WEB NEWS - SPRING / SUMMER 2008

Part 1 - Key Planning Measures (237k)

Part 2 - CgMs NEWS (183 k)

INTRODUCTION

This spring/summer newsletter gives an update of the key planning measures that are either now in place or are being proposed by Communities and Local Government. Specifically, we give an update on:

• The new London Mayor and his new planning powers.
• The Community Infrastructure Levy: Update
• The Heritage Protection Bill
• Climate Change and the historic environment: guidance from English Heritage
• Eco Towns
• New standard new planning application form, validation of planning applications and revised planning fees.
• Other planning related measures in the pipeline.

These plethora of planning measures now need to be set within the context of the slowdown of UK property development and investment activity, with resulting falling capital and land values, as all widely reported in the property press –especially in relation to the housing sector.

The full ramifications of the “credit crunch” to the UK property industry are still to be determined. However, it is our view that property developers, investors and occupiers will have to look even more strategically at their property portfolios and as an integral part of their future estates strategy, there will be the even greater need to obtain planning permissions which add value.

The new London Mayor and his new planning powers.

The election in May 2008 of Boris Johnson as new London Mayor heralds a new era for London Planning.

Although very early days, the appointment of Sir Simon Milton, Westminster City Council’s leader, as his senior planning advisor, would indicate that it highly likely that the new mayor will be less interventionist in the planning process in London than his predecessor and leave the Boroughs to determine applications of strategic importance to themselves – unless clearly contrary to the Mayor’s own known views - such as his objection to the proposed new runway at Heathrow which Boris has already made known that he objects to.

Sir Simon Milton and Boris are also well known critics of tall buildings – especially where they encroach upon London’s key historic landmarks and viewing corridors – again ending Ken Livingstone’s rather more positive approach towards high rise buildings.

In a statement made to the press on 21 May at the Mayor’s first question time, the new mayor highlighted that high buildings should be building’s of distinction and that London’s strategic viewing corridors should be widened – rather than shrunk - as previously made by Ken Livingstone.

It is also likely that the new mayor will take a more flexible approach of having to provide on site 50% affordable homes given that many housing schemes are alleged by developers to be unviable with this requirement – exemplified by the recent slowdown of the housing market associated with the “credit crunch.”

At the time of writing, there was mounting evidence that developers were already proposing to resubmit major schemes with a lower amount of affordable housing provision.

The irony is that just as Ken Livingstone leaves County Hall, his long sought increased planning powers have actually now been introduced by the Greater London Act of 2007 and the Town and Country Planning (Mayor of London) Order 2008 which came into force on 6 April 2008.

The most important change is that the mayor, in addition of the mayor’s existing powers of directing refusal on applications of “potential strategic importance” (PSI) where the London Borough’s were minded to approve - now has positive powers on PSI’s.

The Mayor therefore now has additional powers to ‘call in’ and determine PSI applications where he considers that:

• Such PSI applications would prejudice the implementation of the London Plan.
• The application’s impact would be more likely to affect more than one Borough and
• There are sound reasons why a call is required.
• The definition of PSI applications has also been amended and are now specified as being:
  • 150 residential units or more.
  • Non-residential development including buildings more than 100,00 sqm in the City and more than 20,000 sqm in Central London, or more than 15,000 sqm outside Central London.
  • Tall buildings more than 25m adjacent to the River Thames, more than 150m in the City of London, or more tan 30m in other area.
  • Extension increasing the height of buildings by 15m or to a height above the tall building threshold set out above.

Associated applications for listed building consent and conservation area consent and reserved matter submissions for PSI applications can also all be called in for the mayor’s determination.
Full details of the mayor’s new planning powers and associated procedures can be seen in Circular 1/08 published on 4 April 2008.

