Practice Guidance was amended last year as a result of a court judgment that ruled the inclusion of government advice to prevent planning authorities from requiring a contribution towards affordable housing when fewer than ten new dwellings are permitted was illegal, especially when the authority had a fully-adopted policy to that effect. The government was concerned that such a levy could be economically unviable for smaller builders and one-off proposals, thus stopping its drive for new housing in its tracks. The Supreme Court is reviewing the decision by Judicial Review, but if it’s upheld the government will have to bring in new legislation to achieve the desired amendment.
Housing Standards are being applied to nationally-set building regulations requirements in place of the Code for Sustainable Homes, Lifetime Homes criteria, etc, which have been phased out of the validation lists for planning applications.
Permitted Development: Revisions made in April 2015 widened pd opportunities considerably and the allowed removal of office to residential changes in specific areas will shortly be rationalised by the Housing and Planning Bill, requiring exceptions in specified areas to be valid only where included in adopted Local Plan documents.
CIL regulations are being amended again, in accordance with the results of a comprehensive consultation, just ended. As a significant number of councils do not have a CIL charge in place (the revised deadline was April 2015), their ability to impose section 106 contributions for non-site specific infrastructure has been severely curtailed and there are complex rules to prevent “double accounting”, etc.
PINS: In recent months the targets for deciding all types of appeal have been widely extended, mainly due to periods of more than 10 weeks being experienced simply to have a new appeal validated. The Inspectorate “cheats” by basing its target returns on the time taken from registration to decision, so while a simple appeal might be considered to have met its target (8 weeks for fast-track, 14 weeks for written), in fact these times are more likely to be 18 or 24 weeks from the actual submission. There is some evidence that the situation is improving, with new inspectors being appointed and validation being streamlined, but progress is very slow.
Neighbourhood Forums: More than 120 Forums have now had successful referendums, with Plans formally adopted as part of their local development policy frameworks, and over 1,700 areas have begun the process. DCLG is carrying out detailed assessments of neighbourhood forums in practice – preliminary results suggest that local planning applications and permissions are simpler and more likely to bring approvals where a Neighbourhood Plan has been adopted. A Parliamentary Committee led by John Howell MP is considering other ways that the Neighbourhood Forum procedures can be streamlined without needing primary legislation.
Planning Update April 2015
27th March – Deregulation Act 2015 became law, although several parts require secondary legislation to be enacted by the next Parliament.
On 25 March, immediately before Parliament’s pre-election break-up, Eric Pickles delivered a lengthy DCLG written statement to the House, which summarised the Coalition Government’s “achievements” in respect of planning policy – and (reading between the lines) could be taken as the swan song of our weighty Secretary of State. At the same time various Statutory Instruments were published and come into force on 15th April 2015, including
· Town and Country Planning (Development Management Procedure) (England) Order 2015 – SI 2015 No.595
· Town and Country Planning (General Permitted Development) (England) Order 2015 – SI 2015 No.596
· Town and Country (Use Classes) (Amendment) (England) Order 2015 – SI 2015 No.597
· Town and Country Planning (Compensation) (England) Regulations 2015 – SI 2015 No.598
· Town and Country Planning (Section 62A applications) (Procedure and Consequential Amendments) (Amendment) (England) Order 2015 – SI 2015 No.797
· Town and Country Planning General (Amendment) (England) Regulations 2015 – SI 2015 No.807
These all consolidate existing Orders, but there are some minor revisions. Also included was a new set of streamlined national technical standards for housing to be implemented through the planning system, and guidance on starter home design (with pictures!). I have summarised the main changes.
For solar energy (“protecting the local and global environment”) the new permitted development rules “encourage the take up of much larger scale solar power generation (solar voltaic) on non-domestic buildings and complement the existing flexibilities for home-owners”. It follows the comprehensive solar photovoltaic strategy that was published by the government last year.
Funding has been agreed for local authorities to help deliver 200,000 new homes on brownfield land across the country; and the challenge is for local authorities to have Local Development Orders in place on more than 90% of brownfield sites suitable for new homes by 2020.
It is proposed that “a new evidence-based planning and recovery policy for the green belt” will be introduced early in the next Parliament to mitigate harm that takes place when there is unauthorised development in advance of planning permission.
In conjunction with the Home Office and Ministry of Justice, updated guidance has been published on unauthorised encampments and the powers that public bodies have; at the same time guidance from May 2007 relating to Gypsies and Travellers has been revoked.
