The HBF’s New Housing Pipeline Q3 2011 report also said that planning permission was granted for only 29,059 homes across England in the same period – a 50 per cent drop in the average number of home approvals in 2006 and 2007.

The report went on to state that the number of homes being built is now lower than at any time since the 1920s and called on the Government to continue with its proposed planning reforms in order to address the current housing crisis.

However, the Government’s planning reforms may be facing a serious challenge. In its review of the draft National Planning Policy Framework (NAPF) this week, the parliamentary Communities and Local Government Committee said that the Government’s proposals to reform the planning system should be re-written to give greater protection to the environment and to ensure that developers build on brownfield land and within town centres. The Committee also said that an adequate definition of “sustainable development” was missing from the proposals and put forward its own alternative definition. Full details of the Committee’s report are here.

The Committee claimed that the default answer of “yes” in the planning reforms, which gives the go-ahead to development unless the adverse effects “significantly and demonstrably” outweigh the benefits, should be removed as it could lead to poorly planned, unsustainable development.

The Government has said that it will “carefully consider” the new definition of sustainable development offered by the Committee, so we shall see what happens.

The Government is due to implement its final version of the NAPF in early 2012.

The Act includes measures to reform the planning system, to ensure decisions about housing are taken at a local level, and to generally increase the power of local government and local communities. David Marsden, Head of Real Estate at Matthew Arnold & Baldwin, looks at the particular implications for planning here.

The Government has produced a ‘plain English’ guide to the Localism Act, which clearly summarises all of the main ideas contained in the Act and what effect they will have on local communities.

Over the coming weeks and months, the measures laid out in the Localism Act will begin to come into force. Many of the measures are expected to be in place by April 2012, although there is no definite timetable yet.

The Bill, which was introduced to Parliament in December last year, will devolve more power from central government to local councils, so that communities have more control over housing and planning decisions in their areas.

Once Royal Assent is received (which should be a formality) and the relevant sections come into force, the Bill will, amongst other things:

1. Abolish the Regional Strategies;

2. Force local planning authorities (LPAs) to co-operate with each other on issues which cross council boundaries, particularly in relation to sustainable development and the use of land for strategic infrastructure.

3. Make changes to the Community Infrastructure Levy, so that LPAs will have greater control over the setting of their charges;

4. Introduce Neighbourhood development orders and plans (so local communities can specify where they think development should take place and how the local area should be planned);

5. Require developers to consult local communities before submitting planning applications for certain developments;

6. Introduce new enforcement measures for LPAs, including the power to reject retrospective planning applications; extend time limits on taking enforcement action against people who conceal unauthorised development; set new financial penalties; and increase powers to deal with unauthorised advertisements;

7. Abolish the Infrastructure Planning Commission, so that its functions can be transferred to a new unit in the Planning Inspectorate and decisions can be made by democratically elected (and accountable) government minsters; and

8. Reform the delivery of social housing.

Royal Assent could be given as early this week, but, if not, certainly before the end of the year; the Bill is then expected to come into force in April 2012 (although confirmation is still awaited.)

UPDATE: The Localism Bill received Royal Assent on 15 November 2011.

The Compulsory Purchase Association (CPA) has been lobbying the government to change the rules since 2008. The CPA’s proposals have now been adopted in an amendment to the Localism Bill which is due to become law later this year.

The main aims of the proposals are to close a loophole that allows owners to claim large amounts of money in “hope value” and to simplify the way compensation is calculated.

At present councils have to work out the value of the site being compulsorily purchased by working out how much it would have been worth when the CPO was first proposed. In some situations this could have been more than five years ago.  Under the proposed changes the valuation dates will not be linked to the when the CPO was first proposed.

The changes will also close the loophole which has seen councils paying excessive prices for sites following long legal battles.

The CPA argue that the changes will save councils time, money and possible legal claims.

This week business and enterprise minister Mark Prist this week admitted that the enterprise zones will “inevitably” cause the displacement of businesses. The minister commented that he hoped it could be minimised by allowing local enterprise partnerships to retain uplifts in business rates to be reinvested wherever they so choose.

There is however a fear that the enterprise zones will repeat the problems of 30 years ago when zoning led businesses to relocate rather than encouraging new start up businesses.

The decision is important because it was Cala’s planning application that led to it launching a judicial review at the High Court against Eric Pickles’ decision to effectively abolish the Regional Strategies in 2010. Click here for full details.

Neither Cala Homes nor its lawyers have yet to make an announcement on the decision, but it could launch a challenge under section 288 of the Town and Country Planning Act 1990.

The National Housing Federation (NHF) has warned that over the next ten years, home ownership in the UK will fall to its lowest level since the mid-1980s.

The NHF’s prediction follows the publication of the Oxford Economics’ ‘Housing Marketing Analysis’ report in July 2011, which paints a pretty bleak future for the housing market.

Owner occupation rates are predicted to drop to just 63.8 per cent over the next decade – the result of high property prices, strict lending requirements by banks and building societies, and the need for large deposits from borrowers. This, combined with rising rents (forecasted to increase by 19.8 per cent by 2016), long social housing waiting lists (currently standing at 4.5m people) and fewer new homes being built, all suggests a difficult future for a whole generation of people.

So, how can we avoid this bleak future for housing?

With only 67 per cent of the UK population owning their own home, an increase in the construction of new houses is required. In 2011, only 105,000 new homes were built in England – the lowest level since the 1920s – and residential planning permissions are dropping. Thing have got so bad that last week Grant Shapps, the housing minister, said that local authorities should encourage their residents to live on boats! He even said that new moorings could be eligible for the New Homes Bonus.

With so many property organisations calling for more housebuilding, for more unused public land to be made available to housing associations, and for more residential planning permissions, it will be interesting to see whether the Government sticks to its proposed planning reforms, particularly in the face of opposition from anti-growth organisations and, according to a survey by the ConservativeHome website, even a majority of Conservative Party activists.

Greyfort Properties (G) had submitted an application for a Certificate of Lawful Use or Development that would allow it to carry out the development of 19 flats on the site under a permission granted in 1974, without submitting a fresh planning application.

G had obtained planning permission in 1974 for the development. However, the planning permission included a condition that “before any work is commenced on the site, the ground floor levels of the building hereby permitted shall be agreed with the Local Planning Authority in writing.” The planning permission stipulated that work had to begin within five years. In 1978 – four years from the date of the permission – G carried out some access work, and argued that this work amounted to commencement of the development, meaning that the planning permission remained in force (and therefore a fresh application would not be needed.) However, the planning inspector said that the access works had been carried out in breach of the planning condition, and that the works did not amount to commencement of the development. The planning inspector’s decision was upheld by the High Court.

G appealed this ruling at the Court of Appeal.

The Court of Appeal held that, although preparatory works relating to access for the development were carried out on the site in 1978 within the five-year time limit, these works did not implement the planning permission because the ground levels’ condition had not been satisfied.

The usual rule is that development must commence within three years of the grant of planning permission. Typically, if a developer didn’t want to actively proceed with a development, but wanted to ensure that the planning permission did not expire, they would dig a few holes, maybe lay some foundations and ask the planning officer to write a letter stating that development had commenced.  They could then ‘mothball’ the site until there was a good commercial reason to proceed.

During the recession, I expect some developers have been delaying commencement of developments. This decision reminds us that it is not just a matter of physically commencing development before the end of the three-year period that is important, but that the pre-commencement conditions must also be dealt with before commencement of building works. It can take some months to have the pre-commencement conditions approved, so any developer sitting on a planning permission should not leave it until the last minute to look into this.

Stevenage Borough Council’s expansion plans, which were part of the East of England Plan, were rejected because its housing targets were dependant on housing growth by North Hertfordshire District Council. However, following the Government’s announcement that it intended to abolish the Regional Strategies, North Hertfordshire District Council suspended work on the joint project. Further details are here.

During the inquiry into Stevenage Borough Council’s housing plans, North Hertfordshire District Council informed the planning inspector that its new plans would not provide for Stevenage’s planned growth, meaning that the growth of the town would be undeliverable.

However, in the long-running Cala Homes case, the Court of Appeal ruled that local councils cannot take into account the Government’s intention to abolish the Regional Strategies when formulating planning policies (although abolition was capable of being a “material consideration” on certain occasions.) This has formed the basis for Stevenage Borough Council’s legal challenge to the planning inspector’s decision.

The Government wants to remove uncertainty from the planning system for local people by ensuring that every planning application is dealt with as quickly as possible.

