As the new year is now in full swing, it seems appropriate to reflect on some of the major legal changes of the last year and the likely consequences for planning in 2016.

Below Ashfords' Planning Team take a look at some of the key issues surrounding permission in principle, starter homes and affordable housing, pooling contributions and the 56 day rule for prior approval applications.

Permission In Principle

The Housing and Planning Bill 2015, currently passing through the House of Lords,  introduces a new concept of planning permission in principle (PPIP).   The Bill provides that PPIP may be granted in two ways, via qualifying documents and by applications.  Subsequently, Technical Details Consent (TDC) will be required, and together, PPIP plus TDC will grant a full planning permission. 

Allocation via qualifying documents (which include DPDs, Neighbourhood plans and the new brownfield register) will be initially limited to housing-led development.  PPIP will be granted when a qualifying document is adopted or revised to allocate land with PPIP.  

Secondly, PPIP may be granted through applications to an LPA.   The current intention is to limit this to minor development.  An LPA may grant or refuse but will not be able to grant PPIP subject to conditions.

Once PPIP is granted via allocation or application, an application for TDC must follow before full planning permission can be granted.  At this stage, an LPA will not be able to re-open or reconsider the principle of development, but TDC can be refused if proposed details are not acceptable and the LPA may include such conditions it considers appropriate. 

The explanatory notes to the Bill state that PPIP is intended to provide up-front certainty about a site's basic suitability.  The question is whether such a measure is really necessary in addition to the current system of allocation via the Development Plan, or whether this will see a return to red line outline applications and a much longer and drawn out "reserved matters" stage.  

Alternative Providers

One of the Bill's provisions which has attracted the most attention is the introduction of alternative providers.  This will enable regulations to be made to introduce pilot schemes whereby applications may be processed by alternative providers, rather than the LPA.  The LPA would maintain responsibility for determining the application. 

In pilot areas, applicants would be able to choose to submit their application to either the LPA or to an alternative provider.  Regulations will set out eligibility criteria for alternative providers, performance standards, conflicts of interest and complaints procedures. 

While many will welcome measures to speed up the determination of applications, questions arise as to whether opening up the determination of applications to competition will actually reduce pressure on hard-pressed planning departments, or make decisions more vulnerable to legal challenge.

Starter Homes and Affordable Housing

The Housing and Planning Bill is also expanding what can be considered as affordable housing.  It is about to create a new creature of statute, the "starter home".  Starter homes are new homes available to purchase (either freehold or leasehold) by persons under 40 which are to be sold at no more than 80% of the market value of the dwelling.  The sale prices are to be capped:  outside Greater London the cap will be £250,000.   Once a person has owned the home for 5 years they can sell it on the open market free of any price restriction.  

The Government is aiming to achieve 200,000 starter homes by 2020/21.   Councils will be under a duty to promote the supply of starter homes when exercising their planning functions.  They will therefore need to make provision for them in their local plans and when determining planning applications.  The Bill also empowers the Secretary of State to make regulations prescribing that certain types of residential development must provide a certain amount of starter homes.

The consequence of the requirements being set out in regulations is that local planning authorities will not have any discretion when determining planning applications.  The provision of starter homes will take priority over discretionary planning requirements like rented affordable housing and schools.

These are the basic provisions of the Bill and the details will be in the regulations that are to be made under the bill.  They will set out the amount of starter homes to be provided and the type of sites that must provide them.  The obligatory nature of the requirement is inevitably going to impact on the amount of affordable housing for rent that is provided and made available to housing associations.

Pooling Contributions

Since April 2015, when determining planning applications, Local Planning Authorities (or Inspectors) have not been entitled to take into account a financial contribution "for the funding or provision of an infrastructure project" where five or more separate planning obligations have already been sought for the funding or provision of that project from other sources.  All payments, counting back to 6th April 2010, are taken into account.  Such payments are commonly referred to as "pooled contributions".

When drafting the CIL Regulations the Government recognised that by taking away the ability to accumulate such funds, many Local Planning Authorities would be obliged to adopt CIL.  However, some Local Planning Authorities have either refused, chosen not to, or have simply failed to adopt a CIL schedule prior to April 2015.

In many cases where financial contributions are sought, Local Planning Authorities without a CIL schedule have simply "carried on regardless".  Permissions continue to be granted and "pooled" funds collected. 

However, the interaction between CIL and the Section 106 agreement regime does cause problems in certain instances, particularly where contributions do need to be made to ensure the impact caused by the development proposal is adequately mitigated.  

The National Planning Policy Framework (paragraph 118) directs decision makers  to refuse planning permission in circumstances where impact is not adequately mitigated. For example, where there is significant impact on a protected habitat from other development in the area and more than five payment obligations towards mitigation measures have already been sought for "the funding or provision of an infrastructure project" (e.g. SANGs), subsequent applications have been refused. 

Even where an area wide strategy has been adopted by a Council and mitigation measures are set up, Regulation 123 and the advice in NPPF paragraph 118, may still result in a refusal. 

The Government has recently commissioned a Review Panel to look at number of issues regarding CIL, with "pooled contributions" being one of those issues.  Hopefully, some middle ground can be found.

Prior Approval Applications and the 56 Day Rule

In light of the expanded range of permitted development rights which allow changes of use under the General Permitted Development Order (GPDO)  subject to a prior approval process, it is opportune to appreciate how the 56 day determination period operates for prior approval applications to a local authority.

The GPDO contains at paragraph W(20) a list of information that must accompany a prior approval application and paragraph W(3) gives a local authority the ability to refuse an application where in the opinion of the authority the developer has provided insufficient information to enable the authority to establish whether the development complies with any condition, limitation or restriction specified in the part of the GPDO appropriate to the application.

Often in practice there is a desire on the part of the local authority to try to be helpful and to seek to resolve any issues by an exchange of correspondence and an attempt to obtain the correct level of information.

Two recent appeal decisions provide a useful insight into this area. In both cases a local authority did not receive all of the required information with a prior approval application and entered into a dialogue with a developer to receive the information.

It then consulted on the application and quoted the date that it had received all of the information as the commencement of the 56 day period and not the date that the prior approval application was received.

The Local Authority purported to refuse the applications for what they perceived as valid reasons more than 56 days after they had received the application, but within what they perceived as the 56 day period from when they had received all of the required information.       

At appeal it was decided that as the Local Authority had not determined the application within 56 days of the original date of receipt that the permitted development could proceed.

The appeals provide a useful reminder of the difference between the provisions of the GPDO and the validation requirement for planning applications, and the potential consequences.

This article was originally written for the Spring Edition of the RTPI South West Branchout magazine.