News Type: Policy Update

It has been nearly a year since the government started to introduce various temporary measures to make it easier to operate the planning system during the coronavirus outbreak and to support businesses and developers through these challenging times.

Here is a quick re-cap of those measures still in place and when they are due to expire.

Takeaway Deliveries – Until 22 March 2022

Permitted development (PD) rights were introduced at the start of the Coronavirus outbreak allowing restaurants, cafes and drinking establishments to temporarily change their use to a hot food takeaway. This has helped to support businesses across the country by allowing them to trade throughout national lockdowns and various other restrictions imposed on them.

The rights were initially scheduled to expire on 23 March 2021, however, it was announced on 11 November 2020 that restaurants, pubs and cafes will have their automatic freedoms to provide a takeaway service extended for another year, therefore allowing businesses to provide a takeaway service until 23 March 2022. The government are also considering whether to make the reforms permanent beyond this date.

The PD rights are subject to the condition that the local planning authority must be notified if a takeaway service is to be provided from the premises, and that the property will revert to its lawful planning use when the takeaway service ends, or otherwise on 23 March 2022. It should also be noted that not all premises benefit from these rights. For example, if there are historic planning conditions or a Section 106 Agreement that prohibit the use of the premises for takeaway sales then this overrides the newly introduced permitted development rights. If this is the case, then a S73 planning application may be required to vary a planning condition, or a deed of variation to amend a Section 106 Agreement.

Cultural Venues & Caravan Parks and Holiday Centres – Until 31 Dec 2022 

On 14 July 2020, the government published a Written Ministerial Statement (WMS) to support the culture and tourism sectors by both preventing the loss of theatres, concert halls and live music performance venues, and encouraging local planning authorities to exercise their discretion in relation to planning conditions for caravan, campsites and holiday parks.
Cultural Venues

Cultural Venues

The WMS confirms that LPAs are expected to have due regard to the current circumstances of a culture venue when considering whether to grant planning permission for a change of use or demolition of a theatre, concert hall or live music performance venue that has been made temporarily vacant by Covid-19 business disruption. However, where the site has been vacant for a long time and its vacancy is unrelated to Covid-19 business disruption, applications should be considered in the normal way.

The Theatres Trust have been made statutory consultees for all applications that seek to develop land where there is a theatre and will have an opportunity to comment on any application relating to theatres.

Permitted Development Rights for the demolition of buildings have also been updated so that they no longer apply to theatres, music performance venues and concert halls. This gives an additional layer of protection to those venues which have had to close as a result of restrictions required due to the coronavirus pandemic, requiring a planning application for demolition in all circumstances.

Caravan and Holiday Parks

The WMS also encourages LPAs not to undertake enforcement action which would unnecessarily restrict the ability of caravan, campsites and holiday parks to extend their open season. The WMS sets out that where LPAs consider it appropriate to require a planning application to vary relevant planning conditions (where for example there is a risk of flooding or where parks are situated close to protected sites), these applications should be prioritised as an early decision will provide certainty to park operators.
The WMS will remain in place until 31 December 2022, therefore providing opportunities for holiday parks to extend their opening seasons for the next two years.

Extension to Construction Site Hours – Until 31 May 2021

In May 2020, the government issued a WMS on the situations in which a local planning authority should allow a construction site to extend its working hours. Whilst the statement is in place, local authorities are expected to approve requests to extend construction working hours temporarily until 9.00 pm, Monday to Saturday, unless there are ‘very compelling reasons’ against it.

The flexibility given to LPAs by the written statement covers the planning system only, and currently only extends until 31 May 2021.

This is due to expire shortly with no sign of being extended at the time of writing.

Relaxation of Supermarket Deliveries – 31st March 2021

A WMS was published on 13 March 2020 relaxing delivery restrictions to supermarkets, food retailers and distribution centres in response to coronavirus. This has helped to ensure that planning controls are not a barrier to food deliveries throughout the pandemic.

It was originally intended that the statement would be withdrawn ‘once the immediate urgency has subsided’, however it was confirmed on the 29th November 2020 that the WMS will remain in place until the 31st March 2021. Whilst the statement is in place, local authorities are expected to continue to avoid enforcing controls that unnecessarily restrict the time and number of lorry deliveries to retailers and distribution of food and other essential deliveries.

This is due to expire shortly with no sign of being extended at the time of writing.