Under the proposals, local people will be able to see how their councils perform against the ‘guarantee’ by using information provided by the councils. Currently thousands of planning applications are held up in the planning system, leaving local householders, companies and developers “in planning limbo.” For example, between April 2010 and April 2011, approximately 3,200 planning applications took longer than 52 weeks to be decided – a statistic that the Government wants to eradicate.

The Government also intends to create more openness, by requiring councils to publish details of their planning performance on at least a quarterly basis, so that local people can see whether their council is meeting the requirements of the planning guarantee. The Department for Communities and Local Government will also publish a regular report on the performance of individual councils.

The Planning Minister, Greg Clark, has already written to local authorities signalling the Government’s intentions.

The next step

1. The Government will provide full details of how the planning guarantee will work in a consultation paper, which is likely to be published in autumn 2011.

2. The Government will publish a further consultation paper later this year on reducing the amount of information required to accompany all planning applications.

Section 15 of the Commons Act 2006 provides that anyone can apply to register land as a town or village green where “a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years.” In the past, those who have objected to a development on open land have been able to delay it (or even prevent it) by making an application to have the land registered as a town and village green (TVG application).

Under the proposals, the criteria for registration would remain the same, but new restrictions would be placed on land that can be the subject of a TVG application.

Defra’s proposals include the following:

1. Giving the registration authorities (RAs) the power to reject TVG applications at an early stage if insufficient evidence has been submitted, or if there is strong evidence that the application would fail to satisfy the criteria for registration;

2. Allowing landowners to make a statutory declaration, registrable with the RA and renewable every ten years, that any use of land is with their permission. This would prevent any use of land “as of right”;

3. The introduction of a ”character” test, so that only land which is unenclosed by fencing, open (i.e. not covered in dense scrub, trees and vegetation) and uncultivated would be eligible for registration;

4. Taking into account whether the land that is the subject of the TVG application is in the planning system. Land which is subject to a planning application or planning permission, or which was designated for development (or as a green space) in a local or neighbourhood plan, could not be registered as a TVG; and

5. Requiring applicants to pay an application fee. Each registration authority would be able to set its own fee, subject to a prescribed ceiling of £1,000. Fees could be refundable if the application were granted. This may deter some applications that are simply designed to delay developments.

The proposals in the consultation will not prevent the protection of any existing registered greens, and any changes to the registration system will not bring the designation of new greens to an end. However, the restrictions will be welcomed by landowners and developers, who have had to put up with costly delays when faced with TVG applications.

The consultation closes on 17 October 2011 and applies to England only.

On 1 July 2011, the High Court ruled that developer HelioSlough could build a large rail freight interchange on green belt land in Radlett, despite opposition from the Council and the Secretary of State for Communities and Local Government. Full details of the ruling and background to the dispute are here.

The Council had been set to appeal the ruling, but changed its mind after the Secretary of State announced that he would not seek leave to appeal.

However, this isn’t necessarily the end of the line for this legal dispute. The Council, which has reportedly spent nearly £1m in trying to thwart this scheme, is still opposed to it, and the matter will now be referred back to the Secretary of State who will have to re-examine his earlier findings.

If the Secretary of State’s decision goes against the Council, it may still decide to launch another legal appeal.

This is an important decision for local people affecting a proposed large scale development near Stevenage.

The claimant local authorities challenged the decision of the Secretary of State for Communities & Local Government (SoS) to grant planning permission to build 3,000 homes and the associated infrastructure  on land to the west of Stevenage.

The SoS granted permission subject to a section 106 agreement, including various obligations such as the provision of schools. The developer and the local authorities were unable to reach an agreement on the terms of the section 106 agreement and, as such, the developer submitted a section 106 undertaking which in its view met the inspector’s requirements. The undertaking included provisions concerning a temporary schools accommodation strategy (“Strategy”) which provided education to pupils occupying the first dwellings before the creation of permanent schools.  The effect of these provisions was that there would be a bar on development until the Strategy had been submitted to the local authority, and either this had not been approved within 4 months or it had been approved but subject to conditions which were unacceptable to the landowners.

There was no time limit on the bar, but equally no positive obligation on the developer to submit the Strategy. Where the Strategy was not agreed, a different bar to development came into effect until statutory proposals had been published or approved, although if no proposals were published or approved within 18 months after the grant of planning permission, the bar on development would cease. The SoS granted permission subject to conditions.

The local authorities claimed that the SoS had erred by:

1. Ignoring a policy on renewable energy (ENG1) and which has been included in the East of England Plan (EEP) requiring developments of more than 10 dwellings to obtain 10 per cent of their energy from decentralised and renewable sources; and

2. Considering the developer’s undertaking relating to the Strategy as adequate.

Decision

The local authorities had to prove that the SoS had ignored ENG1 and that the absence of reference to the policy was not sufficient evidence that it had been ignored. There was a general reference to the EEP, but it was clear from the conditions imposed that the SoS had not taken it into account. The terms of the conditions had only been tweaked so that these would not meet the targets of the ENG1 policy. On the evidence, the SoS had ignored ENG1 and this was sufficient basis to quash the planning permission.

Making the date on lifting the bar to development relate to the grant of planning permission rather than the submission of the Strategy meant that there was a gap in which the developer could avoid its obligations (i.e. by putting in a Strategy which was not agreed.) The SoS had misunderstood the effect of the proviso, the purpose of which was to protect the developer from delays  by the local authority. The permission would be quashed on this reasoning also.

This ongoing legal battle began in August 2006, when HelioSlough submitted its original planning application to St Albans City and District Council. The Council rejected the planning application in 2007 and again in 2009, citing that the scheme was an inappropriate development on green belt land and that the developer had failed to show that the scheme could be built sustainably.

Although HelioSlough successfully appealed the decision, the Secretary of State for Communities and Local Government, Eric Pickles, overruled the appeal in July 2010 on the grounds that the rail freight terminal could be built at an alternative site at Colnbrook in Slough, which would have less impact on green belt land.

In June 2011, HelioSlough launched judicial review proceedings in the High Court to challenge this decision.

The High Court handed down its decision last week (1 July 2011), ruling in favour of HelioSlough. This means that the decision to refuse planning permission has been overturned, essentially on a “legal technicality.” HelioSlough will now re-apply for planning permission and has publicly urged Eric Pickles to support it.

However, this may not be the end of the road for this long-running legal battle. Eric Pickles and St Albans City and District Council have until 11 July 2011 to challenge the decision.

UPDATE: St Albans City and District Council has announced that it will not appeal the High Court ruling. Click here for more details.

Stevenage is designated as a major housing growth point in the East of England Plan. The Plan, which was adopted in 2008, involved Stevenage Borough Council linking with neighbouring North Hertfordshire District Council to extend Stevenage’s boundaries by building 9,600 homes to the west and north of the town. However North Hertfordshire District Council withdrew from the planned expansion in June 2010 after the incoming Coalition Government announced the abolition of the Regional Strategies through the Localism Bill.

Subsequently, North Hertfordshire District Council began work on its own housing targets, whilst Stevenage Borough Council pressed ahead with its expansion plans.

North Hertfordshire District Council and Hertfordshire County Council submitted a joint legal challenge to quash Stevenage Borough Council’s expansion plans. The councils complained that the Secretary of State had failed to impose conditions that would deliver the requirements of the Government’s carbon dioxide and energy performance policy in the East of England Plan (i.e. that developments of more than 10 dwellings must secure 10 per cent of their energy from decentralised and renewable or low-carbon sources.)

The Court quashed the decision to grant planning permission, agreeing that (1) the conditions were not compliant with the renewable energy policies in the East of England Plan, and also that (2) the permission failed to secure the provision of temporary school accommodation that the then Secretary of State had intended.

The application will now go back to Eric Pickles, the current Secretary of State, for reconsideration. He could decide to re-open the inquiry or refuse planning permission.

Cala had claimed that the Government’s intention to revoke the Regional Strategies could not be a lawful material consideration for local authorities when making decisions on planning applications. The Court of Appeal has rejected this claim.

This ruling is the latest in the long-running legal dispute between Cala and the Government, which stretches back to last year. Click here for full details.

Although Cala lost the appeal, the Court of Appeal praised the clarification that the case has brought to this contentious issue. Also, whilst finding that it would be wrong to say that the intention to revoke the Regional Strategies could never be a lawful material consideration when considering planning applications, the Court of Appeal qualified this by saying that it would only be in extreme cases when the intention to revoke would constitute a material consideration.

The ruling, therefore, leaves the door open for housebuilders to launch appeals over some planning decisions.