Parking policies and standards have again shifted in emphasis. Following the government’s abolition of national maximum parking standards in 2011, paragraph 39 of the NPPF has been amended to include this text: “Local planning authorities should only impose local parking standards for residential and non-residential development where there is clear and compelling justification that it is necessary to manage their local network.” At the same time, after previous guidance to help householders rent out under-used car parking spaces, local authorities are advised that non-residential parking space could also be rented out.
The processing of planning applications continues to be streamlined, with new measures in the revised DMPO to include changes that improve the process of statutory consultation and the introduction of a new ‘deemed discharge’ of conditions to ensure that planning conditions are cleared on time “so that homes and other development granted planning permission can start on site without delay”.
The Deregulation Act 2015 has provisions that allow much more flexibility for short-term lets (“championing the shared economy”) subject to pending secondary legislation, and to specific and localised restrictions.
Several revisions and clarifications are being made to planning guidance. These include: better pre-application and examination procedures for nationally significant infrastructure projects; updated guidance on hazardous substances and environmental impact assessment screening thresholds; tackling delays associated with section 106 planning obligation negotiations, with relaxed thresholds designed to encourage empty buildings to be brought back into use; new social housing relief rules under the amended Community Infrastructure Levy regulations to help increase the delivery of affordable housing; support for the provision of dedicated student accommodation and the Build to Rent sector; improved awareness of the New Homes Bonus; and clearer rules for the assessment of housing need.
New flexibilities for change of use to support brownfield regeneration have been introduced including: wider scope for changes between shops and financial and professional services; change from more business uses to residential and extension, to May 2019, of the period allowed for bigger domestic additions (extension of the office to residential use period to be considered later); longer periods for commercial filming; making permanent the allowance for larger business extensions and like-for-like replacements within waste management facilities; and a new requirement for planning permission for any change of use to a betting or pay day loan shop.
An exemption from the proposed Zero Carbon Homes standard due to be implemented in 2016 for housing sites of ten or fewer units, but with powers in the Infrastructure Act 2015 to enable off-site carbon abatement measures (Allowable Solutions) and proposals to strengthen minimum on-site energy performance requirements in the future.
A new approach to the setting of housing standards, especially as related to paragraphs 95, 174 and 177 of the NPPF, new national space standards, and new additional optional Building Regulations on water and access.
New plan making procedures require the removal in from emerging Local Plans, neighbourhood plans or supplementary planning documents of any additional local technical standards or requirements relating to the construction, internal layout or performance of new dwellings – including the withdrawal of the Code for Sustainable Homes. Thus the new national technical standards for housing should only be required through new Local Plan policies if they address a clearly evidenced need (and where their impact of viability has been considered). Planning authorities should review their local information requirements to ensure that technical detail that is no longer necessary is not requested to support planning applications.
For the purposes of decision taking, transition and compliance, between 27th March, when the Deregulation Act 2015 finally gained royal assent, and 30th September 2015, “planning permissions should not be granted requiring, or subject to conditions requiring, compliance with any technical housing standards other than for those areas where authorities have existing policies on access, internal space, or water efficiency”; and from 1st October 2015 “decision takers should only require compliance with the new national technical standards where there is a relevant current Local Plan policy”.
18/2/15: INFRASTRUCTURE BILL RECEIVES ROYAL ASSENT
The Infrastructure Act 2015 introduces some planning and planning-related measures, including a regime for the deemed discharge of certain planning conditions. There is provision for Mayoral Development Orders, measures surrounding zero-carbon homes, a new-look Highways Agency to be known from 1st April as Highways England (now a government subsidiary, not part of the Department of Transport), changes to the Land Registry to give it wider powers and provide a single digital Local Land Charges service, etc – generally subject to secondary legislation. Further details as they emerge.
20/1/15 Update SUMMARY OF CURRENT PLANNING POLICY ISSUES
How can planning authorities manage conflicts between locals, developers and planning policy with regard to community engagement and localism?
When the Localism Act of 2011 introduced the concept of neighbourhood planning, with localised forums that can draft and vote in planning policies so giving power back to the ‘grass roots’ of communities, many people realised that this would be in conflict with section 38(6) of the Planning and Compulsory Purchase Act 2004, which followed the well-established principle embodied in section 54 of the Town and Country Planning Act 1990 that planning decisions must be made in accordance with the adopted local plan unless material considerations indicate otherwise.
The conflict arising (recently described by planning barrister Sacha White as the fundamental battleground between localism and growthism) has, after a slow and doubtful start, led to an increasing body of appeal decisions and Case Law.
