Clearing planning conditions

We are often asked by our clients to help them address the requirements of conditions that Councils impose on planning permissions. Last month saw a significant development in this area of practice, with the Government’s publication of new legal rules on pre-commencement conditions – those that require various actions to be undertaken prior to development starting on site. These rules are set to come into force in October 2018 and are intended to curb Councils from attaching this type of condition to permissions without first consulting an applicant. Whilst not an outright ‘ban’ the new Regulations will hopefully concentrate local authority planners’ minds on the need for such conditions and how they are expressed.

This can only be a good thing.

Using offices for housing – some findings on impact

This month has seen a trio of research publications on permitted development from the Royal Institution of Chartered Surveyors (RICS). One of these looks at the impact that office to residential conversions have had under the General Permitted Development legislation. One of the case studies is Leeds, where effects have not been as severe as some other areas studied by the RICS research team. Elsewhere in the country, the authors conclude that substandard accomodation has been provided through these freedoms in addition to loss of planning fee income and affordable housing contribtion monies. On the positive side, of course housing has been provided and the RICS team estimate that many millions of pounds worth of planning officers time has been saved in them not having to have processed applications for these types of schemes. We will see if these reports have any ‘impact’ on the Government’s approach to permitted development! Whether this is the case or not, is always worth looking at what is possible under these provisions – here at Northern Planners, we know our way around the relevant legal Order and what is possible to do without an application for express planning permission!

 

The Local Plan is dead, Long live the Local Plan

In an earlier post, we reported on the draft revised National Planning Policy Framework published in March. We pointed out a number of changes that might be of immediate interest/use to our clients. Another significant but longer term issue that is reflected in the draft document is change to the Development Plan regime. In future, Local Plans as they are now understood, will be discretionary. Instead, local planning authorities will be required, as a minimum to set out their key priorities in a strategic plan covering a small set of high-level issues. This requirement stems from the 2017 Neighbourhood Planning Act. The look of the new system has yet to be fully articulated – it will still be possible for authorities to produce additional ‘local’ plans to their strategic plan but perhaps this detail might well increasingly be provided by community-led neighbourhood plans, like those Northern Planners have had a hand in here in Yorkshire, such as Cottingham and Oxenhope. Understanding what the Development Plan is for an area is vital, given that its policies and proposals are the basis for decisions on planning applications. Northern Planners are expert at this.

March News

All Change for National Planning Policies

This month sees the publication of a draft new National Planning Policy Framework (NPPF). Proposed new clauses promote:

  • Affordable housing on brownfield Green Belt land;
  • Houses for successor farmers;
  • Exception sites for entry level home developments, and;
  • Greater flexibility on sunlight/daylight standards in higher density housing schemes.

It will be interesting to see if some of these changes make it into the final version, after the current consultation finishes in mid-May. As ever, Northern Planners will be exploiting all the new opportunities for the benefit of our clients.

 

V is for Viability

Along with the draft NPPF (see above), the Government is also consulting on its revised approach to developer obligations. They propose that in future, viability assessments should be primarily undertaken at the plan-making stage and be based on the Existing Use Value plus Landowner Premium technique. The Government is also proposing to allow certain local authorities to introduce a Strategic Infrastructure Tariff. In the longer term, the Government will continue to explore options for going further e.g. contributions to affordable housing and infrastructure could be set nationally, and be non-negotiable.

 

Even More New Homes on the Farm

Government has also announced that next month, the rules on what can be done to redundant farm buildings without planning permission, will change.  New permitted development rights will mean up to 5 new homes will be able to be created rather than the maximum of 3 currently allowed.

If you have any buildings you think might be candidates for this bonus windfall, please get in touch and we will check out the potential.

 

Good Bye Land Banks?

Immediately after November’s Budget, the price of many housebuilding companies’ shares dropped a little because of an apparent perceived fear by the investment market over potential Government action to end the so-called practice of landbanking.

So what did the Chancellor actually say and what will it really mean for planning?

Whilst speaking about housing supply, Mr Hammond said:

‘….. one thing is very clear: there is a significant gap between the number of planning permissions granted and the number of homes built. In London alone, there are 270,000 residential planning permissions unbuilt. We need to understand why. So I am establishing an urgent Review to look at the gap between planning permissions and housing starts. It will be chaired by my Right Honourable Friend for West Dorset and will deliver an interim report in time for the Spring Statement next year. And if it finds that vitally needed land is being withheld from the market for commercial, rather than technical, reasons. We will intervene to change the incentives to ensure such land is brought forward for development, using direct intervention compulsory purchase powers as necessary.’

