Mending The Planning System (Has Anyone Tried Switching It Off And On Again?)

When I recently blogged about the Raynsford review of the planning system, I really wasn’t expecting shadow CLG Secretary of State Roberta Blackman-Woods to announce yet another one at the Labour party conference, at a CPRE fringe event. This is CPRE’s write-up. It will be called “People and Planning”. According to Building magazine we can expect proposals to streamline the compulsory purchase system and “tougher measures to stop developers sitting on sites“, as well as a rethink on CIL and on the Government’s recently announced OAN methodology consultation. 
Labour leader Jeremy Corbyn had the following passages in his conference speech, leading on from references to the Grenfell Tower tragedy:
We have a duty as a country to learn the lessons from this calamity and ensure that a changed world flowers . I hope that the public inquiry will assist. But a decent home is a right for everyone whatever their income or background. And houses should be homes for the many not speculative investments for a few. Look at the Conservative housing record and you understand why Grenfell residents are sceptical about their Conservative council and this Conservative government.

Since 2010: homelessness has doubled, 120,000 children don’t have a home to call their own, home ownership has fallen, thousands are living in homes unfit for human habitation. This is why alongside our Shadow Housing minister John Healey we’re launching a review of social housing policy – its building, planning, regulation and management.

We will listen to tenants across the country and propose a radical programme of action to next year’s conference. But some things are already clear tenants are not being listened to.
We will insist that every home is fit for human habitation, a proposal this Tory government voted down. And we will control rents – when the younger generation’s housing costs are three times more than those of their grandparents, that is not sustainable.

Rent controls exist in many cities across the world and I want our cities to have those powers too and tenants to have those protections. We also need to tax undeveloped land held by developers and have the power to compulsorily purchase. As Ed Miliband said, “Use it or lose it”. Families need homes.

After Grenfell we must think again about what are called regeneration schemes.

Regeneration is a much abused word.

Too often what it really means is forced gentrification and social cleansing, as private developers move in and tenants and leaseholders are moved out. 

We are very clear: we will stop the cuts to social security.

But we need to go further, as conference decided yesterday.

So when councils come forward with proposals for regeneration, we will put down two markers based on one simple principle:
Regeneration under a Labour government will be for the benefit of the local people, not private developers, not property speculators. 

First, people who live on an estate that’s redeveloped must get a home on the same site and the same terms as before.

No social cleansing, no jacking up rents, no exorbitant ground rents. 

And second councils will have to win a ballot of existing tenants and leaseholders before any redevelopment scheme can take place.

Real regeneration, yes, but for the many not the few.

That’s not all that has to change.”

Liberal Democrats’ leader Vince Cable took a similar theme in his own party conference speech:
“If there is any single lesson from the Grenfell disaster, it is that people in poverty aren’t listened to. Nowhere is inequality more marked than in the housing market. Property wealth for the fortunate coexists with growing insecurity and homelessness for many others. Home ownership, which spread wealth for generations, is no longer a realistic prospect for younger people with moderate means.

To put this right, we must end the stranglehold of oligarchs and speculators in our housing market. I want to see fierce tax penalties on the acquisition of property for investment purposes, by overseas residents. And I want to see rural communities protected from the blight of absentee second home ownership, which devastates local economies and pushes young people away from the places where they grew up. 

Homes are to live in; they’re not pieces on a Monopoly board. But whatever we do with existing homes will not be enough. A doubling of annual housing supply to buy and rent is needed. 

For years politicians have waffled about house building while tinkering at the edges of the market. I want to recapture the pioneering spirit that in the mid-20th century brought about developments like Milton Keynes and the new towns…I want to see a new generation of garden cities and garden villages spring up in places where demand presently outstrips supply.

But we know that private developers alone will not make this happen.Just as social reformers in the 1950s and 60s saw government roll up its sleeves and get involved with building, government today has a responsibility to be bold…and to build more of the homes we need for the 21stcentury. It is utterly absurd that councils are allowed to borrow to speculate in commercial property…but are stopped from borrowing to build affordable council houses.”

The shadow of Grenfell of course looms over the politics of planning and social housing. Secretary of State for Communities and Local Government, Sajid Javid, had earlier in the month announced a “green paper on social housing“:
A wide-ranging, top-to-bottom review of the issues facing the sector, the green paper will be the most substantial report of its kind for a generation.

It will kick off a nationwide conversation on social housing.

What works and what doesn’t work.

What has gone right and what has gone wrong,

Why things have gone wrong and – most importantly – how to fix them.”
Shelter also put out a press release, big on hyperbole, short on analysis, referring to the ‘legal loophole’ of ‘secret viability assessments’, focusing on the reduced levels of affordable housing achieved in Kensington and Chelsea compared to the borough’s 50% policy target and making the explicit link to Grenfell:
New research from Shelter reveals that a legal loophole has been used by housing developers to avoid building 706 social homes in Kensington and Chelsea – more than enough to house families made homeless from the Grenfell tower fire.”

How is the government’s position on the role of viability in planning (set out in paragraph 173 of the National Planning Policy Framework, a non-statutory, hardly obscure, planning policy document, now over five years’ old) a “legal loophole“?
Poor Raynsford review, is planning is too political for whatever emerges from it to gain traction? Its recommendations are due to be presented to next year’s party conferences. I hope that clear distinctions are drawn between changes to be made to the basic legislative hardware of the system (is it resilient, efficient, clear for users?) and to be made to the software (the NPPF, PPG structure – is it kept up to date to reflect the Government’s policy priorities and guiding users’ behaviour appropriately?), the purpose of the changes being to influence the content, scale, quality and pace of the data processing: individual plans and decisions actually coursing through the system, leading most importantly to delivery of political priorities, whatever they may be for the next Government. The review is somewhat hamstrung by not being able to set out those priorities as its starting point. 
So, what of the Government’s position? Regardless of what will be said at the forthcoming Conservative party conference, surely the current Government is not currently in a strong position to make further major changes. However, there is much unfinished legislative business, arising from:
– partly implemented enabling legislation (Housing and Planning Act 2016, Neighbourhood Planning Act 2017)

– uncompleted consultation processes (the Housing White Paper and associated documents, February 2017; Planning For The Right Homes In The Right Places, September 2017)

– other previously floated initiatives (for instance in the Conservative Party’s 2017 general election manifesto)

– other previous initiatives, partly overlapping with the above (a House of Commons library briefing paper dated 12 July 2017 lists 22 pre-June 2017 announcements that have not yet been implemented, or cancelled). 

