Changes confirmed to permitted development rights and use classes

Author: Fiona Sawyer, Professional Support Lawyer, Planning, Real Estate

In our blog post of 10 December 2018 (see here), we discussed the potential impact on developers and landlords of changes to permitted development (PD) rights and Use Class A which were being consulted on by the government. Despite widespread criticism, and counter to some calls for a greater role for local authorities in securing the futures of their town centres through holistic town planning, in a Written Statement on 13 March 2019 James Brokenshire announced that the government is implementing the majority of the proposals. Some of the changes to PD rights are to be made later this spring; other changes, such as upward extensions for residential use, will be dealt with in further regulations in the autumn. We were also told that we can expect an Accelerated Planning Green Paper later this year. Whilst the changes are intended to “[simplify and speed up] the planning system, to support the high street, make effective use of land and deliver more homes”, whether this can be achieved by these changes remains to be seen. This post discusses what the changes are, and what their impact could be within the context of wider change. Continue reading

MCIL2 update – in force 1 April 2019

Author: Fiona Sawyer, Professional support lawyer, Planning, London

Last week, we published a post (see here) noting that the Mayoral Community Infrastructure Levy 2 (‘MCIL2’) was due to come into force on 1 April 2019, setting out details of the new charges, which developments would be affected and the implications for developers. By a letter dated 28 February 2019, the Greater London Authority (‘GLA’) has now confirmed that the Mayor of London has formally adopted the MCIL2 Charging Schedule and that it will indeed be brought into effect on 1 April. Two modifications have been made to the final version of the Charging Schedule, the most important of which is that the Elephant and Castle Opportunity Area is not part of the Central London Charging Area for office, retail and hotel development; the second modification clarifies the definitions of hotel, office and retail uses. The GLA has also confirmed that MCIL2 will be used to fund both Crossrail 1 (the Elizabeth Line) and Crossrail 2, and that the MCIL2 Charging Schedule will supersede both the 2012 Mayoral CIL Charging Schedule (‘MCIL1’) and the 2016 Section 106 Crossrail Funding from Planning Obligations Supplementary Planning Guidance (referred to in our previous post as the ‘s106 Crossrail Charge’). Continue reading

In force soon – Mayoral Community Infrastructure Levy 2 (MCIL2)

Author: Ben Hazenberg, Senior Associate, Planning, Real Estate, London

The Mayoral Community Infrastructure Levy 2, or ‘MCIL2’, is a new charging schedule for the Mayor’s Community Infrastructure Levy (CIL) charge. It sets new (higher) rates for Mayoral CIL and is due to take effect on 1 April 2019. (It is technically possible that the Mayor may change his mind about MCIL2 before 1 April 2019, but it should be assumed that he will not.)

This post explains what MCIL2 is, what it means for developments in London and what action developers may wish to take before MCIL2 comes into force.

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Brexit isn’t frustrating…at least for leases

Authors: Matthew Bonye, Partner and Head of Real Estate Dispute Resolution, London; Judith Smyth, Associate, Real Estate Dispute Resolution, London and Rhian Arrenberg, Professional Support Lawyer, Real Estate Dispute Resolution, London

Landlords can (for now at least) breathe a sigh of relief as the High Court has ruled that a tenant cannot bring its obligations under a lease to an end by invoking the doctrine of frustration simply because it will have no option but to relocate if/when the UK leaves the EU.

In Canary Wharf (B4) T1 Ltd and others v European Medicines Agency [2019] EWHC 335 (Ch), the Court held that even though the European Medicines Agency (“EMA“) would be forced under EU law to relocate outside the UK after Brexit the nature of the bargain between the parties was not made radically different by Brexit and the lease is therefore not frustrated.  On the contrary, the inclusion of carefully negotiated alienation provisions in the lease indicated that the parties had contemplated that the EMA might at some point wish to dispose of its interest.  The EMA will therefore remain fully liable under the lease for the remainder of the term, unless of course it successfully appeals this ruling.

