Contractual Control – a register too far?

Following the release of the “Planning for the future” consultation in the summer, the Ministry of Housing, Communities and Local Government (MHCLG) subsequently issued a further consultation document entitled “Transparency and Competition: A call for evidence on data on land control”, the aim of which is to increase transparency around “contractual arrangements used to exercise control over the buying and selling of land” by creating a separate register of interests such as options, rights of pre-emption and estate contracts. This subsequent consultation closes at the end of this week.

This consultation is complementary to the government’s mission to make the planning system more dynamic and open. Under the proposals, beneficiaries of contractual arrangements such as options or rights of pre-emption would be obliged to disclose certain information about these arrangements to HM Land Registry so as to make this data available to the public, who would theoretically use it to better its understanding of development opportunities within the local community and to play a more active role in the development process. However, there are some concerns that the proposals as currently drafted would go further than perhaps anticipated, and could result in a position whereby the time spent in reporting this information and registering the existence of these contractual arrangements outweighs the benefit to the public in disclosing them.

As a firm, we act on a large volume of complex transactions involving the types of interest in land to which this consultation relates, acting for buyers, sellers, developers and investors. Having reviewed the MHCLG’s proposals, we responded to the consultation to raise some concerns, including the following:

Are the public sufficiently interested?

Whether there is sufficient public interest at present to justify collating and publishing the data contained in the government’s proposals (such as the effective date and longstop dates of any contractual arrangement) is questionable. The proposals in the consultation purport to assist local communities in playing “an informed role in the development of their neighbourhoods”, but we cannot see how the information made available by virtue of the proposed register would allow those communities to do so. Instead, the information available via the planning regime would seem to be far more useful in this regard.

Which rights are the right rights?

The definition of rights of pre-emption and land options that the government proposes to use is contained in section 46 of the Finance Act 2003. This definition is extremely wide and could cover all sorts of arrangements typically found in real estate transactions which, we assert, should be outside the scope of the proposed register. For example, a right of renewal contained in a lease of business premises is an arrangement which would fall within this definition. We cannot see that there is public interest in disclosing the existence of arrangements such as these, which exist for valid commercial reasons but which do not impinge any potential development opportunities which could benefit the community.

What is a qualifying Estate Contract?

We also have concerns with regards to the proposals relating to the estate contracts which the register would seek to identify, and specifically, the qualifying criteria of a completion date falling more than six months after exchange. There may be any number of reasons as to why a contract could potentially complete more than six months after exchange, which may be entirely unrelated to the development of land. This could relate to the structuring requirements of the purchaser and its group; it might be due to the fact that third party consent of some sort is required and which is unrelated to a development opportunity; or that the transaction is linked to others which need to complete simultaneously, therefore requiring a delay in completion until all are ready to proceed, to give but a few examples.

Agreed notice v Unilateral notice

The suggestion that the beneficiary of a right of pre-emption or option should be required to protect its interest at HM Land Registry by way of an agreed form notice rather than a unilateral notice will mean a significantly increased administrative burden being placed on the parties to those agreements and their advisers. The submission of an application for an agreed form notice requires the underlying document to be submitted in its entirety, and this often contains commercially sensitive information. As such, an application of this nature is often accompanied by an additional HM Land Registry application which seeks to exempt from the register any such commercially sensitive information which is not required to be published under the Land Registration Rules 2003 (an “Exempt Information Application” (EIA)). Completing an EIA can be time-consuming, and if this needs to be done on every application to register a notice, considerable amounts of public and private funds will need to be spent in jumping through the administrative hoops required by the proposed regime and in the majority of cases, this will outweigh the public benefit achieved in publishing the relevant data.

The above are merely a snapshot of the issues which we believe require further thought and refinement by the MHCLG if this idea is to be both workable and useful.

The consultation remains open for comment until Friday 6 November. If you have any questions, please contact us.

