The purpose of the NPPF is to streamline planning bureaucracy, by condensing 44 planning policy statements and guidance notes (and thousands of pages) into a single 59-page document. It also:

1. Contains the economic, environmental and social planning policies for England;

2. Sets out the Government’s planning policies for England and how they are expected to be applied; and

3. Must be taken into account in the preparation of local and neighbourhood plans.

The central theme of the NPPF is the “presumption in favour of sustainable development.”

The definition of “sustainable development” has been expanded so that it now includes reference to the social and environmental benefits of development. It includes five “guiding principles” of sustainable development, as set out in the UK Sustainable Development Strategy: living within the planet’s environmental limits; ensuring a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly.

The NPPF lists 12 key planning principles that should be taken into account in both plan-making and decision-taking. Planning should:

1. Be genuinely plan-led;

2. Not simply be about scrutiny;

3. Be pro-actively driven and support sustainable economic development;

4. Always seek to secure high quality design and a good standard of amenity;

5. Take account of the different roles and character of different areas;

6. Support the transition to a low carbon future in a changing climate;

7. Contribute to conserving and enhancing the natural environment and reducing pollution;

8. Encourage the effective use of land by re-using brownfield land;

9. Promote mixed use developments;

10. Conserve heritage assets;

11. Actively manage patterns of growth; and

12. Take account of and support local strategies to improve health, social and cultural wellbeing.

Some key points

1. The NPPF encourages the effective use of land by re-using land that has been previously developed (i.e brownfield land), provided that it is not of high environmental value;

2. Planning policies should be positive, promote competitive town centre environments and set out policies for the management and growth of town centres. The NPPF retains the “sequential approach” to planning applications for main town centre uses. This requires most central town centre sites to be developed for shops, leisure and offices before out-of-town sites. However, an exemption to the sequential approach is included for small scale rural offices or other small scale rural development;

3. Local Planning Authorities (LPAs) should identify and annually update a supply of sites sufficient to provide five years’ worth of housing against their housing requirements, with an additional buffer of 5 per cent to ensure choice and competition in the market. Where there has been a history of persistent under-delivery of housing, LPAs should increase the buffer to 20 per cent to provide a realistic prospect of achieving the planned supply and to ensure choices and competition in the market for land. However, there is recognition that housing land supply can best be met through new settlements or extensions to existing towns and villages;

4. The NPPF continues to protect land designated as green belt. As with previous green belt policy, inappropriate development should not be approved except in special circumstances. New buildings within the green belt, subject to a limited number of exceptions, are inappropriate. It should be noted that renewable energy projects will often be inappropriate development, and in such cases, the developer will need to demonstrate very special circumstances if projects are to proceed; and

5. Transitional provisions have been introduced to give local authorities a 12 month reprieve (until 26 March 2013), provided that the local development plan does not conflict too much with the NPPF.

The future

It is absolutely clear that we have entered a new planning era, although it will be some time before we see its full effect. There will undoubtedly be a period of uncertainty while LPAs try to interpret and then apply the transitional provisions.

Through the NPPF, the Government is attempting to support employment and growth, whilst serving the interests of local communities and the environment by keeping the relevant checks and balances in place. Development powers have been transferred to local authorities, and local communities will be able to decide where new homes (and the infrastructure to support them) should be built.

The Government is asking for opinions on regulations that affect the private rented sector, social housing, construction, and the building regulations. Full details are here.

In the Government’s press release on the issue, Communities Minister Baroness Hanham said:

“For years builders, businesses, landlords and residents have had to navigate an increasingly complicated set of rules and regulations to do things by the book. Now we’re giving them the chance to tell us what they would like us to change so that building a new home or property is a smoother ride.”

Interested parties have four more weeks to put forward their views and this can be done on the Red tape challenge website. This website has full details of the challenge and you can also read the opinions of those who have already commented (and respond to those comments if you so wish.)