Cala Homes is challenging the Government’s claim that its intention to abolish the Regional Strategies should be considered by local planning authorities when ruling on planning applications.

Cala Homes, which successfully won a judicial review back in November 2010, was defeated in the High Court in February 2011 (click here for full details), but given permission to appeal the ruling.

The appeal began on 5 May and was expected to conclude today (6 May), with the decision reserved until a later date. I will post full details of the ruling in due course.

The covenant stated that:

“….for the benefit of the adjoining land of the vendor on the west and south sides of the land conveyed, that no building shall be erected on the [land]….”

In October 2006, the Local Authority granted detailed planning permission for residential development in the area. Wimpey commenced works on the land and in May 2007. Wimpey received a letter from the solicitor acting for various people claiming the benefit of the covenant, asking them to stop works on the land on the basis of the covenant.

Proceedings were commenced in 2008 on various grounds, including loss of value and privacy  to properties, risk of flooding, the proposed use was not reasonable even though planning permission had been granted, and it would set a precedent for further modification of the covenant. Wimpey claimed that the practical benefits of the covenant were not of substantial value and that money would be an adequate compensation for the loss and any disadvantage suffered by those with the benefit of the covenants. In addition, Wimpey claimed that the character of the area would not change as a result of the development.

Decision:

The Lands Tribunal decided that it had no power to modify the covenant as Wimpey had failed to make out the grounds in section 84(1)(aa) LPA 1925 (i.e. the covenant impedes some reasonable use of the land and either does not secure any practical benefit of substantial value or advantage, or is contrary to public interest, and money would not be adequate compensation to anyone suffering loss or disadvantage from the discharge or modification of the restriction.)

The Lands Tribunal said:

1. The proposed development was reasonable since the proposed density of the development was only slightly more than the local authority planning inspector’s report;

2. The practical benefits to the objectors were of substantial value and advantage, as their properties were currently overlooked only in a limited way and now enjoy outstanding views over open land to hills in the distance. If the development proceeded  the properties would become suburban in character with the attendant loss of views and privacy;

3. Wimpey had failed to show that increased flooding was not due to their other developments in the area; and

4. the objectors were justified in objecting on the basis that the proposed modification would prove to be a precedent for further modification of the covenant and would allow further development

As such, the covenant was of practical benefit to the objectors by allaying their reasonable fears about increased flooding and high density development. Such benefits were of substantial value.

Comment:

Developers should note this decision, since even though the Land Tribunal’s power to modify a covenant is discretionary, the developer in this instance failed to show that the covenant impeded a reasonable use of the property. Indeed the Lands Tribunal made it clear that they would not have exercised their discretion even if the developer had successfully claimed under section 84(1)(aa) LPA 1925. The developer had ignored the covenant and the objections of the locals in the hope that by altering the character of the land, the Lands Tribunal would allow the development, and it would have been unreasonable for the developer to benefit from ignoring their legal obligations.

The consultation paper, Relaxation of planning rules for change of use from commercial to residential, includes proposals to amend the Town and Country Planning (General Permitted Development) Order 1995, so that it will be permissible to allow a change of use from Class B (business and industrial uses) to Class C3 (dwelling houses) without having to obtain planning consent.

Under these proposals, more land would become available for housing, by permitting empty commercial buildings to be converted into new homes. This move follows the Chancellor’s announcement in his recent Budget that the Government would consult on proposals to increase the categories of changes of use that can be made without the need to apply for planning permission.

The consultation paper seeks views on a number of areas, including:

1. Whether a change from use class B1 (offices, research and development, and light industry) to C3 (dwelling house) should be allowed without express planning permission (subject to effective measures being put in place to mitigate the risk of homes being built in unsuitable locations);

2. Whether a change of use from classes B2 (general industrial use not within class B1) and B8 (storage and distribution) to C3 should be classed as permitted development (subject to effective measures being put in place to mitigate the risk of homes being built in unsuitable locations); and

3. Whether current permitted development rights that allow a change from class A1 (shops) and A2 (financial and professional services) to a mixed use (including one residential flat) should be widened to allow for more than one dwelling.

The consultation paper also asks for comment on whether the Government has identified all the possible problems/issues that could arise from widening permitted development rights, and what measures might be needed to mitigate against those problems.

The closing date for responses is 30 June 2011.

This environmental assessment will be “voluntary”, but the Government intends to produce one environmental report per region. It will then be consulted on, in line with the process laid down in the Environmental Assessment of Plans and Programmes Regulations 2004, in order to help local authorities identify issues relevant to their areas and policies or initiatives in the regional strategies which are no longer in effect.

The Government intends to abolish the regional strategies through the Localism Bill, and the environmental assessment process will be carried out during the Bill’s parliamentary progress.

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.

To address this, the Government announced in its Budget Report and Plan for Growth, which accompanied the Budget Report, that it will:

1. Introduce a new presumption in favour of sustainable development, so that the default answer to development and planning applications (that comply with up-to-date planning policies at a national and local level) is ‘yes’. The Government is expected to publish details of the presumption in favour of sustainable development in May 2011, including how it will be integrated into national planning policy;

2. Localise choice about the use of previously developed land, removing nationally imposed targets, which specify the levels of development that should take place on previously developed land, while retaining existing controls on greenbelt land, sites of special scientific interest, and areas of outstanding natural beauty. The Government views nationally imposed targets as preventing local communities from exercising choice in respect of local land;

3. Pilot a land auction model, beginning with public sector land. The Budget Report contains no details of the scheme but there are reports that it will involve local authorities asking landowners to submit a binding price at which they would be willing, for a fixed period of time, to sell their plot of land. The local authority would (1) have the right to buy that plot of land at the set price and grant planning permission, as appropriate, and then (2) auction the land to interested developers, whilst keeping any increase in the sale price. The Government intends to pilot the scheme on publicly-owned land within the next 12 months;

4. Introduce measures to streamline the planning applications and related consents regimes, removing bureaucracy from the system and speeding it up. This will include a 12-month guarantee for the processing of all planning applications, including any appeals. The Government will consult in summer 2011 on expanding permitted development rights to include further types of minor commercial development, and consult in autumn 2011 on further measures to streamline the information required to support planning applications. The Government will publish its first annual update on simplifying and streamlining measures in planning and development control in autumn 2011;

5. Ensure a fast-track planning process for major infrastructure applications through the Major Infrastructure Planning system. Major infrastructure applications will be determined within 12 months from the start of the inquiry to the decision; and

6. Consult on proposals to make it easier to convert commercial premises to residential. The Government will consult on a proposal to allow changes of use, without the need to apply for planning permission, to class C3 (residential) of the Town and Country Planning (Use Classes) Order 1987 from class B1 (business); class B2 (general industrial); or class B8 (storage/distribution).

 Also, in the Government’s Plan for Growth, the Government announced that it will:

1. Introduce new powers so that businesses are able to bring forward neighbourhood development plans and neighbourhood development orders, which deem planning permission to have been granted for specific development or specified classes of development within all or part of a neighbourhood area;

2. Introduce, through legislation, a duty on local authorities and public bodies to require them to co-operate on planning issues;

3. Produce a national planning policy framework to attain more development in suitable and viable locations; and

4. Establish up to 21 new Enterprise Zones, where economic growth will be encouraged through financial incentives and a more relaxed planning regime.

We will of course be closely following the implementation of these proposals and will be posting further updates on our website throughout the year.

The three-stage hierarchy in the definition of “zero carbon homes” comprises the following: energy efficiency, carbon compliance and allowable solutions. This Report deals with carbon compliance (i.e. the minimum level of on-site renewable energy generation or directly linked heat networks.)

The Report, which confirms the findings and recommendations of the Zero Carbon Hub’s December 2010 interim report, states the following:

1. Technical issues: The Government’s proposal to reduce carbon emissions for new homes from 2016 by 70 per cent against 2006 standards will not be achievable for many types of dwelling. This is because the main technology for on-site low or zero-carbon electricity generation – solar photovoltaic panels – is not suitable or sufficient for all sites;

2. Commercial issues: Housebuilders will have to meet the additional costs of compliance, and savings will have to be made through reductions in (1) land prices, (2) local authorities’ planning requirements, and (3) regulatory burdens. There are also the problems of new home purchasers being unwilling or unable to pay more for the property, and whether housing development schemes will remain commercially viable; and

3. Other issues: The Report stated the following:

a) It should not be necessary for each individual dwelling on a housing development site to achieve the carbon compliance limit, so long as the aggregate limit is achieved by the development as a whole. This will help to provide more flexibility;

b) The carbon compliance limit should apply to built performance (post-construction) and not designed performance;

c) The Government should take into account the weather assumptions it uses for carbon compliance. This is because regional weather patterns make a significant difference to actual carbon emissions from otherwise identical homes. At present a standard national weather assumption is used to demonstrate compliance; and

d) In the light of the Government’s commitment to ‘localism’, there should be no local power to set a different limit for carbon compliance or to make other related stipulations. However, the Report also provides proposals in the event that the Government decides to allow local powers.