Local authorities have a duty under the Localism Act not only to support emerging Neighbourhood Forums, but also to consult the local community, as well as to co- operate with adjoining authorities. The complications and wide ramifications of these duties are now increasingly important: more than 30 Neighbourhood Forums across the country have had successful referendums, with formal Plans adopted as part of their local development plans, 100+ communities have produced a draft Plan for public consultation, and more than 1,200 areas have embarked upon a neighbourhood planning process.
With a general election on the horizon, the Secretary of State has recently been determining called-in appeals with reference to neighbourhood plans, even (for at least one case) when these are no more than the vague aspiration of a Parish Council. It is therefore important to involve developers and local communities in the neighbourhood planning process. And to note that the Localism Act amended section 38 of the Planning and Compulsory Purchase Act to make clear that the local plan to be followed will include any properly-made Neighbourhood Plan.
What is meant by spatial planning and how will this be considered in the planning and design process?
As soon as it came into power the coalition government set about arranging the demise of so-called ‘top-down’ strategic planning, otherwise known as Regional Spatial Strategies.This involved the liquidation of regional government offices and the withdrawal of regional plans. One of the last to go was The South East Plan, although the research and particularly the housing need figures that were included still exist and can be used as evidence of a local area’s housing demand.
We therefore now have development by appeal, whereby planning authorities that either have no up to date Local Plans (still around 50% across the country) or proper housing land availability studies are being obliged to accept new housing developments because they do not have sound policies for allocating housing land.
Site specific spatial planning also covers the whole range of design, from plot curtilage to village envelope via the planning unit and economic viability, all of which are relevant to the planning process – although the weight they are given may vary, with a different emphasis for projects in conservation areas, green belts and brown/ greenfield sites or those that affect heritage assets.
Current changes in what is expected to be considered are reflected in the simplification of outline planning application requirements and the removal of the need to provide Design and Access Statements for a wide range of applications.
Other considerations that have to be taken into account in the planning process include possible benefit of new development to the local community. This ranges from the concept that new housing – especially affordable units for young families – can give fresh life to the facilities of a village or small town, such as the post office, pub or bus service, through the New Homes Bonus whereby local authorities receive extra funding for approving new housing, to the latest idea that is to be promoted in a government pilot study that will allocate real cash to residents that are close to and affected by new development. Whether this is a realistic proposition remains to be seen.
How are recent developments in CIL, s106 and Affordable Housing impacting on development viability and the overall supply of housing?
When they were introduced the Community Infrastructure Levy (CIL) regulations were widely agreed to be poorly drafted and over-complicated. This was an idea originally promoted by the last Labour government and was expected to be ditched by the coalition. But in another of many historic attempts to capture the value of granting planning approval, dating back to the Development Land Tax and beyond, CIL was introduced quickly and as a result has now been amended several times.
The latest changes allow self-build houses and small extensions to be completely exempt, while the promise that section 106 payments (ie those related directly to the effects of specific site developments rather than a more general tax benefit to the community) would be outlawed by 2014 has not only been extended to at least April 2015, but has also been watered down so that section 106 will continue to apply for such things as affordable housing provision, but with a complex system of ‘pooling’ that is designed to prevent double accounting. The government is also introducing a ‘blanket’ policy to exempt sites of 10 units from affordable housing.
The overall picture is therefore much less straightforward than was originally envisaged. Several local authorities have had their draft CIL payment schedules rejected at examination because they did not take account of affordable housing quotas. The rule is that CIL should not
be so onerous as to make development economically unviable. But there is very little evidence, particularly in the light of the recession that immediately followed its introduction, to establish whether CIL is acting as a brake on growth. It is now possible (even acceptable) to appeal against affordable housing provisions agreed in planning permissions that were negotiated prior to the introduction of CIL. There is real evidence of how it has actually worked in the figures from the Mayor, which suggest that funds from CIL payments (due in London since January 2012) are keeping the Crossrail project going.
What does sustainability mean in planning – can the technicalities be relegated to building regulations?
It is not widely understood that sustainability in planning has a varied meaning, with many nuances of interpretation.This ranges from the more general criteria of the NPPF’s paragraph 7 (economic growth, social support and environmental protection), through the standard NPPG guidance on what is required for local plans to be sound in terms of sustainability, to the balance needed when assessing flood risk mitigation or transport availability.
Indeed, it has recently been suggested that when paragraph 49 of the NPPF, which requires planning authorities to have a five- year supply of deliverable housing sites, is considered this has to be related not only to development but specifically to sustainable development: see also the presumption in favour of sustainable development set out in paragraph 14 of the NPPF.