The reforms, which were unveiled in the Localism Bill (click here for more details), are designed to give local people more of a say in the way their neighbourhoods are developed. Through local parish councils or neighbourhood forums, local people will be able to decide which types of development should be given automatic planning permission through a ‘Neighbourhood Development Order’ (NDO). If approved by a local referendum, a council will have to adopt a neighbourhood plan, providing it is line with the council’s wider ambitions for growth in the area.

Local authorities will work with community groups and parish councils in the 17 pilot neighbourhood areas to prepare draft plans and NDOs. These documents will be prepared under the current legal and policy framework, ahead of the new provisions for neighbourhood planning that will be introduced by the Localism Bill when it is enacted. (It is thought that the Bill will be enacted in late 2011 and will come into force in early 2012.)

The 17 ‘front-runners’ include both rural and urban areas. They are:

1. Birmingham City Council – Balsall Heath (Birmingham);

2. Bristol City Council – Lockleaze (Bristol);

3. London Borough of Southwark – Bermondsey;

4. London Borough of Sutton – Hackbridge;

5. North Tyneside Council – North Shields Fish Quay;

6. Wirral Borough Council – Devonshire Park;

7. Allerdale Borough Council – Cockermouth;

8. Blaby District Council – Blaby;

9. Cherwell Borough Council – Banbury;

10. Exmoor National Park Authority – Lynton;

11. Gedling Borough Council – Newstead;

12. Lewes District Council – Ringmer;

13. Northumberland County – Allendale;

14. Shropshire Council – Much Wenlock;

15. Teignbridge District Council – Dawlish;

16. West Dorset District Council – Cerne Abbas; and

17. Royal Borough of Windsor and Maidenhead – Bray.

Each of the 17 pilot areas will receive £20,000 towards developing their plan from a £1m fund.

The pilot areas will not be able to put their draft plans and NDOs into effect until the relevant provisions on neighbourhood planning in the Localism Bill come into force.

Squatting is not currently a criminal offence in England and Wales, so the police will not get involved. Film maker Guy Ritchie was recently a victim when squatters took up occupation of his £6m Grade I listed property in Fitzrovia, and Saif al-Islam Gaddafi, the son of the Libyan leader, also had his Hampstead home recently occupied by squatters. Property owners have to issue court proceedings to get squatters out of their properties, which can sometimes be a lengthy and expensive process.

Mr Shapps said that he wanted to “lock the door on squatters and their so-called rights once and for all.” In the first instance, he has announced the publication of a revised guidance note for homeowners with problems with squatters. The guidance, which replaces a note published in November 2010, reassures homeowners that there are steps they can take if a squatter unlawfully occupies their home. For example, it highlights that:

1. It is an offence for a squatter to stay in a residential property if they have been asked to leave by the displaced residential occupier;

2. If a squatter causes damage when entering or whilst occupying the property, they can be reported to the police for possible criminal damage; and

3. The ‘legal warning’ squatters often post on the front door of the property, stating that it is a criminal offence to use or threaten violence to enter the property against the will of those inside, is a distortion of section 6 of the Criminal Law Act 1977. It does not apply to displaced residential occupiers trying to get back into their homes and does not prevent police from entering the property if they want to arrest somebody inside on suspicion of criminal damage.

This will provide little comfort for homeowners who are rarely able to persuade the police to deal with any criminal damage. The position will not improve until there is a more radical review.

If you have been affected by squatting and require some legal advice, please contact me at faiza.ahmad@mablaw.com.

In the consultation paper, the Government proposes to:

1. Decentralise the setting of planning application fees, so that the responsibility is passed to local planning authorities (LPAs); and

2. Widen the scope of planning application fees, so that LPAs can charge for more of their services.

Under these proposals, LPAs would be able to:

1. Set their own fees;

2. Charge higher fees for retrospective applications; and

3. Charge for resubmitted applications following withdrawal or refusal.

But they will not be able to make a profit on fees (though they will be able to recover the actual cost of submitting a planning application.)