NB: These recommendations do not relate to non-domestic property.

Conclusion

The Report highlights that the housebuilding industry must change significantly in order to achieve the carbon compliance standards. This will inevitably have an impact on all aspects of the housebuilding process, including planning, design, construction and energy products.

The Zero Carbon Hub has called on the DCLG to give a prompt response to its recommendations for carbon compliance, so that the housebuilding industry has sufficient time to prepare to meet the 2016 target for zero-carbon new homes in England.

Full details of the High Court ruling and the background to the case are here.

Cala’s solicitors have said that the hearing is expected to take place in early May 2011.

This is a very important case for housebuilders and developers, and we will continue to provide details of any further developments, as and when they occur.

The publication of the final scheme design follows last November’s consultation on the New Homes Bonus scheme (click here for further details.)

The final scheme design confirms that:

1. The affordable housing definition used for the scheme will be the one set out in Appendix B of Planning Policy Statement 3 (see page 17 of the final scheme design);

2. The New Homes Bonus scheme will apply to homes brought back into use as well as new homes. This fulfils the Government’s pledge in its Coalition Agreement to help bring empty properties back into use;

3. In two-tier authority areas, 80 per cent of the bonus will be paid to the lower tier and 20 per cent to the upper tier, as a starting point for local negotiation. In London, 100 per cent of the bonus will go to the London borough.

4. The New Homes Bonus will be paid alongside the local government finance timetable and it will not be ring-fenced. This means that provisional allocations will be announced in early December and final allocations in early February; and

5. The Council Tax Base Form will be used to calculate increases in housing stock.

However, the final scheme design (and housing minister Grant Shapps in particular) have received criticism from all sides. Developers have complained that the scheme does not go far enough, whilst the Campaign to Protect Rural England has claimed that moves to financially incentivise councils to build more homes could be unlawful. It has suggested that any planning permission given for new housing that is linked to the new homes bonus could conceivably be overturned in a judicial review.

The last thing that developers need is more uncertainty, so it is essential that the Government clarifies the situation as soon as possible.

This decision follows months of uncertainty. In August 2010, Cala Homes launched a legal challenge to the Government’s decision, and in November 2010 the High Court ruled that the abolition of the Regional Strategies was unlawful. Despite this ruling, the Communities and Local Government Secretary, Eric Pickles, and the Government’s chief planning officer wrote to all local planning authorities, informing them of the Government’s intention to still abolish the Regional Strategies in the Localism Bill, and that planning authorities should regard this as a material consideration when making planning decisions. This stance was subsequently legally challenged by Cala Homes and although the High Court granted a temporary stay on this government guidance, Mr Pickles contested the decision. A compromise was reached, with the Department for Communities and Local Government having to formally publicise the existence of Cala Homes’ second legal challenge.

The High Court has now rejected Cala Homes’ second legal challenge.

The Court ruled that Cala Homes’ challenge was “based on an incorrect understanding of what the Secretary of State has actually done.” It said that Mr Pickles had “not enjoined local planning authorities to assume that Regional Strategies have already been revoked”, but had in fact “advise(d) authorities, when making decisions to which such regional policy is relevant, to take into account the fact that the Government intends to promote, through legislation, a reform of the existing planning system in England, the effect of which would be to remove Regional Strategies as an element of the development plan.”

This ruling means that planners can take into account the Government’s intention to abolish the Regional Strategies. However, this may not be the end of the saga… Cala’s solicitors have said that they will be seeking permission to appeal the ruling at the Court of Appeal.

A developer, Millgate Homes (M), had applied for planning permission from Wokingham Borough Council (W) to build 14 homes. W refused the planning permission after an Officer’s Committee Report concluded that the proposed development was inappropriate to the character of the surrounding area and would attract financial contributions to local infrastructure.

M entered into a unilateral undertaking, pursuant to s.106 of the Town and Country Planning Act 1990, agreeing to make the necessary financial contributions. It then appealed the decision to the planning inspectorate.  

M’s appeal was successful and conditional planning permission was granted. However, the planning inspectorate noted that W had failed to show that financial contributions were necessary in order to satisfy planning policy. Consequently, M requested that W discharge the unilateral undertaking, but W refused, stating that the opinion of the inspectorate did not affect the enforceability of the undertakings. M sought a judicial review of W’s refusal to discharge.

The High Court, ruling in W’s favour, stated that M’s universal undertaking was legally enforceable: it had been entered into voluntarily, without any condition that the obligations should only take effect if a planning inspector indicated that the financial contributions were necessary to make the development acceptable.

Comment

It is common for a developer to submit a s.106 unilateral undertaking to the local authority as part of a planning application. This case shows that there can be some unintended consequences. Here the application was appealed. The Inspector was of the view that the s.106 undertaking was not needed and granted planning permission. The developer was still held to be liable to comply with the s.106 undertaking. 

This could lead to a Catch 22 situation: if the developer submits a s.106 unilateral undertaking before an appeal, then it may help in the grant of planning permission. However, if they do not submit one, they may still get planning permission without it and therefore be in a better position. Developers should satisfy themselves that what a council suggests should go in a s.106 undertaking is lawful; if in doubt, then they may like to consider having a s.106 unilateral undertaking prepared and signed, but not to actually submit it until the views of the Inspector are known.

Even last night (17 January), Labour MPs launched a motion to halt the Bill’s parliamentary progress. The motion was inevitably defeated and the Bill has now passed to the Committee Stage in the House of Commons - but the Bill is causing quite a stir and splitting opinions everywhere.

Local Government and Communities Secretary Eric Pickles has called the Bill “a triumph for democracy over bureaucracy”, but, on the opposition benches, his opposite number Caroline Flint calls it a “massive missed opportunity.”

Opinion is certainly divided, inside and outside of Parliament.

Matthew Arnold & Baldwin’s head of Real Estate, David Marsden, has written extensively about the controversy surrounding the abolition of the Regional Strategies and the Bill’s implications for planning.

For those people who are wondering what all the fuss is about, the Department for Communities and Local Government has now published a useful plain-English guidance to the Bill, which summarises all of the main measures proposed in it under the following headings:

1. New freedoms and flexibilities for local government;

2. New rights and powers for communities and individuals;

3. Reform to make the planning system more democratic and more effective;  

4. Reform to ensure that decisions about housing are taken locally; and

5. The overall effect of the Bill

The guide translates the often complex legal language used in the Bill, so that everyone (and not just lawyers) can understand what the Bill proposes.

Now, that should be welcomed by everyone.

The New Housing Pipeline quarterly report, which was published today by the Home Builders Federation (HBF), says that planning permissions dropped from 40,453 in the first quarter of 2010 to 31,553 in the third quarter.

The Home Builders Federation has called the decline “alarming”, but the drop is probably primarily due to the ongoing confusion surrounding the Government’s proposed changes to the planning system (click here for more details.)

As I have been saying in previous posts, and which this new report highlights, it is vital to developers and the housebuilding industry that the Government implements its new policies as soon as possible, so that this policy ‘vacuum’ is filled.

The eagerly-awaited court hearing between the Government and Cala Homes (South) Ltd will help to bring some clarity to the situation, and it is expected to take place in the week beginning 17 January 2011. Cala is seeking a declaration from the High Court that the Government’s intention to revoke the Regional Strategies is unlawful. Click here for more details.

For developers, it’s once again a case of wait and see…

UPDATE: The Localism Bill will have its Second reading in the House of Commons on 17 January 2011. To see how the Localism Bill will impact on planning, please click here.

Clauses 94 and 95 of the Localism Bill deal with the proposed changes to the CIL, which allows local authorities in England and Wales to raise funds from developers undertaking new building projects in their area. The Bill proposes that:

1. Some of the CIL funds should be given back to the neighbourhood where the development is located;

2. CIL funds can be put towards the ongoing costs of infrastructure, as well as the provision of new infrastructure; and

3. Local authorities should be given more control over the setting of their own charging levels. However, Independent examiners will still decide whether the charging schedule is unreasonable, though the local authority in question will be able to decide how to make it reasonable.