 I have tried to take stock of where we are in terms of legislative as opposed to policy changes. This is a list of where I believe we are with the main planning law provisions of the 2016 and 2017 Acts (with relevant commencement dates indicated, although check the detail: in many cases a provision in primary legislation may have been switched on but still requires further secondary legislation for it to have any practical effect):

 Housing and Planning Act 2016 

 * Starter homes – providing a statutory framework for the delivery of starter homes – not in force, not really needed since the Housing White Paper u-turn

* Self-build and custom housebuilding – requiring local authorities to meet demand for custom‐built and self‐built homes by granting permissions for suitable sites – from 31 October 2016

* Neighbourhood planning changes – from 12 May 2016

* Permission In Principle/Brownfield Land Registers

    * Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments)(England) Regulations 2017 – 6 March 2017

    * Town and Country Planning (Permission in Principle) Order 2017 – 15 April 2017

    * Town and Country Planning (Register of Previously Developed Land) Regulations 2017 – 16 April 2017

* Extension of Government’s ability to designate poorly performing LPAs such that non-major applications can be made direct to the Planning Inspectorate – from 12 July 2016

* Planning freedoms schemes – from 13 July 2016

* Resolution of disputes about planning obligations – not in force

* NSIPs including a housing element where functional link or close geographical link – from 6 April 2017

* Powers for piloting alternative provision of processing services – from 12 May 2016 (but no pilots yet)

* Urban Development Corporations/designation of new town areas – from 13 July 2016

* Compulsory purchase changes – mostly from 3 February 2017

Neighbourhood Planning Act 2017 
 * Neighbourhood planning changes – (partly) from 19 July 2017, subject of a previous blog post)

* Power to direct preparation of joint local development documents – not yet in force

* Restrictions on pre-commencement planning conditions – from 19 July 2017 (although Regulations not yet made)

* Restriction on PD rights re drinking establishments

    * Town and Country Planning (General Permitted Development) (England) (Amendment) (No 2) Order 2017 from 23 May 2017 (subject of a previous blog post)

* More compulsory purchase changes – partly in force, various commencement dates

 And these are the limited areas where we can expect further legislation:

* CIL reform (probably limited reform in this Parliament)

* Further PD rights? Maybe not. There has been silence in relation to upwards extensions in London and further rural PD rights, although limited light industrial to residential PD rights come into force for three years from 1 October 2017, following amendments to the General Permitted Development Order last year. 

* 20% increase in planning application fees (definitely)

* Completion notices reform (maybe, floated in Housing White Paper, subject of a previous blog post)

* Statutory three month deadlines for Secretary of State decisions (maybe, floated in Housing White Paper)

* Planning appeal fees (maybe, floated in Housing White Paper). 

* Regulations as to the “technical details” procedure for permissions in principle (definitely)

 I had to get my head round all of this in preparing to speak at Conference.*

*The RTPI’s Planning Issues For The Housing Agenda conference on 4 October.

Simon Ricketts, 30.9.17

Personal views, et cetera

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Class Distinctions 2: Student Housing

Happy freshers’ week. 
I blogged recently about how the planning system struggles when it comes to housing for older people. But there are worse problems when it comes to student housing. Some recent press articles are at the end of this post, but first you need to get through some law I’m afraid (there may be an examination on it later). 
For a start, from a legal perspective there is a similarly poor fit with the Use Classes Order.
Shared student living in converted houses has since 2010 (in England, 2016 in Wales) been hived off from use class C3 (residential use) into use class C4, the HMO (“houses in multiple occupation”) use class: “small shared houses occupied by between three and six unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom”.
This definition excludes: 
– HMOs in blocks of flats (eg what seems to be the main model these days in relation to purpose built student accommodation blocks, with clusters of self-contained flats, each housing six students, sharing cooking and living accommodation) 

– Houses shared by more than six students.

The background to the creation of C4, which was not all about students, but in part a response to concerns about pressures being caused to communities by high concentrations of HMOs more generally, is well summarised in a House of Commons library briefing paper, Houses in multiple occupation & planning restrictions (14 July 2017). 
By virtue of Part L of the Town & Country Planning (General Permitted Development) (England) Order 2015, unless the relevant local planning authority has made an article 4 direction to contrary effect, planning permission isn’t needed to change from C4 to C3 (residential use), or vice versa. Many university towns and cities have made article 4 directions, requiring planning permission to change from C3 to C4 use, for example Sheffield, Leeds, Loughborough, Leicester, Nottingham, Southampton and Durham to name but a few. 
Against the background of almost universal university expansion, this constraint on supply of converted accommodation, denying much of the already (in most areas at least) expensive PRS market to students, has surely played its part both in further increasing student housing costs and in giving students fewer practical alternatives to living in purpose-built student accommodation, often now built and operated by large specialist student housing providers. 
As far as the planning system is concerned, purpose built student housing blocks are generally treated as “sui generis” (outside any use class) and therefore specific planning policies are required at an individual local planning authority level to control them (or to impose standards in terms of unit size, daylighting and sound insulation). In some ways they now often more closely resemble clusters (stacked high) of quasi C4 HMO style accommodation, with bedrooms in self-contained clusters of six, each with its own kitchen and communal area. 
Planning permission is required to make a material change from a sui generis use. Whether there is a material change in the character of the use is for the decision maker to judge. As long as conditions or section 106 agreement planning obligations aren’t breached, change to, say, co-living may not require planning permission. 
Ensuring that purpose built student accommodation is affordable is a big issue. In recent years we have seen student rent strikes, supported by the NUS. In London, we wait to see what further controls will be proposed in the draft London Plan, now expected on 29 November. In the meantime, there was nothing in the Mayor’s draft housing strategy published on 6 September 2017 (in 236 pages I could only find one passing reference to students). To what extent will the policies set out in the previous Mayor’s March 2016 housing SPG remain? The SPG takes the following approach in relation to purpose built student accommodation (PBSA):