The decision to consult on this issue stems from concerns that local authorities are unable to recover the true costs of planning applications because of the fixed fee charging system, which is set by the Government. This has meant that, in a number of cases, taxpayers’ council tax bills have risen, as local authorities try to make up any shortfall.

The consultation closes on 7 January 2011.

If the proposals are taken forward following the consultation, local authorities will be able to set their own fees from April 2011, with a six-month transition period until October 2011. During the transition period, local authorities will be able to use the current fees set by central Government, though these will be withdrawn in October 2011.

Legal costs in dealing with and fighting boundary disputes are notoriously out of line with the monetary value of the issues in dispute and the effect on neighbour relations and stress high. “Principles” take over and costs mount to £1000s before you know it.  The alternative  is for the parties to try to resolve matters by agreeing terms with eachother on the best terms possible for both parties. There might be no winner and no loser, but a solution which both parties can live with without incurring huge costs and without further souring relations.

Alternative dispute resolution can help at the outset once solicitors are involved. Parties coming together on site with a mediator and solicitors can often focus the parties’ minds on the reality of the situation. On site resolution seems the most sensible and cost effective method of dealing with such a dispute rather than lengthy correspondence, compliance with Court procedure, the associated costs and growing animosity.  A day long mediation will be money well spent  if not to resolve matters entirely then to at least narrow down the issues remaining in dispute.  If matters cannot be resolved at such a meeting, then the parties can decide whether or not they wish to litigate and proceed with litigation but should be fully aware of the potential costs liability they may incur. This is not to say neighbours who wish to fight a boundary dispute should not, nor does it trivialise the importance of issues relating to someone’s property. It can be a commercial approach to dealing with what is otherwise an expensive and emotionally exhausting experience.

Landlords of residential properties where the annual rent is more than £25,000 are not currently required to register a tenant’s deposit with a tenancy deposit scheme but they will  need to protect that deposit before 1 October 2010. Failure to do so will result in a Landlord falling foul of the requirement to protect a tenant’s deposit in accordance with the provisions of the Housing Act 2004, leaving them open to a claim by a tenant for failing to register the deposit.

For tenants this change means greater protection as they will be afforded the rights granted to them under the Housing Act 1988. Landlords face potential claims against them for failing to register a tenant’s deposit. The change will of course impact Landlords with expensive properties in London where rents are higher than the rest of the country as well as Landlords of larger properties which are occupied by multiple tenants such as student houses where the rent is more likely to exceed the current threshold.

The changes will increase the number of tenancies coming within the Assured Shorthold Tenancy regime which will standardise procedures for Landlords to gain possession and allow use of the accelerated possession route (only open to Landlords of Assured Shorthold Tenancy Agreements).  Landlords who do not and who are required to register a tenant’s deposit will be unable to get possession of a property on a “no fault” basis until the deposit is registered, causing unnecessary delay.

Landlords – review rental levels register your deposits without delay.

Managing Agents – notify your Landlord clients immediately of the impact of this change and the steps they need to take.

We are already seeing cases in the County Courts regarding non-registration of deposits and no doubt Court offices across the country will see further cases next year arising out of these changes.

So what do you do? You raise your mortgage with any high street bank or building society through an independent legal adviser who is familiar with the scheme in your area (a list of appropriate advisers can be provided to you by your local MyChoice HomeBuy agent). Then, in addition to your mortgage, you will receive a government equity loan for up to 50% of the purchase price of the property. The scheme confirms that savings above £10,000 can be used to ‘top up’ your purchase price without affecting the equity loan provided by the government.

You are free to choose a home of your own choice on the open market provided the property you have selected is in a reasonable condition (you will need to instruct a homebuyer’s survey to ensure this is the case). If you are employed as a key worker, you must also ensure sure that you choose a property that is no more than 90 minutes travelling distance from your place of work.