For further information please contact:

Julian Pollock
Julian Pollock
Partner, Real Estate, London
+44 20 7466 2682
Nicholas Turner
Nicholas Turner
Partner, real estate, London
+44 20 7466 2640
Kate Wilson
Kate Wilson
Professional support lawyer, real estate, London
+44 20 7466 2650

“The Future of the Planning System” v “Planning for the Future” – two important consultations closing this week

“Planning for the future”, the government’s Planning White Paper published on 6 August 2020 and on which the consultation closes this week (29 October 2020), has been widely publicised and analysed in depth by the development community. As we said in our blog earlier this month, given the impact of the White Paper’s proposals on development in the short and the long term, developers should respond to this consultation. However, another consultation on the planning system in England, which closes the following day, on 30 October 2020, hasn’t been so widely publicised. This latter consultation is a Call for Evidence by the Housing, Communities and Local Government Committee (HCLGC) for an inquiry into the government’s proposals for reforming the planning system. Although the Call for Evidence was only issued on 8 October 2020, developers should find it easy to respond to, because it asks questions that are prompted by the Planning White Paper consultation but not expressly dealt with by it.

What does the HCLGC consultation ask that the White Paper doesn’t?

The future of the planning system in England” inquiry is gathering evidence which, whether intentionally or otherwise, will test the Prime Minister’s statement in his Foreword to the White Paper that the planning system in England is “outdated and ineffective”, that it is “artificially constraining” England’s potential and, in particular, that it is the planning system’s fault that “we have nowhere near enough homes in the right places”. The inquiry also tackles the issue of the future of the green belt, on which the Planning White Paper is surprisingly silent. In my view, if the aims of the White Paper are to be achieved, particularly the urgent increase in supply of new homes, these are important questions, the answers to which should guide which proposals the government should take forward and how. From initial responses to the White Paper seen in the many discussions that have taken place on it, it seems as though others in the development industry agree. Perhaps the questions being put by the HCLGC inquiry should have been asked by the government before the White Paper was published. Ideally, MHCLG will wait to take account of the answers received before pressing on with their fundamental reforms.

Questions asked by the HCLGC Call for Evidence:

  • Is the current planning system working as it should do? What changes might need to be made? Are the Government’s proposals the right approach?
  • In seeking to build 300,000 homes a year, is the greatest obstacle the planning system or the subsequent build-out of properties with permission?
  • How can the planning system ensure that buildings are beautiful and fit for purpose?
  • What approach should be used to determine the housing need and requirement of a local authority?
  • What is the best approach to ensure public engagement in the planning system? What role should modern technology and data play in this?
  • How can the planning system ensure adequate and reasonable protection for areas and buildings of environmental, historical, and architectural importance?
  • What changes, if any, are needed to the green belt?
  • What progress has been made since the Committee’s 2018 report on capturing land value and how might the proposals improve outcomes? What further steps might also be needed?

For more information please contact:

Fiona Sawyer
Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674

“Planning for the future” consultation closes shortly

Two months ago the government published “Planning for the future“, a Planning White Paper proposing the most radical changes to the English planning system since the Second World War. The proposals have been the subject of much debate across the development industry. With the consultation closing in just over three weeks, developers still have time to consider whether, and how, to respond to the consultation.

Should developers respond?

Developers often decide to leave it to industry bodies to respond to consultations on their behalf and many may choose this route for this consultation as well. However, for these proposals, developers may want to consider whether they should submit an independent response. This is not only because of the enormity of the proposals and the impact that they will have on development in the short as well as the long term, but also because, depending on how the proposals are ultimately implemented, there may be limited opportunity for further public consultation or scrutiny – this may be the one chance that developers have to voice their opinions or concerns about certain elements before they are put into effect. One only has to consider the recent example of how permitted development rights for upwards extensions and demolition of commercial properties for residential development were implemented to see how major change can be introduced through secondary legislation without prior Parliamentary scrutiny.

How should developers respond?

