London Calling: Mayoral Interventions

Sadiq Khan is now 10 months into his role. How has he been using his Mayor of London Order 2008 powers to intervene in relation to strategic planning applications? The number one priority in his manifesto was, after all, to:
tackle the housing crisis, building thousands more homes for Londoners each year, setting an ambitious target of 50 per cent of new homes being genuinely affordable, and getting a better deal for renters.”


The consultation draft of the new London Plan is expected in August 2017, although we already have his draft affordable housing and viability SPG with its 35% affordable housing threshold approach (below which viability appraisal justification is required), covered in my 1.12.16 blog post. Ahead of the anticipated adopted version, a couple of items in the 14 March 2017 report to the London Assembly’s Planning Committee are of background interest:

– from page 9 a transcript of a discussion held on 1 February 2017 with James Murray, Jamie Ratcliff and private sector representatives in relation to the draft SPG

– from page 51 the Committee’s proposed response to the draft SPG.

Given that the Mayor’s intervention powers under the 2008 Order (to direct refusal of an application or call it in for his own determination) are the most direct levers that he can pull in relation to specific development proposals, it is perhaps surprising that so far we have not seen them used as much as under the last days of the Johnson regime.
This is how it stands as at 18 March 2017:
Flamingo Park, Bromley
Khan’s first intervention was in fact to direct refusal on 15 June 2016 of the Flamingo Park scheme in Bromley of a Green Belt scheme for a new stadium for Cray Wanderers FC along with 28 flats. (One for pub quizzes: Cray Wanderers claim to be the oldest football club in London – and second oldest in the world!). 
The London Borough of Bromley was minded to grant planning permission, but the Mayor considered that the ‘very special circumstances’ test for inappropriate development in the Green Belt had not been met. He added:
“Whilst writing I would take this opportunity to express my concern as to the lack of affordable housing and the effect the excess parking provision will have on the highway network in the vicinity of the site.”
Unusually, the Secretary of State promptly intervened and called in the application before the refusal was issued. The Mayor was preparing to defend the refusal direction but the applicant Cray Wanderers announced yesterday (17 March 2017) that it has withdrawn the application following legal advice and discussions with the Mayor and Bromley Council. It will resubmit a new application “in the next four to six weeks”. 
It will be interesting to see the extent to which the new scheme sees any increased housing component and the approach taken to affordable housing. 

Plough Lane, Merton

Khan’s next intervention also related to a proposed football stadium – this time Galliard Homes proposal for a new 20,000 seat football stadium for AFC Wimbledon and 602 residential units, on the Wimbledon Greyhound Stadium site, next to the site, now redeveloped for housing, of the old Wimbledon FC stadium in Plough Lane (Wimbledon FC now having of course having emigrated to Milton Keynes as MK Dons). (I hope you’re following this – I rather wish I had included Wimbledon and Cray Wanderers in my 7.1.17 blog post Level Playing Fields: Football Stadia & Planning).
The proposals included 9.6% affordable housing (all intermediate, shared ownership) with a review mechanism. The application was called in by previous Mayor Boris Johnson on 26 March 2016 (against GLA officers’ advice), but in an unusual twist, Mayor Sadiq Khan released it back to Merton on 19 August 2016 for Merton to approve. I had previously doubted (and possibly still do) whether it is lawful for a Mayor to release back an application which has previously been called in – there is certainly no express power to do so – but the Mayor’s reports set out the legal justification that he relies on. 
Bishopsgate Goodsyard, Hackney

There is one further Johnson hangover, the application for the mixed use redevelopment of Bishopsgate Goodsyard (including 1,356 residential units) which was called in by him on 23 September 2016 at the request of the applicant. Despite having been called in presumably with the intention of approving it, or at least reaching a determination more speedily than if it had been left with the London Borough of Hackney as local planning authority, the application then hit the buffers when a GLA officers’ report was published on 8 April 2016, recommending that he refuse it at the representation hearing arranged for 18 April 2016. The applicant decided to defer the hearing to address the issues and there it rests. The next twist is anyone’s guess. Will Khan even have to reach any decision or will we see withdrawal and resubmission?

