Autumn 2013 Planning Law Update

Dear Colleague, Following the raft of new government planning initiatives since the publication of the NPPF last year, we thought we would use this Autumn update to consider some of the more innovative measures and how developers and landowners can make the most of them to increase the value of their holdings. The focus on poorly performing planning authorities also makes for interesting reading!
Daniel Drukarz Head of Planning daniel@asserson.co.uk +44 (0) 203 691 4799

1. Applications to convert office floorspace to residential

As expected, applications to convert office floorspace to residential using the new permitted development rights are now being submitted thick and fast. Here at ALO we have advised successfully on a number of these applications including a scheme for 30 residential units in the London Borough of Hounslow in a prime location adjacent to Kew Bridge. These rights are particularly attractive to landowners and developers as schemes approved under this regime are not required to provide affordable housing. Furthermore, provided there has been at least 6 months of office use in the last 12 months, the schemes are also exempt from CIL. However, with various planning authorities looking at potential article 4 directions to remove these rights and a judicial review against the Government by Lambeth and Islington to be heard later in the year, our advice to landowners and developers is to have these applications submitted and approved as soon as possible. Implementation of course will need to occur by 30 May 2016 as this is when the rights end. Incidentally, our success at Kew was probably the fastest PD approval obtained by any developer in London for a major application! Also, watch out for more detail on the proposed retail to residential opportunities currently subject to public consultation. Have your say here until 15 October 2013.

2. S106BA Applications to reduce/remove affordable housing requirements

Applications can now also be submitted to reduce or remove unviable affordable housing requirements in section 106 agreements. Unlike the previous regime, these applications can be submitted in connection with any section 106 agreement and the test is simply one of viability rather than whether the section 106 obligation still serves a useful planning purpose. The new regime comes with an expedited timetable. Planning Authorities are under a duty to determine the applications within 28 days, or 35 days for strategic applications in London. Failure to do this gives rise to a right to appeal which is again subject to an expedited process. We are currently advising on one of the first of these applications for a mixed use residential led scheme in Greenwich.

3. Special measures for Planning Authorities

The Government will announce this Autumn whether any planning authorities will be placed into "special measures", meaning that developers will be able to submit major planning applications directly to the Secretary of State, rather than to the planning authority. The Government's criteria for placing a planning authority into special measures are whether: 1. 30% or less of major applications are determined within the statutory timeframe (13/16 weeks); and . 2. 20% or more of major applications are overturned on appeal. If either of these criteria are met, the planning authority can be designated as poorly performing and placed into special measures. Based on current figures, at least a dozen planning authorities are failing the first criteria and none are failing the second criteria. Examples of London Authorities teetering on the brink are Barnet and Lambeth. The impact of the special measures regime is slowly starting to be felt. Some examples include: planning authorities are starting work on section 106 agreements much earlier in the application process in order that the agreements can be signed and completed and the planning decision issued within the 13/16 week timescale; planning authorities refusing to allow amendments to applications once they have been submitted meaning that applicants are being forced to withdraw and re-submit applications for even the smallest of changes; and pressure from planning authorities to enter into Planning Performance Agreements (PPAs). These agreements are made between the applicant and planning authority and give an extended determination period for the application. However, applicants should watch out that PPAs are noted used to delay the determination process.

4. Project update
We have been very active throughout 2013. Some Summer successes include... Advising on the conversion of a large 1970s office block in central Bristolto student accommodation (468 bedrooms). Planning permission for the scheme was granted in July 2013.

Acting for a joint venture between the Winston Group and Dorset County Council on three residential schemes in Blandford Forum, Dorset. All three schemes have now been approved at committee. Advising on the partial re-modelling and redevelopment of a 1960s Shopping Centre in South London to provide much improved retail floorspace and public realm as well as new housing. Planning permission for the scheme was granted in July 2013.

Advising on a controversial residential scheme in Hertsmere. Resolution to grant achieved in July 2013.