When deciding what to say in response to the consultation questions, many in the industry are sharing their opinions to help ensure that consultation responses are considered and instructive. We have taken our time to review the provisions in detail and have produced a briefing paper to provide an in-depth analysis of the practical implications for clients to inform any response they may have to the consultation. If you are interested in receiving a copy of this briefing, please contact us. We are also running a series of user-friendly and practical round table sessions on the White Paper for our clients.  If this would be of interest, please let us know.

For further information please contact:

Matthew White

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

Catherine Howard

Catherine Howard
Partner, planning, London
+44 20 7466 2858

Changes to the current planning system – Permissions in Principle

On 6 August 2020, alongside the Planning White Paper, the government launched a consultation called Changes to the current planning system. In our blog of 11 September 2020, we reported on one of the four proposals in the consultation, the new affordable housing product called First Homes. Here we focus on the proposal to extend the current Permission in Principle (PiP) to major development, discussing what PiP is, how it is already in use, and the potential implications of the proposals for developers.

What is PiP?

PiP was introduced in 2017 as an alternative route to obtain planning permission for “housing-led development”. “Changes to the current planning system” explains that PiP:

“give[s] up-front certainty that the fundamental principles of development are acceptable before developers need to work up detailed plans and commission technical studies. It also ensures that the principle of development only needs to be established once”.

There are two stages to obtaining full permission through the PiP route: the “permission in principle” stage establishes the principle of whether a site is suitable for housing led development; and the “technical details consent” stage then assesses the detail of the development proposals. PiP is also available to non-housing development provided that the majority of the floorspace in the scheme overall is housing and the non-housing development is compatible with the proposed residential development.

What types of development can currently be granted PiP?

Currently there are two routes for obtaining PiP: by submitting a valid application to the local planning authority (LPA); or through entry of a site in Part 2 of the LPA’s brownfield land register. PiP cannot be granted through either route for habitats development, householder development or EIA development. At the moment, PiP for “major” development can only be granted through entry of a site in Part 2 of the LPA’s brownfield land register, whereas PiP for other development on previously developed land can be granted PiP through the application route. “Major” development is development of 10 or more houses, or a building or buildings where the floor space to be created is 1,000 square metres or more, or on a site with an area of 1 or more hectares.

What are the proposed changes?

The government proposes to make PiP available to larger scale housing-led development by removing the major developments exception from the application route.

Why? The government points to town centre sites that are suitable for development and would support regeneration but, because they can be developed at a high density, could support more than 10 dwellings and are therefore not currently eligible for the PiP application route. A developer could apply for such a site to be listed on the LPA’s brownfield register, or could apply for full planning permission, but either option takes time and/or significant resources which can hold back development. The Planning White Paper proposes that land which is allocated for substantive development in local plans (identified as “Growth areas”) should be automatically granted outline planning permission. Acknowledging that these proposals will take time to implement, the government wants to implement these changes now.

Will this change really make a difference to the availability of PiP for major sites?

Perhaps not. The government itself says:

“We envisage that a change of this kind will particularly benefit small and medium-sized developers who tend to focus on building smaller major developments”.

This is because the existing prohibition on using PiP for habitats or EIA development will remain, which means that PiP still can’t be used for sites of 5 or more hectares or which will deliver more than 150 dwellings. Bearing in mind that PiP is available only for housing-led development, this may restrict its application even for mixed-use schemes. However, if a mixed-use scheme can qualify, it may benefit from another element of the government’s proposal which is to remove the current limit on the amount of commercial development that can be included (currently set at 1,000 sq m or 1 hectare). It may also benefit from the government’s proposal to reduce the fees payable for major site PiP applications to encourage development to come forward using this route.

What other changes are proposed?

The government is also considering whether to impose a maximum height threshold on major schemes consented through the PiP route, and whether to allow the use of social media to widen the publicity of major site applications.

The consultation closes on 1 October 2020. If you are interested in responding to the consultation and would like discuss this further, please get in touch.