We now come to two much more recent decisions, both on 10 March 2017. The Mayor’s draft SPG was obviously referred to in both cases and affordable housing review mechanisms imposed in both cases, with a cap of 50% – which is the borough-wide requirement applicable in both cases (albeit Haringey’s emerging local plan appears to be proposing a lower 40% borough wide target). 
Hale Wharf, Haringey
Haringey members had resolved, against officers’ recommendations, to refuse planning permission for this 505 residential unit scheme, within the Upper Lee Valley Opportunity Area and the Tottenham Housing Zone, on no fewer than eleven grounds. The Mayor called it in on 4 January 2017 and approved it on 10 March 2017 as recommended in his officers’ stage 3 report.
The position secured on affordable housing was as follows:
a minimum of 177 units (35% of overall units) to be affordable, with 20% affordable rent and 80% shared ownership by habitable room. 

Details of affordability will be secured. Review mechanisms as follows will secure the delivery of more affordable housing (up to 50% of the scheme or the level of grant funding) should it be viable: 
- 

Review mechanism (1): In the event that the development has not been substantially implemented within 2 years of the date of the decision, an updated viability assessment shall be submitted in order to establish if additional affordable housing can be provided and any such additional affordable housing shall be provided on site; 
- 

Review mechanism (2): A viability assessment shall be submitted prior to substantial completion of Phase 1 in order to establish if additional affordable housing can be provided and any such additional housing shall be provided on site; 
- 

Review mechanism (3): A viability assessment shall be submitted prior to substantial completion of Phase 3, to establish whether there is any surplus from the completed scheme which can be contributed towards off-site provision of affordable housing. 
- 

Review mechanism (4): Further review if development stalls for a period of more than 24 months.
It’s worth noting that there was already significant GLA funding being given for infrastructure for the scheme before the application was called in but the Mayor’s involvement appears to have secured £7.75m worth of affordable housing funding to a registered provider, so the review mechanism will be aimed at recovery and recycling of that grant funding.
Palmerston Road, Harrow

Harrow members resolved, again against their officers’ recommendations, to refuse an application by Origin Housing for a mixed use development within the Harrow and Wealdstone Opportunity Area and the Heart of Harrow Housing Zone to provide 187 residential units, within 5 buildings of between 1 and 17 storeys. Again, on 10 March 2017 the Mayor accepted the recommendations in his officers’ stage 3 report.
The affordable housing position secured is as follows: 
– a minimum of 74 homes (40% of overall units) on the site to be provided as affordable homes, with 30% affordable rent and 70% shared ownership (40% was proposed in the original application but the tenure mix is different);

– a viability review mechanism will secure the delivery of more affordable housing (up to a level of 50% of the scheme) should it be viable. 

 The affordable housing is with grant based on the Mayor’s Affordable Housing Programme 2016-21, with an early review mechanism if enabling works are not substantially commenced within two years. 

Conclusions

Of course the Mayor has to be selective as to how to use his powers. After all, the legal limits are clear from R (Spitalfields Historic Trust) v Mayor of London (Gilbart J, 10 May 2016), where Mayor Johnson’s use of the Mayoral call in power was tested and just about survived. However, so far, perhaps true to the man – and maybe no bad thing – we have seen a more cautious approach from Sadiq Khan:

– one direction of refusal where, who knows, a compromise may be on the cards

– one previously called in application returned to the borough to determine

– two applications called in and approved, but both schemes offering more than 35% affordable housing, with a review mechanism potentially to get to 50% – both schemes in opportunity areas and London housing zones where officers’ recommendations to approve had been overturned.

Administrations usually become more interventionist over time. I headed this piece London Calling, but with Mayor Khan we certainly haven’t yet seen The Clash. 
Simon Ricketts 18.3.17
Personal views, et cetera

 

 

 

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