Planning—Lexis®PSL comments on key developments in 2018 and 2019
In this year’s end of year comment, our Lexis®PSL Planning team consider what their standout legal development was for Planning in 2018. Our Lexis®PSL Planning team also preview the anticipated talking points for Planning in 2019.
First published on Lexis®PSL on 12 December 2018.
What was the standout legal development in your area this year?
Our standout development was the much-awaited publication of the revised National Planning Policy Framework (NPPF) and the related revisions to the Planning Practice Guidance (PPG). The revisions mark a fairly significant top-down change in national planning policy in England across a number of areas. The biggest changes are in terms of how housing is to be planned for and delivered. LPAs are to calculate their housing need on the basis of a new standardised methodology and a housing delivery test will measure the number of homes delivered against housing need and trigger policy penalties where there is persistent under-delivery. The measures were touted as a new approach to build more homes more quickly and in the places where people want to live, but whether the policy changes will help the government ‘fix the broken housing market’ remains to be seen. Since publication, the government has had to backtrack on the new standard method for the calculation of local housing need by instructing local planning authorities (LPAs) to ignore recent household projections in assessing local housing need, on the basis that it would have resulted in a significantly lower housing need being calculated than the government expected. The government has also failed to publish the results of the housing delivery test, which it committed to publishing in November 2018, and which was one of the key planks of its commitment to ensure more homes are delivered.
The revisions also put greater focus on good design, backed by a requirement on LPAs not to permit the design of new development to be watered down through scheme amendments. Viability is front-loaded to the plan-making stage; individual viability assessments at the application stage should now be submitted only where it can be demonstrated that particular circumstances justify their need, and then must be prepared in accordance with standardised inputs set out in the PPG. LPAs are encouraged to facilitate land assembly using compulsory purchase powers where considered beneficial to meeting development needs and/or secure better development outcomes.
How has this impacted on practice in your area?
While the revised NPPF became a material consideration in planning decisions from 24 July 2018 onwards, it will take some time for any disputes over the interpretation of the new policy to come before the courts. Similarly, whether the changes to housing policies will positively impact housing delivery remains to be seen. The wider impact of the comprehensive overhaul of policy will therefore become clearer over time, although it is certain that LPAs and developers are already grappling with how the new policies impact the making of planning decisions and plan-preparation processes.
What Lexis®PSL content would you recommend to find out more about these developments?
Our content is up to date with the latest policies and guidance in the NPPF and PPG. The following content may be of particular interest:
- Practice Note: Revised National Planning Policy Framework—what are the implications?
- News Analysis: Revised National Planning Policy Framework—will it fix the housing market?
- News Analysis: Consultation on changes to standard method for assessing local housing need
- Practice Note: Viability in planning decision-taking—comprehensive guidance
What do you think will be the key development(s) next year?
We will be watching out for the publication of the now-late housing delivery test results, and the outcome of the consultation on the standard method for calculating housing need. Other than monitoring the potential wider impacts of the revised policies
in the NPPF and PPG and digesting the first judgments on their interpretation (which we expect will trickle down next year), we will be looking out for further amendments to the system of developer contributions and announcements on whether the government
will take forward any of the recommendations made by Sir Oliver Letwin in his review of build-out rates.
What do you think this will impact and how do practitioners find out more?
The government acknowledged in October 2018 that the complexity and uncertainty of the current system of developer contributions is acting as a barrier to the delivery of housing, and does not effectively secure the contributions needed to support new development. It therefore committed to consulting on draft regulations which would further amend the Community Infrastructure Levy Regulations 2010 (CIL Regulations). Such amendments should include the removal of the current restriction on the pooling of section 106 planning obligations and changes to the abatement provisions, which apply where a development was permitted before CIL came into force in an area, and which is then amended through an application under section 73 of the Town and Country Planning Act 1990 application after CIL is adopted. This should ensure that where such a development is implemented in phases, any resulting increases in CIL liabilities in one phase can be offset against decreases in another phase. The changes should correct some, albeit not all, of the unintended consequences of the notoriously difficult drafting of the CIL Regulations, but fall short of wholesale reform, which many stakeholders advocate. See News Analysis: Government to make further changes to the Community Infrastructure Levy regime.
Sir Letwin’s independent review into build-out rates concluded that to increase the rate at which housing is delivered on large sites in areas of high housing demand, an additional layer of planning control is needed. He advocated that primary and
secondary legislation should be amended to establish the principle that all reserved matters granted in relation to large sites should contain diversification requirements, eg by increasing the types, designs and tenures of housing offered on such
sites. We query whether there is appetite, both at central and local government and by the house building community, for the introduction of a further layer of new planning rules, given that stakeholders are still grappling with the introduction of
other reforms, including the new NPPF and related PPG. See News Analysis: Sir Letwin recommends additional layer of planning control for large sites with high housing demand to increase diversity and build-out rates.
Other developments of interest
We will also be watching out for:
- the outcome of the October 2018 consultation on new and extended permitted development rights. Proposals include allowing shops (A1), financial and professional services (A2), hot food takeaways (A5), betting shops, pay day loan shop and launderettes
to change to office use (B1) and to allow hot food takeaways (A5) to change to residential use (C3), subject to prior approval. The government is also considering whether the airspace above existing buildings could be used for additional new
homes and extensions, subject to exceptions in sensitive areas and prior approval. See News Analysis: New permitted development rights to support high street and deliver homes
- developments in the debate around air quality, which has been gaining traction politically, not least because of the three successful legal challenges to the government’s air quality plans (see News Analysis: Court finds government’s air quality plan unlawful for the third time (ClientEarth No.3)). We foresee that the planning system will be relied on increasingly to manage negative air quality impacts, as it is able to deliver development control decisions that reduce both emissions themselves and pubic exposure to them
- the Welsh government’s response to the Law Commission’s December 2018 report recommending over 190 technical reforms to the Welsh planning system. The Law Commission has set out hopes that the recommendations will form a key input into a new Planning (Wales) Bill, which may replace the Town and Country Planning Act 1990 insofar as it applies to Wales
As the UK prepares to withdraw from the EU in March 2019, Brexit will continue to be essential reading for all legal practitioners. See: Brexit—Lexis®PSL comments on key developments in 2018 and 2019.