Extension of Retail Opening Hours – 31st January 2021

On the 29th November 2020, the government issued a Written Ministerial Statement to relax local restrictions and allow retailers to extend their daily opening hours from Monday to Saturday in the run up to Christmas and throughout January.

The WMS sets out that from the 2nd December until the 31st January, Local Authorities should take a positive approach to their engagement with retailers to ensure planning controls are not a barrier to the temporary extension of retail opening times. The WMS also confirms that LPAs should not seek to undertake planning enforcement action which would result in the unnecessary restriction of retail hours during this period.

This relaxation period has now ended and the WMS is no longer relevant.

Extension to Planning Consents – Until 1 May 2021

The Business and Planning Act (2020) came into effect in August 2020, temporarily allowing certain planning permissions and listed building consents in England which have lapsed or were due to lapse during 2020 to be extended. The measures allow permissions for development which have already received the grant of planning permission or listed building consent and would lapse between 23 March 2020 and 31 December 2020 to be extended until 1 May 2021, therefore offering a 4-month extension period.

Planning permissions with time limits for implementation which were due to lapse between 19 August 2020 (when the provisions came into force) and 31 December 2020 are extended to 1 May 2021 automatically, without the need to obtain additional environmental approval. Permissions that lapsed between 23 March 2020 and 19 August (when the provisions came into force) are subject to an ‘additional environmental approval’ by the local council before the automatic extensions can take effect. The local authority has a 28-day window to grant or refuse the environmental details, with the details deemed to be granted if the council do not issue a decision within this period.

We have now passed this date and there are no plans to extend provisions any further.

External Seating – Until 30 September 2022

The government has introduced provisions through the Business and Planning Act (2020) to make it easier for premises in England serving food and drink such as bars, restaurants and pubs to seat and serve customers outdoors through temporary changes to planning procedures and alcohol licensing.

Pavement licences are usually granted under Part 7A of the Highways Act 1980, with the fee and determination process varying between local authorities. The temporary measures introduced provide a cheaper, easier and quicker way for businesses to obtain an external seating licence, with the fee for applying for a new licence capped at £100, and the determination period reduced to 14 days. The measures were initially scheduled to remain in place until the 30 September 2021, however, it was announced on the 5th March 2021 that the government intend to extend pavement licences for a further year until the 30 September 2022 (subject to parliamentary approval). This will make it easier and cheaper for restaurants, pubs and cafes to continue to make al fresco dining a reality with outside seating, tables and street stalls to serve food and drink.

A number of local authorities have introduced their own external seating measures to support businesses throughout the pandemic. For example, Westminster City Council introduced a winter hospitality scheme between 2 December 2020 and 30 April 2021, with over 40 road closures in the central areas to facilitate larger external seating areas for businesses.

It was announced on the 23rd February 2021 that Westminster will be extending their al fresco hospitality scheme until the 30th September 2021. This will allow businesses to apply for enlarged external seating areas throughout the summer months, with the use of electric heaters, barriers, umbrellas and gazebos supported.

Markets and Stalls – Until 31 December 2021

It was announced in June 2020 that Councils will no longer need planning permission to set up outdoor markets, and that landowners will be given more time to use their land to host events. Temporary permitted development rights were introduced allowing markets to be held on behalf of a local authority on ‘an unlimited number of days’, and also extending the amount of time that landowners are allowed to hold outdoor events, such as car boot sales, summer fairs and motor racing events, on their land. Previously permitted development rights allowed landowners to use their land for ‘any purpose’ for up to 28 days, but the new rights double this allowance and allow land to be used for any purpose for 56 days.

These rights were due to expire on 31 December 2020, but it was announced on 11 November that PD rights allowing local authorities to hold a market for an unlimited number of days have been extended until the 23rd March 2022, and that rights allowing landowners to use their land for ‘any purpose’ have also been extended until 31st December 2021.

Additional Development from the Crown in Response to a Pandemic

Permitted Development rights have been introduced allowing land owned by the Crown to be used for purposes such as preventing an emergency, controlling or mitigating the effects of an emergency or taking other action in connection with an emergency. Similar permitted development rights have also been introduced allowing development by, or on behalf of, the Crown on Crown land for the purpose of preventing a pandemic, or taking other action in relation to a pandemic.

Local Election & Neighbourhood Plan Referendum Delays

In March 2020 it was announced that local elections and referendums scheduled to take place on 7 May 2020 would be delayed by a year due to the Covid-19 pandemic. The Cabinet Office has now confirmed that elections and referendums will now take place on the 6th May 2021.