In order to be selected for the CIL project (dubbed the ‘Front Runners Project’), the DCLG has said that interested local authorities should ideally:

1. Intend to submit their charging schedule for examination no later than Autumn 2011;

2. Have a proven track record of planning policy competence; and  

3. Have secured the necessary buy-in from corporate, finance and planning functions within the council.

The local authorities that are selected to take part will become some of the first to implement the revised CIL and will be expected to do it as soon as possible, though they will receive support from the Planning Inspectorate. These local authorities will then be encouraged to share learning and good practice across the local government sector.

The deadline for applications is 14 January 2011, with the Project expected to run until March 2011 (although the DCLG has suggested that this may be extended.)

PPAs were formally introduced into the planning system in 2008. They provide a framework to assist local planning authorities (LPAs) and planning applicants/developers in reaching an agreement about how a (usually complex) development should be handled. By encouraging LPAs and developers to work together, PPAs enable them to address any problems at a much earlier stage (thus reducing conflict), and manage the process for determining a planning application within an agreed time-frame, without being constrained by the usual time limits.

This guidance was created following a recent national survey commissioned by the Department for Communities and Local Government and ATLAS, which found that more than 95 per cent of LPAs supported PPAs. However, the survey also highlighted that there were still barriers which discouraged the wider use of PPAs (for example, concerns about the legal and complicated nature of the agreements, concerns over the level of staffing and resources needed to meet the demands of a PPA, and the reluctance of some developers and public sector bodies to enter into agreements.) Full details are here.

This new guidance addresses these barriers by looking at the content of a PPA, providing advice on the type of PPA that is appropriate for a development, and looking at what makes a PPA successful.

This is one of a number of recent developments that will affect the planning sector - click here to read about the implications of the new Localism Bill on planning, or here to find out further details about a new consultation on government proposals to create a single national policy framework for planning.

The Bill, which aims to transfer more central government powers to local level, includes proposals to significantly reform planning law (see Part 5 of the Bill.)

This article looks at the Bill’s key proposals to shake-up planning law. Of course, the Bill is subject to parliamentary scrutiny, so these proposals may change.

The main proposals are:

1. Abolishing the Regional Strategies. There has been a lot of confusion and contention surrounding this issue. Click here and here for further details;

2. Amending the Community Infrastructure Levy (CIL). Local authorities will have more control over the setting of the CIL. They will have to allocate a proportion of the CIL revenues they receive from developers back to the local neighbourhoods where the development(s) have taken place. This will allow those most directly affected by development to benefit from it. For a related story on the CIL, please click here;

3. Restricting the role of the Planning Inspectorate. The Planning Inspectorate will be unable to re-write local plans, which guide development in local areas. Instead, the Inspectorate will be allowed to assess plans at a public examination, and will have to rule them “sound” before they can be adopted. Amendments will only be suggested at the request of the local authority. Local authorities will be able to suggest changes during the public examination, and will be forced to publish up-to-date information, so that local people can see what planning documents they are preparing;

4. Introduction of “neighbourhood plans.” The Town and Country Planning Act 1990 will be amended to introduce neighbourhood planning rights (“neighbourhood development orders”) that allow local communities to permit certain types of development without the need for planning permission. The idea is that parish councils and “neighbourhood forums” can come together to decide where new shops, offices or homes should be built in their area and what green spaces should be protected. All such developments will be voted on by local people in local referendums (more than 50 per cent of the vote is required to approve a development);

5. Abolish the Infrastructure Planning Commission (IPC). This will mean that government ministers will take decisions on nationally significant infrastructure projects, such as airports and wind farms;

6. Duty to co-operate. The Planning and Compulsory Purchase Act 2004 will be amended, so that local authorities and public bodies have to co-operate with each other in relation to the planning of sustainable development. This includes the preparation of development plan documents;

7. Pre-application consultation. Developers will be required to consult the local community before submitting a planning application for a large development – the Government has suggested that this could be, for example, a residential development of more than 200 units. Developers will have to take into account any opinions raised during this consultation before submitting their planning applications; and

8. Enforcement. Local authority planning enforcement powers will be improved. The Bill will tackle abuses such as making misleading planning applications, and running retrospective planning applications and enforcement appeals simultaneously. Other enforcement measures include increased financial penalties for planning-related offences, and the extension of time limits for taking action against people who conceal unauthorised development. 

The Bill raises a huge number of issues (and questions) and will have significant implications for local authorities and developers.

Although the Government says that the Bill is not a “Nimbys’ charter”, developers will need to get local people to embrace development in their areas.

In light of the proposed new local referendums and pre-application consultations, developers will need to be able to influence local residents, persuading them of the merits of their schemes and proposals. Developers may also find themselves having to collaborate with third parties on the design of a development.

It will be interesting to see how the definition of “neighbourhood” in the Bill develops, as it could constitute a small or large number of people, meaning that a vote on a potential development may be decided by only a few local people.

The Second reading of the Bill is scheduled to take place in the House of Commons on 13 January 2011. We will update you with any significant developments during the Bill’s parliamentary progress.

Under the proposals, all existing central policy statements, circulars and guidance documents would be consolidated into a single document – the National Planning Policy Framework.

The Government is concerned that the planning system is very “centralist”, with too many (often contradictory) policy documents, resulting in confusion for local councils, developers and local residents. In light of the Coalition Government’s overarching ‘localist’ agenda, the new Framework is intended to be more user-friendly and will hand power back to local communities.

The new Framework will:

1. Allow local communities (rather than central government) to decide what is right for their area;

2. Make it easier for members of the public to have a meaningful say in planning decisions; and

3. Establish a presumption in favour of sustainable development.

If you would like to send your suggestions on what shape the new Framework should take, you can do so by emailing planningframework@communities.gsi.gov.uk, or writing to Alan Scott, National Planning Policy Framework, Department for Communities and Local Government, Zone 1/H6, Eland House, London, SW1E 5DU

All comments must be received by 28 February 2011.

In November, I wrote that, following a judicial review launched by Cala Homes (South) Ltd, the High Court had ruled that the revocation of the Regional Strategies was unlawful and that the High Court had put a temporary block on the Government’s guidance – published in a letter to all local planning authorities (LPAs) – that its plans to abolish the Regional Strategies must be regarded as a material consideration when making planning decisions. The temporary block will stay in place until the full legal hearing into the lawfulness of the revocation is heard in early 2011.

In the wake of the High Court ruling, the Planning Inspectorate has issued a statement, informing LPAs and planning inspectors that:

1. The Government is defending the judicial review challenge issued by Cala Homes (South) Ltd; and

2. Until the outcome of the aforementioned judicial review, LPAs and the Planning Inspectorate will need to consider whether the existence of the legal challenge and the basis of it (i.e that the Government’s intended revocation of the Regional Strategies in the forthcoming Decentralisation and Localism Bill is immaterial to the determination of planning applications and appeals before the revocation of Regional Strategies) affects the significance and weight that they should attach to the Government’s statements and guidance.

UPDATE:  The Localism Bill will be published on Monday 13th December. The news was announced on Twitter last night by the Communities secretary Eric Pickles. Mr Pickles tweeted “Localism Bill will be introduced next Monday. Lots of power to Councils.” We will analyse the content (and potential implications) of the Bill in due course.

UPDATE (Feb 2011): Cala Homes (South) Ltd has lost its High Court challenge against the Government’s claim that its intention to abolish the Regional Strategies should be considered by local planning authorities when ruling on planning applications. Click here for full details.

This announcement follows a recent successful legal challenge by Cala Homes (South) Ltd, which resulted in the High Court ruling that the Communities and Local Government Secretary, Eric Pickles, had acted unlawfully when he announced the revocation of the Regional Strategies in England back in May (further details are here.)

Despite the High Court ruling, Mr Pickles and the Government’s chief planning officer wrote to all local planning authorities (LPAs), informing them of the Government’s intention to still abolish the Regional Strategies in the forthcoming Decentralisation and Localism Bill, and that LPAs should regard this as a material consideration when making planning decisions. Cala responded by making a further application to the High Court, challenging the lawfulness of this Government statement and asking for the letter to be withdrawn.

The application has now been expedited, pending a full legal hearing into the lawfulness of the Government’s statement, which will probably be sometime in early 2011. As a result, until the outcome of that hearing, no regard should be given to the Government’s intention to abolish the Regional Strategies.  

The situation remains unclear: the Regional Strategies may have been reinstated, but they are still due to be scrapped (the Decentralisation and Localism Bill is expected to be issued in December.) Also, the current situation increases the possibility that there will be a number of legal challenges to planning decisions that were made on the basis of Mr Pickle’s advice that LPAs should act as though the Regional Strategies had already been scrapped (even though they hadn’t been.)

