Top three trends in planning law
How do the key trends in planning law affect local authorities? David Bird and Thomas Ewings consider recent developments.
"It was the best of times, it was the worst of times..."
These opening words of Charles Dickens’ A Tale of Two Cities might seem an odd way to start an article on planning law. Perhaps fortunately for Dickens, Veale Wasbrough Vizards’ (then Tweedie & Prideaux’s) most famous legal clerk, the modern approach to town and country planning only took shape around 100 years after he penned these words.
But the sentiment of social contrast between those living in despair and those viewing rapid political change with joy and optimism has become more relevant than ever in this new post-Brexit reality.
Permitted development rights
The UK government has introduced a new statutory instrument which came into force on 6 April 2016 and extends current permitted development rights across England. These rights have been instrumental in maintaining rates of house building since 2010.
Permitted development rights are a national scheme for planning permission which allows certain works and changes of building use to be carried out without the need to apply for planning permission (or with prior approval of the local authority only). Since 2010 there have been regular changes to the rules.
In 2013, the government added a temporary clause into the rules relating to permitted development rights, to run until May 2016, which allowed conversion of office space into residential use subject to an application for prior approval covering aspects such as highways and noise.
What’s changing?
The ‘office-to-resi’ scheme has proved highly popular and has made such an impact on government targets for provision of new housing that under the May 2016 changes this provision has been made permanent.
The other changes include:
- a stipulation that development from office to residential use must be completed within three years from the prior approval date;
- allowing residential conversion of premises which have been in light industrial use (the rights will run for an initial 3-year period from 1 October 2017);
- adding launderettes to the types of building which can be converted to residential use under permitted development rights.
The new changes still do not permit demolition and rebuilding and therefore this is strictly in relation to refurbishment of existing buildings.
What next?
Overall the most recent round of changes to permitted development rights is intended to give developers greater certainty regarding the viability of re-developing sites. Owners of vacant office space (and after 30 September 2017, light industrial stock) will continue to market property for the purposes of redevelopment using the permitted development rights, and local government planners should expect the boom in these applications to continue through 2017.
Case law – disputes over plans for housing delivery continue
Housing policy - interpreting the National Planning Policy Framework
A controversial Court of Appeal decision setting out the meaning of ‘relevant policies for the supply of housing’ in the government’s National Planning Policy Framework (NPPF) is set to be appealed before the Supreme Court in 2017.
Suffolk Coastal District Council and Cheshire East Council are to challenge the Court of Appeal’s decision in Suffolk Coastal District Council v Hopkins Homes Ltd & another. This will be an important appeal not only because of the clarification needed on housing policy (in the context of a continuing housing shortage) but also because the NPPF has not been subject to Supreme Court scrutiny since it was introduced in 2012.
The Court of Appeal previously considered Paragraph 49 of the NPPF which states that “relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites”. This has been widely interpreted to mean that the presumption in favour of granting permission for sustainable development takes over, even if relevant housing policies indicate that permission should not be granted.
Clearly the question which follows is: what is a relevant policy for the supply of housing? The Court of Appeal opted for a wide interpretation, covering policies which promote supply of housing and those which aim to restrict it, such as policies to protect the Green Belt which although not specific to housing do have an impact.
The Court of Appeal’s wide interpretation of the NPPF wording has been welcomed by developers who have seen it as an opportunity for material policy considerations, which might otherwise be a barrier to development, to fall away for being out-of-date. The Supreme Court’s view on this will be keenly awaited.
Green Belt - what constitutes inappropriate development?
The 2016 case of R (Lee Valley Regional Park Authority) v Epping Forest District Council dealt with the issue of how the construction of agricultural buildings in the Green Belt sits with the government’s wider Green Belt policies.
The case involved a planning application for the construction of a 92,000 square metre glasshouse extension on a site in the Green Belt and the consent by Epping Forest District Council. At the heart of the case was the question of what constitutes ‘inappropriate development’ in the Green Belt, the answer to which is of particular interest to local planning authorities and rural landowners alike.
What does the law say?
The NPPF’s national policies on ‘Protecting Green Belt land’ include a recognition that the essential characteristics of Green Belts are their openness and permanence. Applications for ‘inappropriate development’ in the Green Belt should only be approved in very exceptional circumstances (paragraph 87) and substantial weight should be given to any harm to the Green Belt when considering applications (paragraph 88).
Aside from this strong protection of the Green Belt, the NPPF provides some exceptions to inappropriate development when it comes to new buildings.
These include:
- buildings for agricultural use
- extensions to existing buildings provided it is not disproportionate to the size of the existing building
The court’s decision
The park authority argued against the council’s decision on several grounds, including that the NPPF policies giving protection to the Green Belt were relevant to decision-making for agricultural buildings, even though they are not classed as inappropriate development. It argued that harm to openness of the Green Belt, when considered under paragraph 88, is stated to be relevant when considering ‘any planning application’ including those not classed as inappropriate.