If you have a query on any of the temporary measures in place, please feel free to contact one of the Firstplan team.

Short and long-term changes to the standard method for assessing housing need

 

The current Standard Method

The standard method for assessing housing need (The Standard Method) first came into force in 2018 via the amended National Planning Policy Framework (NPPF) and was established in order to enhance the process of assessing the minimum number of houses required in an area via an easier, cheaper and more transparent manner, whereby figures are less contested at the examination stage with data publicly available.  The current Standard Method, as outlined by the NPPF, utilises a formula which takes into account a baseline of projected household growth, affordability and previous under-supply; household projections (based on 2014 household figures) are configured to reflect affordability and are capped at 40% to restrict the increase based on the current stage of a Local Planning Authority’s (LPA) strategic policies for housing. The Standard Method currently establishes the starting point for planning for housing yet does not distinguish the definite housing requirement figure. The Standard Method is to be undertaken at the rudimental stages of preparing a Local Plan and should be re-evaluated as appropriate. LPAs have to decipher whether localised circumstances mean that the actual need surpasses the minimum figure of the Standard Method, owing to planned strategic infrastructure or higher growth predictions. Sufficient land must then be released over at least the next 15 years. Currently, policy then encourages LPAs to determine how such a figure of housing could be facilitated: through intensification and densification of brownfield land, regeneration, or new-settlements and urban expansions.

There are, however, recognised shortcomings with using the Standard Method.  The use of current household projections alone is widely regarded as problematic; the 2014 figures are inconsistent, being too low in certain areas and thus not providing a true reflection. Of note, it is not currently mandatory for LPAs to follow the Standard Method owing to exceptional circumstances which are subsequently evaluated at examination; Paragraph 11 of the NPPF enables LPAs not to have to fulfil their own housing need if they are affected by policy constraints such as Green Belt. In some instances, this allowance has, arguably, been manipulated, partially leading to the current inertia. Thus, although housing delivery has increased in certain years, with a 30-year high last year, the Standard Method has been blamed for perpetuating the national housing crisis as local plans are not currently able to deliver the quantum of housing that the country needs. Indeed, reference was made within 2019 updates to national policy and guidance that the procedure would be reviewed in an attempt to add further clarity, simplicity and transparency for local communities. Consequently, MHCLG has issued distinct short-term and longer-term amendments to the Standard Method that represent a radical realignment of the process. This article will discuss each in turn.

 

The short-term proposals

The ‘Changes to the Current Planning System’ consultation paper seeks to replace the 2018 Standard Method to improve the immediate effectiveness of the current system, thereby aiding the Government’s ambitions of delivering 300,000 homes per annum, with 1 million to be completed over the Government term. The alterations would change Planning Practice Guidance (PPG) which, in turn, would then influence the fundamental reforms outlined within the White Paper.

A key element of these reforms is the introduction of the percentage of existing housing stock levels into the Standard Method calculations; the baseline for the method would be established by using whichever is the higher of either 0.5% of the existing housing stock or the latest projections of average annual household growth over a 10-year period. That the latest ONS figures on national household growth projections are to be used marks an definite improvement from the 2014 household figures. The incorporation of stock levels is intended to make the method more stable and concentrate development in existing urban areas; locations with higher future projections, and lower stock levels can plan for more than the previous method. It is acknowledged that this amendment will inevitably lower the baseline figure; however the second alteration within these reforms is designed to mitigate this via attention to market signals.

The second adjustment accounts for market signals by using the current affordability ratio alongside the change in affordability over the last 10 years. This change to the baseline concerning affordability is two-pronged. Part 1 involves using the workplace-based median house price to median earnings ratio, to help where affordability is especially poor. For each 1% the ratio is above 4 the baseline is increased by a quarter of a percent (4 being the threshold as 4x times a salary is usually the maximum amount that can be borrowed for a mortgage). A consideration of downwards adjustments is also included: for each 1% the ratio is below 4, the baseline is decreased by a quarter of a percent. The introduction of an affordability adjustment which considers variations is to increase the method’s reflection of changing local circumstances. The second aspect of the emphasis on affordability pertains to utilising the absolute difference between the latest affordability ratio and the affordability ratio 10 years ago; the difference calculated is multiplied by a factor of 0.25. The 10-year figure will reveal the trend, thereby monitoring whether affordability has improved and enabling LPAs to respond accordingly. Adjustments part 1 and 2 are added together to formulate a total affordability factor which is then applied to the baseline. To this end, affordability becomes more central in the overall calculations, which is significant given the fact that the affordability of homes is the best evidence that supply is not relative to demand.