For more information please contact Kevin Goodwin or Alun Evans

The Community Infrastructure Levy (CIL): Update

As part of the Planning Bill 2007 – see our separate bulletin - laid before Parliament in November 2007, clauses 174 to 183 introduce the Community Infrastructure Levy – known as “CIL”

CIL is the Government’s answer to their decision made in October 2007 to abandon the “Planning Gain Supplement” – see our previous bulletin - which was to capture a portion of the uplift in land value created by the grant of planning permission.

A policy document on CIL was published by Communities and Local Government in January 2008 outlining what CIL is and how it is to be charged.

In summary, CIL will be a standard charge levied on most types of development per unit of development – for example, £2,000 per house or £2 per sq m. The receipts from CIL are to be “ringfenced” for infrastructure spending (roads, flood defences, schools, open space) so as to support the development strategy as set out in the development plan.

CIL will be charged by “charging authorities” – local planning authorities and the Mayor for London - who will choose what rate(s) to apply depending on identified shortfall of funding infrastructure needs for the implementation of the development plan. The CIL rate will therefore be determined through identifying what infrastructure is needed for the delivery of the spatial plan, how much will it cost and then working out what contribution each type of development should make towards that cost.

The CIL rate will be examined through the development plan system and charging authorities are to have regard to infrastructure plans and the Regional Economic Strategy.

CIL is to be paid on the commencement of the development.

Where CIL is introduced by charging authorities, section 106 obligations are to be “scaled back” and cover non financial, technical or operational matters. Section 106 agreements should therefore only deal with the mitigation of off site impacts directly arising from the development in the vicinity of the development. Negotiations of the amount and type of affordable housing will also remain as part of a section 106 agreement and not to be part of the CIL.

The response by the property industry is that although not a Planning Gain Supplement based upon the rise in land values consequential on the grant of planning permission – nevertheless many see CIL as a development land tax in yet another guise.

The key concern is that of viability – if developers are to be required to pay CIL, provide on site affordable housing and also incorporate the green measures associated with the climate bill, as well as make section 106 contributions to mitigate off site impacts, developer’s profits will be affected and possibly making some schemes unviable – especially where there are abnormal development costs associated with land contamination or site assembly in urban areas. This is compounded by a slowdown in housing completions and falling capital values associated with the credit crunch.

In terms of timing of the introduction of CIL, the planning bill is now going through parliament and as at May 2008 was awaiting Commons Report and Third Reading with a likely exit from Parliament in the autumn of 2008. There will then be produced draft regulations detailing the mechanics of CIL and those regulations are unlikely to be in force until the spring of 2009 at the earliest.

However, as CIL is part of the LDF process, CIL is unlikely to be taken up by charging authorities until 2010/11 at the earliest.

For more information on CIL please contact Mike Straw

The Heritage Protection Bill

The draft Heritage Protection Bill was published for pre-legislative scrutiny on 2nd of April. The Bill is now included in the Government’s Green Paper entitled “Preparing Britain for the Future – the draft legislative programme for 2008/09.”

The draft Bill is based on the proposals found within the White Paper ‘Heritage Protection for the 21st Century (March 2007)’.

The draft Bill is the first legislation in this area for 30 years. It aims to set out the legislative framework for a unified and simpler heritage protection system that will be more open, accountable and transparent. Notably, the new system has been designed to provide more opportunities for public involvement and community engagement in understanding, preserving and managing our heritage.

The draft bill includes plans to:

• Create a single simple system for designation - to be called the Heritage Register. This will replace listing, scheduling and registering and give the public a greater say in what gets protected with new consultation rules;
• Put the historic environment at the heart of the planning system by replacing listed building consent and scheduled monument consent with a new Heritage Asset Consent (HAC), whilst merging conservation area consent with planning permission; conservation area consent for demolition will no longer exist and
• Devolve responsibility for designating land-based assets in England from the DCMS to English Heritage;
• Reform the marine heritage protection regime in England and Wales, by broadening the range of marine historic assets that can be protected and by bringing greater flexibility to the licensing system;
• Introduce a system for provisional registration to give ‘interim protection’ to historic assets while they are being considered for designation. Also to create a new appeals procedures against land-based designation and marine licensing decisions;
• Secure the basis for informed stewardship of the historic environment by placing local authorities under a duty to maintain or have access to an Historic Environment Record (HER).

