Update – January 2017

Challenge to Planning Minister

A group of housebuilders have lodged an application for a Judicial Review to challenge the Planning Minister over his attempt to reinforce neighbourhood planning.

Gavin Barwell announced changes to planning policy on December 12 via a Written Ministerial Statement (WMS). He explained that currently, if a council does not have a five-year land supply, an application should only be rejected if the negatives of a development significantly outweigh the positives. This means that any local plan or neighbourhood plan can be overruled and development would have to be consented.

The new rules, which came into effect immediately, mean that if the neighbourhood plan is less than two years old, has allocated sites for housing and the council has demonstrated it has a three-year supply of sites for housing, it will not be deemed to be out-of-date. This means speculative development can be successfully halted in its tracks within the neighbourhood plan area.

The consortium, led by Richborough Estates, challenged this in a letter to the Minister on the basis that there was no consultation prior to issuing the WMS and was unreasonable when set against the existing policy to boost the supply of housing.

The response from CLG rejected the grounds saying that the objectives of boosting housing supply and supporting localism “are not seen to be in conflict with each other.”
CLG went on to say that the WMS was “a policy statement to highlight the importance of supporting local communities with a qualifying plan in place, whilst continuing to support the delivery of housing.”

The department went on to say that there is not any “legitimate expectation that there would be consultation on the WMS”, pointing out that there is “no statutory duty to consult” and that other ministerial statements have been issued with no prior consultation, such as the WMS on fracking.

Upon receipt of this unequivocal rejection of its complaint, the consortium decided to lodge an application for a judicial review. Stuart Andrews, National Head of Planning and Infrastructure Consenting for Eversheds, told Planning magazine: “We’ve had 40 years of the five-year housing land supply requirement. It’s been a golden thread that’s run through planning policy for the entirety of that period.

“We’ve also had consultations on changes in policy throughout that period, but on this occasion, where there is a fundamental change to a very established and significant policy position, there’s been no consultation whatsoever. In our view, that is at the heart of the matter.”
Paul Campbell is a director of Richborough Estates, which is leading the consortium, said: “The WMS makes fundamental changes to planning policy and should have followed accepted approach of seeking the views of all concerned before implementation.

“CLG quote fracking as a WMS which was not being consulted upon, but the Government’s intentions there were well-known a long time in advance allowing a detailed public debate to take place. This has not happened here.”
Other companies in the consortium include Redrow Homes, Linden Homes, Martin Grant, Croudace Larkfleet, and others.

If the application is allowed, this will come before the court in around six months.

Housing White Paper?

The latest from Number 10 last week was that the Housing White Paper will be published the second week in February. This is the white paper which was due to come out with the Autumn Statement, then before Christmas, then the first week in January but now mid-February.

Apparently, the White Paper was written and finalised some time ago, but it was the section on Greenbelt release which needed reviewing. There have been numerous rumours flying around that the White Paper will not be good for developers, although at a council meeting in Essex earlier this month a head of planning said that it may well contain new numbers, higher numbers.

This rumour may hold some water as several councils have paused their local plan processes, awaiting publication of the White Paper in case there are changes they need to make – most noticeable was Central Bedfordshire.

Lower Thames Crossing Link Road

Talking of delays in local plans, Thurrock Council and others eagerly await publication of the favoured route for the Lower Thames Crossing Link Road. In a letter from Highways England in response to one to Secretary of State, Chris Grayling, last week shed little light upon when an announcement of the route will be made, simply saying “in due course”, although there was an acknowledgement that there were a number of developments and Local Plan considerations hinging on that route being revealed.

Housing blockers

The argument about land banking and delaying developments has come back, with South East England Councils (SEEC) calling for local authorities to be given powers to charge developers council tax of other fees.

In a report published this month, SEEC said its members are concerned about ‘land banking’, and land promoters who bring sites to outline permission stage to increase land value, but are then slow to get developers in place and start building.

The report recommends that the government should provide “discretionary local powers to tackle slow delivery of approved housing plans and permissions”, allowing councils local freedom if they wish to “charge council tax or other fees on unnecessarily delayed building of permissions”, or to “reduce the length of time a planning permission is valid”.

Nicolas Heslop, SEEC chairman, said: “We need greater freedoms and flexibilities to allow councils, working with developers and other local partners, to ensure more planning permissions turn into actual homes.

“This includes powers to incentivise builders to deliver approved permissions swiftly, local targeting of skills funding to fill workforce gaps, and access to funding for councils who want to build their own affordable homes.”

Of course, the development industry refutes that it land banks or delays development arguing that the cost to retain land for future use is uneconomical, even considering the current low interest rates. The report appears to have had little impact, with not much media coverage, although the Housing White Paper may include something in this sphere, with the aim of accelerating development. That said, as is well-known, most delays on developments are down to local councils.

The full report can be viewed here: Unlock the housing blockers .

What is happening with local plans?

The Government has been putting pressure on local authorities to have their plans in place this year.

