New rules on pre-commencement conditions

From 1 October 2018 new rules come into effect in England affecting the use of pre-commencement planning conditions. Architects, surveyors and small house builders in particular will need to be aware of the new procedures, as well as others involved in securing planning permission and in development.

Pre-commencement planning conditions have long been popular with councils keen to ensure further detail they want control over are submitted to them for approval.  Developers have complained the procedure stalls progress on development, especially when the matters the subject of the condition are not critical to the early stages of work on site, for example, why should ground preparation work be held up by a condition requiring details of the roofing material for a house.

New regulations* now require councils to seek the agreement of applicants to any pre-commencement conditions they think are necessary. In practice these may mostly be sorted out by informal agreement. Alternatively, there is a formal process which can be instigated.

The council can serve formal notice of its intent to impose a pre-commence condition and the applicant then has ten days, and no more, in which to respond. Failure to respond (in time) will be taken as acceptance of the condition. The other three options open to an applicant are

1. Provide written confirmation of agreement

2. Provide written comments, which will be a trigger a round of negotiation after which the council will need to serve a further notice, and so on until either an agreement or an impasse is reached, or

3. Provide written confirmation they do not agree.

In the event of no agreement being reached the council must then decide whether to

– Grant permission without the pre-commencement condition

– Seek written agreement with the applicant to an alternative form of words, or

– Refuse to grant permission.

The last point in particular is worth noting. Careful judgement will sometimes need to be exercised over how best to respond to the notice.

If in the short term it seems better to accept the condition to get the permission, it will still be possible to return later to seek to pursue an application without the condition. If this scenario seems likely then it is probably better to stay silent in response to the notice than to say something which appears to convey acceptance of it, because that could later be used against you.

You can find more information and guidance on the use of pre-commencement conditions as part of the government national planning practice guidance, via the following link:

https://www.gov.uk/guidance/use-of-planning-conditions#the-use-of-pre-commencement-conditions

 * The Neighbourhood Planning Act 2017 (Commencement No.5) Regulations 2018

Are you ready for permission in principle?

Are you ready for permission in principle?

A new type of planning application comes into effect in England from 1 June 2018.  It will be possible to submit an application to the local planning authority for ‘permission in principle’ for housing proposals. What is this and might it be of benefit to you?

It is a way of confirming whether a proposed small scale housing scheme is acceptable in principle before incurring the costs associated with the preparation of the detailed information that may be required to show the impacts of the scheme are also acceptable.

The government have created this new type of planning application to help improve the supply of new homes on small sites (fewer than 10 homes).  It is an alternative to submitting an application for ‘full planning permission’ or for ‘outline planning permission’.  It is a ‘lite’ version of an application for outline permission and if successful it must then be followed up with an application for ‘technical details consent’, which will be a lot like an application for approval of ‘reserved matters’.

Compared to the existing types of application, less information is required to support an application for permission in principle.  It will only need to be accompanied by a site location plan and a description of the development that covers both the use proposed and the amount of development. It can therefore be a cheaper option if the other two alternatives would require funds to be spent producing other information to accompany the application.

It will be useful in cases where

– there is an element of doubt about whether a proposal for small scale residential development, or the scale of a scheme, would or would not be acceptable in principle, and

– seeking to find this out via either of the other two options would incur costs you would rather avoid until you have more certainty on the acceptability in principle, and

– you want the certainty a formal permission will give you compared to an informal opinion from the Council in response to a request for pre-application advice.

How often the permission in principle route will be useful is hard to say. There are a number of things to bear in mind and two leading issues are

First, this is a completely new concept and no-one yet knows how local planning authorities will deal with an application with so little information. Will they take a positive approach or will they be more inclined to issue a refusal because, for them, that seems the less risky option?

Second, getting permission in principle will not guarantee getting consent for the technical details. Gritty issues may still need to be dealt with, from managing flood risk and safeguarding protected wildlife, to achieving safe means of access and avoiding undue loss of privacy for neighbours.

Further government guidance is expected which will give applicants and local authorities greater certainty over how this new system should operate.

Permission in principle is not expected to replace applications for full and outline permission, or requests for pre-application advice. Far from it. It may prove to be a relative rarity. But there will be some cases where it will provide a better alternative and it is therefore a useful addition to the developer’s tool box, even if you find you only need to use it every once in a long while.

More information on permission in principle can be found on the following websites

Planning guidance from Ministry of Housing, Communities and Local Government

The regulations are to be found in the Town and Country Planning (Permission in Principle) (Amendment) Order 2017

Permission to land?’, an article by Jamie McKie at law firm Dentons, provides a legal overview.

 

 

Liverpool City Council to consult on emerging local plan

Liverpool City’s emerging local plan is about to reach a key stage with critical implications for developers and landowners in the City, especially those with an interest in securing permission for alternative uses for their property now or in the future.

The City are about to publish for a six week consultation period the submission draft local plan. This is the version of the plan as the Council would hope to adopt it. In fact, it is likely to be subject to further change. After the consultation it must be submitted for independent examination by a Planning Inspector, who will consider both the Plan and any objections to it. The Inspector is likely to recommend a modification to the Plan if he considers an objection is justified.

Those parts of the submission draft plan to which there are no (substantive) objections and which align closely with national planning policy are more likely to remain as they are. It is national planning policy that such parts can be given more weight than other parts of the emerging plan, when making decisions on applications for planning permission. Therefore, if there are no objections to a policy then the council will feel justified in using such a policy to refuse planning permission or to grant permission subject to controls they could not otherwise impose.