The draft Bill follows long and extensive consultation and it intends to reflect Government policy as expressed in last year’s White Paper, and the consensus reached on that. The draft Bill will be scrutinised by MPs as it passes through Parliament. If the Bill is passed during next year’s session, it could be made law by 2010.

The Bill could potentially lead to greater confusion and delay as there is now a merger of the existing regimes (Listed building and Scheduled Ancient Monument consents). There is also the thorny question of local Authority resourcing and how the Bill is to treat conservation areas – the Bill surprisingly makes no reference to Conservation Areas.

For further in depth analysis of the Bill and its implications for owners of heritage assets please see our separate bulletin on the Heritage Bill or contact Jonathan Edis or Paul Chadwick

Climate change and the historic Environment: English Heritage Guidance Note

In 2008 guidance was published by English Heritage replacing the 2006 position paper and setting out English Heritage’s current thinking on the implications of climate change for the historic environment. It is intended for use both by heritage sector and those involved in the wider scientific and technical aspects of climate change; developing strategies, risk assessment, adaptation and mitigation measures.

EH state that they recognise the need for today’s built environment to be adapted to become more resilient to unavoidable climate change over the next 20 to 40 years. They note however that some policies for adaptation and mitigation may have a damaging effect on historic buildings, sites and landscapes. These impacts could diminish the public’s quality of life and be detrimental to the important social and economic contribution our cultural heritage makes to society. The report proposes these impacts should be taken into account when policy is being formulated. English Heritage is committed to working with others to avoid or minimise any adverse impacts, while delivering the necessary changes.

The paper is particularly concerned about impacts arising from developments designed to generate renewable energy. In order to evaluate benefits and impacts, it proposes that consideration be given to the construction of new renewable energy infrastructure, to some types of micro-generation equipment and to countering poorly designed energy-saving measures.

The paper emphasises that wind farms need to be carefully sited to avoid compromising significant landscapes or the visual settings of important sites or buildings, particularly where the integrity of that setting is an important part of their significance.

Ultimately the paper suggests that decisions taken on how, when or whether to make adaptive changes to historic assets in order to enhance their resilience to climate change, should be based on a thorough understanding of the pressures they are likely to face. It is important that decision makers understand the uncertainties inherent in current climate change predictions and the timescales over which changed are likely to occur.

CgMs is conscious of the need to consider EH guidance and opinion when assessing related projects. Much of the guidance within the paper is sensible and pragmatic about the need for archiving balance. The line of balance is however often a subjective one and when preparing a robust justification for renewable energy and climate change related schemes it will be important to address the points raised by EH in this paper.
For further details please contact Jonathan Edis

Full details of the Climate Change and the Historic Environment paper can be found at English Heritage websites.

Eco Town Proposals

On 3rd April 2008 the Housing Minister, Caroline Flint, announced the location of the proposed 15 shortlisted locations for the first “eco towns.” This shortlist is to eventually identify the 5 eco town sites.

Eco-towns are seen to be an integral component of the Government’s identified need to deliver 3million new homes in England by 2020 as set out in the July 2007 Housing Green Paper – see our previous bulletin.

Eco towns are to be carbon- neutral, self contained settlements with good transport links, new homes with zero-carbon standards, locally generated energy and electricity sources and zero-carbon schools and health centres. It is believed that up to 200,000 new homes could be delivered through this new scheme.

