Fieldfisher's Planning and Infrastructure team roundup 2024

Fast tracking

On 9 December Angela Rayner announced plans to fast track the planning decisions.

A Planning Reform Working Paper issued on the same day is in consultation. It proposes three possible options, designed to facilitate faster delivery of the quality homes and places that our communities need, by bringing greater standardisation over the operation of committees, in turn to give greater certainty to applicants. 1. a national scheme of delegation; 2. dedicated committees for strategic development; and 3. training for committee members. There are 3 options under the proposed delegated scheme. Option 1, Delegation where an application complies with development plan; option 2, delegation as default with exceptions for departures from the development plan; and option 3 Delegation as default with a prescriptive list of exceptions.

Revised NPPF

On 12 December 20204 the Government published its changes to the National Planning Policy Framework (NPPF). There are a number of significant changes, the highest profile of which is that the new NPPF formally introduces the "grey belt" concept within the existing "green belt". Will it enable more development to take place in the green belt (which covers 12.6 % of England). The key points are set out below.

The new NPPF defines grey belt as: "For the purposes of plan-making and decision-making, ‘grey belt’ is defined as land in the Green Belt comprising previously developed land and/or any other land that, in either case, does not strongly contribute to any of purposes (a), (b), or (d) in paragraph 143.)".It excludes land that is specifically designated such as National Landscapes and SSIS.

As a reminder the relevant purposes of the green belt are:

a) to check the unrestricted sprawl of large built-up areas;

b) to prevent neighbouring towns merging into one another;

c) to preserve the setting and special character of historic towns.

The purpose of assisting in safeguarding the countryside from encroachment is not relevant in this context.

The references to "any other parcels and/or areas of Green Belt land that make a limited contribution to the five Green Belt purposes" includes undeveloped land as well as previously developed land. So, provided the proposed development is on land that makes a limited contribution to the five green belt purposes it will be considered grey belt.

The new NPPF contains a new paragraph 155 which states: "The development of homes, commercial and other development in the Green Belt should also not be regarded as inappropriate where:

a) The development would utilise grey belt land and would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan;

b) There is a demonstrable unmet need for the type of development proposed (such as the lack of a five year);

c) The development would be in a sustainable location, with particular reference to paragraphs 110 and 115 of this Framework;

d) Where applicable the development proposed meets the ‘Golden Rules’ requirements set out in paragraphs 156-157 below".

The first of the Golden Rules relates to affordable housing. The Government has dropped the proposed requirement in the draft NPPF that 50% the housing should be affordable housing with an appropriate proportion of social rent housing. Until the local plan is updated in accordance with the NPPF the level of affordable housing is 15% above the highest existing affordable housing requirement which would otherwise apply to the development, subject to a cap of 50%.

So, development on grey belt land would not need to satisfy the "very special circumstances test" to secure consent for development in the green belt. As a result, any development that satisfies the proposed policy tests will be permitted. This will undoubtedly free up land within the green belt for development. As ever with planning policy there is scope for interpretation and tests to be satisfied so it is not completely straightforward. Nevertheless, there is a route to securing consent for development within the green belt.

Viability

The Viability guidance was also updated yesterday in line with the new NPPF which introduces several key changes. The changes aim to create more transparent, consistent, and fair viability assessments, supporting sustainable and deliverable development plans.

Plan Making and Decision Taking: viability assessments should primarily occur at the plan-making stage, ensuring policies are realistic and deliverable without compromising sustainable development.

Standardised Inputs: this includes existing use value (EUV) plus a premium for the landowner, rather than the price paid for the site.

Affordable Housing: where a contribution is paid policies should clearly identify the figure rather than a range to ensure certainty and facilitate accurate land pricing.

The government will review the viability Planning Practice Guidance in the new year, considering circumstances for site-specific viability assessments.

These changes will take effect immediately and will provide certainty, but it is inevitable that a large number of land deals may need to be renegotiated.

R (Dennis) v London Borough of Southwark [2024] EWHC

Just as we were getting to grips with Hillside, the Court of Appeal gave judgment on Dennis.

In Dennis, outline permission was granted for a phased redevelopment and regeneration scheme. A drop in detailed application was made for one of the early phases. The application would be inconsistent with the outline permission and so, following Hillside, would render the remaining phases unable to be lawfully built under the outline. This was unless it was concluded that this phase could be "severed" from the outline permission. The strategy pursued by the developer and local authority involved using a s96A application to simply insert “severable” into the description of development, coupled with the assertion that the outline permission, being phased, was always “severable. The court concluded that the outline permission was not severable and that it could not be made severable by simply inserting the word “severable” into the description of development.

Practical implications of Dennis in terms of amending schemes through 'drop-in' permissions are as follows:

• 'Drop-in' permissions for developments being built out in accordance with an existing permission are lawful provided the 'drop-in' permission does not render it 'physically impossible' to carry out the existing permission.
• Phasing alone is not sufficient to render a planning permission severable.

Full and outline planning permissions cannot be considered severable unless there is an express provision in the permission ("expressly unequivocally").

BNG

The 2021 Environment Act requires applicants to measure the existing and proposed biodiversity values of their site before any development begins where applications were validated after 12 February. We have worked with a number of clients agreeing measures for on-site and off-site provision, advising on Brokerage Agreement, Unit Purchase Agreements, Conservation Covenants and S106 Agreements for off-site units. We have resisted the need to provide additional security and advised on the nature of the biodiversity overall plan in accordance with Schedule 7A of the Town and County Planning Act.

Enforcement time limits

As of April 25, 2024, all new breaches of planning control must exist for 10 years before they are immune from enforcement action. This is an increase from the previous 4-year rule. However, there are transitional provisions for breaches that were substantially completed before April 25, 2024

Temporary stop notices

The duration of temporary stop notices has increased from 28 to 56 days. This extension does not apply to notices issued before April 25, 2024.

Conclusion

In conclusion, 2024 has been a transformative year in planning law, marked by significant government proposals, the introduction of biodiversity net gain (BNG) measures, and landmark decisions that have shaped our field. As we look forward to 2025, we anticipate another year of dynamic changes with new legislation and policy updates. Stay tuned as we continue to navigate and adapt to these developments, ensuring we remain at the forefront of planning law.

The Fieldfisher Planning, Infrastructure, and Environment team is a comprehensive national practice operating across their London, Birmingham, and Manchester offices. This specialist team offers advice on all aspects of planning, highways, and environmental consenting regime.