One thing is clear: confusion reigns.

UPDATE (Feb 2011): Cala Homes (South) Ltd has lost its High Court challenge against the Government’s claim that its intention to abolish the Regional Strategies should be considered by local planning authorities when ruling on planning applications. Click here for full details.

The New Homes Bonus scheme, which I touched upon in my summary of last month’s Spending Review, is aimed at encouraging local authorities to approve more new homes, and will see the Government match the council tax revenue raised on each new property for six years. The local authorities (with input from local residents) can then decide how to spend the extra funding – this could be, for example, council tax discounts for local residents, extra rubbish collections, or more local facilities such as swimming pools, playgrounds and leisure centres.

The proposals have been broadly welcomed by the housing sector, particularly as the scheme may be extended to financially reward local authorities for bringing empty properties back into use. However, there are some concerns that local authorities could be rewarded for building low quality homes or for giving planning permission to poorly-designed housing schemes. No doubt these concerns will be raised (and considered by the Government) during the consultation period.

Responses to the consultation must be received by 24 December 2010. The Government will then consider the responses and announce the final design of the scheme, probably in early 2011.

Back in December 2009, Adrian Penfold, the head of planning and environment at British Land, was asked to review the regimes for obtaining non-planning consents for property development projects. In July 2010, after considering the evidence submitted by interested parties, he made 12 recommendations that aimed to speed-up decision making, reduce duplication, and reduce bureaucracy in determining non-planning consents. I summarised these recommendations at the time.

In its formal response, published on 3 November 2010, the Government has generally welcomed the Review’s recommendations and plans, amongst other things, to take the following key actions:

1. Set up meetings to allow consenting bodies to share examples of best practice;

2. Encourage local authorities and other public bodies to publish their performance data to promote transparency;

3. Ensure that public bodies co-operate with businesses in their efforts to develop in an environmentally sustainable way;

4. Produce a quality development code by spring 2011;

5. Provide developers with a contact at the Highways Agency who will work with the developer, local planning authority and local highways authority;

6. Improve access to information;

7. Merge conservation area consent with planning permission, when possible;

8. Consider whether any changes to the village greens registration system are required; and

9. Expand the Environmental Permitting regime.

The Government accepts that it needs to clarify the boundary between planning and non-planning consents. It believes that it can achieve this through reforming the planning system (as outlined in October’s White Paper, Local Growth: Realising Every Place’s Potential and the forthcoming Decentralisation and Localism Bill, which will require local authorities to produce local development plans.) The Government will also monitor the operation of development consent orders, and continue to look at options for merging highways consents with planning permission.

These proposals are encouraging for developers, but the recent spending cuts and lack of detail may contribute to the policy ‘vacuum’ that developers have had to put up with over the past few months. Click here to read about Cala Homes (South) Ltd’s successful judicial review of the Government’s decision to abolish the Regional Strategies.

The next stage

The Government will publish an update to its response in spring 2011, after assessing how much progress has been made in implementing these changes.

Back in August, I wrote about Cala Homes (South) Ltd’s move to seek a judicial review of the Government’s decision to abolish the Regional Strategies in May this year, which it claimed was unlawful. The developer argued that primary legislation should have been introduced, so that MPs could properly debate the issue in Parliament.

Mr Pickles’ decision to revoke the Regional Strategies has been widely criticised in the housebuilding sector for effectively leaving a policy ‘vacuum’ in the planning process, because it removed housing targets and directly resulted in the abandonment of proposals to build tens of thousands of new homes.

So what happens now? Will the Regional Strategies be reinstated?

Well, the ruling may only succeed in delaying the scrapping of the housing targets until autumn 2011, when the impending Decentralisation and Localism Bill is expected to become law. Certainly, initial comments from departmental ministers following the ruling have confirmed that the Regional Strategies will still disappear, calling the High Court’s decision a “technicality” which “changes very little.” The Government is not expected to appeal the decision.

For housebuilders who have been hoping to gain some clarity on the situation since May, it is once again a case of wait and see…

UPDATE (Feb 2011): Cala Homes (South) Ltd has lost its High Court challenge against the Government’s claim that its intention to abolish the Regional Strategies should be considered by local planning authorities when ruling on planning applications. Click here for full details.

Well, one housebuilder has now launched a legal challenge against the Government.

CALA Homes has asked the High Court for a judicial review of the Government’s decision to abolish the Regional Strategies, claiming it was unlawful because (1) the move required primary legislation to be laid down in Parliament, and (2) no transitional arrangements were put in place, which, in the words of Graham Cunningham, managing director of CALA Homes (South), has created a “policy vacuum.”

CALA Homes’ legal challenge centres on a long-running development dispute. Its application for planning permission to build 2,000 homes in Winchester was rejected by the local council in June (following the abolition of the Regional Strategies), but it argues that its appeal against the refusal cannot take place while there is an absence of government planning policy.

CALA Homes is not alone. The number of development schemes being abandoned or put on hold by local councils since the abolition of the Regional Strategies is growing; in fact, according to research published by Tetlow King Planning on behalf of the National Housing Federation in July, plans for 85,000 homes in England have been dropped since the abolition. In a further development, an alliance of nearly 30 organisations, including property groups, engineering bodies and environmental charities, have all signed a letter this month calling for an urgent meeting with Eric Pickles, Secretary of State for Communities and Local Government, to discuss how to replace the Regional Strategies. Pressure on the Government is mounting.

Coincidentally, the Government has now announced details of its ‘New Homes Bonus Scheme’, whereby local councils will be given extra money for every new home built in their area. For the next six years, the Government will match the council tax revenue raised on each new house, thus encouraging local councils to build more homes. Housebuilders, though, who are still unhappy at the decision to abolish the Regional Strategies, urgently require more details of the Scheme. However, with a consultation on the Scheme not due to be published until after the Government’s Spending Review on 20 October, housebuilders may unfortunately have to wait a bit longer.

UPDATE (Feb 2011): Cala Homes (South) Ltd has lost its High Court challenge against the Government’s claim that its intention to abolish the Regional Strategies should be considered by local planning authorities when ruling on planning applications. Click here for full details.

The new ‘Community Right to Build’ initiative is part of the Government’s ‘Big Society’ idea of allowing more decisions to be made by local people, and stems from the fact that many people are forced to leave their villages because they cannot afford to purchase a house there.

Under the plans, villages would be allowed to create local housing trusts and hold a referendum to decide if house building should be permitted. Housing minister Grant Shapps has suggested that this would only involve small developments of fewer than 20 homes and that “overwhelming” support from local communities would be needed before any new building could take place.

However, the new proposals, which will be part of the forthcoming Decentralisation and Localism Bill, have been criticised by the Campaign to Protect Rural England (CPRE), as they could lead to building on green belt land. CPRE argues that there should be proper scrutiny of house building by democratically-elected councillors rather than a simple public referendum.

This announcement follows the Government’s recent decision to scrap Regional Strategies and their centrally-imposed building targets – another step by the Government to transfer centrally-held powers to local communities.

The Penfold Review has now been published and has made 12 recommendations for change:

1. Reinforcing a service culture

The Government should ensure that non-planning consent decision makers (1) recognise the contribution they make to sustainable development through the decisions they make on non-planning consents; (2) publish a quality development code; (3) publish annual performance statistics; and (4) undertake customer satisfaction surveys.

2. Improving co-ordination and governance

The Government should (1) encourage local planning authorities (LPAs) to adopt development management good practice; and (2) ensure that non-planning consenting bodies include a clear statement in their quality development code about guidance and advice they offer at the pre-application stage.

3. Addressing resource pressures

The Government should promote good working practices in resource-sharing, behaviour and culture by (1) encouraging LPAs to work with each other and the private sector; (2) requiring non-planning consent decision makers to make more efficient use of resources; and (3) enabling consenting bodies to charge for discretionary services.

4. Improving the accessibility of information

The Government should improve the quality of advice and information available through BusinessLink and the Planning Portal.

5. Simplifying the landscape

The Government should reduce the number of non-planning consents by (1) reviewing non-planning consents that have not been reviewed for more than ten years to ascertain whether they are still needed; (2) merging conservation area consent with planning permission; (3) merging listed building consent and scheduled monument consent; and (4) merging water abstraction and impoundment consents with the environmental permitting regime.

