Now in force: Replacement section 237 procedure for overcoming rights of light (along with other new provisions under the Housing and Planning Act 2016)

Authors: Matthew White, Partner and Head of Planning and Lucy Morton, Professional Support Lawyer, Planning, London

Replacement section 237:

Yesterday (13 July), the new provisions allowing local authorities to override easements and other rights (including rights to light) came into force, replacing section 237 of the Town and Country Planning Act 1990.  Yesterday's commencement date is earlier than expected.  The previous provisions are familiar to developers as they allowed development to proceed in certain circumstances where there were rights to light and other title constraints to overcome, and the new provisions under the Housing and Planning Act are similar: please see our previous blog post here for further details on the form and effect of these provisions.

Other new Housing and Planning Act 2016 provisions in force from 13 July include:

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Abolition of section 237 procedure for overcoming rights of light

Authors: Matthew White, Partner and Head of Planning, Real Estate, London and Lucy Morton, Professional Support Lawyer, Planning, Real Estate, London

Section 237 of the Town and Country Planning Act 1990 gives local planning authorities powers to override easements and other rights in relation to land that has been acquired or appropriated for planning purposes. However the Housing and Planning Act 2016 is set to abolish the existing procedure and bring in a replacement power.

In recent years, developers of several high profile projects have turned to section 237 to overcome rights of light and other title constraints that were threatening to prevent their developments from proceeding. The pre-requisites for the powers to be used are stringent, however, and they are intended only as a last resort.  Fortunately the threat of using section 237 proved sufficient to bring counterparties to the negotiating table in the majority of cases, without the local planning authority actually having to use the powers in practice.

Now, just as developers are becoming familiar with the procedures and tests for the use of section 237 to address their development constraints, and local planning authorities are becoming more comfortable with exercising their powers for this purpose, the Housing and Planning Act 2016 is set to abolish section 237 and replace it with a completely new power.

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The return of “Vacant Building Credit”

Authors: Matthew White, Partner and Head of Planning, London and Lucy Morton, Professional Support Lawyer, Planning, London

The world of planning has been busy: the new Mayor of London is making promises including measures to improve air quality and to introduce a long term strategic target of 50% affordable housing, the Housing and Planning Act has received Royal Assent (although the final version has not yet been published at the time of writing), a new Neighbourhood Planning and Infrastructure Bill has been announced and a Court of Appeal decision has restored the 'vacant building credit' and the exemption for small sites from affordable housing requirements.

It's the last of these that we will look at today.  

The restored Government policies state that:

–           Vacant building credit can be claimed for empty buildings brought back into lawful use or demolished for redevelopment: the developer should be offered a financial credit equivalent to the existing gross floorspace of those vacant buildings when the local planning authority calculates any affordable housing contribution which will be sought; and

–           Exemptions from affordable housing requirements can be claimed for small sites (10 units or less and which have a maximum combined gross floorspace of 1,000 sqm).

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Permission in Principle and Environmental Impacts (2016 Planning Consultation)

Author: Martyn Jarvis, Associate, Planning, London

This Friday (15 April) is the deadline for responses to the Government's 'Technical Consultation on Planning Changes' (launched on 18 February 2016). The consultation sets out the Government's proposals to put flesh onto the bones of the Housing and Planning Bill, including for performance linked planning application fees, a brownfield land register and a Section 106 dispute resolution mechanism.  The consultation paper also considers how the proposals for the grant of "planning permission in principle" will be put into effect. Permission in principle means the grant of automatic planning consents for housing led developments where further technical details will be provided at a later date.

In this post we discuss how the permissions in principle will fit with existing requirements for environmental impact assessments.

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Q1 Healthcheck / Q2 Predictions: Brexit, Mayor, PRS, Housing and Planning Bill, airport expansion

Author: Matthew White, Partner and Head of Planning, Real Estate, London

In the week before Christmas, the daffodils were blooming, the birds were chirping and it was warm enough to cycle to work in shorts. In the week before Easter … well, nothing much has changed. And that pretty much sums up the ‎development market in Q1. Transactions held over from December were duly completed, but the dealflow since then has been been falteringly slow.

MIPIM, always a good barometer of market sentiment, was summed up by the weather too – it was not nearly as ‎balmy as expected and left you feeling let down and a bit foolish that you'd brought your sunglasses.

Much of this is being driven by Brexit. Whilst I don't think the vote will make a big difference to development in the UK ‎either way, it is the uncertainty of whether we will end up in or out that is causing stasis. Like Schrodinger's cat being alive and dead at the same time until the box is opened and the quantum waveforms collapse, investment decisions ‎are quite reasonably being held back until the outcome of the referendum is known.

In London, we also have a Mayoral election to contend with. Ken Livingstone and Boris Johnson may have been at opposite ends of the political spectrum, but both were firmly pro-development. Looking at Sadiq Khan and Zac Goldsmith on the hustings, I am not convinced that the next four years ‎will be quite so developer-friendly.

Development has always been a Q2/Q4 business of course, so a slow winter is not that unusual. This feels like a pause for reflection rather than a sign of deeper retrenchment. To lift a metaphor off the back of England's Grand Slam victory, we're just waiting for the referee to call "set" before the front row engages again.

So, here are my predictions for Q2:

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What to look forward to in 2016: Planning changes on the horizon


Herbert Smith Freehills' real estate development team are monitoring a number of areas of law likely to change during 2016.  Here is a summary of some key areas of change we expect in the field of planning (from a development perspective), highlighting some opportunities these changes may present. 

For more information please contact Matthew White or Lucy Morton at Herbert Smith Freehills.

1. Office-to-residential conversion rights to be made permanent

2. Housing and Planning Bill due to become law

3. CIL Review Panel to report on whether CIL is meeting its objectives

4. Government's response expected on the National Planning Policy Framework consultation (including changes to green belt and affordable housing policies)

5. Affordable housing renegotiation provisions to expire on 30 April 2016, unless extended

6. Government due to respond to the Airports Commission Final Report (which recommended Heathrow expansion)

7. International property measurement standards changing

8. Carbon offsetting requirements expected to be amended or abolished

9.  National Infrastructure Commission to report at Budget 2016


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Housing and Planning Bill announced


Yesterday (13 October 2015) the Housing and Planning Bill was published, proposing new planning legislation including requirements for starter homes in section 106 agreements, planning permission in principle on brownfield sites, and allowing housing elements to be included in NSIPs. The broad aims of the bill are to further streamline the planning system as well as to create more housing. A few highlights are outlined below.

1. Starter Homes required in section 106 agreements

2. Planning Permission in Principle

3. NSIPs with housing elements

4. Right to buy


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