These interim measures are designed to achieve as much short-term supply as possible. Indeed, the principle of the reforms pertain to: ensuring land supply is not a barrier to fulfilling housing provision, utilising more accurate data, delivering housing where it is the least affordable and reducing the volatility of the methodology. Crucially, the proposals abolish the cap previously applied to constrict the level of increase in housing need identified by individual LPAs. This is a radical step which is intended as a quicker way to address the housing crisis. Of significance, based on the aforementioned adjustments, MHCLG noted the revised figure of 337,000 homes per year as opposed to 270,000 from the present method. It is, however, recognised that LPAs will be impacted by these revisions differently. The revised method contorts current figures; the Government emphasises the need for a better distribution of homes where they are most needed yet the figures reduce numbers in the north, despite references to supporting the Northern Powerhouse. To this end, the revised approach may be deemed to be at odds with the confirmed commitment to reduce regional inequalities. Further, the continuation of green belt allowances casts doubt on the extent that the amendments will increase housing provision in constrained areas such as the Home Counties.

It is suggested that commencing from the publication date of this revised guidance, LPAs that are already at the second stage of plan making consultation process, Regulation 19, are given 6 months to submit their plan to PINS for examination. Plans already at the second stage publication are to be given 3 months to publish their Regulation 19 plan with an additional 6 months to submit to PINS. After consultation on the proposal document, which closed on 1st October, updates to PPG will be updated accordingly.

 

Long term reforms within the White Paper

Arguably the most contentious of all reforms set out within the ‘Planning for the Future’ White Paper is the radical new approach to the Standard Method as explained in Proposal 4 within Pillar 1: A New Approach to Plan-making. In essence, a nationally-determined binding housing requirement is advocated which LPAs would be responsible for delivering through their Local Plans. This new method would become a way in which to distribute the national housing target of 300,000 new homes per annum. This housing requirement would take into consideration land constraints and opportunities in order to more effectively use land, with an express intention of densification where appropriate.

Within the context of making the planning system fit for purpose, MHCLG relegate the current assessment of housing need as too complex and opaque and declare it incapable of ensuring the correct number of homes are built. Subsequently, the reforms seek to actively encourage greater land release and to concentrate delivery on areas where affordability pressures are the most acute. The amended approach would factor in land constraints and opportunities in the first instance; MHCLG have stated that when determining the binding figure for an area, consideration will be given to:

– The size of the existing urban settlement to ensure development is concentrated in areas that can absorb the level of housing proposed;
– The relative affordability of an area, to facilitate concentration in acute locations;
– The extent of land constraints such as environmental and heritage factors including Green Belt, National Parks, AONBs;
– Opportunities to further use brownfield land, e.g. through increased densification;
– Consideration of land required for other land uses;
– Incorporation of an appropriate buffer to counteract the disparity between permissions and completions, whilst also providing adequate selection for the market.

LPAs would retain authority as to how land is allotted in order to meet their stipulated housing figure. Further, it is suggested that the current Housing Delivery Test is maintained. Moreover, an alternative solution is referenced which involves retaining the current Standard Method but with greater emphasis on meeting current need with additional safeguards.

 

Implications

As with the other proposals within the recent Planning reforms, further clarification is required. It must be acknowledged that, ultimately, the extent of the potential long-term binding requirement will be determined by the success of the short-term measures.

Regarding the interim proposals, the greater stress on affordability has somewhat inevitably increased figures for the wider South East which is also where environmental and heritage limitations are prominent. How will this be resolved given the statement of continuation of green belt restrictions? Will growth remain focussed in London owing to low affordability? Under both the reforms to the short term and longer term, the flexibility to reduce numbers owing to constraints will still exist – therefore to what extent will numbers be increased?

