Compulsory purchase and compensation expert joins Walton & Co

Leading specialist in compulsory purchase and compensation matters, Phil Maude has recently joined Walton & Co to complement the firm’s service offering.

With over 40 years providing strategic and operational advice in the planning sector and more recently in the field of compulsory purchase and compensation, Phil’s expertise is far-reaching.

He has worked on a number of high profile cases across the country including the leading compensation case on the Olympic site.  Having regularly acted for both claimants and acquiring authorities, Phil is an expert on compensation claims with extensive experience of taking cases through the Upper Tribunal and mediation.

“We are thrilled to have Phil on board. Not only does his joining expand our industry offering to current and future clients, but he will provide a mentoring role for our wider team, said Walton & Co Managing Principal, David Walton.

Maude says “I am delighted to be assisting David and his team advising clients in this specialist field.”

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Where There’s Muck There’s Brass

Thus concluded an article from The Economist dated February 4th 2017 entitled “From pigsties to prime locations”.  The article highlighted the now well known change in the planning regime which allows for the alteration of a range of agricultural structures to dwellings with the need for only ‘prior approval’ from the Local Planning Authority (LPA) rather than full planning permission.

The relaxation has proved fertile ground for redevelopment proposals. However, the devil is in the detail.  The permitted development allowed is constrained as ever by a number of limitations which have been the subject of a number of appeal cases.  In making alterations to buildings, Class Q of the GPDO only allows for building operations to be undertaken ‘to the extent necessary for the building to function as a dwelling house’.

Planning Policy Guidance emphasises that it is not the intention of permitted development rights to include the construction of new structural elements for the building. In practice therefore a structural survey will almost always be needed to demonstrate that the existing building is capable of accommodating the works proposed.  The presentation of the case to the LPA will therefore be important to a successful application for prior approval.

 

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Judicial Review Reform

Following on from our last blog post, with effect from 1 July 2013 the time period for bringing a judicial review (JR) in respect of decisions under the planning acts has been reduced from three months to six weeks after the grounds to make the claim first arose (usually the grant of planning permission).

In addition, where permission to proceed with a JR has been refused and “recorded as totally without merit”, the claimant will not be able to have the decision reconsidered through an oral hearing.  Any appeal to the Court of Appeal of that decision will also be considered on the papers alone without an oral hearing.

The change to the time peiod only applies to decisions where the grounds of claim arose on or after 1 July 2013.  In addition, the changes regarding oral hearings do not apply to claims for JR where the claim form was filed before 1 July 2013.

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Reform of Judicial Review

Last year the Government consulted on proposed reforms of Judicial Review (JR).  The proposals were drive by concern about the use of JR to delay and frustrate plans for growth.

The Government published its response to the Consultation in April.  Whilst this acknowledges that the majority of responses were opposed to the reforms, the Government has decided to press ahead with most of them in any event.

The most significant reform in terms of planning is the decision to apply a six week time limit for bringing a JR to all proceedings relating to a decision whether or not to grant planning permission under the various planning acts.  The current rules require proceedings to be issued promptly and in any event within three months of the grounds giving rise to the claim. 

In addition, the Government will introduce a fee for an oral renewal (a hearing to reconsider an application to bring a JR where permission has been refused on the papers).  More significantly, the Government will also remove the right to an oral renewal where permission to proceed with the JR has been refused on the papers on the basis that claim is totally without merit.

The changes require the Civil Procedure Rules Committee to amend the Civil Procedure Rules and the Master of the Rolls to amend the Pre-Action Protocol on Judicial Review.  Some secondary legislation is also required to deal with the new fee.  The changes should be introduced later this year.

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Growth and Infrastructure Act 2013 – Section 106, Affordable Housing and Viability

Our last blog post briefly outlined the Growth and Infrastructure Act 2013, which received Royal Assent on 25th April 2013.

One provision of the Act which has come into force immediately is section 7, which inserts new provisions 106BA, 106BB and 106BC into the Town and Country Planning Act 1990.  These provisions enable an application to be made to a local planning authority for the modification or discharge of a section 106 planning obligation relating to affordable housing on grounds of economic viability.  If an application is refused or not determined within the required period then there is a right of appeal to the Secretary of State.

The aim of the provisions is to encourage stalled sites to come forward where “unrealistic section 106 agreements negotiated in differing economic conditions” are proving to be an obstacle.  The new provisions will be repealed at the end of 30 April 2016 unless the Secretary of State amends the date by order.  There is therefore an initial three year ‘window’ for applications to be made under these provisions.