For more information please contact:

Matthew White

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

Fiona Sawyer

Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674

Changes to the current planning system – First Homes

It has been an ambition of successive governments that it should be easier for first-time buyers to get on to the property ladder. On 6 August 2020, alongside the Planning White Paper, the government launched a consultation called Changes to the current planning system, setting out four proposals including how the government proposes to secure an affordable housing product which achieves this ambition. This product is called “First Homes”. The government first consulted on the design and delivery of First Homes earlier this year. The current consultation seeks views on the government’s proposals for implementing the scheme.

The government wants to implement First Homes as part of the current planning system in England, but also wants to take it forward into the new planning system proposed by the White Paper. However, this is not the first affordable housing product aimed at first-time buyers – the Starter Homes initiative was launched by the Coalition Government in 2014 and progressed by subsequent governments but, despite significant investment (including a £1.2 billion Starter Homes Land Fund), regulations to implement the scheme were never taken forward and no Starter Homes were ever built (see here for the NAO report on its investigation into Starter Homes).

What is the difference between First Homes and Starter Homes, to what extent will developers be required to include First Homes as part of their affordable housing offer, and what are the next steps?

First Homes v Starter Homes

Table 1 summarises the main attributes of both First Homes and Starter Homes. The products bear many similarities: both are aimed at first-time buyers with a mortgage who earn less than £90,000 in London and £80,000 in the rest of England; both are subject to a minimum discount below market value and an overall price cap; and both are available to Armed Forces personnel.

However, there are differences. To put it very simply, the government has beefed-up the Starter Homes offer significantly. First Homes must be offered at a greater discount below market value, in perpetuity. There is also a compulsory requirement – a minimum of 25% of all affordable housing units secured through section 106 obligations must be First Homes, whether on-site, through cash in-lieu or as a combination of the two. First Homes must take priority over other affordable housing products. There may be an exemption for Build to Rent schemes, and also an exemption from CIL (once regulations have been implemented), but otherwise all schemes delivering affordable housing through section 106 obligations will be affected. This will have a major impact on the range of affordable housing tenures provided by developers and particularly on the provision of social housing and other affordable rented products.

Another significant difference between Starter Homes and First Homes is the “local connection” requirement for First Homes buyers. The Starter Home requirement that a first-time buyer must be under 40 has gone, but local planning authorities can require that developers must market First Homes to local buyers only (with the exception of Armed Forces personnel) for three months before the units can be sold to first-time buyers outwith the local area.

Table 1: Comparison between First Homes and Starter Homes

Next steps

The government intends to implement First Homes through changes to national policy and by producing standardised wording for section 106 agreements. However, as it wants consistent implementation by local authorities across England, it acknowledges that primary legislation may be necessary, which will presumably be achieved through the Planning White Paper reforms. These reforms certainly include the “significant reforms to developer contributions” that the consultation refers to as another next step – the Planning White Paper proposes to replace both CIL and section 106 affordable housing contributions with a new Infrastructure Levy – although if First Homes are implemented before this then changes to the CIL Regulations 2010 will be needed to introduce the promised exemption for First Homes from CIL.

The principle that developers will have to provide First Homes seems established, albeit that the same had been said for Starter Homes. Developers do, however, still have an opportunity to comment on the following aspects of the First Homes policy by responding to the Changes to the current planning system consultation:

  • how the remaining 75% of affordable housing on a site should be delivered (after the first 25% has been delivered as First Homes);
  • what exemptions (if any) there should be from the requirement to provide First Homes (eg Build to Rent exemption);
  • transitional arrangements for local and neighbourhood plans already well advanced through the plan-making process, and for applications that are well progressed on the basis of a different affordable housing tenure mix;
  • the level of discount below market value; and
  • views on exception sites and rural exception sites.

The consultation closes on 1 October 2020.

