We are just under a week away from the close of the Planning for the Future consultation. In between the rush to finish your consultation responses, headlines about Brexit, and general enthusiasm about Halloween,* you may be forgiven for having taken your eye off the planning news for a week or two.
If so, this post is for you. As we are about to quickly re-cap on some of the more note-worthy events of the last few weeks:
1. CIL & First Homes
On 5 October, a second set of CIL amendment regulations were placed before parliament. The Regulations, which will come into effect on 16 November 2020, add a new mandatory relief into the CIL Regulations.
The new mandatory relief applies to:
- dwellings sold at a 30% discount on market value;
- which are subject to a s.106 agreement ensuring that the discount applies to all subsequent sales of the property.
This is intended to cover First Homes, which are expected to come into existence/ onto the statute books shortly.
A new discretionary relief is also being introduced in the same regulations, which applies to:
- dwellings sold at a 20% discount on market value; that
- are sold in accordance with a policy adopted by the Council; and
- that are either subject to a s.106 agreement ensuring that the discount applies to all subsequent sales of the property; OR where the obligation to pay CIL for the dwelling is not being passed on to later purchasers.
Provided that the s.106 agreements are in place prior to first sale, then the clawback periods for both of these new reliefs is limited to the period between the relief being granted and the first sale of the property.
2. Court of Appeal Decision on Planning Conditions
Last week, the Court of Appeal handed down its judgment in DB Symmetry Ltd v Swindon Borough Council & Anor  EWCA Civ 1331. The full case report can be accessed here.**
The key take away from the Judgment is probably best summed up in the following extract from the Judgment of Lord Justice Lewison.
" 52. I consider that, at least at this level in the judicial hierarchy, a condition that requires a developer to dedicate land which he owns as a public highway without compensation would be an unlawful condition. Whether the unlawfulness is characterised as the condition being outside the scope of the power because it requires the grant of rights over land rather than merely regulating the use of land; or whether it is a misuse of a power to achieve an objective that the power was not designed to secure; whether it is irrational in the public law sense, or whether it is disproportionate does not seem to me to matter. In my judgment Hall establishes a recognised principle which is binding on this court.
- If (as is likely to be the case in this appeal) the condition cannot be severed from the grant of planning permission the consequence would be, as in Hall itself, that the planning permission cannot stand either."
The reference to "this level in the judicial hierarchy" is an interesting one. We have yet to hear whether the Council intends to appeal the decision further.
3. Ageism alleged to be alive and well at a Local Planning Authority.
As reported in Planning Resource (here), earlier this week there was, what is probably best described as a profound disagreement between a retirement living provider and Elmbridge Borough Council. The disagreement centred on a town centre scheme for 222 units of specialist accommodation for the elderly, which the Council recommended for refusal on grounds which included:
- The proposed development fails to make efficient use of land by providing the type of elderly accommodation for which there is no short or medium term need, despite the acute significant unmet housing need, specifically the C3 Use Class accommodation and the affordable housing, in the area with the lack of land available for development to meet its housing needs ; and
- The application fails to support diversity in the town centre, it fails to add to the centre’s competitiveness and would undermine the vitality and viability of [the] town centre.
The first of these grounds is particularly problematic, for two reasons:
- Only two years ago the Planning Inspectorate had found that there was an 'urgent and growing' need for elderly persons' accommodation in Elmbridge; and
- when the ground for refusal is read in full, it seems that the main objection to the scheme is that it is providing specialist accommodation for the elderly - rather than standard market housing. An objection primarily grounded in the identity of the residents.
It is this second point which has led both the developer and a number of local charities to accuse the Council of apparent age discrimination .
The Council refused the application at committee on 20 October and the developer has already confirmed that they are planning to appeal. On appeal, the Council will have to provide evidence to support it's case that it "has an overprovision" of the type of care provided and that such schemes would 'undermine the vitality and viability of the town centre". As such, this could very much be an appeal to watch.
4. MHCLG releases new guidance for supported housing
Finally, yesterday MHCLG released new guidance for provision and commissioning of supported accommodation, which can be accessed in full here.
The 'National Statement of Expectations' sets out guidance and examples of best practice on everything from evidencing local need to standards of accommodation. It is expressly both non-statutory and non-regulatory, but is definitely worth a read for those in the sector.
* a holiday that is being vetoed in our household - 2020 has been quite terrifying enough already.
** Although there is an excellent case report on Planning Resource, which can be found here, if you are short on time
These Regulations amend the 2010 Regulations to add a sixth condition to regulation 49 (regulation 4). In order to be a qualifying dwelling by virtue of this condition, the first sale of the dwelling must be for no more than 70% of the dwelling’s market value. In addition, a planning obligation under section 106 of the Town and Country Planning Act 1990 must have been entered into designed to ensure that any subsequent sale of the dwelling is for no more than 70% of its market value. These Regulations also make amendments to the discretionary social housing relief under regulation 49A of the 2010 Regulations (regulation 5).