planning law news – September 2012
In this issue, Blake Lapthorn's Planning team looks at:
Government focus remains on planning to act as stimulus for the
economy
September has seen a number of Government
announcements, described as "special measures", aimed at
boosting the construction and development sector following the
Montague Report and further Government initiatives.
The most important proposal is the suggestion
of releasing developers from affordable housing planning
obligations. Despite voluntary renegotiation by some Councils and
the provision of a new mediation service many developments remain
stalled.
Developers will be given the right to appeal
so as to modify affordable housing obligations but will have to
justify the reduced affordable housing provision on viability
grounds. If successful there would be a new s106 agreement. The
enabling legislation is expected in spring 2013. Legal mechanisms
already exist to allow developers to renegotiate existing section
106 agreements after five years. The changes would enable
renegotiation sooner.
Applications for new housing schemes are also
likely to be fast tracked in specific areas where the most acute
housing shortages exist and early delivery is likely.
In an attempt to offset the inevitable
criticisms the Government also announced more fiscal stimulus. The
provision of new rental homes is to be backed by a £200 million
investment in tandem with planning conditions ensuring that those
units remain available for rent for a set period of time.
Affordable housing providers will also benefit from a debt
guarantee scheme backed by the Government and £300 million of
capital funding to allow continued investment in affordable housing
and refurbishing empty dwellings.
There is also an element of stick as well as
carrot in the new proposals with the referral of applications to
the Planning Inspectorate for Councils considered to have a
"consistently poor performance".
Some of these proposals do not sit easily with
the Government's localism agenda designed to push decision making
to community level.
Arguably the most radical issue surrounds
building in the Green Belt which will always attract considerable
resistance not to mention discomfort in Conservative rural
heartlands. Suggestions have been made to allow development on
brownfield land situated in the Green Belt provided that the Green
Belt area lost is substituted with another area of equal size.
Again, there is a pre-existing mechanism that allows such
re-designation but this is rarely engaged and the sensitivity of
the issue is reflected in the wording of the Government's statement
which simply "encourages Councils to use the flexibilities set
out in the National Planning Policy Framework to tailor the extent
of Green Belt land".
Streamlining applications to avoid delay also
continues with suggestions to increase the use of planning
performance agreements for major schemes and fast tracking appeals
involving commercial development. Smaller development is also not
immune with permitted development rights being extended for small
businesses and home owners. Provision allowing for applications to
extend the time limits of unimplemented permissions is also
extended from 1 October 2012 meaning permissions granted between 1
October 2009 and 1 October 2010 may now be able to take
advantage.
Despite all of these proposals the question
remains whether planning is the sole, or even main, solution to
stimulate economic revival. Indeed the Local Government Association
called it a "myth" that planning rules were restraining
housing. The Royal Town Planning Institute also disputed the
"claims that planners are a barrier to growth".
There remains no guarantee that homes will be
built until house builders see home buying increase. Planning
permission exists for tens of thousands of unbuilt new homes.
Consequently, there is a fair argument to say that attention should
be focussed on mortgage funding for buyers. Lenders remain risk
averse which is why the Government has announced a further £280m to
help first time buyers in a bid to provide them with the necessary
deposit to secure mortgages.
There is also little likelihood of existing
section 106 agreements being torn up, due to the need for new
infrastructure and mitigation to offset direct effects of
development. With the increasing adoption of charging schedules
under the Community Infrastructure Levy (CIL) payments of certain
financial contributions will be known early on, however CIL will
not cover all possible site specific mitigation. Consequently,
planning will remain a complicated landscape intertwining policy,
guidance, statutory and common law and a sprinkling of local
politics, community aspiration and, inevitably, some local
resistance.
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duty to co-operate starts to bite
A recent decision by the Planning Inspectorate
has found that the North London Waste Plan promoted and drawn up by
seven north London councils has not complied with the duty to
co-operate imposed on local authorities under the Localism Act
2011. None of the seven promoting boroughs had consulted any
adjacent local authorities that would also be impacted by the waste
plan.
As a consequence a hearing that was scheduled
to last for more than a week lasted for a matter of hours before
the inspector suspended the hearing on the basis that the councils
had failed “to engage, constructively, actively and on an
on-going basis”. There will now be considerable delay to the
adoption of the 15 year waste plan.
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the need for clarity in environmental notices
The courts have reiterated the need for
notices issued under the Environmental Permitting (England &
Wales) Regulations 2010 to be clear, to specify the steps required
to be taken and to stipulate objective criteria to allow easy
assessment of compliance or breach of the notice.
The case concerned a suspension notice,
stopping the permitted operations of a waste disposal and
reclamation yard due to increasing operational noise emanating from
the site. Initially conditions attached to the environmental permit
were varied but the noise continued and a suspension notice was
issued requiring 'design and implement measures that eliminate
the risk of serious pollution from noise'. The wording failed
to expressly or explicitly state what was required of the waste
operator. The claim was allowed and the notice quashed.
R (on the application of European Metal
Recycling Ltd) v Environment Agency [2012] All ER
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