For further information please contact:

Matthew White

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

Fiona Sawyer

Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674

Planning for the future

The long awaited and much anticipated planning reforms that were heralded by the Housing Secretary in the Sunday Telegraph last weekend are finally available for us all to see. Our team is taking time to digest the consultation proposals carefully, along with proposals in a second consultation published on the same day on further changes to the current planning system. It cannot be said that planning professionals are not being kept busy at the moment – the rate of change in the current system, both temporary changes in response to the Covid-19 pandemic and permanent changes to “tackle the housing crisis”, requires our constant attention. Given this rate of change, developers and communities alike may be forgiven for finding the current system complex. Whether or not changing the system in its entirety will in fact simplify it and enable the country to “build, build, build” is at the heart of the “Planning for the future” consultation.

We will comment on Planning for the future in due course. However, one immediate thought of mine is this. We will always need a planning system to mediate between those who want to build and those who want to stop building. These reforms might shift some of that tension to an earlier point in the development process by requiring land to be categorised upfront for “growth”, “renewal” or “protection”, but in my experience the idea that this will result in development without conflict is naïve. If the opportunity for people to be heard at the point when individual sites come forward is suppressed, then pent-up antagonism is created that will inevitably find an outlet in increased litigation in the courts.

Ironically, as we prepare to exit the EU, these proposals would move us to a system that is much more European in style. In doing so, we may lose some of the unique features of the English planning system – its innate flexibility, dynamism and ability to react quickly to change. Zoning land for a prolonged period risks stifling innovation and creativity in the built environment. Our towns and cities attract investment from across the globe in recognition of our ability to combine old and new; heritage and modernism; conservation and progress. That is the sign of a vibrant planning system which we should celebrate. In its desire to appear to be radical, this government might just end up killing the golden goose.

For further information please contact:

Matthew White

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

Stopping the endless cycle of consultation

You will have noticed them popping up in towns and cities across the UK, the monuments to our new way of living: temporary cycle lanes, designed to funnel people safely into work and town centres without the need to crowd onto public transport or gridlock the roads with cars. Along with the improvement in air quality we have been experiencing in London, for a brief moment we could glimpse the future that we always talk about – a healthier, more climate-friendly city. It was no surprise to see Transport for London driving this agenda for green transport, but it was a welcome surprise to see less likely highway authorities following suit.

And then, as surely as night follows day, the familiar stories began to appear in the paper. Politicians demanding the removal of the temporary cycle lanes in their constituencies, residents angry about their longer driving commutes into work. The rallying cry was that the highway authority had failed to consult  prior to installing the temporary cycle lanes. And in many places, the status quo ante has now been restored and it is as though the brief dalliance with cycle friendly infrastructure never happened.

Last week, the Government published “Gear Change: a bold vision for cycling and walking“, setting out the aim to double the amount of journeys that are cycled. The Government estimates that, in air quality improvement terms alone, this would save £567 million and prevent over 8,000 premature deaths per year. The Government wants thousands of safe and physically segregated cycle tracks to be constructed across the country in pursuance of this aim. The evidence shows that safe and segregated cycle tracks are the single most important way to increase cycle use (illustrated by the impressive statistic that cycling on Blackfriars Bridge increased by 55% in the six months after a segregated cycle track was installed).

But, as the Government’s vision admits, in the vast majority of cases, the power to actually consent these new cycle lanes falls to local authorities (the Government is only responsible for motorways and some strategic A roads, less likely cycling candidates). So while the Government will be providing the money and a new funding body and inspectorate, it is mostly local authorities who will be responsible for delivering this step change. And, if the past is any predictor, the Government’s bold vision may be about to run headlong into the mire of local consultation.

