Revised National Planning Policy Framework—will it fix the housing market?

This article was first published on Lexis®PSL Planning on 9 August 2018.

Will the government’s new planning rulebook deliver on its promises? Robert Walton, barrister at Landmark Chambers, says the new National Planning Policy Framework (NPPF) is a step in the right direction and should result in more houses. Matthew White, partner and head of the planning team in Herbert Smith Freehills LLP’s London office, predicts that, by itself, the revised NPPF will not streamline the planning process, nor close the gap between planning permissions and housing delivery. Continue reading

Impact of revised National Planning Policy Framework

The revised National Planning Policy Framework (NPPF) was published on 24 July 2018. This post considers what difference it will make – in terms of the impact on developers, whether the government’s aims will be achieved and how soon its effects might be seen.

Impact on developers

On the whole, policies in the revised NPPF are more restrictive. Tighter controls over design standards, green belt boundaries, developer contributions and viability appraisals, stronger protection for the environment and the introduction of the “agent of change” principle to new development all provide little incentive to bring forward development.

A welcome change, however, is that LPAs should now take a more flexible approach to daylight and sunlight issues.

The new standardised methodology for calculating housing need, which takes effect immediately, represents a significant change for residential development. It will provide more certainty on housing requirements in each LPA’s area, generally with an increase in housing targets. Local authorities’ success in delivering against these targets will be assessed by the new Housing Delivery Test. From November 2018 local plans will be deemed out of date if the LPA fails to deliver 25% of its housing target as assessed by the new standardised methodology; this threshold will increase in subsequent years to 45% of the target from November 2019 and 75% of the target from November 2020. If local plans are deemed out of date the presumption in favour of sustainable development will be brought into play, increasing the likelihood that planning permission will be granted. Continue reading

More on the new power to override easements and other rights: Section 203 of the Housing and Planning Act 2016

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

In the September edition of 'Property in Practice', the Law Society's Property magazine, Matthew White, partner and head of planning at HSF, examines the new power to override easements and other rights under section 203 of the Housing and Planning Act 2016, and explains the circumstances in which it might be used by property lawyers and others in the development world.  This power has replaced the power under s237 of the Town and Country Planning Act 1990, with effect from 13 July 2016. 

Click on the link below to read the article.

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Tenants and prescriptive rights to light: five tips for developer landlords

light

Author: Matthew Weal, Associate, Real Estate Dispute Resolution, London

It is of course open to landlords to grant their tenants express rights to light as leasehold easements.  Similarly, an easement of light in favour of a tenant may be implied by means of the deeming provision in section 62 of the Law of Property Act 1925.  However, more frequently, leases contain wording which will actively seek to prevent tenants from asserting a prescriptive right to light.  In this post we examine some example provisions which prevent such rights arising.

These provisions will aim to prevent tenants asserting a prescriptive right to light against:

  • their own landlords where the landlord owns adjoining land over which the tenant is asserting a right to light;
  • third parties if the adjoining land is owned by such third party; and
  • their landlord's other tenants.

The reason for needing such preventative wording is because, just as freehold owners of land or landlords can acquire rights to light under section 3 of the Prescription Act 1832 (the "1832 Act") (ie by 20 years of uninterrupted enjoyment of light before any court proceedings are issued), tenants also have the ability, in certain circumstances, to claim prescriptive rights to light under the 1832 Act over the land that surrounds their demise. 

The potential claim of a tenant's prescriptive right to light can have significant effects on a development scheme, in terms of both delay to the development timetable and often with substantial associated legal and surveyors fees being incurred. In order to prevent tenants' prescriptive rights potentially affecting future development plans, it is therefore important for developer landlords to ensure that any well-drawn leases granted to tenants should contain some (preferably all) of the following example provisions which are aimed at preventing such rights arising in the first place:

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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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Light Obstruction Notices: Part of the Developer’s toolkit?

Author: Julia Tobbell, Senior Associate, Real Estate Dispute Resolution, London

Rights to light have had a fair deal of attention in development circles recently, with the state of play post-Coventry v Lawrence somewhat uncertain.  One potential weapon in the developer's armoury against rights to light claims is the light obstruction notice ("LON"). 

The purpose of a LON is to provide a notional obstruction to a dominant owner's right to light, thus removing the need to erect a physical obstruction.  It was introduced by the Rights to Light Act 1959 and removed the need for physical 'spite screens' which had become common practice.    In certain circumstances, it can have the effect of stopping the dominant owner from enjoying a right to light.  A LON is valid for one year from when it is registered, after which time it expires automatically. 

LONs are most commonly encountered where prescriptive rights are in issue, although in theory they can be deployed where light is enjoyed by some other means, such as lost modern grant or express grant.

In the prescriptive rights context, there are four main scenarios when a LON is registered against the dominant owner's title, as follows:

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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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