News Type: Other

Gavin Barwell MP has been announced as the new Minister of State for Housing & Planning, replacing Brandon Lewis who moves to the Home Office. Interestingly, Mr Barwell has also been appointed as Minster for London, a role which was last occupied by Tessa Jowell who left office in 2010. David Cameron did not choose to appoint a replacement.

Mr Barwell was elected Conservative MP for Croydon Central in May 2010 and served as a House of Commons Whip until his promotion yesterday. In a statement issued following his appointment, Mr Barwell unsurprisingly highlights the need for more housing as a key priority. His new role will see him work closely with both the former Business Secretary Savid Javid who was made Secretary of State for Communities and Local Government last week, and London Mayor Sadiq Khan.

Following the recent Court of Appeal decision in the case of West Berkshire District Council and Reading Borough Council v. Secretary of State for Communities and Local Government, national Planning Practice Guidance (PPG) has been updated to reinstate policies on the Vacant Building Credit and local planning authorities not requiring small sites to make s106 contributions for affordable housing.

The story so far…

August 2015 saw the Council’s of West Berkshire District Council and Reading Borough Council succeed in a High Court ruling following a challenge of the Government’s exemption for affordable housing requirements on small development sites of ten units or less and the introduction of a Vacant Building Credit (VBC), which were introduced in 2014 in a Ministerial Statement and included in the PPG.   The High Court decision led to the subsequent removal of these policies from the PPG in 2015 .

The SofS appealed against the High Court ruling and May 2016 saw the Court of Appeal find in favour of the government’s approach.  The Court of Appeal upheld all four appeal grounds brought by the Secretary of State, namely;

1.     The exemption and VBC policy expressed could not be faulted on grounds that it did not use language which indicated that it is not to be applied in a blanket fashion. Furthermore, policy may overtake a development plan.

2.     It was accepted that statutory planning context does constrain the Secretary of State and would prevent the introduction of planning matters which were not proper planning considerations.

3.     There was no unfairness in the procedure adopted by the Secretary of State and the relevant paragraph in the ministers response on consultations represented a balance of the various submissions;

4.     There was no breach of the public sector equality duty.

The Court of Appeal decision effectively reversed the judgement by the High Court.  Despite the fact that West Berkshire and Reading Council’s have 28 days from the date of the decision to appeal to the Supreme Court, the Government has wasted no time in updating the online PPG to restore the statements relating to affordable housing thresholds and VBC which had been previously removed (specifically paragraphs 015, 016, 017, 019, 020, 021, 022 and 023 of the document are now reinserted with the same wording from the 2014 Statement).

Questions will no doubt be raised over the weight which local authorities should attach to this guidance, but the reintroduction of this policy is nonetheless welcome news for small scale developers.

If you have any queries regarding the new guidance, please feel free to contact one of the Firstplan team.

The Court of Appeal has today handed down judgement in the case of  West Berkshire District Council and Reading Borough Council v. Secretary of State for Communities and Local Government.   The case centred around the Government’s decision to  introduce a national affordable housing threshold and the Vacant Building Credit.

The controversial policy, set out in a Written Ministerial Statement back in November 2014, excluded housing developments of 10 units or 1,000sqm or less from the need to provide, or contribute towards, affordable housing – with a lower threshold introduced in rural areas.  The Vacant Building Credit (VBC) allowed local authorities to provide a ‘credit’ equivalent to the floorspace of any vacant building brought back into use or demolished for redevelopment, which could then be set against affordable housing contributions.

West Berkshire District Council and Reading Borough Council challenged the guidance on the basis that it would result in a loss of 21% of affordable housing contributions nationwide.  In July 2015 the High Court backed their arguments and quashed the policy, concluding that the national policy changes introduced in November 2014 were incompatible with the statutory planning framework. The decision also highlighted failure to have regard to material considerations, unlawful consultation and breach of the public sector equality duty (“PSED”). The Secretary of State appealed on all of these grounds.

Today, the Court of Appeal upheld all four appeal grounds brought by the Government, and reversed the High Court’s decision to quash the policy.  Subject to the local authorities not appealing to the Supreme Court, this decision paves the way for the policy to be reintroduced into Planning Practice Guidance.

This is an important case, particularly for many small scale developers, and we will be keeping a close eye on the implications of the judgement.  If you have any queries about this decision, please feel free to contact one of the Firstplan team.

