Setfords Planning Law Round Up

Revised National Planning Policy Framework 2018:

The revised Framework has brought in significant changes worthy of note

  • Increased importance of good quality design in schemes
  • Definition of Affordable housing revised providing clarification that “social rent” and “affordable rent” come within “affordable housing for rent”
  • Viability assessments to be made public and open
  • Guidance on how land should be valued for viability assessments
  • New standard methodology for assessing local housing need and Housing Delivery Test (see comments below on Housing)
  • Housing Delivery Test to be introduced from November 2018
  • Minimum national requirement of 10% of affordable housing on major sites
  • 10% of local housing requirements to be small and medium sites
  • Green Belt protection continues strongly and any changes to Green Belt boundaries is to come through policies in the Local Plans
  • Planning conditions should be kept to a minimum and pre-commencement conditions should be avoided where possible


Appeal by Landex Ltd and Mid Suffolk District Council August 2018

The recent decision of the Planning Inspectorate in the case concerning Mid Suffolk District Council (MSDC) is important for both local authorities and developers. The case is the first to interpret how paragraph 73 of the revised National Planning Policy Framework (NPPPF) is to be applied. Briefly the facts of the case concerned a refusal by MSDC for planning permission for 49 dwellings in Woolpit in Suffolk. In arriving at his decision, the Planning Inspector said that as the Council’s strategic policy for housing numbers was more than 5 years old and had not been reviewed, that paragraph 73 of the NPPF 2018 applied and the Council’s housing land supply was to be assessed against the standard method for calculating local housing need.

He further said that in his interpretation of “deliverable” in the Glossary to the NPPF 2018, this did not relate to sites that were not subject of an allocation but had a resolution to grant within the period assessed within the Annual Monitoring Report. He found the Council had included sites beyond the cut off date assessed within the AMR and had therefore inflated the supply. He further said that the onus is on the LPA to demonstrate that outline planning permissions are deliverable and also stated that sites with outline permission should only be considered deliverable where there is clear evidence that housing completions will begin on sites within 5years. It is worth reading the decision letter as there is a very significant shift away from the previous position where developers would try and prove that there was a lack of housing for 5 years and setting what is a high level of proof to establish 5 years supply onto the local authorities.

Pre commencement conditions:

Worth noting the new procedure effective from 1st October 2018 where the LPA is required to serve a notice under Regulation 2(4) of the Town and Country Planning (Pre-Commencement Conditions) Regulations 2018 which has to set out the proposed pre commencement condition, the reasons for this condition which then allows applicants to respond with a period of 10 working days form the date the notice is given. This will allow a challenge to the imposition of such a condition and some negotiation but on the other hand, this may also cause delay to the overall process and it is worth raising the issue of proposed conditions with the LPA as early as possible.

Affordable Housing and Viability:

Parkhurst Road Ltd v Secretary of State for Communities and Local Government & Anor 2018

Important case specifically on the issue of the provision of adequate affordable housing where the court had to examine the land and sales values in the area on the scheme due to the lack of affordable housing being offered on the site. On the scheme, the Council’s policy had an overall affordable housing target of 50% of all new housing in the Borough and the developer here was offering 14%. The court held, confirming the decision in the case of Vicarage Limited v First Secretary of State [2007] EWHC 768 (Admin) that where in the context of determining a planning application, a policy requires a party to demonstrate a state of affairs, then that has to be discharged by that party. Where applicant is seeking to argue they cannot provide the policy compliant affordable housing, then they must demonstrate the reason for this.

Further and more importantly, the decision warns that developers should be cautious of overpaying for land and thinking that they can then reduce the affordable homes on a scheme as that would not be acceptable. Holgate J said that “it is also important to ensure that new development is sustainable delivering the maximum reasonable level of affordable housing in all cases so as to meet the needs of all.”

Enforcement of S106 obligations:

London Borough of Newham and Anjuman-E-Islahum-Muslimeen Trust February 2018

High Court refused an application by a landowner to suspend an injunction granted to enforce a S106 planning obligation. Landowner had given an undertaking under S106 to terminate its current non-policy compliant use of land in East London unless it had submitted an application for planning permission for a policy compliance form of development within a year of giving that undertaking. It failed to do so, and an injunction was granted. The landowner sought to suspend the injunction to allow discussions with a development company to take place. The High Court refused to grant the suspension re-stating that as a matter of principle, a party who enters into a planning obligation should be held to its terms and that there would need to be exceptional circumstances for a court to do other than to order compliance by the grant of an injunction.

[footnote Francis Taylor Building High Court Refuses to Suspend S106 Injunction]

Ifath Nawaz, is our Senior Planning Consultant and advises both public and private sector clients on all matters concerning planning, policy, enforcement, appeals and inquiries

Ifath Nawaz

Ifath Nawaz

Senior Consultant Solicitor