The proposal within the White Paper have attracted widespread interest with concerns raised over the move towards top-down instruction on housing targets and how this will sit with local autonomy and local democracy. Both public and private sector representatives have warned against the potential removal of localised planning judgement. The removal of the Duty to Cooperate also raises the question of what would happen to LPAs that are severely constrained by Green Belt and would therefore be unable to negotiate joint arrangements with neighbouring authorities?  It is as yet unclear as to what sanctions could be inflicted on LPAs who fail to accommodate the binding requirement. Central Government would be responsible for deciphering green belt release, yet it is not clear how the constraints to the nationally set figure will be incorporated?  There is also concern that there could be more construction on greenfield land in the south as opposed to brownfield land in the north. Additionally, it is unclear how frequently Central Government figures would be distributed.

The development industry is undeniably at a critical cross-road concerning mitigating the mounting housing crisis. The results of both consultations will no doubt prove highly insightful.

Current PPG guidance on the Standard Method is accessed at: https://www.gov.uk/guidance/housing-and-economic-development-needs-assessments

The short term amendments can be accessed at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/907215/200805_Changes_to_the_current_planning_system_FINAL_version.pdf

Planning for the Future reforms are available at: https://www.gov.uk/government/consultations/planning-for-the-future

 

 

Permission in Principle (PiP) was first introduced via the Housing and Planning Act 2016, with the application route being established in June 2018. Intended to accelerate housing-led schemes by providing upfront certainty in terms of a high level approval concerning location, land use and quantum of development prior to working out detailed plans, the current regime allows two ways of securing a PiP: the first route involves the Local Planning Authority (LPA) allocating land exceeding a quarter of a hectare for at least 5 dwellings in Part 2 of their Brownfield Land Register; alternatively, a PiP consent route consists of an initial PiP application to establish whether a site is suitable for development and is restricted to a maximum of 9 dwellings on a site not exceeding 1 hectare. Full planning permission is subsequently granted by an ensuing Technical Details Consent stage whereby detailed proposals are assessed.

The current take-up of PiP has been somewhat lower than anticipated despite the PiP application route involving a quick procedure with a decision being issued in 5 weeks. The idea of being able to quickly establish whether the principle of housing on a site is acceptable is certainly an attractive option for many developers. However, in practice, the current PiP mechanism can be undermined if an LPA seeks detailed information up front. On the other hand, if as intended, detailed planning matters are left to the Technical Details Consent stage there remains the danger that an unforeseen technical issue could emerge which renders a development undeliverable.

Current Planning Practice Guidance seeks to clarify what matters should be considered with a PiP application but leaves some room for interpretation:

‘The scope of permission in principle is limited to location, land use and amount of development. Issues relevant to these ‘in principle’ matters should be considered at the permission in principle stage. Other matters should be considered at the technical details consent stage. In addition, local authorities cannot list the information they require for applications for permission in principle in the same way they can for applications for planning permission’.

Despite these challenges, the Government still envisage PiP as playing a key, and indeed expanded role, in the planning system. Hence, in conjunction with the wider planning reforms proposed under ‘Planning for the Future’, the Government has simultaneously released a consultation paper for changes to the current system in the interim, one being an extension to the current PiP consent regime.

The MHCLG consultation, running until the 1st October, proposes to utilise the PiP mechanism for major developments of up to 150 units with no limit on the amount of commercial floorspace within a scheme.  This represents a significant uplift from the current limit of 10 units and linked commercial development of 1,000 sqm within 1 hectare. Although housing-led, PiP by application may include retail, office or community space uses. The Government is promoting the proposals on the basis that they will provide both landowners and developers with a quicker and more cost-efficient route to establishing the principle of housing developments without having to submit detailed plans upfront, thereby aiding SMEs and in turn supporting the economic recovery post Covid. To retain the attractiveness and increase the uptake of PiP, timeframes are to be maintained and an amended fee scale for a differential rate per hectare is proposed. Increased publicity is suggested for bigger sites and an additional maximum height threshold parameter may be introduced. However, EIA and Habitats restrictions remain.  The same information requirements would apply: the minimum and maximum dwellings proposed and a site map. The amended regulations are expected to come into force by the end of the year.

With regard to longer-term reforms set out within the White Paper, confusion remains over the exact wording of the proposals; it is unclear at this stage whether the proposed ‘Growth Areas’ are to automatically allow PiP development or outline planning permission. Nevertheless, it is apparent that the government seeks to retain the principle of PiP, although it will not be a continuation of the current process.

We await the upcoming guidance referenced within the PiP consultation paper and are ready to assist with any queries relating to this matter.

A link to the PiP consultation document can be found here.

The Planning for the Future White Paper can be accessed here.