– “providers of PBSA are encouraged to develop models for delivery of PBSA in london which minimise rental costs, via its layout and location, for the majority of the bedrooms in the development and bring these rates nearer to the rate of a affordable student accommodation described below
– requirement for affordable student accommodation where a proposed provider does not have an undertaking with a specified academic institution(s) that specifies that the accommodation will be occupied by students of that institution(s)

– affordability determined by reference to a formula that equates to 55% of average student income. For the academic year 2016/2017 this equated to £5,886 or less and for a 38 week contract a weekly rent of £155. 

– the extent of affordable housing to be secured “should be the maximum reasonable amount subject to viability” (our old friend!)

– to enable PBSA providers to maximise the delivery of affordable student accommodation by increasing the profitability of the development, boroughs should consider allowing the temporary use of accommodation during vacation periods for ancillary uses and should consider setting nil CIL rates for affordable student accommodation. 

– eligibility for affordable student accommodation should be based on assessment of need. 

Now that reading list:

Oliver Wainwright, A new urban eyesore: Britain’s shamefully shoddy student housing (The Guardian, 11 September 2017)

Rhiannon Bury, Student housing may be a property bubble in waiting (Telegraph, 18 September 2017)

Could it be the end of the Newcastle student flat boom? Council set to vote on greater controls (Evening Chronicle? 15 January 2017)

Letter: Students vs Residents – this situation in Bath around housing is not students’ fault (Bath Chronicle, 5 September 2017)

Students in Wales taking out loans to afford ‘luxury’ flats (BBC website, 22 September 2017)

It seems to me that there are various issues to be unpacked here:
– the need for authorities properly to plan for the consequences of increases in student numbers

– competing needs as between between student and general needs housing

– often unjustified “there goes the neighbourhood” concerns about the impacts of students on an area. 

– affordability

– the extent to which universities should retain responsibility for housing their students, affordably and to appropriate quality standards.

Class, discuss. 
Simon Ricketts, 24.9.17
Personal views, et cetera

Housing Needs: Assessed Or Assumed?

The new draft methodology to be used by English local planning authorities for determining their level of housing need is deceptively simple. Is it indeed too simple?
The current system (difficulty level: advanced)
The NPPF currently advises that LPAs should “use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area”. They should:
“prepare a Strategic Housing Market Assessment to assess their full housing needs, working with neighbouring authorities where housing market areas cross administrative boundaries. The Strategic Housing Market Assessment should identify the scale and mix of housing and the range of tenures that the local population is likely to need over the plan period which: 

* meets household and population projections, taking account of migration and demographic change; 


* addresses the need for all types of housing, including affordable housing and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes); and 


* caters for housing demand and the scale of housing supply necessary to meet this demand

The PPG provides more detailed guidance but in practice the recommended approach is complex, relying on a shifting, uncertain evidence-base with subjective judgements to be made. Disputes over the calculation of “objectively assessed needs” are far too time-consuming, technocratic, uncertain and expensive. 

Local Plans Expert Group’s recommendations (difficulty level: intermediate)
Back in September 2015, the then Secretary of State, Greg Clark, and then housing and planning minister, Brandon Lewis (I know, seems like another era), appointed an independent Local Plans Expert Group “with a remit to consider how local plan making can be made more efficient and effective“. Its impressive line-up was as follows: 
Members
John Rhodes OBE – Quod, Director – Chair 

Adrian Penfold OBE – British Land, Head of Planning 

Councillor Toby Elliott – Swindon Borough Council, Cabinet Member 

Derek Stebbing – Chelmsford City Council, Planning Policy Manager 

John Howell OBE MP FSA – Member of Parliament for Henley 

Keith Holland – retired Planning Inspector 

Liz Peace CBE 

Richard Harwood OBE QC – 39 Essex Chambers 

Advisors 

Christopher Katkowski QC – Landmark Chambers 

Ian Manktelow – Wycombe District Council, Team Leader, Planning Policy 

Matthew Spry – Nathaniel Lichfield & Partners – Senior Director 

LPEG’s report was published on 16 March 2016, together with a separate volume of appendices, within which Appendix 6 sets out a simplified, standardised approach to the assessment of housing need. The methodology is summarised in this table: 


It was a detailed, thoughtful piece of work, delivered quickly. The Government then took almost as long again to publish what can best be described as a holding response on 7 February 2017, alongside publication of the housing white paper:

“The White Paper confirms that the Government will consult on options for introducing a more standardised approach to assessing housing requirements. The outcome of this consultation will be reflected in changes to the National Planning Policy Framework. We want councils to use the standardised approach and will incentivise them to do so, as this will help to speed up and reduce the cost of the plan making process for those authorities that use it. The White Paper indicates that our decision making for the £2.3bn Housing Infrastructure Fund is likely to factor in whether authorities intend to apply the new standardised approach to assessing housing requirements. 


We expect councils that decide not to use the methodology to explain why not and to justify the methodology that they have adopted. We will consult on what constitutes a reasonable justification for deviating from the standard methodology, and make this explicit in the National Planning Policy Framework.