A short list of 15 potential eco-town sites has been released by Communities and Local Government. The locations of these 15 towns are listed below:

• Bordon, Hampshire: The site is currently owned by the Ministry of Defence and could provide between 5-8,000 homes, and could include up to 2000 affordable homes.
• Coltishall, Norfolk: The site is a former RAF airfield and could provide up to 5,000 home, 2,000 of these being affordable. Curborough, Staffordshire: The site is the former Fradley airfield and could provide up to 5,000 homes, of which up to 2000 could be affordable.
• Elsenham, Essex: A minimum of 5,000 homes could be provided, this could include up to 1,800 affordable homes.
• Ford, West Sussex: The site is a former Ford airfield and brownfield site. This site could provide 5,000 homes, with the possibility of 1,500 affordable homes.
• Hanley Grange, Cambridgeshire: The site is located adjacent to the A11 and will provide 8,000 homes, of which 3,000 could be affordable.
• Imerys, nr St Austell, Cornwall: The site is owned by Imerys, and could provide around 5,000 homes, of which 1,500 could be affordable.
• Leeds City Region, West Yorkshire: Several different proposals were submitted for locations within the area. A further study is to be conducted to compare and find the best alternative sites within the area.
• Manby, Lincolnshire: 5,000 homes were put forward by East Lindsey District Council, and the proposal plans to relocate communities on Lincolnshire coast because of high flood risk.
• Marston Vale and New Marston, Bedfordshire: The site is a former industrial site, and could provide up to 15,400 homes, which could include up to 2,000 affordable homes.
• Middle Quinton, Warwickshire: The site is a former Royal Engineers depot, and proposes 6000 homes, with the possibility of 2,000 being affordable homes.
• Pennbury, Leicestershire: The site incorporates brownfield, Greenfield and surplus public sector land and could accommodate 12- 15,000 homes.
• Rossington, South Yorkshire: The site is a former colliery village of Rossington and can accommodate up to 15,000 homes, which could include up to 1,500 affordable homes.
• Rushcliffe, Nottinghamshire: After research into this site, it has been decided not to pursue it, and an alternative site is being sought.
• Weston Otmoor, Oxfordshire: The site has the potential for 10-15,000 homes, which could include up to 5,000 affordable homes.

From the above list, 10 sites will be selected for Eco-towns. A list of the final 10 is expected to be within the next 6 months, with the Minster wanting at least 5 built by 2016 and the remaining completed by 2020.

While these new developments provide a greener outlook on urban development, there is scepticism about whether a carbon neutral settlement is achievable or indeed desirable. Many argue that there is no need to create new settlements on greenfield sites, as there is a large amount of vacant buildings which can be renovated and re-used for housing purposes.

There is also the question as to even when the shortlist is arrived at whether they will actually get either planning permission or permission in the time scale envisaged by Government to help meet the housing need shortfall.

The Housing Minister in May rebutted allegations of fast tracking the eco town through the planning system and said

“I have made absolutely clear that all eco-town bids will be subject to the proper local planning process. I’ve also made clear that people will have numerous opportunities to have their say and we have set out a clear process for this.”

In the meantime, some of the proposed sites are already receiving opposition from the respective Local Authorities where the eco town are being proposed.

For example, Stratford-on-Avon Council has vowed to fight proposals for an eco-town in south Warwickshire. The authority unanimously decided to oppose the eco-town at Long Marston known as Middle Quinton, as they consider that the proposal is in conflict with the approved local plan, and the housing allocations in the regional spatial strategy where there is a moratorium on further development currently in force in the district.

Councillors have instructed the authority’s chief executive to write to housing minister Caroline Flint demanding the scheme be removed from the shortlist.

Strong local opposition is also developing for the eco towns at Ford, West Sussex and Weston Otmoor, Oxfordshire.

To add fuel to fire, Labour peer and award-winning architect Lord Rogers of Riverside said publically in May 2008 that “eco-towns are one of the biggest mistakes the Government can make,” because “they are in no way environmentally sustainable.”

For more information about eco towns please contact Richard Tilley

New standard application form (1APP) and validation of planning applications.

Communities and Local Government have now launched a new standard planning application form for England. The new forms are referred to as 1APP forms and will replace all standard planning forms.

1APP forms are now in affect as of 6 April 2008. 1APP is intended to end all discrepancies between different LPA forms.

The 1APP forms are available on each Local Planning Authority website and should be located in the same place as previous application forms were found.