 

There have been previous studies that have looked at the reasons for the delay between the granting of planning permission and the start of development on consented sites. These have found a variety of factors at play: the landowner cannot get the price for the site that they want;  a developer cannot secure finance or meet the terms of an option;  the development approved is not considered to be financially worthwhile (perhaps due to a change in localised market conditions); pre-commencement conditions take longer than anticipated to discharge;  there are supply chain constraints hindering a start;  an alternative permission is sought for the scheme after approval, perhaps when a housebuilder seeks to implement a scheme where the first permission was secured by a land promoter, etc. etc.

 

These studies have also looked at options to incentivise developers to get cracking. One by the House of Lords Select Committee on Economic Affairs in 2016 (Building More New Homes) looked at possible changes to the legal definition of what constitutes a bona fide start on site, the threat of compulsory purchase of sites and the optional use of business rates on undeveloped consented sites after a reasonable period. It preferred the latter option. (No reduction of the current 3 year period for making a start was contemplated nor the greater use of completion notices to force developers to finish their developments within a shorter timescale once started.)

 

We now see the spectre of Councils or the Homes and Communities Agency (soon to be called Homes England) being encouraged to seize sites from ‘recalcitrant’ developers, probably at some sort of discounted figure (e.g. 50% of market value) and then this land being added to some sort of pot that they can then use to build houses.

 

As far as we can see the ‘Gap Review’ outlined by Chancellor Hammond in his Budget speech may have implications for land promoters in particular. They will need to ensure that their permissions are as attractive as possible to potential housebuilder purchasers and have ironed out as many issues as possible without the need for umpteen pre-commencement conditions to be satisfied after the ‘main’ permission has been secured. This will be especially important if authorities in the new policy environment are able to decline further major applications on the same site during the lifetime of the main permission that has been secured.

On outline planning projects, Northern Planners are adept at establishing the key parameters for site development that allows future flexibility for the developer. We also have experience of heading off potentially long lists of pre-commencement conditions that can hold up development.

Building in the Countryside – When is a rural site not that ‘rural’?

Over the last few months, planning consultants like Northern Planners have been watching appeal decisions to see the way in which Planning Inspectors have been treating  proposals for new houses in the open countryside following two legal judgements that considered the term ‘isolated’ in national policy.

These cases are Dartford Borough Council v Secretary of State for Communities and Local Government (14 March 2017) and Braintree District Council and Secretary of State for Communities and Local Government, Greyread Limited and Granville Developments Limited (24 October 2017).

They have led a number of agents to argue that some rural sites are not physically remote from existing development and therefore worthy of consideration for new housing, regardless of their sustainability in terms of services/facilities and their compliance with exceptional categories of acceptability within policy.

Some cases have had success on appeal, others less so.

Now, it has been announced that the Braintree judgement is to be reviewed in the Court of Appeal. The appeal hearing is likely to be towards the end of 2018.

Until then, the door is open for applicants to promote the locational advantages of sites/schemes that aren’t ideally situated to receive a normal ‘thumbs up’ from Councils.

Northern Planners are well-placed to help make the point in such cases.

 

Harrogate Relief Road

Many local residents in Harrogate and Knaresborough have been shocked recently by the Borough Council’s new Local Plan proposals and the County Council’s emerging options for a Harrogate Relief Road.

Borough Councillors have signed off a final round of consultation on the Plan in the New Year prior to them sending it off to the Planning Inspectorate for formal Examination. The consultation document will include the Council’s preferred option for the broad location of a proposed new settlement – which is to be focussed on Green Hammerton but with additional flexibility to allow adjoining land to be considered, known as Maltkiln.

We understand from the local press that the promoters of one of the alternative locations, at Flaxby, may be challenging the Council’s preferred option as the Plan moves into the next phase of the process.

Linked into new growth proposals is the County Council’s draft plans to construct a new Relief Road around the eastern side of Harrogate, which also have the potential to impact on the environment around Knaresborough. Public consultation began on 21st December and will continue for a 12 week period. The aim of the exercise will be to gather views on two options known as Package B and Package E. We gather that Package E will include a generic ‘inner’ option for the Relief Road. Study work so far has identified/tested two ‘inner’ options, both to the east of Harrogate: Inner South and Inner North. These are shown in green and blue on the image below:

Source/Copyright: North Yorkshire County Council

These options pass through Nidd Gorge which has angered many local people, despite the County Council’s promise that the environmental impact of such a routing will be assessed.

Q Class Conversions for Agricultural Buildings – Permitted or Not Permitted Development ? Some of the Pitfalls

From time to time, we have clients come to us because they have had bad advice on converting their rural buildings into houses through permitted development rights.