The Government’s proposals (difficulty level: elementary)
It is interesting that politicians (again) select a group of recognised experts and then embark on a significantly different approach. Perhaps the group wasn’t brave enough in its quest for a one size fits all formula or perhaps it recognised that, if it did, the figures would not be fit for purpose. 
However, a year after the publication of LPEG’s report, the Government has published, for consultation, its proposals: Planning for the right homes in the right places: consultation proposals (14 September 2017). The consultation period expires on 9 November 2017. 
“Subject to the outcome of this consultation, and the responses received to the housing White Paper, the Government intends to publish a draft revised National Planning Policy Framework early in 2018. We intend to allow a short period of time for further consultation on the text of the Framework to make sure the wording is clear, consistent and well-understood. Our ambition is to publish a revised, updated Framework in Spring 2018.” Planning Practice Guidance will be updated at the same time.
LPEG’s recommended approach has been further simplified, reduced indeed to a formulaic approach which will have to be followed by LPAs save in “compelling circumstances” which “will need to be properly justified, and will be subject to examination.” Amongst the elements that appear to have been stripped back from the LPEG recommendations are
– Just using ONS’ projected numbers of households as the demographic baseline for each area

– No ten year migration scenario sensitivity test

– No looking at vacancy and second home rates

– No separate consideration, as part of this methodology, of the need for affordable housing although LPAs should identify the housing need for individual groups, such as those in need of affordable housing, via a streamlined process (the Government invites suggestions as to how that might work). We also wait to see what will be in the forthcoming “green paper on social housing” announced by Sajid Javid in his speech to the National Housing Federation on 19 September 2017)

The proposed formula is as follows:

A cap is proposed on the level of any increase:

“We propose to cap the level of any increase according to the current status of the local plan in each authority as follows: 

a)  for those authorities that have adopted their local plan in the last five years, we propose that their new annual local housing need figure should be capped at 40 per cent above the annual requirement figure currently set out in their local plan; or

b)  for those authorities that do not have an up-to-date local plan (i.e. adopted over five years ago), we propose that the new annual local housing need figure should be capped at 40 per cent above whichever is higher of the projected household growth for their area over the plan period (using Office for National Statistics’ household projections), or the annual housing requirement figure currently set out in their local plan.”

DCLG has applied the new methodology to every authority in England, arriving at an overall housing need figure of 266,000 a year (including 72,000 in London) broken down authority by authority on a spreadsheet (which may not open on mobile devices). The table warns that the numbers are “indicative” and “should be treated with caution” (indeed various errors have already been found) but inevitably they have been pored over by those on all sides, whether to make the case for or against additional housing in a particular area. 

There are some curious outcomes due to the way that, for example, anticipated or planned employment growth that will lead to additional housing pressure has not been factored in, save indirectly to the extent that it may have an effect on housing affordability. The affordability ratio further skews the increases towards the south with many authorities in the north and the Midlands showing decreases as a result of these factors, regardless of their actual level of ambition. The paper stresses that LPAs can plan for more homes than the number arrived at by the methodology but to what extent will the existence of the lower number encourage objectors to push back?
The transitional provisions will certainly encourage many LPAs to make sure that their plans have been submitted for examination by 31 March 2018:

This is the briefest of overviews. The paper includes further proposals to which no doubt I’ll be coming returning. In the meantime, for a full analysis of the new approach and its likely implications, I recommend Lichfields’ paper, written by LPEG adviser Matthew Spry. 

Simon Ricketts, 20.9.17
Personal views, et cetera

Class Distinctions: Planning For Older People

Housing is needed by people of all ages but there is a particular need for specialist housing for the elderly. A research report, Housing our Ageing Population: Learning from Councils meeting the Housing Need of our Ageing Population was published by the Local Government Association on 8 September 2017. From its executive summary:
“The number of people aged over 65 is forecast to rise over the next decade, from the current 11.7 million people, to 14.3 million by 2025, a 22 per cent rise. This means that one in five of the total population will be over 65 in 10 years’ time, which will become one in four by 2050. 

In the UK, the vast majority of over 65s currently live in the mainstream housing market. Only 0.6 per cent of over 65s live in housing with care, which is 10 times less than in more mature retirement housing markets such as the USA and Australia, where over 5 per cent of over 65s live in housing with care. The suitability of the housing stock is of critical importance to the health of individuals and also impacts on the demand for public spending, particularly social care and the NHS.
Making quality options available also helps with “right-sizing”, freeing up larger under-used homes back into the housing stock. 
Not only is there great need but changes to local government funding are afoot which are going to increase the pressure for supported housing for the elderly. From the LGA report:
Funding for Supported Housing: Consultation contains the key elements of the Government’s proposals for the future funding of supported housing from April 2019 including: 

“Councils will have responsibility for funding, commissioning and quality assuring all supported housing in their areas from April 2019.

“These proposals would in effect bring to an end the current housing benefit arrangements for all specialist older people’s housing at the end of March 2019“. 

We can expect policies on housing for the elderly in the forthcoming London Plan. The Mayor of London says as much in his draft Housing Strategy, published on 5 September 2017: One of his objectives is “increasing opportunities for older homeowners to move to accommodation more suitable for their needs, including benchmarks for older people’s housing requirements in the draft London Plan” (part of policy 5.2). 
I was also pleased to see a section on planning for older people in the DCLG consultation paper, Planning for the right homes in the right places (14 September 2017) even if it only amounted to two paragraphs:
“92. Section 8 of the Neighbourhood Planning Act 2017 requires the Secretary of State to provide guidance for local planning authorities as to how they should address the housing needs that result from old age or disability. Helping local planning authorities provide a simple yet robust evidence base for such groups will form part of the guidance, and will allow them to maintain the benefits of a more streamlined approach to calculating the overall housing need. 

