Another big week for planning with more changes signalled in the quest to build both housing and infrastructure.

Autumn Statement wields stick as carrot for housing development

In the Autumn Statement, Chancellor George Osborne restated the Government’s commitment to both increasing the supply of housing and removing unnecessary planning constraints. He also stated the Government will take steps to address delays at every stage of the planning process. The measures to be considered comprise:

  • consulting on measures to improve plan making, including introducing a statutory requirement to put a Local Plan in place;
  • introducing legislation to treat planning conditions as approved where a planning authority has failed to discharge a condition on time;
  • requiring planning authorities to provide greater justification when imposing pre-commencement  conditions that must be discharged before building can start;
  • consulting on proposals to reduce the number of applications where unnecessary statutory consultations occur;
  • piloting a single point of contact for cases where conflicting consultation advice is provided;
  • allowing developers to apply directly to the Department for Communities and Local Government (DCLG) where a planning authority makes fewer than 40% of its decisions on time;
  • carrying out an evaluation of the New Homes Bonus, which will complete at Easter 2014;
  • consulting on a new 10-unit threshold for section 106 affordable housing contributions to reduce costs for small builders.

Under the New Homes Bonus scheme, councils receive a bonus payment for each new home built in their area. The Chancellor indicated these payments could be withheld where a council has objected to a development and the approval is granted on appeal.

National Infrastructure Plan 2013 published

The government published the first National Infrastructure Plan in 2010 with updates in 2011 and 2012. This new document sets out the government’s plan for the next decade and beyond. It includes many of the same commitments to streamlining the planning system set out in the Autumn Statement but also contains a commitment to continue to refine the Nationally Significant Infrastructure Projects regime as lessons are learned from experience. These commitments include:

  • launching an overarching review of the regime, while freezing NSIP planning application fees for the remainder of this parliament;
  • having regard to the designation of a ‘Top 40’ priority investment as a material consideration when considering applications for the NSIP regime;
  • providing policy certainty and confidence for the transport sector through the publication of a National Networks National Policy Statement;
  • reform the judicial review system to tackle delays to infrastructure delivery and reduce the impact of meritless claims;
  • establish a specialist planning court to accelerate the handling of cases;
  • introduce legislation to ensure that minor procedural claims are dealt with proportionally and allow appeals to ‘leapfrog’ directly to the Supreme Court in a wider range of circumstances;
  • ensuring that households benefit from developments in their local area by developing a pilot to assess passing a share of the benefits of development directly to individual households.

The infrastructure schemes include guarantees to support up to £1billion of borrowing by the Greater London Authority for the Northern Line Extension and £8.8 million to help provide finance for the installation of energy saving lighting equipment across a portfolio of car parks. The NIP also includes support for the London Legacy Development Corporation and Mayor of London in their plans for the Queen Elizabeth Olympic Park in order to consolidate the success of the Games and maximise the economic and social benefits from the Olympic legacy.

High Court ruling helps define rules for housing provision

The NPPF requires (paragraph 47) councils to provide a five year land supply with an additional 5% buffer moved forward from the 5 year plus supply to ensure choice and competition in the market for land. However where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% to provide a realistic prospect of achieving the planned supply. A decision in the High Court (Cotswold District Council v (1) Secretary of State for Communities and Local Government (2) Fay and Son Limited [2013] EWHC 3719) has defined what is meant by “persistent under delivery”.

Two appeals by Cotswold District Council have dismissed the council’s claim that the Secretary of State had misconstrued the meaning of “persistent under delivery” in determining planning appeals. The court concluded that defining paragraph 47 involves both consideration of the meaning of the word ‘persistent’ and also involves questions of judgement by the decision-maker. The court also found that paragraph 47 had to be interpreted and applied having regard to its purpose and context.
The Judge concluded that the reference to "persistent" under delivery of housing is a reference to a state of affairs which has continued over a period of time rather than a snap shot or short lived fluctuation. The precise period of time to be considered is a matter for the judgment of the decision-maker.

The NPPF also requires there to be a "record" of under delivery which indicates assessing previous performance including some measure of what the housing requirements were, and then a record of a failure to deliver that amount of housing persistently. However, the requirement is that there has been a record of persistent under delivery of housing which is distinct from a failure to meet targets.