The issue of sustainability in the planning system has now been focused by the government’s intention that Housing Standards are to become part of the nationally-set building regulations regime. This is in response to a consultation held in October 2013 and promises to deliver
“a radically simplified system for setting standards in the design and construction of new homes by the end of this Parliament”. It includes making planning authorities only defer to the simplified building regulation requirements when making decisions, and the Code for Sustainable Homes will be phased out. It makes sense to move new housing standards into building regulations rather than continuing with multiple separate standards included in planning policies and 80% of those consulted agreed.
Together with this new regime, there will be a long-awaited simplification of the multiple conditions that are now attached to most planning permissions. Planning authorities have been increasingly keen to impose stringent conditions, many of which are technical and/or spuriously demand discharge before development can commence, but they are often notoriously bad at clearing these promptly.
The government is certainly aware of these problems and the introduction of a new set of Housing Standards to be part of Building Regulations and a proposed ‘default’ approval system whereby applications to discharge conditions can be taken as approved after a limited period of time, will do much to improve these difficulties, while removing the need for specialist technical expertise from planning departments. Many of these changes were put forward by the Association of Consultant Architects as part of its planning manifesto, first published in 2006.
What is the effect of continuing changes to permitted development rights and prior approval procedures with particular reference to residential proposals?
The General Permitted Development Order of 1995 gave automatic planning permission across the country for a wide range of minor developments that could therefore be undertaken without further approval. For architects, this has meant that a form of ‘self-certification’ is available as a service to clients, although to be certain that the rules apply in a particular case it may be advisable to obtain a Certificate of Lawful Proposed Development.
This is particularly relevant because of the many changes and complications that have grown up over subsequent years, which mean that the current regulations are both complex and in many cases unclear.
The latest revisions for example allow A1/ A2 retail and agricultural uses to change to residential (except on Article 1(5) land – conservation areas, AONBs, National Parks, etc); shops to become banks; and offices, hotels, residential institutions and leisure / assembly buildings to become nurseries– and more changes are in the pipeline. Changes made in May 2013 brought in a new concept of ‘prior approval’ as an intermediate stage between no planning permission and a full application.
Indeed, April’s budget promised a review of the General Permitted Development Order with proposals for “a three-tier system to decide the appropriate level of permission … small-scale changes [dealt with by pd and/or self-certification], prior approval rights for development requiring consideration of specific issues, and planning permission [only] for the largest scale development”.
While the widening of permitted development and further relaxation of planning control is claimed by government to support growth in the economy it, at least in theory, works against efforts to devolve power down to the local community and has brought in examples of the law of unintended consequences.
One of the glaring omissions from the 2013 changes that allowed B1(a) offices to change to C3 residential use was wording to make clear (contrary to what had been expected) that the offices concerned should have been vacant for a specified period of time. This has, at least in London, resulted in many thriving office users being evicted in favour of the (currently) more lucrative housing occupiers. A recent survey by Planning magazine suggested that the quantity of these office to residential applications in London (2,000+) and other core cities (270+) has far exceeded official estimates published before the change was enacted.
Several London boroughs (notably Islington and Richmond where Article 4 Directions to remove pd rights are being battled over) have tried to undermine the office to residential changes by using Directions disproportionately and have been knocked back by the Secretary of State, although a reduced number of specific area exemptions have been allowed. The latest DCLG ‘technical consultation’ on planning suggests that the current exemptions (for areas such as the City and the whole of Kensington and Chelsea) will be withdrawn in 2016, when local authorities will be expected to have included specific areas for exemption in their Local Plan documents.
There is currently a bitter ongoing debate between those who believe the market should be allowed to determine how planning policy operates, and those who are concerned that the planning system should be concerned with dictating how land and properties are to be used: plus la meme chose!
Reshuffle: planning minister Nick Boles was replaced by Brandon Lewis, MP for Great Yarmouth, who will take both the housing and planning portfolios as a fully fledged minister of state. Previously planning and housing were split and the responsible ministers were more junior. In view of the current housing crisis, one could say this change is too little, too late. Penny Mordaunt, MP for Portsmouth North, is the junior minister responsible for planning casework, local growth, coastal communities, fire, resilience and emergencies (eg flooding).
Nick Boles brought real energy to the planning brief. Hopefully Mr Lewis will keep up the pace and make full use of this new, expanded portfolio, even as the Coalition winds down.
