The Annual RTPI London Planning Law update is always a popular event in the region’s calendar and this year was no exception. Kindly hosted by Pinsent Masons at their offices near Liverpool Street the event provided a wide ranging review of recent planning reforms, development plan and CIL , national infrastructure planning and judicial review / case law updates.
Richard Ford (Partner at Pinsent Masons), summarised forthcoming changes to the planning system which have been announced by the Conservative Party, either in their Manifesto. as part of the previous coalition government or in the Queen’s Speech. The government is committed to localism but in the same token is keen to improve the speed of decisions and delivery of elements such as new homes. Richard noted that there is likely to be more delegation to the Mayor of London, with housing zones a focus, possibly as part of the forthcoming Housing Bill. Further changes to neighbourhood planning may also be introduced through the Housing Bill too. There is policy support for garden cities but no new legislation currently proposed.
The London Land Commission is being promoted as a way of identifying surplus public sector brownfield land as a way to speed up the delivery of homes in the capital. There is likely to be a focus on speeding up performance of local planning authorities (LPAs), but no LPAs have been designated as having poor performance. We are expected to see different approaches to the vacant building credit emerge from different LPAs, which are yet to be tested. On the viability information being made public Richard reviewed a number of cases where this has and has not occurred and the emerging policy from Greenwich is likely to increase interest in this area with calls for information to be made available.
Another proposal which has been announced is for local traders having more say on ‘minor applications’ through Business Improvement Districts (BIDs), although the detail is yet to be seen. Further detail on Starter Homes (sold at 20% below the market price for under 40s) are expected in the Housing Bill, with provision to exclude them from CIL and S106 contributions and the National Planning Practice Guidance updated. The status of office to residential permitted development rights, which currently expire in May 2016, is not yet known. There is also likely to be changes to the definition of ‘travellers’ following the government consultation undertaken in September 2014. The Enterprise Bill, expected in November 2014, is also likely to include some planning reforms.
Marcus Bate (Senior Associate at Pinsent Masons), reviewed the principles around development plans and CIL. On the interaction with neighbourhood plans the Secretary of State was found to be acting correctly by being entitled to give adequate weight to a neighbourhood plan in the case of Crane v SOS and Harborough DC. In the case of Larkfleet Homes v Rutland CC, it was upheld that neighbourhood plans can allocate land and that requirements for local development documents do not apply to neighbourhood plans as they are governed by a separate regime.
On the CIL matter, there hasn’t been a significant amount of litigation from 2015. The case of Fox, serves to remind us that the courts will not interfere with planning judgements, in this instance the decision to progress ahead with a charging schedule. The examiner couldn’t time limit the charging schedule and used broadly appropriate data. The case of Oxted, notes that there is no need for an up to date development plan for a CIL charging schedule to be implemented. Hourthorpe v Shropshire was the first claim against a liability notice, which failed in this instance as the business in question was not ‘in lawful use’ and the council was entitled to conclude the use had ended.
Robbie Owen (Partner and Head of Infrastructure Planning and Government Affairs), updated the audience on the Nationally Significant Infrastructure Project (NSIP) / Development Consent Order (DCO) process. This process has seen 38 DCOs being made, 8 are in post examination and 7 pre. There have been 7 judicial reviews, 1 has succeeded, the rest have failed. The process is incredibly front loaded with a significant amount of material and consultation expected to occur up front.
Robbie noted that on the A14 scheme there were 225 responses to questions raised in two weeks. Fundamental changes cannot be made to a DCO through the process, unless agreement is reached with PINS, the scheme must be robust before it is lodged. New guidance has been issued by PINS in 2015, governing the process, which is available online. It is expected the process will be further streamlined in 2015 with expectations that a fixed length pre- examination period will be implemented with a general fitness for purpose test for large schemes. Large scale housing schemes may go through the DCO process together with fracking schemes.
Ian Gilbey (partner at Pinsent Masons), reviewed the position with regard to Judicial Review (JR) and statutory challenges. There has been a steady rise in JRs over a number a years, however there was a drop last year of about 13%. The case of Solihull v Gallagher Homes, reminds us LPAs need to use extreme caution by simply preparing plans with pre NPPF housing figures. In Gladman Developments v Aylesbury Vale, a neighbourhood plan can deal with the use and development of land for housing even where no development plan is in place. The general conformity issue, does not preclude the making of a neighbourhood plan and basic conditions will be governed by any supervening strategic policy. In the case of Redhill, any other harm is classed as any other planning harm. On the Greenbelt, in the case of Pinewood Studios the lack of housing supply for Central Buckinghamshire, outweighed the harm associated with the greenbelt and the appeal was successful. The case of Midcounties Coop v Forest of Dean and Trilogy Developments, was used as an example of the minimum requirements for public authorities in JR proceedings. It was advised that even with financial constraints LPAs should at least turn up and/or prepare evidence.
Thanks go to all speakers at Pinsent Masons and to the practice for hosting the session. All cases are paraphrased above and references can be found in the accompanying presentations here. We will be hosting the next Planning Law Update at Pinsent Masons next May. Watch out for more details soon.
Andrew Dorrian / Rob Krzyszowski.