93. When developing new planning guidance for older people, it is important that we have a shared understanding of who is included in this group. The definition of older people in Annex 2 of the National Planning Policy Framework reflects a range of people at different ages with different needs from retirement age to the very frail elderly. We are also aware of different types of housing that accommodate such a group – ranging from general market and affordable housing to specialised, purpose-built market and rental accommodation and care homes. Given the importance of planning for the need for older people as our population ages, we are reviewing whether we need to amend the definition of older people for planning purposes. We consider that the current definition is still fit-for-purpose but would welcome views.”
Not only is more housing required, there needs to be much more specificity and definition. Whilst there are more detailed supportive passages in the Planning Practice Guidance, paragraph 50 of the NPPF simply says: 
local planning authorities should: 

    * plan for a mix of housing based on current and future demographic trends, market trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes)”

As the consultation paper seems to accept, the definition of “older people” in the glossary to the NPPF is extremely wide:
“People over retirement age, including the active, newly-retired through to the very frail elderly, whose housing needs can encompass accessible, adaptable general needs housing for those looking to downsize from family housing and the full range of retirement and specialised housing for those with support or care needs.”
I’m not sure on what basis the definition can be said to be fit for purpose. Housing for the elderly doesn’t fit neatly into traditional planning law, partly because it is a wide spectrum of operating models, some being a specialist version of use class C3, dwellinghouses, and some being institutional and care based in nature, falling within use class C2. 
Class C2: “Use for the provision of residential accommodation and care to people in need of. care (other than a use within a class C3 (dwelling house). Use as a hospital or nursing home.”
Class C3: “Use as a dwellinghouse (whether or not as a sole or main residence) — (a) by a single person or by people living together as a family, or. (b) by not more than 6 residents living together as a single household (including a household where care is provided for residents).”
 I wrote a blog post last year, Time To Review The “C” Use Classes?. As with other alternative or quasi residential uses, the use class distinction matters because local planning authorities have very different policy approaches in terms of whether the proposal is acceptable in that location and as to the requirements arising, for instance in relation to affordable housing. The distinction can be crucial in relation to the extent of CIL liability and indeed whether planning permission is required in the first place.

The problem is that in reality the distinctions between C2 and C3 are becoming increasingly blurred – there is a spectrum, with no clear dividing line between the two. 
At the C3 end of the spectrum, there is sheltered housing and retirement living operated by the likes of McCarthy and Stone and Churchill Retirement Living. Churchill have produced a useful guide for planning and design professionals, Retirement Living Explained (April 2017). In order to distinguish its retirement living model from general C3 use, Churchill advocates the use of model age restricted planning condition:
“Each of the apartments hereby permitted shall be occupied only by: 

* Persons aged 60 or over; or 


* A spouse/or partner (who is themselves over 55 years old) living as part of a single household with such a person 
or persons; or 


* Persons who were living in one of the apartments as part of a single household with a person or persons aged 60 
or over who has since died; or 


* Any other individual expressly agreed in writing by the Local Planning Authority. ”

Is it right that C3 retirement living should be required to deliver affordable housing when itself it meets a non-mainstream housing need? Pending any reconsideration of that policy, Churchill’s guide includes a template section 106 agreement, suggesting the making of an off-site affordable housing contribution (with early stage review if the development hasn’t started reached shell and core stage within 28 months), given that the affordable housing requirements attaching to general market housing C3 products would be inappropriate. 

At the C2 end of the spectrum, there is a variety of operating models, with a bewildering variety of descriptions, including care homes, continuing care retirement communities, assisted living, very sheltered housing and close care. 
Hardest to categorise is what the market refers to as “extra care”, which has been described as follows: 
“Extra care housing is housing with care primarily for older people where occupants have specific tenure rights to occupy self-contained dwellings and where they have agreements that cover the provision of care, support, domestic, social, community or other services. Unlike people living in residential care homes, extra care residents are not obliged as a rule to obtain their care services from a specific provider, though other services (such as some domestic services, costs for communal areas including a catering kitchen, and in some cases some meals) might be built into the charges residents pay.” (Extra Care Housing What Is It?, paper, 2015, published by Housing LIN). 

So what are the distinguishing factors between C2 and C3?
A September 2017 blog post, Update on recent Extra Care Housing Planning Appeals and CIL Success, by Tetlow King’s John Sneddon, identifies two recent appeal decisions where inspectors agreed that proposed extra care developments would fall within use class C2. (The piece is also useful on the opportunities for ensuring that C2 developments are exempted from CIL within local planning authorities’ CIL charging charging schedules.)

My Town partner Liz Christie has previously carried out an analysis of planning appeal decisions. The most important factors for determining whether the operation is properly to be regarded as C2 or C3 use are (i) the physical layout of the building; (ii) the level of care; and (iii) the nature of the operation of the proposed development. We can go into more detail on each of these aspects, with appeal references, for anyone with a specific interest in the issues but, in summary, the whole area unnecessarily complicated and uncertain. Some standardised definitions and policy expectations would be really helpful.  
I wrote this blog post as a by-product of preparing to speak at LD Events’ 26 September 2017 conference, Alternative Residential Property 2017. See some of you there. 
Simon Ricketts, 16 September 2017
Personal views, et cetera

Policing The SPG: New Scotland Yard

Pour encourager les autres or an early demonstration of zero tolerance? 

The Mayor of London’s direction of refusal on 4 September 2017 in relation to a section 73 application to amend a 2016 planning permission for redevelopment of the former Metropolitan Police’s headquarters, so soon after publication of the final version of his affordable housing and viability SPG (see my 20 August 2017 blog post, 20 Changes In The Final Version Of The London Mayor’s Housing & Viability SPG) has certainly focused minds. 