The Queen’s speech announced the coalition government’s intention to continue to “reform planning law to increase economic competitiveness” as part of the forthcoming Infrastructure Bill. This will “allow certain types of planning conditions to be discharged upon application if a local planning authority has not notified the developer of their decision within a prescribed time period” – ie automatic approval by default. These and other (unspecified) measures will “help speed up the time taken for sites granted planning permission to be built out, including reforming unwieldy procedures and conditions attached to existing planning permissions…” The Bill also includes measures to smooth the transfer of land “from arms-length bodies to the Homes and Communities Agency” and to allow HCA and GLA land to be developed “without being affected by easements and other rights and restrictions suspended by the Agency”. The Bill had its first reading in the Lords at the beginning of June.
In the case of Ahmed v Secretary of State for Communities and Local Government and London Borough of Hackney, the Court of Appeal has upheld a High Court ruling that planning Inspectors have wide powers to remedy breaches of planning control when dealing with enforcement appeals. In summary, the enforcement notice should have been modified to require alterations to the building to bring it back to what had been permitted rather than to demolish it completely as required by the Council’s enforcement notice.
Summary of legislative and other procedural changes made by government over the last two years to (allegedly) improve the planning system presented under four headings:
Permission not now required: Changes of use (and minor building works) that have been either wholly or partly taken out of the system include Offices to residential; Larger residential and commercial extensions; Agricultural building conversions; Broadband equipment installations; State-funded schools; Flats over shops; Temporary uses; Retail to residential; Shops to banks; Offices, hotels, residential institutions and leisure / assembly buildings to nurseries; etc.
Pre-application: There is now a legal requirement for information requested to be reasonable; Local lists must be updated every two years; Design and access statement requirements have been reduced; Outline applications are simpler; Non-validation appeals are again allowed; New guidance on Pre-Planning Agreements has been published; and Pre-commencement conditions are under review (especially their justification) along with technical conditions that should be part of the Building Regulations system instead of planning.
Application process: Planning fees must be refunded if a decision takes longer than 26 weeks; Under-performing authorities can be by-passed by applying to PINS instead (and the threshold for this is rising); Reasons no longer have to be given for approval, replaced by the need to demonstrate a positive approach; and Single-point contact with reduced statutory consultation is under consideration.
Post-application: Faster planning appeals with much shorter target times; Costs awards at appeal are encouraged; Specialist planning court; Rationalisation and a 13-week time limit for related consent conditions: and (critically) Automatic approval for the discharge of conditions when time limits expire is expected to be introduced.
DETAILS OF NEW LB AND CA LEGISLATION
1. The Planning (Listed Buildings and Conservation Areas) (Heritage Partnership Agreements) Regulations 2014 (“the Heritage Partnership Agreement Regulations”), the Planning (Local Listed Building Consent Orders) (Procedure) Regulations 2014 (“the Local Listed Building Consent Order Regulations”) and the Planning (Listed Buildings) (Certificates of Lawfulness of Proposed Works) Regulations 2014 (“the Certificates of Lawfulness of Proposed Works Regulations”) respectively set out the procedures to be followed when making a listed building heritage partnership agreement, local listed building consent order and an application for a certificate of lawfulness of proposed works under the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the 1990 Act”).
2. The Enterprise and Regulatory Reform Act 2013 (Listed Buildings Certificates of Lawfulness) (Hearings and Inquiries Procedures) (Consequential Amendments) (England) Order 2014 (“the Order”) makes consequential amendments to instruments so as to apply existing procedures in connection with hearings and inquiries held for the purposes of appeals against the refusal/non-determination of certain planning applications to appeals brought in connection with certificates of lawfulness of proposed works.
3. These statutory instruments have been prepared to support the heritage provisions within the Enterprise and Regulatory Reform Act 2013 where secondary legislation is needed. The measures are intended to simplify the listed building consent system by reducing the circumstances in which applications are needed. They will not result in any reduction to existing levels of heritage protection.
4. Guidance and information on these measures is available on the English Heritage website when the regulations commence on 6th April 2014 – http://www.englishheritage.org.uk/professional/advice/government-planning-policy/national-planningpolicy-framework/
Four new application forms have been launched by the DCLG and these are available through the Planning Portal. As with all PDF forms the Portal advises that you download them to your PC/Mac and open them with dedicated PDF software rather than try to edit them in you web browser. They cover:
Prior Approval of proposed Change of Use of an Agricultural Building to a Dwellinghouse (Use Class C3).
