Spring has sprung and, once again, Nick Boles MP is brandishing the brush of reform with intent to sweep out the clutter. Thus the theme for this quarterly planning update is one of unrelenting reform. The effects of wide sweeping changes by the government to the planning system now span the past, present and future. Planning is still very much in the government’s crosshairs with a focus on simplifying the process, stripping away guidance and reducing delays both in the decision making process and in the courts. For example, we report on the effects being felt on the ground of past changes such as the amendments to affordable housing and viability under the Growth and Infrastructure Act 2013. We also consider proposed primary legislation making its way through parliament to stifle the perceived glut of unmeritorious judicial review cases. Finally, there is a nod to the future with the recent Budget announcements and further expected consultations on changes to permitted development rights. In the words of Boles, “planning shouldn’t be the exclusive preserve of lawyers, developers or town hall officials”. Admirable though that sentiment may be, whether the raft of reforms actually achieves the government’s aspirations in practice remains to be seen. As we have seen with the National Planning Policy Framework (NPPF), in an area as dynamic as planning, it is not always easy to write the so-called villains out of the script. Gaps, uncertainties and inconsistencies in guidance and legislation all require interpretation, just as new Judicial Review procedures need time to bed in. The law of unintended consequences is bound to dictate that the path to reform and simplification is never as smooth as anticipated. Back to contents> Guidance and consultations Government’s new online planning guidance: “simpler, clearer and easier”? The cull is complete. Having distilled 1,000 pages of planning guidance to less than 50 in the NPPF, the government has now performed the same trick with planning guidance. Seven-thousand “complex and often repetitive” documents have become consolidated into a single online resource as part of the latest chapter in the government’s mission to simplify the planning regime. The ministerial statement accompanying its launch confirmed that existing guidance would be replaced by its online successor which would also go further and address specific issues such as: • clarifying when permission can be refused on the grounds of prematurity in respect of draft plans • the duty to cooperate, particularly in relation to green belt development • the inclusion (and further refinement of) renewable energy guidance • the provision of “robust” guidance on flood risk • the soundness test and local plans Early impressions of the new guidance are mixed. Simpler? Certainly. Clearer and easier? The jury is out at present. Initial indications do suggest a dilution (often subtle) from what appeared in the Beta version launched last summer which may cause difficulties for councils and developers alike in practice. ADVISORY | DISPUTES | TRANSACTIONS April 2014 Quarterly planning update 3 Another potential issue concerns its relationship with the NPPF. Presentationally they now sit alongside one another. Presumably, this positioning has no particular significance and in the event of a conflict between the two, will policy trump guidance? The new guidance can be found here. Appeals guidance published by planning inspectorate The Planning Inspectorate has issued two new procedural guidance documents on the planning appeals process. Which one applies will depend upon whether the relevant date is 30 September 2013 (or earlier) or 1 October 2013 (or later). Of particular note is that the criteria for determining the appeal procedure have been revised and extended to apply to planning, enforcement, advertisement and discontinuance notice appeals from 3 October 2013. They also provide that, for appeals received on or after 1 October 2013, and called-in planning applications where the date of the call-in letter is 1 October 2013 or later, costs may be awarded at the initiative of the Inspector. Planning performance and planning contributions The latest Department for Communities and Local Government (CLG) consultation seeks views on two proposals that were contained in the Autumn Statement 2013, namely: • a new threshold for designating local planning authorities as underperforming • a proposed 10-unit threshold for section 106 affordable housing contributions The stated intention behind the proposals is to improve the speed of decisions made on major applications and promote housing delivery by introducing a threshold for section 106 affordable housing contributions. Leaving aside the merits of these proposals, it is difficult to see how these measures promote the “locally driven process” heralded in the consultation document. The consultation closes on 4 May 2014, and can be accessed at https://www.gov.uk/government/ consultations/planning-performance-and-planning-contributions. Back to contents> Recent developments in practice PCC judicial review – Lubbesthorpe In an unprecedented step, the Police and Crime Commissioner (PCC) for Leicestershire is challenging Blaby District Council’s recent grant of permission for 4,350 new homes as part of a development in Lubbesthorpe. He has lodged a judicial review challenge on the basis that the council’s decision to grant permission will result in the creation of a significant number of additional homes which will, in turn, have a significant impact upon police resources both in relation to the new development and existing areas.ADVISORY | DISPUTES | TRANSACTIONS April 2014 Quarterly planning update 4 The dispute centres on the adequacy of a planning agreement entered into by the council and developer to address those pressures. In particular, it is the timing of that funding that is the source of the dispute. The PCC argues that it is not being provided sufficiently early to address the additional pressures on resources. The challenge appears to be motivated both by the present case but also having one eye on the future. There are believed to be a large number of new local developments in the pipeline and the PCC wants the situation addressed at this early stage. It will be interesting to see how this plays out in court, if