Update: planning

Community infrastructure levy

Against expectations, the community infrastructure levy (CIL) has been retained by the coalition government, with draft amendment regulations now published.

The main amendments to CIL allow councils to set up their own flexible payment deadlines and offer developers the option to pay CIL via instalments, while also removing the £50,000 minimum threshold for payments in kind. These regulations are due to come into effect on 6 April.

Councils are encouraged to resume or continue work towards adopting a CIL charging schedule, as section 106 agreements cannot be used to secure infrastructure after April 2014 except in very narrow and prescribed circumstances.

New homes bonus

The new homes bonus (NHB) final scheme design has now been published. The government states that almost £1bn has been set aside for the scheme, being spread over the next four years.

NHB works by match funding the additional council tax raised for new homes and properties brought back into use, within an additional amount for affordable homes, for a period of six years. The DCLG website hosts a NHB calculator for an indication of the bonus to be allocated.

The NHB raises interesting questions about the role of financial incentives in the planning system. The established position is that financial or other contributions not arising directly from a development cannot be taken into account when determining planning applications. The government has been at pains to make clear that NHB does not, nor is it intended to, replace or override the existing framework for making planning decisions. However, it also intends NHB to encourage more housing and to create an environment in which new housing is more readily accepted.

In the absence of clear guidance from government on this apparent contradiction, it may be left to the courts to decide if NHB is to be regarded as a material consideration in the planning system.

NHB is to commence in April. However, a letter from the secretary of state to all chief planning officers of 10 November 2010 confirms that all homes delivered from that date would be rewarded under the scheme.

Revocation of regional strategies

In November last year, Cala Homes applied successfully to the High Court to have the government's attempt to revoke regional strategies (the strategic element of the statutory development plan) quashed.

The effect of that decision was to reinstate regional strategies as part of the statutory development plan.

The government's response was swift and unrepentant. It confirmed that revocation would be effected through the localism bill.

It also issued guidance to local authorities and planning inspectors advising them that the intention to revoke the regional strategies was a material consideration to which they should have regard when deciding planning applications.

Cala Homes returned to the High Court arguing that the government's guidance was itself unlawful as its purpose was to subvert the supremacy of the development plan, something that could only be done through primary legislation. It was also argued that the government's position was irrational, given the uncertainty created by the first Cala decision. Finally, Cala argued that the guidance should have been subject to strategic environmental assessment (SEA).

Lindblom J rejected Cala's claim ([2011] EWHC 97 (Admin)). The judge drew a distinction between materiality and weight. The question of materiality was one for the court, the weight to be given to that material consideration was a matter for the planning decision maker.

Lindblom J held that the government's guidance did not seek to subvert the development plan process nor was it irrational of the government to draw attention to its legislative intentions. The intention to revoke was therefore a material consideration to which the decision maker could give as much or as little weight as he thought appropriate in the circumstances.

On the SEA point, Lindblom J held that the guidance did not constitute a 'plan or programme' for the purposes of the relevant regulations.

Although Cala was unsuccessful in this challenge, the court was clear that the regional strategies remained part of the development plan until revoked by primary legislation. A number of recent planning appeal decisions indicate that planning inspectors continue to give significant weight to the regional strategies.

However, as the localism bill makes its way through Westminster and revocation draws ever nearer '“ current estimates are for the bill to be enacted in spring 2012 '“ then we can expect to see less weight being given to regional strategies. This uncertainty is clearly less than ideal for what is meant to be a plan led planning system. As the Communities & Local Government Select Committee commented last week, 'the peremptory abolition of regional strategies has created a hiatus in the planning framework, which risks producing a damaging inertia'.

Land auctioning

A proposal to introduce a land auction system to alter the way planning permission is granted seems to be gathering some pace. The idea was first canvassed a few years ago and supporters consider it to be a key means of promoting development and delivering housing.

Under the proposal, landowners in the area can 'offer' their land for development for a fixed price. The result being that the local council can call for sale of that land at that price. Once the extent of landowner interest in the area is established, the council will carry out a local plan style exercise to decide which land should be developed and for what purpose. It can then invite bids from developers for the various parcels of land put forward and, effectively, force the sale by a landowner to the developer. The difference in price between what the landowner is willing to sell at and what the developer has offered to purchase at will be a profit kept by the council.

This is an extremely novel approach to planning which has been devised from the experience of the government when auctioning off 3G mobile licences.

While this might sound an attractive way of streamlining planning, there will be a number of factors which will need tobe considered should a scheme of this nature be pursued. For instance, what happens if none of the land put forward is suitable for development and the most appropriate land for, say, housing withheld? Do landowners suggest different prices for different potential uses? How will the local plan style exercise be undertaken; will it be confined to only those sites put forward and if so how does that really offer a holistic approach to planning for the area?

One of the features of the proposal is that no section 106 agreements or other payments will be required. It is difficult to see how that can that be justified when direct effects of development arise in relation to a particular site which need to be dealt with or contributions made towards infrastructure, perhaps by a landowner on an adjoining site, which equally should apply to the development site.

Given that the council is privy to the offers made by both the landowner and developer and that it will directly profit from the disposal of the land, it is difficult to see how it will avoid allegations of bias and ensure that it is seen to be acting in the interests of proper planning rather than to secure the greatest return.

We know that when a council is involved both as local planning authority and as a body that benefits from a permission (such as when they are also landowner) then it needs to tread very carefully to ensure that what it is doing is seen to be open and fair and reasonable. The concept of land auctioning, while it may well help facilitate development, could just be a step too far.

Village green risk

The most potent weapon available to objectors to development at present is the making of an application to register the development site as a town or village green under section 15 of the Commons Act 2006, based on 20 years use for informal recreation.

Registration makes development unlawful, there is no compensation for the extinguishment of development value and it is impossible to get land de-registered unless there is suitable replacement land. The lack of compensation makes it a remarkable exception to the respect which English law usually affords to property owners.

The courts and parliament have repeatedly eroded the strictness of the different elements of the legal test, giving encouragement to more and more applications. It is no exaggeration to say that the current situation is out of control, with the integrity of the planning system under substantial attack as the appropriate arbiter of the overall public interest.

One perverse result is that landowners who would otherwise be content to allow their land to be used informally for walking and other recreation are stopping such use on a scale which far exceeds the amount of land being 'protected' by registration.

The case of Barratt Homes v Spooner [2011] EWHC 290 (QB) is a rare example of the courts helping landowners and developers, though it is restricted to land owned, or formerly owned, by local authorities.

Planning permission for a housing development was granted by Monmouthshire County Council in 2007. The council owned the land which is known as Merton Green. Before selling the land to Barratts, they appropriated the land for planning purposes under section 241 of the Town and Country Planning Act 1990, and an identical permission was granted.

Having threatened to do so in 2008, local residents applied for village green registration of the site in 2009, which went to a public inquiry in late 2010. The inspector recommended registration. Barratts then went to court to seek a declaration that if the land were registered the effect of appropriation under section 241 would be that registration would not prevent construction and normal use of the housing development. The court has agreed.

There is a good chance the case will be appealed, but for now it is an important case assisting development schemes overcome village green risk where council land is involved. Despite this assistance, the wider problem remains.

If the government is serious about using development to help lift the country out of recession it should urgently revisitsection 15 of the Commons Act to bring the current village green NIMBY circus to an end.