 

 

On 6 August, the Government published a consultation document titled ‘Changes to the current planning system’ which sets out proposed measures to improve the effectiveness of the current planning system. The consultation runs until 1 October 2020 and invites responses to four main proposals; one of which comprises a potential time-limited increase to the small sites affordable housing threshold ‘to support SME builders as the economy recovers from the impact of Covid-19’.

What is the current threshold?
National planning policy sets out that affordable housing contributions should not be sought from developments on small sites; i.e. those delivering fewer than 10 residential units. It is also makes clear that affordable housing contributions should not be sought from developments that have a site area of less than 0.5 hectares. In designated rural areas, local planning authorities are entitled to set a lower threshold of 5 units or fewer.

An exception to national policy applies where Council’s with up-to-date local plans (less than five years old) are entitled to seek affordable housing contributions for small sites.

Why change the threshold?
The overarching aim of the proposed increase to the small sites threshold is to stimulate economic recovery in the wake of COVID-19. The intention is to specifically support small-to-medium sized developers (SMEs) by reducing the burden of developer contributions on sites more likely to be built out by SME developers.

The Government anticipates that, on balance, raising the threshold would make more sites viable for SME developers and therefore increase the pace of their delivery.  The consultation paper acknowledges that the trade-off for increasing the threshold would be a fairly significant reduction in affordable housing delivery.

What is being proposed?
The Government is proposing to temporarily raise the small sites affordable housing threshold to up to either 40 or 50 residential units. The existing site size threshold of 0.5 hectares will also be scaled up proportionately to the increase in unit numbers. The idea is that this new higher threshold will be implemented for an initial period of 18 months during which time the Government ‘will monitor its impact before reviewing the approach’ – thereby leaving the door open to extending the time limit.

The current threshold in designated rural areas is proposed to be retained.

The Government is keen to close down any loophole whereby developers could attempt to bring forward larger sites in phasings of up to 40 to 50 units as a means of avoiding contributions by ‘setting out in planning  guidance how local planning authorities can secure contributions for affordable housing where it is apparent that a larger site is being brought forward’.

Once the consultation has ended, the Government will decide whether to take forward this approach, which will likely be implemented via a Written Ministerial Statement forecast for issue ‘in the Autumn’.

What are the questions in the consultation?
Q17 Do you agree with the proposed approach to raise the small sites threshold for a time-limited period?
Q18 What is the appropriate level of small sites threshold?
i) Up to 40 homes
ii) Up to 50 homes
iii) Other (please specify)
Q19 Do you agree with the proposed approach to the site size threshold?
Q20 Do you agree with linking the time-limited period to economic recovery and raising the threshold for an initial period of 18 months?
Q21 Do you agree with the proposed approach to minimising threshold effects?
Q22 Do you agree with the Government’s proposed approach to setting thresholds in rural areas?
Q23 Are there any other ways in which the Government can support SME builders to deliver new homes during the economic recovery period?

What are the implications of the proposals?
The prospect of raising the affordable housing threshold to either 40 or 50 units will no doubt come as welcome news for many SME developers, particularly those who have been struggling to make their schemes viable in the face of an uncertain housing market.

It is, of course, the Government’s hope that such a significant jump in the affordable housing threshold will allow sites to be brought forward for housing which would not otherwise have been viable to deliver, and in doing so, help support SMEs.  Whether or not it is the Government’s intention, the proposals could have implications for developments at all stages of the application process.   As well as potentially enabling new sites to come forward, the higher threshold may also allow developers to revisit schemes which already benefit from extant planning permission with an affordable housing contribution. For example, a developer may be able to re-submit a fresh planning application for the same scheme to avoid the contribution or indeed, redesign a permitted scheme of more than 40 or 50 units (depending on the new threshold) so that it falls just under the threshold.  Equally, if the new temporary threshold is introduced, there may be scope for developers to re-evaluate schemes that are already in the application process or those nearing submission.  As well as viability, the inclusion of on-site affordable housing will often have implications in terms of a scheme’s design, unit mix etc. which may need to be reconsidered.

All of this will depend on the final wording of any WMS and/or planning guidance and its scope for interpretation.  However, if the proposals do come forward it is already clear that timing will be a key issue.  Whilst an initial 18 month period seems reasonable, in practice, it will give developers a very limited window of opportunity to take advantage of the higher threshold.  Developers may therefore need to be in a position to act quickly, especially where a local authority is likely to be slow to determine the application (perhaps through a lack of resources, or where a delay may be in their interest if it means that the applicant must then make an affordable housing contribution to that authority).