These are known as Class Q Conversions and care has to be taken to ensure that potential candidate buildings/proposals will actually satisfy the ‘Prior Approval’ and related requirements.

We are always thorough in our assessments, noting not just the criteria in the permitted development regulations but some of the other constraints/limitations that stem from recent legal judgements and appeal decisions.

Over and above basic checklist points, two key issues are:

  • what level of facilitating/conversion works can be genuinely said to fall within the terms of the permitted development rights so that a conversion is a conversion and not effectively a rebuild, and
  • what factors not specifically mentioned in the set of Prior Approval rules can nonetheless scupper your chances?

On the first issue, we often refer clients to the rather ‘strict’ interpretation laid down in the legal ruling Hibbitt v. SSCLG [2016] EWHC 2853 (Admin). Here, Mr Justice Green concluded that it is over-optimistic to expect that a building comprising a light steel frame supporting a corrugated iron roof, largely open to the elements on three sides (except for limited cladding up to a few feet from the ground in some cases) is capable of being converted to residential use without building operations that would be so extensive as to go well beyond the scope of the operations permitted by Class Q, and would amount either to substantial rebuilding of the pre-existing structure or, in effect, the creation of a new building.
Turning to the second. It was a blow to an Applicant in Shropshire, earlier this year when Inspector Joanne Jones told them that, although ecology isn’t specifically mentioned in the permitted development order, it nevertheless is still a potential factor in this type of case. Here, the likely presence of bats led her to comment thus:

‘From what I saw on my site visit the appeal premises would offer a suitable habitat for bats and this position is supported by the comments made by the Council’s Ecologist, whose professional opinion I afford significant weight.

 In the light of the strict protection afforded to bats, and that survey information is missing, I am not satisfied that there would not be a material adverse effect on the protected species. As such, I conclude that the proposed works would fail to satisfy the requirements of paragraph Q.2(e). Accordingly, it would not be permitted development as set out under Class Q of the GPDO.’

Finally, remember that Government has promised further amendments to Class Q. We are still waiting. Watch this blog for future developments.

More Planning Success at Moor Monkton

Northern Planners have done it again. We have just won planning permission for the conversion and extension of a large outbuilding to residential use at Wheatsheaf Farm, Church Lane, Moor Monkton. This has been a challenge as Council Officers initially resisted the proposals alleging overshadowing, overbearing and overlooking effects and stability issues. Senior Planner, Amy Naylor explains:

‘We had to withdraw the original Application in order to undertake assessments to prove to the Council that their concerns were unfounded. Whilst time consuming, this approach has yielded the right result.’

One of the assessments was a Daylight and Sunlight Assessment to gauge the pre and post development levels of light, undertaken in-house by the Northern Planners Team. We are able to secure a whole range of reports of this type to provide the evidence necessary to refute the spurious claims of Councils and objectively show that development is acceptable. The Moor Monkton consent is particularly satisfying as the village is not one earmarked for housing.

 

Eye of Newt and wing of Bat for a Charm of Powerful (Winter) Trouble

Apologies to Shakespeare but as we head past Halloween and further into Autumn, the changing seasons can begin to play potential havoc with the programming of client’s development projects.

This is because, some projects might have consequences for wildlife and Councils may ask for ecological surveys that can’t be carried out until Spring/Summer.

Here at Northern Planners we take a pragmatic approach to this problem. We know that delaying a project can have major implications for our clients.

Bats can be an issue in relation to barn conversions for example (see ‘Q Class Conversions for Agricultural Buildings – Some Pitfalls’ article elsewhere on this blog). Newts may be suspected if a pond is nearby a development site.

Indeed, Newts are a modern bête-noire in planning and development, so much so that the Government is currently running a pilot project to test district-level licensing for Great Crested Newts. This strategic approach is experimenting with replacing site-by-site licensing with a new system of authority-wide licensing, with surveys and habitat compensation undertaken proactively at the district level by Natural England and the local authority. Time will tell if this approach will work and be any better than the current set-up.

We have often thought that wildlife conservation in planning should work along the following (common sense) lines:

  • The Council should provide a decent rationale to the Applicant that there is a reasonable likelihood that a species is present.
  • The Applicant should automatically be able to adopt the ‘worse-case’ scenario i.e. it is assumed that the species are there, without having to fund expensive surveys or surveys that can’t actually be undertaken due to seasonal constraints.
  • A full mitigation approach should be adopted by the Applicant and accepted by the Council.
  • Planning permission should require the mitigation measures to be implemented in full.
  • The Applicant can subsequently carry out surveys if they wish/when the time is appropriate and ask for the mitigation measures to be waived or amended based on this evidence.