Updates, Omissions & Announcements: There is never a dull moment in planning!
Well, Autumn is definitely here. The weather has taken a turn for the worse, Christmas treats have begun appearing in the supermarkets*, and barely a day goes by without yet another headline, news story or policy announcement.
This post is a poor attempt at summarising some of the main planning stories of the last few days. I am ignoring Rishi Sunak's speech, as Claire will be covering that far more eloquently than I ever could.
Before we get to the news, however, I need to take a brief detour...
Hillside, Severable Permissions & s.106 Agreements
Last weekend, I gave a paper on the practical implications of Hillside to the Joint Planning Law Conference in Oxford. That paper has a hole in it. An omission pointed out to me in the Q&A session by Sue Bridge. It says nothing about how creating a deliberately severable permission might impact on the s.106 Agreement for that site. The first part of this blog is an attempt to correct that oversight.**
S.106 Agreements are remarkably adaptable and flexible documents.
Provided that you:
- remain within the scope of s.106 TCPA (or include the relevant enabling powers for those occasions where you are straying outside of it); and
- ensure that the relevant obligations and covenants comply with reg.122 of the CIL regulations
Then you can tailor the structure and content of the agreement to suit both the aspirations of the parties, the development that you are bringing forward, and its ultimate disposal strategy.
As a result, it is not unusual for the s.106 Agreement for a large, phased, planning permission to:
- phase the delivery of the planning obligations within it.
- ringfence the applicability of specific obligations to specific parts of the site; and
- when the final unit numbers or floorspace areas are not known, to calculate the financial obligations by reference to a formula based on the number of approved dwellings or floorspace in the RMA for the relevant phase of a development.
Similarly, the boiler plate provisions to the vast majority of s.106 Agreements will normally tie the covenants and obligations within them to a specific planning permission (and, in some circumstances, subsequent s.73 permissions made to it).
In short it is perfectly possible to effectively phase the obligations in a s.106 Agreement to match the phasing of the planning permission to which it relates.
Given that there is no legal power or obligation that requires a developer to build out the entirety of a planning permission; whether the relevant planning permission is severable, or not, doesn't really change things when it comes to the s.106 Agreement.
Everything you have developed out under the original permission will be caught by the original s.106 Agreement. If you have hit a trigger point for a relevant obligation, the obligation will need to be complied with. If you have not, then it won't.
The later drop in permissions will either require:
- their own s.106 Agreements, which will need to be drafted in the light of the existing agreements that relate to the site (and which could include a release from the earlier agreement, if required); or
- A deed of variation to the original s.106 agreement that ties the drop in permission into that agreement and makes any adjustments that you might need to its terms.
In either case any reconciliations that need to be made in financial contributions or other obligations can be picked up in the later agreement.
Which route you take will depend on the situation. However neither of them is new or novel. This is how we dealt with drop-in applications before the Hillside decision came out. It is equally applicable to severable permissions in this brave new post Hillside world.
Sue, I hope that answers your question!
And now, the news.
LURB finds a way
The Levelling-Up & Regeneration Bill is finally out of Report stage in the Lords and is on its way back to the Commons to begin the final stage of consideration. A inter-parliament back and forth, commonly known as 'ping pong'.
The latest version of the Bill can be found here.
I think it is safe to say that the Lords have flexed their muscles on this one. A large number of notable changes have been made to the bill.
- Changes to ensure that LPAs don't *have* to adopt the infrastructure levy if doing so will undermine the viability of development in their area;
- Amendments requiring greater parliamentary scrutiny of National Development Management Policies;
- Changes promoting the delivery of healthy homes and neighbourhoods;
- Amendments bolstering our climate change obligations and overturning the current policy objections to onshore wind; and
- Amendments requiring local planning authorities to eliminate homelessness in their areas within a reasonable period.
There is certainly a lot to unpack and it will be fascinating to see how many of the amendments survive ping-pong.
We will be preparing a tracked change version later today, drop me a line if you want to see it.
DLUHC has also snuck out an update on the timetable for Royal Assent. Hidden at the bottom of Wednesday's announcement on nutrient neutrality (see below) was the following statement:
The Levelling Up and Regeneration Bill will shortly enter its final stages in the House of Lords, and the government is aiming to secure Royal Assent before the King’s Speech on 7 November 2023
Nutrient neutrality is back in neutral
This week also saw the first announcement from the Government on nutrient neutrality since *that* amendment was voted down in the Lords.