Perhaps the biggest question though, is the weight which any Written Ministerial Statement will be given in the decision-making process.  Will the WMS effectively trump all up-to-date Development Plan affordable housing policies for the specified period?  The Government’s last attempt back in 2014 to use a WMS to set a national affordable housing threshold of 10 or more units was met with resistance from many local authorities and was followed by a trail of appeals.

The current circumstances are very different to the 2014 scenario in that the proposed policy change is a direct response to the Covid-19 pandemic and will be on a temporary basis only. Nevertheless, the key to the success of the proposals will be ensuring that SME builders have the certainty that local authorities will take a consistent approach to implementing the higher threshold whilst it is in place.

We will be continuing to monitor the progress of these proposals. In the meantime, if you have any questions relating to the affordable housing threshold increase or indeed any other proposed changes to the planning system, please get in touch with one of the Firstplan team to discuss.

The Government’s consultation document can be found at the link below:

https://www.gov.uk/government/consultations/changes-to-the-current-planning-system

 

Housing Secretary Robert Jenrick has written a letter to Mayor of London Sadiq Khan directing a number of significant changes to the London Plan before it can be adopted.

The letter dated 13 March 2020 can be found here and is worth a read in full to appreciate the extent of Mr Jenrick’s criticism of the Plan and Mr Khans ‘deeply disappointing’ housing delivery record.  No reading between the lines is needed to understand the clear message:

‘…Following the Planning Inspectorate’s investigation of your Plan, they only deem your Plan credible to deliver 52,000 homes a year. This is significantly below your own identified need of around 66,000 homes and well below what most commentators think is the real need of London. As I have set out, the shortfall between housing need in London and the homes your Plan delivers has significant consequences for Londoners…
 
…Your Plan added layers of complexity that will make development more difficult unnecessarily; with policies on things as small as bed linen. Prescription to this degree makes the planning process more cumbersome and difficult to navigate; in turn meaning less developments come forward and those that do progress slowly…
 
…I had expected you to set the framework for a step change in housing delivery, paving the way for further increases given the next London Plan will need to assess housing need by using the Local Housing Need methodology. This has not materialised, as you have not taken the tough choices necessary to bring enough land into the system to build the homes needed.
 
…Having considered your Plan at length my conclusion is that the necessary decisions to bring more land into the planning system have not been taken, the added complexity will reduce appetite for development further and slow down the system, and throughout the Plan you have directly contradicted national policy. As you know, by law you must have regard to the need for your strategies to be consistent with national policies.

For these reasons I am left with no choice but to exercise my powers to direct changes’.

‘Due to the number of the inconsistencies with national policy and missed opportunities to increase housing delivery’, Mr Jenrick goes onto set out 11 directions which must be incorporated into the plan before it can be published.

So, what are the key changes and how significant are they for development in London?

Industrial Land

The Mayor’s strong line on the protection of London’s industrial land drew criticism at the Examination in Public.  The letter notes that ‘The Inspectors considered your industrial land policies to be unrealistic; taking an over-restrictive stance to hinder Boroughs’ abilities to choose more optimal uses for industrial sites where housing is in high demand’.

The letter goes onto state that ‘I am directing you to take a more proportionate stance – removing the ‘no net loss’ requirement on existing industrial land sites whilst ensuring Boroughs bring new industrial land into the supply’.  Specifically, the changes involve:

·       all reference to ‘no net loss’ of industrial floorspace for designated Strategic SIL/LSIS is removed.
·       The proposed introduction of a 65% plot ratio (i.e. ratio of floorspace to land) as a benchmark against which the principle of ‘no net loss’ would be measured is removed.
·       the borough level categorisations set out in Figure 6.1 (i.e. provide, retain or release) are removed.
·       there is added support for SIL release and SIL substitution where evidence suggests this is appropriate.

The implications of this more open policy approach are two pronged. Clearly, the intension of omitting the ‘no net loss’ principle is to remove what would be a significant policy hurdle to SIL release to allow the transfer of some employment land to other uses i.e. housing.   Whilst the directed changes may not necessarily open the floodgates for SIL release, it certainly introduces more flexibility which some pro-development Council’s may embrace. On the flipside, a SIL designation will now arguably offer less protection and certainty for existing employment sites.