MyChoice HomeBuy is for people who would not normally be able to buy their own home on the open market and is predominantly aimed at key workers and public-sector tenants. If you want to purchase a property with the assistance of the MyChoice HomeBuy scheme, you will need to meet the legal and other costs associated with buying a home. Your MyChoice HomeBuy agent will provide you with a list of recommended solicitors who are familiar with the scheme and the paperwork involved so you can be rest assured the transaction will progress smoothly.

Funding from the government for the scheme is usually available from April and is in huge demand, with many MyChoice HomeBuy agents accepting applications from January. So get the ball rolling and contact your local MyChoiceHomeBuy agent to see if you are eligible for the scheme.

The short answer, given by Arnold J in his judgment in Williams v Hull [2009] EWHC 2844 (Ch) is  “without prejudice to my position in any subsequent proceedings”.

The judge reached this conclusion in an application centered around the interpretation of a single letter sent by Mr Hull, a financial consultant, to his former cohabitant, Ms Williams, a solicitor, concerning the value and allocation of their jointly owned home and its contents, following the breakdown of their relationship.

Mr Hull had said that he thought he owned half of the property. Ms Williams contended he owned 7%, based on a draft Deed of  Co-ownership prepared, but never signed, when the property was purchased.

In his letter dated 19 October 2009 and headed “Without Prejudice” Mr Hull advanced arguments based on an assumption that he owned 12% of the property, not half. Not unnaturally, Ms Williams sought to tie Mr Hull to that concession. If the letter was validly headed “Without Prejudice” she could not, but if it wasn’t then she could.

Arnold J reviewed the established authorities and concluded that the “without prejudice” rule is founded on the public policy of encouraging litigants to settle their differences. It is intended to enable parties in dispute to lay their cards on the table  and negotiate without fear that by so doing they will have compromised their legal position, if subsequently their issues are taken to a litigated conclusion.  Whether or not a particular document bears that heading or whether proceedings have been issued is not an essential requirement; it’s all a question of context and interpretation.

On his interpretaion of three letters passing betwen these parties, the second and third of which were headed “Without prejudice”, the label was properly applied, and was not a “cloak for perjury” or a mere assetion of rights as Ms Williams had contended; consequently, the content of the “Without prejudice” correspondence should not be referred to at trial. In reaching this conclusion he reversed the decision of HHJ Marshall QC, who first considered the point.

Whilst the decision has provided clarity for these parties, issues of context and interpretation continue to mean that for the label to be effective, thought has to be given to its use.  The case also underlines that in such circumstances it remains better to be safe than sorry – if you are buying property jointly, don’t just have a deed drafted, have it signed and dated too!

In addition to the developers own schemes, developers have joined forces with local housing associations by participating in schemes backed by the Government. Indeed, properties on residential developments participating in such schemes have been quick to sell.

Homebuy Direct is one such scheme that developers have been participating in and is open to households earning less than £60,000 who would otherwise be unable to purchase their own home. First time buyers, key workers and housing association or council tenants are examples of those eligible to take part in the scheme.

Under this Scheme, an equity loan is given to the buyer by a Homebuy agent (through public funding) and the developer. These loans represent a percentage of the value of the property and are secured as second and third legal charges against the property. The Buyer then obtains the balance of the purchase price from a conventional mortgage lender.

No fees or charges are payable during the first five years of the equity loan, so what is the catch?

When the property is sold, the owner will be liable to repay both equity loans and also the conventional mortgage. The amount to be repaid will depend on the percentage borrowed. Therefore, if the property has increased in value then the owner has to share that profit with the Homebuy agent and the developer. However, there is also a risk to the developer and Homebuy agent if the property has fallen in value, as they may make a loss on the amount loaned.

We have seen a number of developers keen to participate in this scheme. This would suggest to me that they have confidence in a recovery of house prices in the near future!