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Back to basics: advertisement control

Author: Alistair Paul, Associate, Planning, Real Estate, London

Cases involving advertisement consents rarely make it beyond the High Court but the recent case of Putney Bridge Approach Ltd v (1) Secretary of State for Communities and Local Government (2) Hammersmith & Fulham London Borough Council & JC Decaux Ltd made it all the way to the Court of Appeal. The case concerned deemed consent for the use of an office building for the display of illuminated advertisements on the River Thames. The Council’s decision to withdraw deemed consent on the grounds that the display of the advertisements was likely to cause substantial injury to the amenity of the locality was upheld first by a planning inspector, then by the Planning Court (part of the High Court) and then, in October last year, by the Court of Appeal. This case serves as a reminder that the advertisement consent regime is not without its complexities so we thought it would be useful to publish a short blog on the basics of advertisements law in England.

The display of advertisements is controlled under a separate regime within the planning system. This blog post considers advertisement control in England under that separate regime, which is governed principally by the Town and Country Planning (Control of Advertisement) (England) Regulations 2007 (the “CAR 2007”). In particular, we discuss:

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Opening the door to community and landlord engagement

This article was first published on Lexis®PSL Property on 24 January 2019. 

Fiona Sawyer, professional support lawyer in the planning team at Herbert Smith Freehills LLP, and Frances Edwards, senior associate and specialist real estate litigator at the firm, point out that although the government’s ‘open doors’ scheme will certainly help reinstate the high street as a destination for the community, the reality is that town centre rents need to be cheaper and action taken to ameliorate the cost of business rates to enable community uses to occupy town centre premises on a longer-term basis.

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Recommendations from the Rosewell Review – how can planning appeal inquiries be made quicker and better?

Author: Lisa Bazalo, Associate (New Zealand), Planning, Real Estate, London

A publication that has caught the attention of many in the industry this week is the government-commissioned ‘Independent Review of Planning Appeal Inquiries.’ The review, chaired by economist Bridget Rosewell CBE, was tasked in June last year with assessing how planning appeal inquiries could be made quicker and better. The report makes 22 recommendations aimed at reducing the time it takes to conclude planning inquiries, while maintaining the quality of decisions.

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Real Estate EP5: The future of planning – Matthew White and Ghislaine Halpenny in conversation

British Property Federation (BPF) director of strategy and external affairs, Ghislaine Halpenny, sits down with Matthew White, partner and head of UK planning, to discuss planning, its ever-changing nature and the direction it is taking.

 

Also published on the BPF soundcloud for the BPF Futures network, a networking and development group for junior professionals working in all areas of UK real estate.

For further information please contact:

Matthew White
Matthew White
Partner and Head of UK planning, London
+44 20 7466 2461

Back to Basics: Housing Need and Delivery

 

Author: Charlotte Dyer, Of Counsel, Planning, Real Estate, London

From 25 January 2019 (although see here for our commentary on the ambiguity surrounding the actual date), local planning authorities must use the new standard methodology for assessing housing need set out in the National Planning Policy Framework published in July 2018 (“NPPF”). As part of our ‘back to basics’ blog series, this blog post explores:

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Deadline for examination of plans under the old NPPF – 24 or 25 January 2019?

Author: Charlotte Dyer, Of Counsel, Planning, Real Estate, Herbert Smith Freehills

This Thursday is 24 January 2019, a hotly anticipated date in the planning world because this is the date referred to in the revised National Planning Policy Framework (“NPPF”) as the date after which the policies in the revised NPPF will apply for the purposes of examining local plans. Paragraph 214 of the NPPF states that the policies in the old 2012 NPPF will continue to apply to the examination of plans submitted “on or before 24 January 2019“.

However, a technical consultation (‘Technical consultation on updates to national planning policy and guidance’) published by the government in October 2018 states at paragraph 20 that:

… The use of the standard method applies to plan-making for plans submitted on or after the 24 January 2019 [our emphasis]. Any period specified for using the 2014-based projections would use this as the start date.

Paragraph 21 of the technical consultation goes on to say that:

… there are approximately 50 plans that will be submitted for examination in 2019. Any of these plans that are submitted on or after the 25 January 2019 [our emphasis] will be required to use the standard method to inform strategic housing policy.

Our view is that the adopted NPPF must take precedence over a consultation document, even one published after the NPPF, and therefore it is clear that the policies in the old 2012 NPPF will continue to apply to the examination of plans submitted on 24 January 2019, notwithstanding the inconsistency in the dates referred to in the technical consultation. However, local authorities who want to be absolutely sure should submit their plans for examination before Thursday if possible, ie tomorrow. Continue reading