Green Belts

The Mayor’s blanket ban on green belt development is revised to bring the policy into line with national policy by including scope for exceptions where it is demonstrated that there are ‘very special circumstances’ and ‘exceptional circumstances’.  Whilst these are difficult policy tests to overcome, their inclusion does add some scope for negotiation.  Notably, there is no requirement for the Mayor to undertake a Green Belt review prior to adoption as recommended by the Panel – although this is likely to be incorporated into the ‘immediate’ review of the London Plan which Mr Jenrick requests in his letter.

Family housing

Mr Jenrick is critical of the Plan’s tilt towards one-bed flats ‘at the expense of all else’ which is deemed to be ‘driving people out of our capital when they want to have a family’.  To address this imbalance, reference is added encouraging the provision of family-sized units. This re-wording may have implications for the housing mix of future schemes, which in turn will impact on viability.

Affordable Housing

Support for affordable housing provision on sites delivering less than 10 units is removed as it is considered to undermined national approach and is inconsistent with the written ministerial statement made on 28 November 2014.

Density

The directed changes shift the policy stance on optimising density somewhat with support for higher density developments in areas that are well connected and through the expansion of existing clusters, whilst also introducing the idea of ‘gentle densification’ in low and mid density locations.  This more prescriptive policy is intended to give clearer guidance on the most suitable locations for higher density development and avoid inappropriate development.

In signing off the letter, Mr Jenrick says:

‘The position I have taken and requirements I have outlined, are focused on ensuring the homes that Londoners need are planned for and delivered. Housing in our capital is simply too important for the underachievement and drift displayed under you Mayoralty, and now in your Plan, to continue’.

We wait with interest for Mr Khan’s response.  In the meantime, the letter and directed changes will need to be taken into account as a material consideration in the determination of planning applications where relevant.

Should you have any queries about any of the above, please feel free to contact one of the Firstplan team.

As Westminster’s new City Plan 2019-2040 enters the examination stage and progresses towards adopted, the draft policies can be afforded increasingly more weight in the determination of planning applications. One key policy change that stands out is the position the new Plan takes regarding the loss of Class A1 retail use in central London.

The adopted City Plan (2016) takes a very restricted approach to the loss of A1 use with policy protecting all existing retail throughout the Borough except where the council consider that the unit is not viable.  Officers have applied this policy strictly resisting any loss of A1 use unless it can be demonstrated that the unit has been subject to long-term vacancy despite marketing.

The new City Plan creates a West End Retail and Leisure Special Policy Area (WERLSPA) which seek the delivery of a diverse evening and night-time economy and enhanced cultural offer. This new area replaces the West End Retail Special Policy Area and is expanded to better reflect the mixed-use nature of the wider area and interdependence of uses that’s much more diverse and varied than simply retail.

A1 retail remains the priority use at ground floor level throughout the town centre hierarchy and policy only supports its loss when there is evidence that there is no reasonable prospect of its continued use for A1-retail purposes i.e. as evidenced by appropriate marketing for a period of at least 18 months. However, this policy requirement does not apply to proposals within the WERLSPA (unless the site is also designated as part of the West End International Centre or a CAZ retail Cluster).

This effectively means that policy allows the change of use of A1 units to non-retail uses in the area outlined in purple on the plan below, excluding the areas shown in red and yellow.

This new policy approach offers much greater flexibility of uses within WERLSPA than elsewhere in the town centre hierarchy and could potentially be very useful in opening up new change of use and/or development opportunities for existing retail units in the area.

If you would like to discuss the implications of Westminster’s emerging City Plan, please feel free to contact Mark Shearman (mshearman@firstplan.co.uk or 020 3096 7000) or any other member of the Firstplan team.

 

Following a review of consultation responses, the Mayor has published (13 August) a version of the draft London Plan that includes his minor suggested changes. The changes include clarifications, corrections and factual updates and are therefore not subject to consultation.

Provisional dates for key stages of the Examination in Public (EiP) have also been published (14 August) with the EiP hearing sessions set to take place between Mid January – May 2019 and the Panel Report scheduled for publication in Summer 2019.

The EiP will be conducted in the context of policies in the 2012 version of the National Planning Policy Framework (NPPF) rather than the revised version published in July 2018, as indicated in the transitional arrangements.

If you have any queries relating to the draft London Plan, please feel free to contact a member of the Firstplan team.