Prior Approval of proposed Change of Use of Agricultural Buildings to a State-Funded School or Registered Nursery.
Prior Approval of proposed Change of Use of a building from a Retail Use (Use Class A1 or A2) or a Mixed Retail and Residential Use to a use falling within Use Class C3 (Dwellinghouse).
Certificate of Lawfulness of Proposed Works to a Listed Building.
UPDATE ON STATUTORY CONSULTEES
Statutory Consultees are bodies that must be consulted on certain planning applications as set out in law. When a body is consulted, they are under a duty to provide advice on the proposal in question. Detailed information about who they are, why they have been designated and their role in planning can be found on the National Planning Practice Guidance website. They include:
ENGLISH HERITAGE, ENVIRONMENT AGENCY, HIGHWAYS AGENCY, and NATURAL ENGLAND.
Nine Neighbourhood Forums have now formally had their plans adopted as part of their local development plans, 75+ communities have produced a full draft plan for public consultation, and around 1,000 areas have begun the neighbourhood planning process. I am heavily involved in my own Neighbourhood Forum, formally designated by the Council on 16 January and currently seeking community opinions and data for the production of a Neighbourhood Plan that will eventually become a legally adopted planning policy for the area. We are also considering the nomination of the last local bank as an Asset of Community Value in an attempt to stop it being converted to a shop.
ACA PLANNING ADVISORY GROUP: MISSION STATEMENT UPDATE (v.12)
We will continue to
- represent the interests of our members in their dealings with the planning system
- respond to Government, Planning Portal & EH consultations on proposed changes to legislation and procedure
- lobby for improvements to the system and for corrections when it goes wrong
- keep members up to date with developments in planning through the Newsletter, the website and by holding seminars
- liaise with local planning authorities, representative bodies and Government departments
- provide advice to members on specific planning problems when asked
- issue media statements on ACA’s planning policies/campaigns from time to time.
There continues to be a good deal of change to the planning system, both in terms of policy (NPPF and NPPG) and legislation (CIL, new appeal procedures, etc). The General Permitted Development Order has been further amended to allow larger domestic extensions and wider changes of use, most notably from office, agricultural buildings and retail to residential – albeit with complex prior notification procedures. A legal challenge to the way the exemptions for loss of office had been handled by the government has been dismissed. Additional sections of the Localism Act have been enacted, particularly with respect to neighbourhood planning. There are now more than 1,000 applications for Neighbourhood Forums in hand across the country, over 600 of which have been formally designated: although the lengthy procedures that are required mean that only 8 are fully completed with active Neighbourhood Plans that have passed a Referendum. We continue our reporting to Council on these changes and to the membership via the Newsletter and regular seminars: the current upgrading of the ACA website will allow this service to be improved.
We continue to represent the private sector on the National Planning Forum, where Brian is shortly to be replaced after three years as chairman. The NPF receives regular updates from the Government’s Chief Planner and the DCLG, most recently on the Neighbourhood Planning arrangements and further Red Tape challenges. There is nevertheless a general concern that neighbourhood planning procedures are over-complex and may not be receiving the resources that are necessary to make it work in practice: the government has indicated that changes will be made, especially as the planning Minister, Nick Boles, is strongly in favour of the concept.
Consultation documents continue to be issued (perhaps less frequently): recently we have considered the streamlining of listed building procedures (part of the Enterprise and Regulatory Reform Act 2013); and a DCMS document entitled English Heritage New Model. At the end of last year we submitted a detailed response to the DCLG document Housing Standards Review, which (among other things) paves the way for a drastic simplification of the information required in making planning applications and ultimately the merging of planning and building regulation regimes. Copies of all consultations, responses and other papers can be provided.
Finally it is important to note that the NPPF has bedded in and seems to support growth as intended, particularly through appeal decisions where Local Plans are out of date and 5-year land supply cannot be demonstrated. The new DCLG web-based technical guidance (NPPG), available through the Planning Portal, backs up the NPPF and is a very useful tool giving wide access to policy and other documents.
Campaigns that we will continue to pursue with the Government are
- introduction of competition/sanctions into the planning system (cf building regulations)
- simplification (or elimination) of use classes and reassessment of Green Belts
- implementation of Killian-Pretty / Penfold Review recommendations such as councillor training
- making local planning authorities follow the rules when validating and processing applications and imposing/discharging conditions
- comprehensive reform of the permitted development legislation (apparently well in hand).
Andrew Rogers ACArch MRTPI Chairman, ACA Planning Action Group