Local Plans – slow progress
Council planning teams have experienced significant cuts to their budgets in recent years. This is at a time when central government has been imposing greater responsibility and obligation on LAs to approve applications and ‘get the country building’. Nevertheless, there has been no let-up in the environmental and social challenges which LAs must consider when dealing with these applications.
It is now four years since the publication of the National Planning Policy Framework (‘NPPF’). It still sits atop of planning policy in England.
At a local level, adopted Local Plans set the tone for development in individual local authorities. Below them, Neighbourhood Plans may promote or restrict development at parish level (or in the absence of a parish, in the equivalent neighbourhood area).
Planning applications must be decided in accordance with the Local Plans, the Neighbourhood Plans and the NPPF with the NPPF overriding any conflicting policies at the local level.
All local authorities must ensure that their Local Plans are compliant with the NPPF. Amazingly, there are still about 18% of the 363 local authorities with no published draft Local Plan, according to government data. Less than 65% of local authorities have an adopted Local Plan.
This produces what some may refer to as a ‘policy vacuum’. It leads to the increasing reliance on the Planning Inspectorate (‘PINS’) to determine appeals where LAs have been unable or unwilling to decide applications – especially in the face of local opposition – with PINS taking on the role of deciding which Local Plan policies are consistent with the NPPF and can, therefore, be given weight in planning decision making.
For the potential developer, whether that be for housing, student accommodation, commercial or education development, the lack of an adopted Local Plan can be a tactical advantage. Further, for housing developments, if the LA cannot demonstrate the statutory five-year land supply for housing, this means development, even in the green belt, is possible.
The presumption in the NPPF is that development should be permitted provided that it is sustainable. Without an adopted Local Plan (and perhaps without the five-year land supply), any application can only be decided in accordance with the general principles set out in the NPPF.
The government has openly challenged LAs to complete their Local Plans by March 2017. The Housing and Planning Bill (expected to become law in spring 2016) contains provisions for the Secretary of State to step in and take over part or all of the process.
A flagship part of the Coalition government’s localism agenda, the take up of Neighbourhood Plans, has been slow. Whilst the government has not published the total number of Neighbourhood Plans adopted, it is possible that it is fewer than 100 across the country.
Notwithstanding that, they are important – certainly once adopted. The plans have the ability to define areas where development should happen (and what type of development) and equally where it should not happen. Therefore if a plan is proposed for an area in which you have a property interest, you are recommended to get involved.
By way of example, there were two recent challenges in the High Court to proposed Neighbourhood Plans.
The first was by the Neighbourhood Forum promoting the Plan. The Council had decided to exclude two strategic development sites from the plan against the wishes of the Neighbourhood Forum who wished to exclude development on those sites. One site already had consent for housing; the other was in the application process for housing. The court agreed with the Council that the Neighbourhood Plan had the potential to conflict with a wider strategic plan and the sites should remain available for development.
Planning applications must be decided in accordance with the Local Plans, the Neighbourhood Plans and the NPPF with the NPPF overriding any conflicting policies at the local level
If you have a site with development potential, whether for housing, educational or some other use, then watch out for a proposed Neighbourhood Plan. If your site is already identified by the LA as a strategic site, then great. If not, you will need to stress the importance in the neighbourhood planning process and get involved to seek to influence the plan.
The second challenge was to a Neighbourhood Plan that was going to encompass an existing nightclub. The owner had an idea that he might like to redevelop for housing but equally it could have been for any other use. The Neighbourhood Plan stated that all community facilities would not be eligible for a change of use. The question was whether the nightclub was a community facility. The Council unwisely went against the planning inspector’s decision and included nightclubs in the definition of community facility. The owner challenged this in the High Court which agreed with him – it was not, it was a private facility. The importance of this is to understand that a Neighbourhood Plan may provide for a blanket ban on change of use – for example preventing change from education or indeed (even inadvertently) limiting the supply of potential sites for educational use. Again, involvement in the process is crucial.
Student accommodation and Community Infrastructure Levy
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.
LAs must develop their own CIL ‘charging schedule’ which sets out what they will charge for different types of development, on a cost per square metre basis. We have
noticed that many LAs have set
rates for CIL for student accommodation higher than residential use. It must be assumed that those authorities are discouraging further student accommodation development. This is most prevalent in London where several authorities have set very high rates. There is a disparity in some regional cities, but less of a difference.
We have not seen any legal challenge to the legitimacy of this approach by LAs so, for the foreseeable future, it looks like, for some LA areas, new student accommodation will be a challenge on viability.
David Bird is a Senior Associate and heads the planning team at leading education law firm Veale Wasbrough Vizards. David can be contacted on 0117 314 5382 or at firstname.lastname@example.org.