6. Improving proportionality

The Government should (1) increase the number of small commercial developments and small non-residential developments that are treated as de minimus (i.e. falling below designated thresholds requiring a consent application); (2) Identify the current consent requirements that would be suitable for a process below formal consent application or where deeming consent is appropriate; and (3) review the inquiry and appeal processes for planning and non-planning consent with a view to standardising and simplifying related processes.

7. Clarifying the boundary between planning and non-planning consents

The Government should (1) ensure that the revised national planning policy framework confirms the centrality of the planning process in determining whether a development should go ahead; (2) ensure LPAs have robust local development documents in place; (3) promote the use of pre-application discussions; and (4) create clear rules of engagement between LPAs and the non-planning consent decision makers.

8. Making changes to specific regimes

The Government should clarify what is material to planning and non-planning consent regimes, remove duplication and reduce the need for detailed design work.

9. Facilitating integration of planning and non-planning consents

The Government should encourage more LPAs to offer an improved and integrated planning and non-planning consents service.

10. Extending unification of planning and non-planning consents

The Government should consider extending the use of development consent orders to a wider range of projects.

11. Providing oversight of the planning and non-planning consents landscape

The Government should create a new body responsible for maintaining central oversight of the planning and non-planning consents.

12. Making change happen

The Government should develop an action plan to implement the recommendations of the Penfold Review.

The next step

The Penfold Review’s recommendations have been welcomed by the British Property Federation and the Home Builders Federation. The Government will now consider the recommendations and publish a formal response in autumn 2010. Full details of the recommendations are here.

Well, according to new research by the Financial Times newspaper, since May (when the Government announced its intention to scrap the Regional Strategies), local authorities have rejected a number of residential development projects that would have created 7,500 new homes across the UK. Why? Because local authorities felt emboldened by the Government’s decision on 27 May to allow them to act as though the Regional Strategies had already been scrapped (even though they officially hadn’t been scrapped and wouldn’t be until 6 July.)

Whilst local authorities await more guidance from the Government on its housing policy, developers find themselves ‘in limbo’, with a growing number of local development plans either being cancelled or put on hold because of uncertainty over the policy. The implementation of the financial incentives that the Government has proposed to encourage local authorities to build more houses can’t come quick enough.

Back in May, the Government promised to bring in new legislation that would scrap ‘top-down’ house-building targets and give local authorities the freedom to make their own decisions on what is built in their communities. Mr Pickles then followed this up by writing to local authorities, asking them to act as though the Regional Strategies had already been scrapped (even though they officially hadn’t.) The result was that many local authorities decided to hold off making decisions on some development proposals until the Government clarified its position, leaving many developers in limbo. 

However, the Government has now made a statement to Parliament to end the imposition of the Regional Strategies with immediate effect: an order revoking the Strategies was laid before Parliament on 6 July, and instead of centrally imposed house-building quotas, local authorities will be offered “powerful new (financial) incentives” to encourage support for the construction of new homes in their locality. The Chancellor has suggested that the “financial incentives” could be passed onto local residents via council tax or business rates.

This move is another step by the Government to transfer centrally-held powers to local communities. In this instance, the Government believes that the changes will increase house-building, help local councils protect green belt land, and allow local communities to decide what should be built in their areas. Towns that were planning to make green belt land cuts because of centrally-imposed targets will now be able to make their own decisions where new development is built. They include Guildford, Harlow, Hatfield, Hemel Hempstead, Stevenage and Welwyn.

Some MPs and the British Property Federation (BPF) have warned that the change raises a number of serious questions for local authorities, and that further clarification is needed to ensure a smooth transition. No doubt developers will agree.

In its coalition agreement, published on 20 May, the Government stated its intention to give councils more powers to stop this practice – and it has wasted no time in putting this policy into action.

In a statement made on 9 June, Decentralisation Minister Greg Clark said that, with immediate effect, Annex B of Planning Policy Statement 3 (PPS3) will be amended so that private residential gardens are no longer classified as ‘previously developed land’ (i.e. brownfield land). This will make it easier for councils to reject planning applications for new dwellings on garden land, where local people object. The reclassification of gardens will not affect people who wanted to build extensions on their homes.

Mr Clark also announced the immediate removal of minimum housing density targets, meaning that councils will be able to decide what level of housing density is appropriate for their area.

This change in policy could have adverse consequences that the Government will not have intended. Many old houses have reached their “sell by date” and the land should be re-processed in a more modern, efficient manner. Many elderly people find large gardens too large a burden, and help fund their retirement by selling some of it for development. People will still want to live in the South East, but if land within a community cannot be released for development then there will be added pressure on the green belt. It is not simply a matter of house building being swapped onto derelict industrial land; firstly, there isn’t much of that in the South East and, secondly, land is needed to create employment opportunities as well, not just housing.

One other important aspect is that house building is one of the most important industries in the country. Apart from those directly employed, this could have adverse consequences on the High Street in the sale of fixtures and fittings and furnishings. A lack of new housing will put up the price of second-hand housing. The main concerns of neighbours will generally be overlooking and inappropriate development. There may well have been other ways of achieving the same end but without such far reaching consequences. I expect the Government will be criticised for implementing a far-reaching proposal without proper consultation with those most affected.

The following policy agreements will be of interest to the property industry:

• Home Information Packs (HIPs) are to be suspended, but Energy Performance Certificates will be retained. Legislation will be required to completely abolish HIPs;
• Decision-making powers on housing and planning will be given to local councils, including new powers to stop ‘garden grabbing’ by developers;
• Home energy improvements will be paid for through savings made from lower energy bills;
• Reform the planning system to give local people the ability to determine the shape of the places in which they live. This will be based on the principles set out in the Conservative Party publication Open Source Planning;
• Abolish the Infrastructure Planning Commission and replace it with a democratically accountable system that provides a fast-track process for major infrastructure projects; 
• Plans to establish a high-speed rail network will continue, but plans for a third runway at Heathrow will be cancelled. No additional runways will be built at Gatwick and Stansted airports; 
• Maintain the Green Belt, Sites of Special Scientific Interest (SSSIs) and other environmental protections, and create a new designation to protect green areas of particular importance to local communities; 
• Introduce new measures to bring empty homes into use;
• Promote shared-ownership schemes and help social tenants and others to own or part-own their home; 
• Promote ‘Home on the Farm’ schemes that encourage farmers to convert their buildings into affordable housing; 
• Create new trusts that will make it simpler for communities to provide homes for local people; 
• Require continuous improvements to the energy efficiency of new housing; 
• Provide incentives for local authorities to deliver sustainable development, including for new homes and businesses; 
• Review the effectiveness of the raising of the stamp duty threshold for first-time buyers; and
• Bring forward the national planning statement so that it can be ratified by Parliament. The statement will enable new nuclear construction. The Liberal Democrats, who are opposed to any new nuclear construction, will abstain from voting on the issue.

These policies are part of the Government’s legislative programme for the next five years, and further detail about how they will be implemented will be published in due course.

 Labour

• Build up to 10,000 new council homes a year by 2014/15;
• Maintain the HomeBuy Direct scheme;
• Maintain the stamp duty threshold at £125,000, but (1) abolish it for people in home ownership schemes, and (2) scrap it for two years for first-time buyers on homes worth up to £250,000;
• Ensure that all new homes will be zero carbon by 2016;
• Maintain Home Information Packs;
• Maintain the standard interest rate on the Support for Mortgage Interest Scheme at 6.08 per cent until December 2010;
• Give more powers to local authorities to manage the developments of houses in multiple occupation (HMOs), particularly where HMOs affect the composition of local communities;
• Crack down on social housing tenants who fraudulently sub-let their properties;
• Develop a new form of affordable housing for families on modest incomes who don’t qualify for social housing (e.g. allow them to rent an affordable home at below market rates while they build up an equity stake);
• Give tenants who rent from a private landlord the right to a written tenancy agreement;
• Establish a new National Landlord Register.

Conservatives

• Scrap national and regional housebuilding targets, but reward those local authorities who build more homes by allowing them to keep more of the proceeds from council tax and business rates;
• Create Local Housing Trusts to develop homes for local people (if there is strong community backing for this);
• Expand the self-build sector, particularly in rural areas – local authorities will have to set up a register of families who want to join a self-build scheme and then assess how much land needs to be put aside for a self-build community to be set up.
• Allow neighbourhoods to stop the practice of ‘garden grabbing’;
• Permanently scrap stamp duty for first-time buyers on homes up to £250,000;
• Abolish Home Information Packs;
• Give social tenants with five years good behaviour a 10 per cent equity stake in their properties;
• Pilot a new ‘right to move’ scheme and introduce a nationwide social home swap programme, so social tenants can transfer their tenancy to another home in any part of the country;
• Introduce a new ‘open source’ planning system, so that local people can specify what kind of development they want to see in their area;
• Force developers to pay a tariff to local authorities as compensation for the loss of any amenities and costs of additional infrastructure;
• Abolish the power of planning inspectors to rewrite local plans;
• Amend the ‘Use Classes Order’, so that people can use buildings for any purpose allowed in the local plan;
• Limit appeals against local planning decisions to cases that involve abuse of process or failure to apply the local plan.