The sale of New Scotland Yard was reported in the Guardian in December 2014 under the headline “Daylight robbery? New Scotland Yard is bought for £370m by developer: Abu Dhabi investor buys famous police headquarters for £370m and says he will replace the block with luxury apartments”. The piece reports that the then Mayor’s Office for Policing and Crime “put New Scotland Yard on the market in September [2014] and said it would have cost over £50m to bring the building back up to standard. It bought the freehold for £123.5m in 2008. The sale forms part of a major revamp of the Met estate, which has raised £215m so far through the sale of 52 buildings (with plans to sell up to 200 buildings by 2016/17). The overhaul is estimated to save over £60m in annual running costs by 2016.” The then Metropolitan Police Commissioner was reported as saying that the sale was “absolutely vital“. The move was going to save more than £6m a year in running costs. The sale proceeds “would be used to kit out bobbies on the beat with tablets, smartphones and body cameras.”

The piece reports the sale agent as saying that the sale showed “continuing international confidence in the London market”. “What was clear was that all the bidders could appreciate just what a special opportunity it was”. 
The article goes on: “The new luxury apartments are expected to generate up to £100m in stamp duty when they are sold, as they will be priced over the £925,000 level that attracts a 10% rate.”
The police vacated the building in November 2016 once the purchaser, BL Development Limited (registered in Jersey but reported in the press as “an investment vehicle controlled by UAE-based Abu Dhabi Financial Group”) obtained planning permission from Westminster City Council in April 2016 for a redevelopment comprising 268 apartments. The section 106 agreement dated 27 April 2016 provides for ten affordable homes together with a £10m payment in lieu – and no review mechanism, so a once and for all deal. 
The previous Mayor, Boris Johnson, did not intervene in the planning process. Indeed, the timing rather suggests that the application was referred to him in the run up to the 5 May 2016 Mayoral election and conveniently planning permission was issued before Sadiq Khan’s success in that election.  
I do not know how rigorous or otherwise the viability assessment was at that stage, but it does seem that the benchmark land value used was £277m, some way below the amount that the developer had to pay in reality to secure the site. The sale of this public sector land generated £370m, a figure which would otherwise have come from the tax payer to subsidise police operations. The developer was going into the viability negotiation only able to assume a value for the site that was almost £100m below what it had paid, so it could hardly be said that the whole of the problem lies at the door of the developer for having overpaid for the site in a highly competitive disposal process. 
The Mayor could of course have required as a condition of the sale process that the purchaser provide a minimum of affordable housing and thereby depressed everyone’s bids, and ultimately the sale price, accordingly. He didn’t – a political choice. 
The same month as the police leave the building, November 2016, BL Development Limited make a section 73 application to optimise the scheme – a further 27 apartments, reduced basement space, fewer car parking spaces, other design changes. Its viability assessment seeks to justify (a position accepted by Westminster City Council’s viability consultants) that no further affordable housing can be secured without the scheme being unviable, meaning a reduction in the percentage of affordable housing that would be delivered (net of the in lieu contribution) from 4% to 3%.
Westminster City Council resolves on 16 May 2017 to approve the application, despite strong concerns expressed by the Mayor at stage 1 referral on 20 March 2017. There is then a very long delay before the final stage of the process, namely stage 2 referral to the Mayor where he has a fixed 14 days’ period within which to decide whether to wave it through, call it in or direct refusal. I have no direct knowledge but I assume that discussions were continuing with the Mayor’s viability team to seek to neutralise their position and in any event to make process with the necessary variation to the section 106 agreement – perhaps also to await sight of the final version of the Mayor’s affordable housing and viability SPG. The Mayor’s SPG is published on 16 August and the application is finally referred on 24 August. On the day before the application was referred to the Mayor the applicant increases its affordable housing offer by one unit, on a “without prejudice” basis, on the condition that no viability review mechanism would be required.  
Big stakes for the developer. Is the Mayor going to intervene on such a high profile site which has generated a massive return for his authority? But, on the other hand, how would he maintain credibility in his SPG without intervening on a scheme with, at face value and without descending in detail into the viability position, such a low level of affordable housing, both as originally granted (just before he could do anything about it) and (particularly) as amended?
The application was a natural one to choose from the Mayor’s perspective as it gives rise to a number of the issues addressed in the SPG, for instance:
– approach to section 73 applications

– current affordable housing commitment well below 35% threshold

– issues in relation to assessment of assumed land value, projected sales rates and profit

– land formerly in public ownership

The Mayor’s direction states that the “level of affordable housing provision proposed is wholly unacceptable” for two reasons:

Affordable housing provision: The proposed affordable housing contribution of 10 intermediate units (3.3% by unit, 2.9% by habitable room) and £10 million off-site payment in lieu has not been adequately justified. The methodology undertaken by the applicant to assess the viability of the scheme is not in compliance with the Mayor’s Affordable Housing and Viability SPG and leads the GLA to conclude that more affordable housing could be supported within the scheme. On the basis of the evidence presented, the applicant has not demonstrated that the scheme will deliver the maximum reasonable amount of affordable housing, and the proposals are therefore contrary to London Plan Policy 3.12 and the Mayor’s Affordable Housing and Viability SPG. 

Viability review mechanism: No provision has been made in the draft s.106 agreement for viability review mechanisms. Given the low level of affordable housing proposed and the significant length of the development programme, the use of review mechanisms is essential in order to reassess the viability of the scheme and determine whether additional affordable housing could be supported. The absence of viability review mechanisms does not therefore support the delivery of the maximum reasonable amount of affordable housing on the site, and is contrary to London Plan Policy 3.12 and the Mayor’s Affordable Housing and Viability SPG.”

The stage 2 report sets out GLA officers’ “significant concerns with the applicant’s approach to the assessment of the viability of the scheme…These include the applicant’s approach to land value, sales rates and profit”. 