The key sections of the announcement are reproduced below. In summary however, whilst the problem is still firmly on the Government's agenda, it looks as if nutrient neutrality is here to stay for at least a little while longer.
"Nutrient neutrality, the delays it is causing to housing delivery, and the wider need to restore our waterways remains a government priority, and the government will make further announcement about next steps in due course.
In the near term, it is important that planning decision-making continues in the areas affected on the basis of the current legal framework – meaning that where mitigation is available, local authorities and developers should seek to progress sites. Natural England will continue to deliver the existing Nutrient Mitigation Scheme in line with the Environment Secretary’s direction of 28 July 2022. Further details about plans for government’s support for mitigation schemes led by local authorities and private organisations, including next steps on the DLUHC’s Local Nutrient Mitigation Fund will be set out shortly.
The new duty on water companies to upgrade wastewater treatment works in designated areas by 2030 – and the requirement for developers and local authorities to consider these as certain for the purposes of an assessment under the Habitats Regulations – remain in the Levelling Up and Regeneration Bill. These will significantly reduce the average costs of nutrient mitigation when designations are made, and a list of treatment works to be upgraded will be published within 3 months of Royal Assent. The House of Lords also accepted several additional government amendments which seek to provide a greater level of flexibility in how water companies reduce nutrient pollution across affected catchments, with the aim of maximising benefits for the environment while minimising costs on water bill payers.
NPPF Reforms revisited
We also have a timeline for the Government's response to the NPPF consultation published last December.
Yesterday, DLUHC belatedly published a partial response to the NPPF consultation that was published last December.
The response only deals with the changes to policy on onshore wind, which were announced last week, however it does contain the following statement:
"A further government response will accompany the changes to national planning policy set out in this consultation following Royal Assent of the Levelling-up and Regeneration Bill.
In short, we shouldn't expect the response to the December 2022 NPPF Consultation before November 2023 at the absolute earliest...
Interventions & Inactivity
And finally, in a flurry of announcements that have come at whiplash inducing speed, the last couple of weeks have seen:
- The Levelling-Up, Housing and Communities Select Committee heavily criticising DLUHC for the length of time the department takes to respond to the select committee's reports. According to the report (which can be found here) parliamentary convention states that Select Committee reports should be responded to within two months. However according to the report "the Government responses that" [the Select Committee] "have received to our reports have been 5.8 months late on average in this Session. In one extreme case, we received the Department’s response to our Permitted Development Rights Report (published in July 2021) 20 months later than the two-month deadline." It may be cold comfort to the Select Committee, but those of us who regularly respond to DLUHC consultations know exactly how they feel....
- News that DLUHC has issued seven modifications to a series of Article 4 Directions restricting permitted development rights in the London Boroughs of Barking and Dagenham, and Bromley.
- Confirmation that DLUHC intends to intervene at Birmingham City Council following the Council issuing a s.114 Notice earlier in the month; and
- News that the Housing Minister has intervened in Spelthorne Council's local plan process by issuing a direction preventing the Council from withdrawing its local plan and ordering local officials to report to her with updates on a monthly basis. Spelthorne has now responded. The Council's response lays the blame for their current situation firmly at the feet of the government. Providing a timeline of contradictory policy announcements and reform proposals issued by this government, as evidence for that proposition. I thoroughly recommend reading the response. It is an absolute tour de force.
And all of this has happened in just the last ten working days!
I hope everyone has had a good summer, and invested in a working coffee machine, it looks as if we are in for an extremely busy Autumn.....
*far too early, but I do have a weakness for lebkuchen, so it is hard to be overly offended
** and also to establish the principle that I will, in fact, write blogs on request...
In the near term, it is important that planning decision-making continues in the areas affected on the basis of the current legal framework – meaning that where mitigation is available, local authorities and developers should seek to progress sites. Natural England will continue to deliver the existing Nutrient Mitigation Scheme in line with the Environment Secretary’s direction of 28 July 2022. Further details about plans for government’s support for mitigation schemes led by local authorities and private organisations, including next steps on the DLUHC’s Local Nutrient Mitigation Fund will be set out shortly.”