Secretary of state allows housing but dismisses wind power appeal

Eric Pickles has overturned North East Lincolnshire’s refusal of outline planning permission for 400 dwellings, including affordable and retirement homes, on green pasture in Lincolnshire. The Council accepted it did not have a five year land supply and so it was necessary to determine whether any adverse impacts would significantly and demonstrably outweigh the benefits.

The secretary of state attached only limited weight to the council’s assertion that approving a greenfield site would discourage brownfield sites and the coming forward. He also concluded that although the site lies outside the development boundary this is not of itself a reason for refusal. Whilst he accepted that the loss of countryside did constitute harm, it was insufficient to override the benefits arising from the provision of housing.

In another decision, the Secretary of State has dismissed an appeal against the refusal of planning permission for the erection of 6 wind turbines in Cumbria. Whilst finding the local plan to be inconsistent with the NPPF due to its lack of regard to the benefits of development, which are an important material consideration, he concluded the turbines would be the dominant and defining characteristic of the landscape within an area extending up to 600m in each direction  and would inevitably detract from the landscape’s wild and open character. He consequently dismissed the appeal on the basis there would be unacceptable adverse effects on landscape character and distinctiveness which is not outweighed by other benefits.

Public consultation to extend across council boundaries

Planning Minister Nick Boles has indicated that residents could be given the right to have a say on developments in adjoining councils. At present, councils are not bound to consult with residents in neighbouring authorities which makes it hard for those residents to have their say on developments just on the other side of council boundaries, even where they are directly affected. At this stage it is not clear whether a wider duty to consult would apply just to plan making or to development proposals also.

Nightingale goes for £2m song

Medway Council have withdrawn their Core Strategy after Natural England designated a major strategic housing site as a SSSI. Medway promoted the designation of a 5000 home community at former MoD site Lodge Hill. On the 19th November, Natural England confirmed the site as a SSSI on the basis it is one of the most important strongholds for nightingales in England. On the 21st November, Medway withdrew the plan. When the potential SSSI designation first became known, the council claimed that work that had gone into the core strategy had already cost £2million.
The London Borough of Camden this week refused an application by the owners of Utopia Village in Primrose Hill which requested the transformation of 23 of the business units into 53 luxury flats.

Office to Residential update

Legal action by the London Boroughs of Islington, Richmond upon Thames, and Lambeth, financially supported by Tower Hamlets and Sutton, started in the High Court this week. Lambeth is in addition pursuing a separate action which will be heard in parallel. The councils are seeking a judicial review into the revised General Permitted Development Rights introduced at the end of May arguing that the conversion of workplaces to housing will cost jobs and threaten future economic prospects. They also argue they cannot ensure that new housing created is of adequate quality nor can they secure any affordable housing.

Camden has also indicated it is considering introducing an Article 4 Direction to remove these rights across the whole borough. Camden councillors overturned an officer recommendation for approval of a prior notification application for the conversion of Utopia Village workshops in Primrose Hill to residential on a number of grounds, including that it would be likely to contribute to parking stress and traffic congestion, would cause pressures on local infrastructure and impact on neighbours’ privacy. Officers had recommended that prior approval be granted subject to a legal agreement to mitigate traffic and parking issues.


Lambeth - Lambeth Local Plan Proposed Submission.  Representations relating to legal compliance and soundness can be submitted until 5pm on 3 February 2014.

South Gloucestershire Council – has produced revised planning guidance on the provision of affordable housing, including the delivery of affordable housing on ‘exception sites’ in rural areas. Any comments should be made by Friday 24 January 2014.

RB Kensington and Chelsea -   has published two supplementary planning documents for comment by 23 January 2014. These are the Notting Hill Gate and Transport and Streets SPDs.

City of London Corporation - Alongside the Community Infrastructure Levy, the City Corporation is proposing to scale back s106 Planning Obligations and to replace the existing 2004 Planning Obligations SPG. Consultion is being undertaken on a Draft Planning Obligations Supplementary Planning Document until Friday 31st January 2014.