indeed it makes it that far, particularly if there are to be implications for the negotiation of future section 106 obligations of this nature. “Affordable” rent? A consortium of councils; led by Islington, have lost their fight against the Mayor of London’s affordable rent changes. They had brought a judicial review challenge against alterations to the London Plan which introduced an affordable rent mechanism. Under that mechanism, rents could be charged at up to 80% of market rates. The councils wanted to resist this and instead impose blanket caps on rent for affordable rented housing in their local development frameworks. Ultimately, the court found in favour of the Mayor but the door was left ajar insofar as the judgment recognised that councils are still able to argue for lower rent levels in individual developments. Affordable housing and viability – a shift in the balance of power? Another possible dent in the armour of affordable housing has emerged through the operation of legislation arising from previous government reforms. Sections 106BA and 106BC of the Growth and Infrastructure Act 2013 provided a mechanism whereby developers could apply for a review of viability in relation to affordable housing obligations. The initial application for modification of the obligation(s) is made to the local planning authority with a right of appeal to the Planning Inspectorate. That right of appeal has seen the battleground for arguments over viability and affordable housing shift from the local planning authority’s arena to the Planning Inspectorate. The outcome of the appeals heard to date make very interesting reading, particularly for developers. In the majority of those determined so far, Inspectors have demonstrated a willingness to reduce affordable housing provisions and, in one case (Mast Pond Wharf in Woolwich), remove them entirely. With concessions such as these being secured, increasing numbers of developers may see this roll of the dice as an attractive option where questions of viability exist. Back to contents> Legislation update Criminal Justice and Courts Bill 2014 This Bill represents the crystallisation of previous government consultations directed at reforming judicial review in planning. It has important implications for the way in which the new Planning Court will handle these cases and includes measures aimed at reducing the tactical use of “unmeritorious” claims.ADVISORY | DISPUTES | TRANSACTIONS April 2014 Quarterly planning update 5 Clauses of particular note are: • Clause 50: “substantially different” test This introduces a new legal test focused on whether outcomes would be “substantially different”. Could this lead to a “mini trial” at the permission stage, with a detailed consideration of the facts? • Clauses 51 and 52: financing and financial support Financing of the application will be considered, including the source, nature and extent of resources available. Arguably, this may have a deterrent effect, dissuading individuals from offering third party support. • Clause 53: interested parties’ costs Recoverable only in “exceptional circumstances” with the possibility of being on the hook for other parties’ costs incurred as a result of their intervention. Again, could this deter parties from intervening? • Clause 54: cost capping This would only apply after the permission stage and provided certain requirements are met, leaving parties facing a potentially large costs exposure. • Clause 57: permission and s.288 This clause introduces the permission requirement for challenges brought under s.288 of the Town and Country Planning Act 1990. At the time of writing, the Bill is about to enter the Committee stage in the House of Commons. Will it emerge intact following parliamentary scrutiny? If so, one fears that the judicial review mechanism may become the exclusive preserve of those with the deepest pockets. Also, rather than simply deterring unmeritorious claims, there is a risk that those whose cases have merit but whom lack adequate resources will find the court’s doors closed to them. That, coupled with the possible dissuasive effect on interested parties, may lead to a less comprehensive level of judicial scrutiny. As such, whilst these changes may achieve the government’s stated aim of speeding up the process, they may not necessarily weed out weak claims. Community Infrastructure Levy (Amendment) Regulations 2014 On 24 February 2014, the latest incarnation of the CIL Regs came into force. These introduced: • a new mandatory exemption for self-build housing, residential annexes and extensions • a requirement on the charging authority to strike an appropriate balance between the desirability of funding and the impact on viability • expanded provisions for the phasing of payments • the deferring until April 2015 of the implementation deadline restricting the pooling of section 106 obligations ADVISORY | DISPUTES | TRANSACTIONS April 2014 Quarterly planning update 6 • the ability for charging authorities to set differential rates according to the size of development concerned • an option for charging authorities to accept payments in kind via the provision of infrastructure (on or off site) • a new “vacancy” test whereby, for the levy to apply only to the net addition of floor space, buildings must have been in use for six continuous months during the preceding three years Back to contents> The Budget 2014 Unsurprisingly, the recent budget announcement focused heavily on house building and measures aimed at addressing a lack of supply. The creation of a “new” Garden City at Ebbsfleet stole the headlines. However, it was the government’s commitment to support proposals to unlock the construction of 11,000 new homes in Barking which resonated with us given that we are advising Barking Riverside Ltd on overall strategy to bring forward future phases. The other main announcement was of yet more reform, this time in the shape of a consultation on the introduction of greater flexibility to the permitted development regime. It appears that the Government is considering a “refreshed approach” to planning with a “three tier” system with permitted development rights applying to small scale developments, the prior approvals process governing those with specific issues and planning permission being reserved for large scale developments.