So what were the problems identified?
1. The applicant’s viability consultants argued that the 2016 permission had been implemented and that it should should form the basis of comparison with the amended scheme to determine whether it is viable. The 2016 permission viability assessment had previously concluded that the 2016 permission scheme was not viable even with no affordable housing. The applicant had since reviewed its assessment of that scheme and asserted that it was now in fact viable due to assumptions as to lower build costs, lower finance costs and a lower profit target, leading to a higher benchmark land value (£159.34m). When the extant scheme is being used as the baseline for the section 73 scheme, obviously improvements in the viability of the extant scheme raise the bar in terms of how profitable the section 73 scheme would need to be. The report found that this approach was inappropriate “and leads GLA officers to conclude that more affordable housing could have been achieved within the extant scheme, or otherwise that the extant scheme does not provide a reasonable basis for determining the viability of this s. 73 scheme”.
2. The Council’s viability consultants do not escape criticism. They had adopted a market value approach to arrive at a benchmark land value of £200m but, in the view of GLA officers, the consultants had “not demonstrated that their approach to site value properly reflects planning requirements for affordable housing or has been adjusted to ensure that it is compatible with the current day basis of the applicant’s assessment, as required by the Mayor’s SPG”. 

3. The applicant’s appraisal apparently did not factor in a £19.5m reduction in build costs due to a reduction in the size of the basement. 

4. An IRR (internal rate of return) approach was taken to determining a target profit. The SPG states that an IRR approach “is sensitive to the timings of costs and income, and in such cases these value inputs must be robustly justified“. The report finds that the development programme assumed for the project of 8.4 years was long for a scheme of this size and inconsistent with the construction plan submitted with the ES. Slower assumed delivery would depress the profitability of the scheme. A cross-check of profit as a factor of gross development value and of gross development costs (now required by the SPG where IRR is used) showed higher than typical rates of profit. An additional contingency on construction costs was included which was not agreed. 

5. The absence of early and late stage review mechanisms was deprecated. The developer unsuccessfully argued that to include them would be a disincentive to proceed with the section 73 scheme, as opposed to the extant scheme, which does not have them.

6. There is then this political point which I feel uneasy about given the extent to which the previous Mayor had extracted value from the site via the disposal process: “This is a site that has recently been transferred from public ownership, and is in one of the highest value areas in the country. The applicant’s affordable housing offer of 3-4% must be considered in this context.”

So what next? BL Development will need to decide whether to (1) appeal against the directed refusal (which would be a fascinating test of the status to be given to the SPG and indeed the robustness or otherwise of the various viability approaches) (2) sharpen its pencil with a view to a further application or (3) simply build out the extant scheme, fewer units, the agreed affordable housing provision, no review mechanism. 
More widely there are some public policy issues arising as to public land disposals. Maximum value can be extracted at the disposal stage or the disposal opportunity can be used to require, as a bid condition, higher levels of affordable housing than would be possible if the site were sold on an unconstrained basis. But (pace Boris Johnson) you shouldn’t be able to have your cake and eat it. 
Simon Ricketts, 9.9.17
Personal views, et cetera

NIMBY v YIMBY

“Good Grief… anything but address the elephant… the illogical Nimbys” (comment on my last blog post, received via twitter)
I’ve been struggling with “not in my back yard” for a while, almost as bad as the “elephant in the room”.
The Times reported this week a speech by Shelter’s Polly Neate: “Ugly new homes breed nimbys, builders told“.
Canada’s Globe and Mail tells us “Margaret Atwood is a NIMBY – and so are most of us“.

It got me wondering when we all started this absurd Americanised name calling. Wikipedia identifies its first use as in 1980, corroborating a google ngram viewer search which traced its published use back to 1980…

These searches are addictive by the way…


The next morning I was sitting on the train to work, reading John Grindrod’s Outskirts book (buy it) and turned the page to find this passage…


So the derogatory phrase was created by the PR department of a chemical company responsible for the Love Canal pollution scandal that practically singlehandedly led to modern US environmental law in relation to land contamination. Smell a rat?

When someone is objecting to or protesting about something happening in their area, how tempting is it to disregard the objection by labelling it as “nimby” but it’s an ugly blunderbuss of an expression. What if the objection or protest is justified? Who is going to stand up for an area if it isn’t those who live there? Was Jane Jacobs a nimby then? Why does the European Convention on Human Rights protect rights to property (paragraph 1 of the 1st protocol) and to private and family life (article 8)?
The answer is in the respective qualifications to those rights:
– nothing in the right to property “shall impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest”

– the right to private and family life is subject to such interference “as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Of course we know where the finger is being legitimately pointed when people are called out as nimbys – at those who are motivated by overly selfish motives – tranquility and wealth for the few, regardless of the wider public interest. However, are attitudes in fact changing when it comes to housing? A February 2017 report by the National Housing Federation, Demise of the NIMBY: changing attitudes to building new homes, would appear to suggest so.
Predictably, ministers have been on the bandwagon:

Sajid Javid in his speech to Conservative party conference in 2016:

“Everyone agrees we need to build more homes.  

But too many of us object to them being built next to us.  

We’ve got to change that attitude.  

So my message today is very clear: it’s time to get building.

He doesn’t use the “n” word but the reporting of the speech picks up the signalling, because the word is so populist – we all know (or think we know) what it means:
Sajid Javid declares war on ‘Nimbys’ who stand in the way of badly-needed new homes (The Independent)

Sajid Javid attacks ‘nimbyism’ as he calls for 1m new homes (BBC website)

Gavin Barwell was more direct in his speech to the CPRE on 20 February 2017:
“…there are some people who claim the CPRE is merely a respectable front for nimbyism – that behind your public objectives is a private and unrelenting refusal to accept any kind of new development in rural areas.

Of course I know that’s nonsense.

You recognise that well-designed new settlements in sustainable locations can take the pressure off the green belt and you have an unparalleled legacy in influencing the planning system, particularly in the years after the war.

Your vision for garden cities, towns and villages has been adopted by the government. So has your preference for community-design, with extra power and resources for local areas to make this happen.