Also coming into force on 8 April 2008 is the amendment to the Town and Country Planning (General Development Procedure) Order 1995 of the new validation requirements of planning applications.

Validation represents a decision by the local planning authority on an application and associated information starting the determination of whether to grant or refuse planning permission.

The GDPO requires, as a minimum, that an application for planning permission is accompanied the standard application form, certificates, fee, plans and design and access statement (if required).

However, this minimum requirement is highly unlikely to be the end of the matter because Local Planning Authorities are now to produce their own “local lists” of required supporting information for specified types if applications. Guidance is give as to what these local lists might comprise of – ranging from noise impact and air quality assessments to biodiversity and land contamination assessments and draft heads of terms of section 106 agreements, is given in “The Validation of Planning Applications – Guidance for Local Planning Authorities” dated December 2007.

There is now the danger that applications will take longer to validate and that there will be discrepancies between Local Planning Authorities of what information they require to validate applications what are in essence the same types of development.

Planning application fees

Circular 04/2008, dated 9 April 2008, has replaced Circular 31/92 which sets out the planning fees and the method of calculation of these fees. Changes included in the new Circular include:

• The new Circular has removed the flexibility that LPA previously had in regards to the registration of an application. The new Circular now enforces that the full and correct fee must accompany the application before registration can take place. Previously an application could be registered and a request for the additional fee took place. The registration of a valid application must occur within 14 days or receiving the correct fee.
• A fee is now payable when an applicant wishes to seek confirmation that a condition is complied with. An £85 fee per condition is required, and if the LPA does not respond within 12 weeks the applicant is entitled to a refund.
  In the meantime, statutory application fees have increased by around 25% from 6 April 2008 due to the amendment to the Town and Country Planning (Fees for Applications and deemed applications) (amendment) (England) regulations 2008.

For more information about the standard application and registration process please contact Kevin Goodwin

Other Planning Changes in the Pipeline

The Government announced on 25 April 2008 that it is proposing to review the planning system again!

The review entitled ‘Planning Applications: a faster and more responsive system’ will examine what can disrupt the progress of an application from when it is submitted up to and beyond when a decision is made, and will be carried out by Joanna Killian, Chief Executive of Essex County Council and David Pretty, former Group Chief Executive of Barratt Developments PLC.

The study will report to Caroline Flint and Baroness Vadera. It will specifically:

• Examine various case studies to see where bottlenecks and delays occur and explore with stakeholders, such as local authorities, how the application process can be improved. For example, by improving the pre and post application phases we can free up councils to consider the next case sooner.
• Look at how technology such as e-planning can improve the process for people and planners. For example using modern methods, like the internet, may be the best way to notify the public of development in some circumstances.
• Look at how a more proportionate system could better reflect the impact of a development. For example instead of a ‘one size fits all’ requirement for the supporting material needed with an application it will look at how a more tailored system might be better.
• Consider how statutory consultees like Highways Agency, Environment Agency and Natural England engage sooner with the application process.
  

Review of “Call in Directions” by the Secretary of State.

On 7 January Communities and Local Government published for consultation until the end of March its document entitled “Review of Call In Directions.

This consultation paper fulfils the commitment given in the Planning White Paper published on 21 May 2007 to consult on measures intended to reduce Secretary of State involvement in casework.

This paper sets out proposals for reducing the number of applications that have to be notified to the Secretary of State by;

• eliminating notification requirements which are outmoded or represent an inappropriate restriction on local decision making;
• ensuring that the thresholds for notification in those directions which are retained are set at an appropriately high level; and
• consolidating all remaining directions into a single direction.
  If implemented, the Secretary of State will still have to be consulted on developments on playing fields, green belt and flooding – but now only referral of development sites in edge of town centre or out of town centre locations where the proposals are more than 5,000 sq m gross retail, leisure, office or mixed use commercial development which are not in accordance with an up to date development plan.

For more information about the proposed changes to Call In procedures please contact Richard Tilley

Amendments to retail planning policy and introduction of a “competition test”?