George Clarke’s “Ugly House to Lovely House” programme aired on Channel 4 last week, documenting the design and construction of an innovative contemporary extension to a 1970’s semi-detached suburban home in Wokingham, Berkshire. Firstplan worked alongside project architects Lipton Plant to negotiate and secure the planning consent for the extension, which has created a dramatic double-height living space, transforming the property both internally and externally. The programme is repeated on 4seven on Sunday and Tuesday evening, and can also be watched via Channel 4 On Demand.

The Government is currently consulting on proposals which seek to reduce the number of circumstances in which the submission of a full listed building consent (LBC) is required. Four options have been put forward:

1. A system of prior notification leading to deemed LBC – This involves applicants submitting a simple prior notification of the intention to carry out works to a listed building. The LPA would then have 28 days to either send written confirmation that the works may be undertaken or to request a full LBC request.

2. A system of local and national class consents granting deemed LBC – This system would remove the need for LBCs for carrying out particular types of work on specific types of heritage assets. For example, allowing the removal of internal partitions in groups of buildings which are considered to be of value primarily for their external appearance . The different local ‘class consents’ would be determined by the LPA, but the Secretary of State (advised by English Heritage) would have the ability to intervene or determine classes for groups of listed assets which cross council boundaries and set out national class consents.

3. A certificate of lawful works for listed buildings – This would provide a mechanism to give developers an assurance as to whether an LBC would be required for given works. They could not only be granted for proposed works but also retrospectively for works carried out in the belief that an LBC was not required. This would give potential buyers confirmation of the legality of any works carried out.

4. Accredited agents replacing local authority officer recommendations on LBC, if applicants wish – It was found that many applications affecting heritage assets were accompanied by supporting detailed heritage reports. The proposed idea would effectively allow such reports to become a recommendation to the council, ‘certifying’ whether the proposed works were acceptable. The idea is designed to broaden the expertise available to the council whilst making their decision. The LPA would be expected to follow the advice given by ‘certified agents’ however, to protect the system from abuse, the LPA still has the final decision and is able to ignore the recommendation in cases where it feels that the special interest of the building would be harmed.

The Government is also looking at how to tighten up enforcement work in cases of listed buildings which appear to be neglected.

There has been criticism of how aspects of this proposed new system could be open to abuse, particularly as the accredited agents will be working directly for the developers. There are concerns that the desire to reduce the number of full LBC applications will result in listed buildings being less well protected. Many small alterations, which may go unnoticed in the new system, could add up and become just as damaging as a large project.

The Government has tried to negate these concerns by suggesting that the reduction of full LBC applications will allow LPAs to focus their resources on larger schemes or buildings which are most at risk.

If you would like further information please get in touch with your usual Firstplan contact.

The recently introduced national affordable housing threshold and Vacant Building Credit have been removed from National Planning Practice Guidance (NPPG) following a High Court ruling last Friday (31 July 2015).

The controversial policy excluded housing developments of 10 units or 1,000sqm or less from the need to provide, or contribute towards, affordable housing – with a lower threshold introduced in rural areas. The Vacant Building Credit (VBC) allowed local authorities to provide a ‘credit’ equivalent to the floorspace of any vacant building brought back into use or demolished for redevelopment, which could then be set against affordable housing contributions.

West Berkshire District Council and Reading Borough Council had challenged the guidance on the basis that it would result in a loss of 21% of affordable housing contributions nationwide (contributions equating to an annual value of £693m).  The High Court found in favour of the local authorities and concluded that the national policy changes introduced in November 2014 were incompatible with the statutory planning framework.  The decision also highlighted failures in the consultation process and the fact that Ministers had ignored the advice of their own officials in introducing the policies.

The judge’s decision makes rather uncomfortable reading for the Department of Communities and Local Government, who attempted to quietly slip in the new threshold and VBC as a means of relieving the ‘disproportionate burden of developer contributions on small scale developers’, only for them to be quashed less than a year later.

The government has confirmed its intention to seek permission to appeal the ruling. In the meantime, this effectively means that affordable housing contributions will again be guided by Local Plan thresholds, and that the VBC can no longer be taken into account in the assessment of a scheme’s viability.  So, for the time being at least, it looks like small scale developer’s have their ‘disproportionate burden’ back!  

If you have any queries about this decision, or would like a copy of the judgement, please feel free to contact one of the Firstplan team.