The threat was heightened when it introduced provisions within the Neighbourhood Plan Act providing for county councils to take over local plan processes of local authorities which have not made sufficient progress on their plans. A further incentive was a threat to withhold New Homes Bonus payments to councils that have not submitted a local plan.

These steps had led to a large upswing in local plan activity, with many moving forward at once and seemingly running up against the deadline, which would present the Planning Inspectorate (PINS) with a serious capacity issue this year. The latest data on local plan formulation, however, collated by PINS, does not suggest there has been the progress the activity suggests. Last year, 34 local plans were published and 25 adopted, while in 2014 the same number were published and 50 per cent more adopted.

The lifting of the threat on New Homes Bonus in December by communities secretary Sajid Javid prompted speculation the government might be about to change course leading to a number of local authorities pausing or delaying efforts to work up new local plans – suggesting the threat has not necessarily been motivating councils to take action, or that the threat has been informally lifted. The government’s position remains that it expects local authorities to have up to date plans in place by “early 2017”.

PINS figures show that currently 242 authorities (65%) are without plans that were adopted, and 38 (10%) are without plans even published in draft.

The question is, what is the Government going to do? Those authorities that have recently seen delays or setbacks, such as Castle Point, Guildford, Durham, St Albans, York, and Central Bedfordshire, could be in a tough position. Particularly St Albans, which has the oldest plan in the country (1994), which earlier this month launched a legal challenge against an inspector’s decision that it had failed in its duty to cooperate.

There is a general consensus that the Government will probably want to make an example of a small number of authorities, which may well spur on others to get local plans in place. That said, the Government will not want to be too disruptive, and most County Councils are not really equipped to handle any local plan processes.

Impact of changes to New Homes Bonus

In December Sajid Javid, CLG Secretary of State, announced the imposition of a baseline on New Homes Bonus payments in order to encourage greater levels of housebuilding. He said: “A year ago we consulted on a number of possible reforms to the scheme. Having studied those results closely, I can confirm today that from next year we will introduce a national baseline for housing growth of 0.4 per cent. Below this, the New Homes Bonus will not be paid.

How much of an incentive the New Homes Bonus is to local authorities is unclear, although such payments do go some way to fill large black holes in council budgets, and increasingly so now that the government is reducing overall funding. It has, perhaps, not been politically expedient for councillors to be emphasising, or even mentioning, the importance of the Bonus on council funds and that councils may be increasing housing numbers due to this.

Javid is not so backward in coming forward. In a statement to the House of Commons, Javid told MPs that the New Homes Bonus “is an important part of our commitment to reward communities and authorities that embrace and deliver ambitious housebuilding plans – it also provides valuable income for councils seeking to grow their local economies which they can then go on to spend as they see fit”.

He also announced that the number of years the Bonus is paid would be reduced from six years to five years in 2017/18 and for four years from 2018/19.

In good news for councils, he also announced that he would not be penalising councils which did not have local plans by withholding the bonus for 2017/18. But it added: “The government will revisit the case for withholding New Homes Bonus from areas not delivering on housing growth from 2018/19.”

What impact this would have on councils and housing numbers is not clear. As most councils base their numbers on an assessed need, considerations of the Bonus appear not to be a factor. That said, the Bonus is an important source of funding and reducing it places greater pressures on council budgets. The solution could be for councils to allow more homes to be built which, perhaps, is what the government wants.

Friends of the Earth fall foul of the ASA

Friends of the Earth remained belligerent in the face of a ruling by the Advertising Standards Authority (ASA) outlawing the use of unsubstantiated claims over fracking.
The ASA has upheld a complaint concerning a flyer about fundraising issued by Friends of the Earth which made claims that fracking chemicals could potentially result in drinking water becoming contaminated which could cause cancer and suggested the fracking process was associated with increased rates of asthma.

The Advertising Standards Agency said the case has been “informally resolved” after Friends of the Earth (FoE) “agreed not to repeat the claims, or claims that had the same meaning”.

A spokesman said the advert “must not appear again in its current form” and that the charity must “not make claims about the likely effects of fracking on the health of local populations, drinking water, or property prices in the absence of adequate evidence”.

A FoE spokesperson was dismissive saying that the ASA had “dropped the case without ruling”. Donna Hume, an activist for the environmental charity, said that it would “continue to campaign against fracking” as it was “inherently risky for the environment”.

The ASA conducted an investigation lasting 14 months after receiving complaints from energy firm Cuadrilla and two members of the public. The flyer distributed by FoE claimed that possibly dangerous chemicals are used in the fracking process however Cuadrilla stated that these chemicals are banned in the UK. It also claimed that as much as a quarter of the chemicals used in fracking could cause cancer and implied that drinking water could become polluted. A photo of Grasmere in the Lake District was also included in the leaflet, despite there being no plans for fracking in that area.

The government approved plans for horizontal fracking at the Cuadrilla owned Preston New Road site at Little Plumpton in Lancashire in October 2016, with work likely to commence this year.