Bulletproof planning

On 14 September the Government launched another planning consultation referred to as “an innovative approach to planning new homes”. In the last two years there have already been two new Acts, a Housing White Paper and numerous other consultations on planning law and policy. But are we making any real progress? And what can be done now to take advantage of future changes?

This article summarises the current position, takes a brief look at what is coming and looks at what can be done now to be as business-ready as possible for the future.

Changes in the law

The Housing and Planning Act brought in a statutory framework for the delivery of starter homes, renewed emphasis on self-build homes and new brownfield registers. It simplified some aspects of neighbourhood planning and increased planning powers of the Secretary of State and the London Mayor. It also introduced the notion of a ‘permission in principle’ but little has been done to introduce this and there is a resounding silence on the proposed independent processing of applications.

The Neighbourhood Planning Act 2017 increased the impact of such plans, and made them easier to modify. It introduced new restrictions on pre‐commencement conditions and gave the Secretary of State power to regulate the content of conditions generally.

Significant recent cases

Hopkins Homes finally reached the Supreme Court this year, affirming the narrow approach to the interpretation of policies taken by the High Court in February 2015 but also confirming that where a plan is absent, silent or out of date, the planning balance should be ‘tilted’ towards the presumption in favour of sustainable development. In contrast, the subsequent Barwood case confirmed that when a plan is up to date the Framework is a material consideration, but the presumption should not be separately considered and applied.

Both of these cases criticised the trend towards legal arguments over the meaning of sustainable development, and this was confirmed by the Mansell case in early September where Lindblom LJ remarked, “The Planning Court – and this court too – must always be vigilant against excessive legalism infecting the planning system.”

Changes to planning policy 

The Housing White paper finally came out in February. Over 100 pages long, some of the key changes it proposed included:

• a Housing Delivery test to be put in place from November 2017, with a range of sanctions applying to local authorities who fail to meet the standards it requires
• statements of Common Ground to be required in the local plan process
• a standardised approach to assessing housing requirements with housing land supply agreed annually
• developer build out rates to be made public and the developer’s ‘track record’ to be taken into account when considering applications
• new expectations for meeting the housing requirements of older and disabled people.

The Government’s most recent consultation does not contain much we have not heard before – though it adds detail to some of the proposals in the White Paper including;

• a standard method for calculating housing need
• joint statements of common ground for local authorities on housing provision
• simplifying viability assessments
• increased planning application fees in some areas.

Arguably, however, the most influential policy changes of the last year were not in either the Housing White Paper or the most recent consultation.

• In December 2016 a Parliamentary Statement confirmed that neighbourhood planning policies for housing supply should not be considered out of date where the local planning authority could show a three-year supply of deliverable housing sites.
• The SPG “Homes for Londoners” adopted by the GLA in August, provided that where applicants were able to guarantee a 35% provision of affordable housing, no supporting viability evidence would be required.

Predictions and forward planning

Based on what has actually been promised, and what the Government’s priorities appear to be in practice, we feel confident predicting the following.

• Announcements on changes to section 106 planning agreements and the Community Infrastructure Levy in the Autumn Budget, including potential changes to the current pooling restrictions.
• Increasingly flexible approaches to the meaning of “affordable housing” – in particular to include affordable rented accommodation and provision for an ageing population with increasing health needs.
• A new Framework document, with support for higher densities, upwards extensions and simpler, standard form local plans.
• A continued trend towards more power for mayors, combined authorities and neighbourhoods.

 For practitioners, and developers who want to be as ready as possible for what might or might not happen, we recommend:

• building in as much flexibility as possible to current section 106 Agreements, including adaptable definitions of affordable housing, and drafting to cover potential changes to the CIL regime
• keeping an eye on build out rates and being ready to defend them in case they become ‘material considerations’ in future applications
• making sure that the local neighbourhood plan content and processes are given as much attention as the main local authority plan. They will be increasingly significant in the planning process; and should be built in to any significant development plans. 

The content of this article is for general information only. For further information regarding planning law please contact a member of Birketts’ Planning and Environmental Law Team. Law covered as at October 2017.