Now, consultation is a good and often necessary thing for four main reasons:

  1. Government decisions have significant impacts on peoples’ lives and livelihoods. In many cases, good decision making requires that people should have the opportunity to make representations about the impact of those decisions prior to the decision being made.
  2. Consultations often flush out problems or inconsistencies with the proposal. When a small team in government or a public authority design a policy or proposal, they may fail to appreciate unintended consequences. Subject matter experts or members of the public may alert them to those issues during the consultation so they can be corrected in the final version.
  3. Related to point 2 above, consultations will often help the decision maker to identify relevant considerations. This is a good thing because a failure to consider relevant considerations can be a public law error leading to a possible judicial review and quashing of the decision.
  4. Sometimes there will be a statutory duty to consult or the conduct of the authority will have been such as to create a “legitimate expectation” that it will consult on the proposals. In these circumstances, as above, a failure to consult may be a public law error and liable to quashing.

However in the case of new cycle infrastructure, in my view, the current consultation system is broken and a major barrier to achieving the objectives of greener transport infrastructure. Consultations get bogged down in endless representations and design iterations, and often are never delivered. At the heart of this is a fundamental tension which will always result in huge opposition to cycle schemes: cycle schemes will, more often than not, make it harder to drive cars. This is just a spatial reality. There is a limited amount of space in our cities, so cycle schemes by definition take up space on roads which was previously used by cars. The Government’s vision document acknowledges this spatial reality and states that the balance needs to shift in favour of cycling.

There is a similar spatial tension at the heart of planning: new development will often take up space (footprint, airspace, views) that was previously used for something different. It is understandable that those who enjoyed the benefit of that space object to it being redistributed to the new development. But the difference with the planning system is that we have a legislative and policy structure to resolve those spatial disputes. We have questions to ask to guide decision making: Is the development compliant with planning policy? Is your objection a material consideration? What are the public benefits? These structures allow those who are making planning decisions to balance and weigh the objections received against the framework that we as a society have (at least theoretically) agreed upon for how to distribute our most precious resource, space.

But there is no such framework for highways consultations. The Highways Act 1980 is a nightmarishly complex piece of legislation and (I believe most planning lawyers would agree) barely fit for purpose for the traditional business of improving roads for use by cars, let alone new cycle infrastructure. Where a statutory consultation process is provided for (such as for Traffic Regulation Orders) the legislation just provides for a 21 day consultation period. But crucially, there is no decision making framework following that. How is a highways authority to weigh a perceived harm to the town centre from loss of car traffic, against a possible benefit to health from improved air quality? Or what if the cycle scheme disrupts a bus route which provides valuable mass transport for a town or city? The decision makers are given no legal or policy framework to resolve these decisions. The result is that consultation documents for cycle schemes are often a very lengthy way of asking the question “what do you think of this cycle scheme?”. Residents then answer “we don’t like it very much”, and more often than not, that is that.

This needs reform if the Government’s cycling vision is to be achieved. To be clear – I am not arguing in favour of allowing poor cycle schemes to proceed. Cycle schemes can have serious safety issues or they can cause genuine damage to town centres or retailers, which are already suffering more than their fair share of pain in the current environment. But it is clear that we are not giving decision makers the tools they need to make these crucial decisions. So I propose a new national policy document for decisions on cycle schemes based on the following principles:

  1. Decision makers should seek to approve cycle schemes wherever possible, unless the harms outweigh the benefits of doing so.
  2. The benefits include population health and air quality improvements and great weight should be given to these.
  3. Harms may include safety issues or loss of vitality to town centres.
  4. When considering harms, it will not be sufficient that a cycle scheme may have a negative impact on travel times for car users.

My colleagues have been exploring in recent weeks what trends will shape our Future Cities. There is no doubt that cycling will form an important part of the way that we all get around, and we should ensure that the consenting regime is ready to meet the challenge.

Annika Holden is currently on maternity leave.