For example, if the submission draft local plan continues to include a property in an area allocated for employment and if there are no objections to the relevant policy that does so, then the council are likely to feel they are in a stronger position to refuse any application for a non-conforming use, unless the application can meet any exception criteria the new policy may impose.

The consultation is both an opportunity to prevent or to tone down harmful policies and to promote sites for development in line with the aspirations of owners and developers.

If you are a landowner or developer whose investment may be affected by the emerging local plan then you need to consider now what you need to do to protect that investment. But it is not all bad news. The consultation may also be an opportunity to promote a site for a particular use or development.

The local plan consultation is scheduled to take place over February to March. The precise dates have yet to be formally announced. I do not expect they will vary significantly from the scheduled timetable. There is a strict deadline for the submission of comments. This is constrained by government regulations. Late material cannot be admitted. It may seem like a reasonable amount of time, especially as the consultation has not yet started, but it will go all too quickly.

St Helens delays new local plan

St Helens Council has announced it will not now publish its draft local plan until the summer of 2018.

The new plan will be the lead land use planning document for St Helens, once it is adopted. It will set out how much new development for housing, employment and retail will be needed in the Borough. It will also set out those policies against which individual planning applications for all types of development will be assessed.

The draft plan will be published for a final consultation before it is then sent to the Planning Inspectorate for independent examination. If it passes that then, depending on how long that process takes, the council may be in a position to adopt the plan in 2019.

The last version of the plan was the subject of a consultation exercise over last Christmas. Despite the timing more than 5,500 responses were submitted to the council from local residents, businesses and landowners. This alone will no doubt have generated a lot of work as the council reviews each and every one and considers whether and how to change the emerging plan in response, or why not to do so.

The delay though is due to factors beyond the council’s control. The government intends to introduce new national planning guidance in early 2018 that will change the way in which councils in England must calculate how much housing to plan for. The St Helens draft plan will be expected to follow this guidance. The additional work generated will further delay the publication of the draft plan.

When the plan is published for consultation next summer it will be the last chance to comment on it before it goes for independent examination. It will therefore be of interest to anyone with a property interest in the St Helens area, or who is thinking of investing in a development in that area or with an interest in how the area may change in the coming years.

For more information on the progress of the plan go to St Helens Council’s website, via this link [https://www.sthelens.gov.uk/localplan].

Battling barn conversion bureaucracy

It is supposed to be easier, in England, to get planning consent to create new homes out of agricultural buildings, even modern ones. But it may not always feel that way.

There are signs many local authorities are still putting high hurdles in the way of schemes. Recent research published in Planning reveals a picture they describe as showing that refusal rates remain stubbornly high. This is despite attempts by the government to relax planning rules with the intention of boosting the supply of new homes in rural areas.

The new rules were supposed to streamline the process, remove some of the uncertainty and lighten the burden on developers. Known as ‘prior approval’, the conversion is considered to be acceptable in principle, provided certain conditions are met and subject to the prior approval of certain details by the local district or unitary council. Given the usual difficulty in trying to secure planning permission for new homes in rural locations, the up-front acceptability in principle looks promising. However, many schemes are coming unstuck when the council say the scheme does not meet the conditions or they refuse to grant prior approval because of a problem with one of the details for which prior approval is required.

In part this may be down to council’s continuing to take a tough stance on anything that involves more homes in rural locations. In part it may also be down to a lack of appreciation by applicants and their agents of what is needed to meet the relevant conditions and to secure prior approval for the specified details. The most common reasons given by councils for refusing prior approval relate to location and siting, structural integrity, that the site was not last used for agriculture and curtilage related issues.

It is easier to get consent for a conversion than it used to be, but not every site and not every building will be suitable. To know if you have a good prospect and if so then how to navigate it with the minimum of fuss through the planning process requires you to do your home work, to prepare properly. Time to get some good town planning advice?

‘Barn conversions – the latest picture’, Planning, 3 November 2017, page 16

Planning application fees to rise by 20%

The fee to be paid to a local authority when a planning application is made is due to go up shortly.

The government announced some months back its intention to raise planning application fees in England. Initially the rise was expected back in July but it was delayed by the general election.

The government have now published the required draft regulations, which must be laid before Parliament before the change can be introduced. The change will affect the fees for all types of application, not just those for applications for planning permission. They will affect all types of development which are currently subject to a planning application fee.

The precise date for the change has yet to be announced. It may happen before the end of the year.

The increase is intended to help local authorities invest in their local planning service, to improve performance. The government is expected to require that local authorities ‘ring fence’ the funding to ensure it does go to local planning departments and is not siphoned off for use by other services.

Most authorities are expected to use the money to increase staffing levels. The increase could be enough to fund up to five new staff for each authority across England. Authorities can use the funding how they see fit and, for example, some money could be used to improve IT systems, so teams can work more efficiently. That would be just as well, because there are about 300 local authorities in England and if they wanted just two more staff each that would be a lot of people to find. Most planning work is undertaken by professionally qualified town planners, and there are not 600 of those sitting around kicking their heels waiting for a chance to work in local government. Where the extra staff will come from is therefore far from clear.

So get ready to soon pay more for your planning applications, but you may have to wait a while longer before you see services improve.