The Court of Appeal disagreed and dismissed the park authority’s appeal. Reference to ‘any planning application’ in paragraph 88 had to be read in light of the exceptions in paragraph 89. Therefore construction of agricultural buildings will not in itself be inappropriate development, regardless of the harm it might cause to the Green Belt.
The court also considered it relevant that other exceptions to inappropriate development in the Green Belt, such as facilities for outdoor recreation and those listed in paragraph 90, are specifically caveated in the NPPF as being not inappropriate "provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt".
If the government had intended construction of agricultural buildings to be subject to the same caveats it would have been made clear in the NPPF.
Best practice
The case is important for local authorities in both their plan making and decision taking functions. As more Green Belt applications come forward, with the possibility of court challenges, it will be interesting to see how many local plans are found to be inconsistent with this interpretation of NPPF Green Belt policy.
Local authorities would be advised at the very least to consider the implications of this case in any local plan review.
Affordable housing
In the case of R (on the application of West Berkshire DC and Reading BC) v Secretary of State for Communities and Local Government, the councils had sought to challenge the government’s use of a Written Ministerial Statement (WMS) to alter affordable housing policy, exempting sites of 10 homes or fewer from contributions, on 28 November 2014. The WMS also brought about changes to national planning guidance.
The High Court found in favour of the councils but, on 11 May 2016, the Court of Appeal reversed the High Court’s decision.
Following the Court of Appeal decision the policy is now reinstated, as are the amendments to national planning guidance. This means that sites of 10 units or fewer may be exempt from affordable housing contributions, provided the combined gross floorspace is no more than 1000sqm. Furthermore, in some rural areas including National Parks and Areas of Outstanding National Beauty, the threshold is lowered to five homes (with the same floorspace caveat).
The Housing and Planning Act 2016 - what changes for housing development?
The early part of 2016 saw the House of Commons and House of Lords embroiled in a game of ‘ping-pong’ with the Housing and Planning Bill, until finally its drafting was agreed and the Bill received Royal Assent (and became an Act) on 12 May 2016.
The Act is wide-ranging so here we focus on the changes it introduces in relation to housing development, and those addressing the planning system as a whole.
Starter Homes
Part 1 of the Act has been eagerly awaited as it addresses the provision of new homes in England. It provides the legislative foundations for ‘Starter Homes’ which are to be made available only to first-time buyers who must be between 23 and 40 years old, with a planned 200,000 to be built by 2020. They are to be sold at 20% below market value and for no more than £250,000 outside London (£450,000 in Greater London).
Starter Homes will be ‘affordable housing’ under the NPPF, meaning they will count towards a local authority’s affordable housing targets and, from the perspective of developers, their obligations to provide or fund affordable housing under section 106 agreements.
Questions do still remain regarding Starter Homes, and the detail will be introduced by further regulations. For instance, how market prices will be assessed, and how onward sales will be dealt with – the discount period will be the first five years (during which the house cannot be sold) but a tapered approach may be introduced to have a reducing discount period of up to eight years if sold to another qualifying purchaser.
At the time of writing, the new Planning Minister, Gavin Barwell, used his first major speech to water down these new Starter Homes provisions. He gave a strong indication that the 200,000 Starter Homes target should instead be comprised of a range of tenures. This apparent shift towards renewed support for the rental sector will be keenly monitored as Theresa May’s government seeks to implement its own planning vision throughout 2017.
Permission in principle
The new Act introduces the concept of ‘permission in principle’ (PiP). This is again a measure to boost housing development, and allows ‘housing-led development’ to be given special planning treatment. Developers can gain ‘in principle’ planning approval for specific parts of their application prior to sorting the full technical approval, giving them greater investment certainty.
Applications for PiP can be made to the local planning authority, the Secretary of State in some instances, or through ‘qualifying documents’. These are documents including the local development plan but applications can also be brought under a ‘brownfield register’ of land suitable for housing, also introduced by the Act (though pending regulations as to the detail).
How will it impact local authorities?
The practical impacts of the Housing and Planning Act will continue to emerge throughout 2017, but it is clear that it will increasingly go to the heart of local plan making.
Local planning authorities which fail to produce updated local plans were already vulnerable to central government intervention, and the new Act increases this pressure. Now the Secretary of State can give directions to the local planning authority to prepare or revise the document, submit it for examination, and consider its adoption.
Local government planners should not underestimate the government’s willingness to use these powers - on 26 May 2016, the day the new powers came into force, they were used to prevent the adoption of the Birmingham City Local Plan.
This email address is being protected from spambots. You need JavaScript enabled to view it. is a partner and Thomas Ewings at Veale Wasbrough Vizards. David can be reached on 0117 314 5382 or This email address is being protected from spambots. You need JavaScript enabled to view it., while Thomas can be contacted on 0117 314 5387 or This email address is being protected from spambots. You need JavaScript enabled to view it..