For more information please contact:

Annika Holden

Annika Holden
Senior associate (Australia), planning, London
+44 20 7466 2882

Matthew White

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

 

Delivering deliberative democracy – Government commitment to community involvement in decision making

Community involvement sits at the heart of the planning process. Evidence shows that enabling people to participate in the decisions that affect them improves confidence in dealing with local issues, builds bridges between citizens and the government, fosters engagement, and increases social capital. It also increases people’s understanding of how decisions are taken, which can lead to more effective decision making. It can encourage a sense of ownership for local people in how their area will evolve, potentially helping communities to embrace developments that might otherwise cause conflict such as housing or redevelopment schemes. It is therefore unfortunate that “planning” and “housing” issues are outside the scope of the Innovation in Democracy Programme (IiDP), an ongoing government trial into the involvement of citizens in decision-making. However, the recent announcement on the IiDP’s pilot schemes, each of which relate to the future of town centres or improving public transport, shows that the programme could still be of interest to developers.

Innovation in Democracy Programme

The IiDP was originally announced in Summer 2018 as part of the UK Government’s Civil Society Strategy:

“The government will launch the innovation in democracy programme to pilot participatory democracy approaches, whereby people are empowered to deliberate and participate in the decisions that affect their communities. The government will work with local authorities to trial face-to-face deliberation (such as citizens’ juries) complemented by online civic tech tools to increase broad engagement and transparency.”

The programme seeks to involve citizens in decision making at local government level through innovative models of participatory democracy. The aims of the IiDP are to:

  • increase the capability of local people to have a greater say over decisions that affect their communities and their everyday lives;
  • encourage new relationships and build trust between citizens and local authorities; and
  • strengthen local civil society by encouraging participation in local institutions.

The government originally stated that it would be looking to support to eight to ten local authorities to pilot “deliberative democracy” through citizens’ assemblies. However, following an expression of interest process, only three local authorities have been selected. These authorities will be responsible for convening a randomly selected, but representative, sample of residents to contribute on the following policy decisions for their areas:

  1. Dudley Metropolitan Borough Council – Future of town centres;
  2. Greater Cambridge Partnership (Cambridgeshire County Council, Cambridge City Council, South Cambridgeshire District Council) – Improving public transport and tackling congestion; and
  3. Test Valley Borough Council – Future of waste and recycling and / or vitality of town centres

Citizens’ assemblies

Citizens’ assemblies, in which key local issues are put in the hands of a group of citizens, are gaining traction thanks in part to government support to programmes like this, as well as council initiatives. The Brexit deadlock may also be partly responsible as arguably it has cast a shadow over the parliamentary democratic process. Citizens’ assemblies also tend to be quite high-profile events which may explain why they are gaining more publicity, but whether they will change the face of decision making awaits to be seen.

This week, more than 100 specially selected members of the public are convening in a citizens’ assembly to discuss Britain’s 2050 emissions target. They will spend four weekends listening to evidence from experts on how climate policy and science will affect the UK and then offer their opinions on how the UK can meet the “net zero” emissions target by 2050.

Lessons for planning?

Bearing in mind how many ways there are for members of the public to get involved in planning decisions, such as making representations on planning applications or appeals, participating in the preparation of development plans and strategies, and participating in the preparation of other policy documents or guidance, lessons learned from this programme may be useful to planning after all.

For further information please contact:

Lisa Bazalo

Lisa Bazalo
Senior associate (New Zealand), planning, London
+44 20 7466 2957

Planning for the future of energy storage – follow-up consultation

In April, we wrote a blog about a consultation held by the Department for Business, Energy and Industrial Strategy (BEIS) on proposed changes to the treatment of energy storage under the planning system. This consultation, which ran from January to March 2019, applied to England only.

On 15 October 2019, BEIS published its response to the January consultation, together with a follow-up consultation which applies to both England and Wales.

What was the result of the January consultation, and why is a follow-up consultation now being held?

January 2019 consultation

According to BEIS, just over 30 responses to the initial consultation were received, from storage developers, industry bodies, local authorities and energy suppliers/generators.

