Planning law and policy is never far from the headlines. While parts of the media draw attention to the alleged weakening of protection of Green Belt land, others exclaim that we are on the verge of a catastrophic housing crisis unless more land is freed up for development.
Those involved in higher education development schemes will be aware that the planning regime has been undergoing a period of transformation. The aim has been to simplify the process and remove excessive barriers to growth. However, to fully appraise the feasibility and costs of proposed developments a deeper understanding is required. This article provides a review of recent changes in the planning process and considers their impacts in relation to higher education institutions. It goes on to analyse the implications of these changes with a focus on development in the Green Belt and those developments comprising student accommodation.
A planning system in transition
Councils are facing significant cuts to planning budgets at a time when there has never been greater need for a strategic approach to tackle local environmental and social challenges. It is against this backdrop that the government is undertaking large-scale reforms of the national and local planning process.
The National Planning Policy Framework (NPPF) published in March 2012 set out a new suite of planning policies for England and how they should be applied at the local level. It rationalised over 1000 pages of planning guidance into a single 59-page document, and introduced a general presumption in favour of sustainable development. This aims to remove barriers to development unless the adverse impacts significantly outweigh the benefits.
Prior to the publication of the NPPF, local authorities set out their planning policies within development plan documents collectively known as the Local Plan. Of all the documents comprised within the Local Plan the central planning policies were contained within the Core Strategy. Since March 2012, however, those involved in local development decision-making have been required to give consideration to the overriding status of the NPPF.
For a year following the introduction of the NPPF, planning decisions could continue to give full weight to policies in the pre-existing Local Plan even if there was limited conflict with the NPPF. However, since March 2013 these transitional provisions have been discounted and now Local Plans are only given weight to the extent that they are consistent with policies in the NPPF.
While it was hoped that councils would be able to produce revised Local Plans before the March 2013 deadline many have failed to do so. Some Councils delayed the process in order to gauge the effect of the NPPF, while others have blamed cuts to planning departments for the slow progress. What is clear is that with the abolition of regional level planning under the NPPF, there is now a policy vacuum within the local authorities which do not have up-to-date Local Plans in place. The ‘streamlined’ nature of the NPPF means that the courts, through the process of planning application appeals, are now playing a key role interpreting and enforcing the NPPF. Notably, the courts have the task of deciding which Local Plan policies are consistent with the NPPF and can, therefore, be given weight in planning decision-making.
Development in the Green Belt
Last year several applications for housing development in the Green Belt were granted consent on appeal. One of the arguments raised in those appeals was that the councils’ housing policies were not up-to-date. This is because paragraph 49 of the NPPF requires councils to demonstrate a five-year deliverable housing land supply and in these cases the councils were unable to do so. The resulting policy vacuum was filled by the policies in the NPPF. This requires planning permission to be granted for development unless the adverse impacts of doing so would significantly outweigh the benefits. This question is to be considered against both the policies in the NPPF as a whole and against any specific policies in the NPPF indicating that development should be restricted. Such a specific policy exists in relation to Green Belt land. The NPPF provides that housing development is inappropriate in the Green Belt and so should not be permitted unless ‘very special circumstances’ exist. Applicants were able to argue that the lack of a five-year housing land supply presented such a very special circumstance.
The emerging case law presented a considerable threat to the protection of Green Belt land. However, in July 2013 the Secretary of State for Communities and Local Government, Eric Pickles, put paid to this argument by overruling a planning inspector’s decision for housing in the Green Belt. The reason for the apparent intervention was that, even where a severe shortage of land for housing existed, to grant consent for development in the Green Belt solely on this basis would risk setting an undesirable precedent for similar developments.
Student accommodation and the cost implications of the Community Infrastructure Levy
As regards universities in particular, even where applications are approved, recent legal changes may mean that the costs of development become prohibitive. The Community Infrastructure Levy (CIL) was introduced in 2010 and was intended to be fairer, faster and more certain and transparent than the system of Section 106 planning obligations which have been accused of causing delays as a result of lengthy negotiations. It operates by defining a standardised mechanism for payment, no longer relying on individual agreements and the pooling of funds.
While CIL has introduced greater certainty in many areas it has resulted in an increase in costs for universities seeking permission for student accommodation. Indeed, new student accommodation has attracted amongst the highest CIL rates of all uses in many local authorities. For example, CIL charging rates per square metre range from £100 in Bristol, £200 in Brent, to £425 in Tower Hamlets. There are concerns that these additional costs might lead to schemes not coming forward due to viability concerns.
CIL applies to new buildings and extensions over 100 square metres and conversions of properties that have been vacant for longer than six months. While it includes the creation of residential units and student housing by conversion, exemptions do exist. Student housing built and operated directly by universities could be exempt from the CIL if they have charitable status and if the proposed development is to be used wholly or mainly for a charitable purpose. The indications are such that development is likely to be increasingly linked to university’s charitable status in order to avoid CIL payments. Nevertheless, until a legal challenge is made to test the legality of this approach, uncertainties remain.
A simple review of recent planning applications demonstrates the possible cost increases some universities can expect as a result of CIL. In Oxford, an application to develop 141 studios on St Clement’s Street in 2012 attracted Section 106 contributions of £122,000 for infrastructure (£865 per bed). The equivalent planning application submitted now would attract a full contribution of at least £424,200 (£3,008 per bed).
In Bristol, an application for 442 beds on the former ice-rink site submitted before CIL came into operation attracted a Section 106 contribution of £572,617 equating to £1,296 per bed space. A recent planning consent on the former Magistrates Court in Bristol for 348 beds attracted a CIL contribution in relation to the student part of £1,003,300 equating to £2,883 per bed space. The greater certainty and transparency through CIL is, for some, proving costly.
A robust challenge lodged by a university seeking to show that the CIL exemption should apply to their scheme must surely not be far off. We wait with bated breath!
Polly Reynolds is a Senior Associate in the planning team at leading education law firm Veale Wasbrough Vizards. Polly can be contacted on 0117 314 5276 or at email@example.com.