On 30 April 2008 the Competition Commission produced its long awaited report into the competiveness of grocery retailing in the UK.

Amongst the report’s many recommendations to improve competition is the proposed introduction of the “competition test.”

The Commission recommended that the Office for Fair Trading – OFT – should provide advice to the Local Planning Authority on whether a particular retailer has passed or failed a competition test.

Applications for supermarkets would over 1,000 sq m would need to be referred to the OFT and such applications would then be subject to the competition test.

To pass the test an assessment would be made of other grocery retailers within an area bounded by a 10 a minute drive time of the development site: the grocery retailer would then pass the test if they are to operate the new store as a new entrant to that area; or the total number of grocery fascias in that area was four or more; or the total number of fascias in that area was three or fewer and the relevant grocery operator would operate less than 60% of groceries sales area (including the new store).

Local Planning Authorities would then only be able to approve applications where the competition test failed on the grounds of either that the development would produce local benefits which outweigh the harm from a lack of competing stores and where the development or similar development would not be delivered without the involvement of a retailer who fails the test.

If the Government accepts these recommendations then the competition test could be introduced as a new policy requirement in the long awaited revised version of Planning Policy Statement 6 relating to town centres and retail developments and no doubt by a new set of Regulations. However this is all conjecture and no doubt all of the UK’s major food retailers will make their views and likely opposition to this fully known to Government.

There is also not least the question of legality – the identity of a specific occupier has never been a planning matter as this not a land use planning matter. Only in very exceptional circumstances are permissions personal to the occupier as the raises issues such as to what happens when that operator either leaves the premises or changes its name due to changing business circumstances. In short the land use planning system is not designed to address these matters.

For more information about the competition test and retail planning matter please contact either John Stockdale or Malcolm Honour

Marine Bill

The Government published on 3 April its draft Marine Bill. This Bill introduces legislation to introduce a new marine planning system with national and local planning policy statements as well as the designation of marine conservation areas. These measures are no doubt in response to critics that the existing regime enables the development of offshore wind farms without the same amount of consideration as those on land.

Department of Transport – Port Mater plan guidance

In April 2008 the Department of Transport issued a consultation document as to whether the operators of the UK’s largest ports would consider preparing masterplans highlighting areas of existing and potential land for additional port development as well as areas to be protected and future infrastructure needs to serve the port.

The masterplan would identify the port’s own strategic needs for the medium and longer term which could then be incorporated into the Local Development Plan process if appropriate.

The consultation period expires 22 July 2008.

For more information on the Marine Bill and the draft masterplan guidance please contact Mike Straw

Community Empowerment, Housing and Economic Regeneration Bill

The Government announced in its Queens speech of May 2008 that within the 2008/09 legislative programme it is going to introduce a Bill that gives greater say to Local Communities in local issues. This could range from “directing councils to tackle anti social behaviour and graffiti” to ensuring councils consider selling or transfer under used properties, lands or parks to local community groups, co –ops and social enterprises.”

The Bill could mean the need for greater community involvement to ensure compliance with the validation of applications – see above and also in the determination of planning applications through “statements of community involvement” as well as in engagement in the preparation of development plan documents.

The Bill does intend to make Regional Development Agencies statutory planning bodies which does have significant implications as they are likely to then have similar planning powers as the mayor for London in being able to determine strategic planning applications and also be able to enter into section 106 agreements.

This proposal was anticipated – whether it gets through Parliament remains to be seen as David Cameron has made it plain that if the Conservatives get into power some – if not all of the Regional Development Agencies - would be either abolished or stripped of their proposed planning powers.

There are also indications that Hazel Blears intends to give a greater role in the decision making process to parish councils and this in turn could mean that parish councils have a greater say in the determination of planning applications than they hitherto do.

However, planning related issues, as at May 2008, are still not known as the Bill at this time had not been introduced.

For more information about the community empowerment, housing and economic regeneration bill please contact Mike Straw