Liberal Democrats

• Scrap regional housebuilding targets and allow local authorities to determine how many and what type of homes are needed in their area;
• Bring 250,000 empty homes back into use by offering grants and cheap loans to their owners to renovate them – grants if the home is for social housing, loans if the home is for private use;
• Build tens of thousands of affordable houses to rent;
• Ensure council houses sold under the ‘Right to Buy’ scheme are replaced;
• Allow local authorities to keep 100 per cent of the capital receipts from ‘Right to Buy’ sales;
• Create a new ‘Safe Start’ mortgage that protect buyers from negative equity;
• “Scale back” Homebuy Direct schemes;
• Offer “green loans” for people to invest in home energy efficiency and micro-renewables;
• Scrap Home Information Packs, but retain energy performance certificates;
• Create a third-party right of appeal in cases where planning decisions go against locally agreed plans;
• Stop major new housing developments in major flood risk areas;
• Promote schemes for affordable homes, such as equity mortgages and ‘Home on the Farm’ which encourage farmers to convert existing buildings into affordable housing;
• introduce a new planning ‘use class’ for second homes, so that communities and local authorities can control the number of homes given over to holidaymakers.

Comment

The Home Information Packs (HIPs) have not been particularly popular with sellers, estate agents, developers or conveyancers, and there is a general feeling that they have not actually achieved what they were introduced to do, which was to speed up the process of buying and selling properties, although the HIP industry comments that they believe it has. The Conservatives say that they will abolish them, but the shadow housing minister Grant Shapps has not said what he will replace them with. The Liberal Democrats are saying that they will abolish them but retain the Energy Performance Certificates (EPCs). There is obviously concern in the HIP industry as to how this will affect them and they are urging the new government to adapt not scrap HIPs. Thousands of people trained to be Energy Assessors and the HIP industry employs a lot of people.

Apparently sellers are also delaying putting their properties on the market until after the election to see what actually happens. However, whichever party or parties do take over, the decision will not be an instant one, so are sellers going to carry on waiting indefinitely? I am sure we all want to see an upturn rather than a stall in the housing market.

The Labour government’s first-time buyer relief on properties up to £250,000 for two years is good news for first-time buyers, but is difficult for conveyancers to “police”. Clients could tell us that they are first-time buyers when they have actually owned a property previously anywhere in the world, and we have no way of checking and have to rely on their honesty. The Conservatives say that they will permanently scrap this for first-time buyers, which will presumably not encourage first-time buyers to get on the property ladder as soon as possible, thereby assisting the market to pick up after the recent slump.

The HomeBuy Direct schemes have been extremely popular in the recession, which Labour want to encourage, but the Liberal Democrats want to “scale back”, although they have other schemes in mind.

Sir Cliff Richard and his conservatory

Runnymede Council ordered Sir Cliff Richard to demolish the £30,000 conservatory he had built at his Surrey mansion, after he failed to win retrospective planning permission for it.

The singer only discovered that he should have sought planning permission for the conservatory, when he decided to sell his mansion. He was told by the Council that the conservatory, which was built in 2006, breached its green belt policy, as any extension to the mansion should not have exceeded 30 per cent of the original floor space.

The Council has said that the conservatory must be demolished by 9 March 2010.

Farmer told to demolish the “castle” he hid behind straw bales

A farmer who secretly built a castle-like property, and lived in it for four years while it was hidden behind bales of straw, was recently ordered to demolish it by the High Court.

Robert Fidler hid the property behind straw bales while it was being built in an attempt to avoid having to apply for planning permission. Mr Fidler and his wife even went as far as not sending their son to school one day when he was due to draw a picture of his home, just in case he drew a big haystack and teachers queried the structure!

When the building work was finished, Mr Fidler dismantled the disguise and applied for a certificate of lawfulness on the grounds that it must now be lawful, having been erected for four years without any objections. However, Reigate and Banstead Council decided that the four-year rule did not apply in this case because the property had not been visible during that period and he was ordered to demolish it.

The Court backed the Council, ruling that ”The inspector’s findings were clearly ones he was entitled to reach on the evidence. It fully justified his conclusions that the erection and removal of the bales formed part of the totality of the building operations that Mr Fidler originally contemplated and intended to carry out. The inspector was plainly right to reach the conclusion that he did.”

Property developer who built a home disguised as a barn defeats council eviction bid

Alan Beesley and his wife were granted planning permission to build a barn for agricultural use only, but instead built a three bedroomed house with gym (although externally it looked like a barn with farm machinery on the outside.)

However, when faced with eviction by Welwyn Hatfield Council, the Court of Appeal ruled that the couple had acted within the law and had achieved immunity for the use of the building as a dwelling. This is because owners living in a property for four years are entitled to a certificate of lawfulness even if they fail to get the correct approvals (as Mr Fidler had applied for in the above case).

The Judge in the case admitted that it was a “a surprising outcome which decent law-abiding citizens will find incomprehensible”, but the case was a lesson for local planning authorities.

Comment

The average person who has spent a large amount of money on a construction, innocently believing that consent was not required only to be ordered to demolish it, such as in Cliff Richard’s case, is going to be devastated. Our advice is to always seek the advice of the local authority before carrying out any works whatsoever, particularly in conservation areas and especially with listed buildings. The local authorities are used to such requests and are generally very helpful.

With regard to the other two cases where there was no innocence apparently. It will be difficult for people to understand why the results were so opposite. (It will be interesting to see the decision in the next similar case). 

In Mr Fidler’s case, it could be that his “Castle” had not been built to building regulation standards, was obviously not checked at each phase by an inspector as is usual if you have applied for formal consents, and presumably did not have the benefit of an NHBC (or similar) guarantee which could render it unmortgageable and therefore unsaleable had it been allowed to remain. I suspect that Mr Fiddler did not intend to sell it in the forseeable future, but you also have to consider if it is structurally sound, with his family living there. Building regulations are issued for reasons such as safety.  

Similarly, Mr and Mrs Beesley will not have NHBC (or similar) cover, which will be an issue if they ever decide to sell the property. I would imagine that a surveyor would also have difficulty putting a value on such an unusual dwelling for mortgage purposes, as I doubt that there is anything comparable to it anywhere, let alone in the neighbourhood!

If you have any queries on the consents required for extensions or erections, please do not hesitate to contact us. We have property and planning experts available to assist.

Marine Conservation Zones are intended to protect nationally important marine wildlife, habitats, geology and geomorphology by placing restrictions on the type of activities which may take place within the Zones.

Adam Symons, Prospective Parliamentary Candidate for Torridge and West Devon, is delighted that the seas around Lundy have been given further protection, believing it to be a unique place and a significant attraction to the local economy. If this is the case, then it is possible that the designation of more waters within a Marine Conservation Zone may result in improved house prices in neighbouring areas as more people flock to visit.

“Garden grabbing” has become a contentious issue for both councils and those living in residential areas. Gardens are generally regarded as brownfield land and are therefore good sites for developers, as there are likely to be less issues such as contamination. The DCLG investigation was undertaken in response to concerns that the number of garden developments has increased and become a significant issue for local planning authorities (LPAs). Key findings from the investigation include:

• There is no universally agreed definition of garden land between LPAs and therefore it was difficult to assess the true scale of garden development;
• Only a third of respondents considered garden development to be a national concern. However, it was of greater concern to LPAs with high development pressures who were unable to keep up with the increased workload associated with investigating garden development;
• PPS 3: Housing, the document used by LPAs when considering garden site applications, was considered by LPAs not to help them to resist garden development;
• Few LPAs monitor and hold information on types of housing development and therefore it is difficult to track garden development in specific areas, especially if no local development policies had been put in place.

Following the investigation, Housing and Planning Minister, John Healey, has announced that he will be strengthening national policy advice to make it clearer that garden land is not necessarily suitable for development and that decisions to stop building on it should be taken at a local level.

Recently I have had a spate of acting for either developers selling, or buyers purchasing, plots in small back garden developments, so it will be interesting to see the outcome of this investigation.