The Department for Communities and Local Government has published Guidance explaining the evidence which may be required to support applications and appeals under the new provisions.  The Guidance can be accessed here https://www.gov.uk/government/publications/section-106-affordable-housing-requirements-review-and-appeal .

Section 2 of the Guidance explains the ‘Viability Test’.  This is that “the evidence indicates that the current cost of building out the entire site (at today’s prices) is at a level that would enable the developer to sell all the market units on the site (in today’s market) at a rate of build out evidenced by the developer, and make a competitive return to a willing developer and a willing landowner”.  Section 2 also says that the developer should propose a viable level of affordable housing provision in the alternative and this may include adjustments to the mix and provision for phasing.  The developer will have to submit clear, up-to-date and appropriate evidence in support of their application and this will usually mean an open book review of the original viability appraisal (that (if any) which is the most recently agreed by the local planning authority and the developer).

Section 3 of the Guidance explains the form the viability evidence should take.  In most cases this will be a review of the original viability appraisal at the time planning permission was granted.  The revised appraisal should be based on current market conditions.  The local planning authority may undertake its own viability appraisal in response to an application and this can be used on appeal.

Section 4 of the Guidance deals with delivery.  This explains that revised affordable housing obligations should incentivise developers to start building.  On appeal this means that any modification allowed by an Inspector is valid for 3 years only.  If the development is not completed within 3 years, the original affordable housing requirement will apply to those parts of the scheme not commenced.  Paragraph 24 says that “Local Planning Authorities may wish to make similar time-limited modifications or conditions when considering an application….”

Annex A of the Guidance identifies key variables which may be relevant to a reassessment of viability.  Clear evidence will need to show that there have been changes in the original assumptions on matters such as land value, promotional costs, abnormal costs, building costs, gross development value etc.  The Guidance acknowledges that an acceptable developer’s return varies significantly between projects and any changed assumptions in this regard will need to be justified and evidenced from comparable schemes or data sources.

Annex B of the Guidance explains the procedures for applications and appeals in more detail.  There is no prescribed form for an application but it should include sufficient details to identify the land as well as a status report on the progress of development and a copy of the original Section 106 agreement.  In all cases evidence that the scheme is unviable with the existing affordable housing requirement must be submitted together with a proposal for a viable alternative.  The LPA has 28 days to determine the application unless a longer period is agreed in writing.

The Government expects to consult on a legislative procedure for appeals shortly but an interim procedure is set out in the meantime.  It is anticipated that most appeals will be determined using the written representations procedure.  Evidence will need to be submitted within two weeks of the appeal start date.  The Planning Inspectorate will have 28 days to issue a decision following receipt of all written representations.

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Growth and Infrastructure Act 2013

The Growth and Infrastructure Act 2013 received Royal Assent on 25th April 2013.  The Act includes various measures aimed at promoting growth and facilitating the delivery of infrastructure.  These include:

  • an option to make planning applications directly to the Secretary of State when a local planning authority has been designated as under-performing.
  • broadening the powers of the Secretary of State to award costs in relation to planning appeals.
  • limits on the information local planning authorities can require as part of a planning application
  • allowing for the reconsideration of section 106 obligations relating to affordable housing on the grounds of economic viability.
  • limitations to the ability to use an application to register land as a town or vilage green in order to frustrate development.
  • allowing the stopping up or diversion of highways and public paths under the TCPA 1990 to commence before planning permission has been granted.
  • enabling the Secretary of State to direct that business and commercial projects of national significance can be considered under the nationally significant infrastructure regime under the Planning Act 2008 in order to speed up the determination of such applications.

The Act will come into force in phases with certain provisions (such as those relating to s.106 and affordable housing) coming into effect immediately. Other provisions (such as those relating to the stopping up or diversion of highways) will come into force two months later and the remaining provisions will be brought into force by a statutory instrument in due course.

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Revocation of the Regional Strategy for the South East

The Government has published the Order which will revoke the Regional Strategy for the South East (RSSE). The Order will come into force on 25th March 2013 when the RSSE will be revoked with the exception of Policy NRM6 which relates to the Thames Basin Heaths Special Protection Area.

There is also a partial revocation of previous directions preserving certain Structure Plan policies within the South East Region. The exception is Policy H2 of the Oxfordshire Structure Plan 2016 (relating to Upper Heyford) which is preserved.

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