Most respondents rejected the proposal to retain the Nationally Significant Infrastructure Project (NSIP) regime 50MW capacity threshold for standalone storage projects, citing this as a significant barrier to the deployment of standalone storage projects above this threshold. BEIS also proposed to amend the Planning Act 2008 (PA 2008) so that, where the capacity of the storage and non-storage elements are over 50MW in combination but less than 50MW individually, the generating station would come under the Town and Country Planning Act 1990 (1990 Act) regime. Whilst there was broad support to create a new capacity threshold for composite storage and generation projects, feedback from respondents outlined a concern that this would create a loophole whereby a large storage facility could avoid the NSIP regime by installing a small wind turbine.

Government response and follow-up consultation

Having considered the evidence received as a result of the initial consultation, BEIS has “updated” its policy position.

The new consultation proposes a twin-tracked system:

  • For pumped hydro storage projects, the 50MW NSIP threshold would be retained as, for these projects, the NSIP regime is considered to be more efficient and appropriate because of their larger planning impacts and the fact that they often require other consents (eg authorisation for compulsory acquisition of land) which can be provided through a Development Consent Order (DCO).
  • All other electricity storage projects should be governed by the town and country planning regime:
    • In England, the 1990 Act will govern all non-pumped hydro storage projects unless directed by the Secretary of State.
    • In Wales, all non-pumped hydro storage projects will also be governed by the town and country planning regime, as the current threshold of 350MW will be removed.

The Government has also published draft legislation implementing these proposals, and clarifications regarding the application of permitted development (PD) rights and the Environmental Impact Assessment (EIA) regime to electricity storage facilities.

The closing date for the follow-up consultation is 10 December 2019. It will be for whichever government is elected on 12 December 2019 to decide how to take forward responses received.

Catherine Howard

Catherine Howard
Partner, Planning, Real Estate, London
+44 20 7466 2858

Alistair Paul

Alistair Paul
Associate, Planning, Real Estate, London
+44 20 7466 2252

Consultation on new permitted development rights for telecomms apparatus

Recently, the government announced a consultation on proposals to reform permitted development rights (PD rights) for operators under the Electronic Communications Code (Code Operators). The aim of the proposals is to support 5G technology and extend mobile coverage. Four new PD rights are proposed, two of which would require prior approval from the local planning authority (LPA), two of which would not. Bearing in mind the infrastructure that will be needed for greater mobile coverage and to get ready for 5G, and considering the potential impact on them of the proposed rights, landowners and developers should consider taking the opportunity to respond to the consultation.

The PD rights proposed are to enable the deployment of radio housing equipment on land (apart from on Sites of Scientific Interest) and the strengthening of existing masts for 5G upgrades and mast sharing. These rights would not require “prior approval” from the LPA, which means that the LPA would not need to be notified before the rights are implemented by Code Operators and will not therefore have an opportunity to take into account the interests of other parties such as landowners, occupiers or neighbours. PD rights are also proposed for the deployment of “building-based” masts nearer to highways, and higher masts for for better mobile coverage and mast sharing, although both of these rights would require prior approval.

A recent decision reminds landowners that they can face a tough test when trying to resist the imposition of Electronic Communications Code rights in favour of operators. In EE Ltd v Chichester [2019] UKUT 164, where a landowner tried to resist the imposition of the Code by a mobile phone network operator by claiming that they wanted to redevelop the land on which a mast stood, the Upper Tribunal (Lands Chamber) confirmed that a landowner had to demonstrate “both that they have a reasonable prospect of being able to carry out their redevelopment project and that they have a firm, settled and unconditional intention to do so”. Landowners will have even less control over their land if the proposed PD rights are progressed. However, some comfort may be gained from another recent decision, Mawbey v Cornerstone Telecommunications Infrastructure [2019] EWCA Civ 1016, where the Court of Appeal discussed whether or not a central support pole was a “radio mast” – in this case, it was decided that such poles were indeed masts and that they therefore did not have the benefit of PD rights.

The government says that they will consider responses to this consultation and that another consultation on more detailed proposals wil be held in due course.

For further information, please contact:

Fiona Sawyer

Fiona Sawyer
Professional support lawyer, planning, London
+44 20 7466 2674

Matthew White

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