So now you have got the government behind your ideas I would challenge you to go a step further and prove your detractors wrong.

Support local communities in their quest for good design and actively seek out and champion the best-designed developments – so no one can say your words are not backed up by deeds.”

Is the CPRE a nimby organisation? Well it is certainly depressing to see that members have at their disposal on the CPRE website a copy-and-paste draft letter of objection.
Note the passage in the draft letter that suggests that the objector should draw where relevant on any relevant neighbourhood plan. The Government is of course anxious to distance neighbourhood plans from neighbourhood protectionism. For instance, this is John Howell MP speaking in a debate on neighbourhood planning on 3 July 2017 about those who promote neighbourhood plans:
“I should say at this point that in the main we are not talking about communities who are anti-development; we are talking of communities who want to embrace new housing for the long-term sake of their communities and to ensure that facilities such as pubs and sports clubs do not fall into disuse. They also want new housing above all to cater for younger people and families. There is nothing for the Government to fear here about being in the world of the nimby; neighbourhood plans have allocated some 10% more housing than it was originally suggested they should provide by their district or borough councils. From that point of view, they have been a great success.

This is an assertion which is difficult to square with experience. Time and again development is being delayed or thwarted by neighbourhood plans that have been made following the most light touch of examination procedures. 

Yimbyism is of course the self-referential counter-balance to anti-housing development interests. 

London YIMBY’s report “Yes In My Back Yard: How To End The Housing Crisis, Boost The Economy And Win More Votes was published by the Adam Smith Institute in August 2017. It is disappointing that their proposed solutions would entail further disruptive legislative change (not going to happen) and don’t to me at least (disclosure, I’m presumably part of the problem as one of the “armies of planning lawyers and consultants” on which “billions of pounds” are apparently spent, referred to in the report) seem to be practical in the sense of delivering a simpler, more effective, fairer system:
We propose three policies that would hand power back to residents; ways of solving the housing crisis that will also win political parties votes. Each would make a huge difference alone; together they could have a transformative effect on the housing situation in Britain: 

    1. Allowing individual streets to vote on giving themselves permitted development rights, to build upwards to a maximum of six storeys and take up more of their plots. 


    2. Allowing local parishes to ‘green’ their green belts, by developing ugly or low amenity sections of green belt, and getting other benefits for the community in turn. 

3. Devolving some planning laws to the new city-region mayors including the Mayor of London. Cities could then decide for themselves if they want to expand and grow and permit extra housing, or maintain their current size and character.”

It’s a new movement, originating a couple of years ago in San Francisco but gaining real traction. The New York Times reported in July on its second annual conference: California Today: A Spreading ‘Yimby’ Movement.
Yimbyism is good to see, as long it remains positive and is genuinely springing from communities rather than political activists. But we really need to avoid getting entrenched in “brexiteer”/”remoaner” style tribalism. As with Brexit, the underlying public policy issues are complex and often down to difficult political choices to be made against an impossibly complex economic, environmental and legal background. In a climate where simple messages, right or wrong, have greater potency to influence democracy than ever via social media and elements of the traditional media (and certainly greater potency than what the scorned “experts” may say) the message as to the need for housing and for essential infrastructure must be as clear and non-partisan as possible but at the same time we must treat those with opposing views with respect, winning the intellectual argument with the evidence. How to go about winning hearts and minds? There’s a lot of good sense in Shelter’s March 2015 report Addressing Our Housing Shortage: Engaging the Silent Majority. Labelling people as selfish and insular isn’t going to win any argument. QRED*

*quod referendum erat demonstratum

Simon Ricketts, 2 September 2017
Personal views, et cetera

Another Review

“You’re joking, not another one?” (Brenda, April 2017)
This was my reaction too. But let’s try to suspend our cynicism. 
The Raynsford review of planning has been instigated by the Town and Country Planning Association “to identify how the Government can reform the English planning system to make it fairer, better resourced and capable of producing quality outcomes, while still encouraging the production of new homes.” Evidence will be gathered over 18 months with a report to be formally presented at all major party conferences in autumn 2018.
Background papers have been published by the TCPA:
* Background Paper 1: Creating a blueprint for a new planning system in England 
* Background Paper 2: The rise and fall of town planning 

* Provocation Paper 1: Do we have a plan-led system? 

* Provocation Paper 2: People and planning 

The papers are good and if anyone is going to review the planning system then TCPA president and ex Labour housing and planning minister Nick Raynsford is the right person, backed by a heavyweight team (albeit one that is light on developer input). 
But…
Here we are in a becalmed area of policy making, away from the high winds and storms of Brexit, with so many unfinished changes to our current system (a July 2017 House of Commons Library research briefing on the Government’s Planning Reform Proposals counts 22 of them). There have been too many ideas but not enough sieving. There’s an implementation logjam. 
There is little governmental appetite or capacity I’m sure for further significant reform in this Parliament. Putting it charitably, Alok Sharma has hit the ground walking, with little other than disparate funding announcements (eg in August announcements of £6.2m funding for Didcot garden town and £65m funding for build to rent at Wembley Park) and trumpeting of at best inconclusive home start statistics as to new homes starts.
Furthermore, what role does a review have where it has not been called for or endorsed from government, and is one which is led by a former Labour politician, however experienced in the issues? The planning system is a machine, big cogs, little cogs, to deliver the government of the day’s social, economic and environmental objectives. Unless the review is just to be about process, what objectives are to be assumed in framing recommendations? Where is the machine to be pointed? Or is this about establishing a 2020 vision come the next election, but by which time we will be in another place, politically, economically? The past is a different country, but so is the future. 
Too cynical? Perhaps this vulnerable, overwhelmed government, focusing its attention on the impossibility of Brexit, will be only too keen to accept non-partisan thinking. Strike that. Of course it won’t. It pays lip service at best to the recommendations of the Commons CLG Select Committee. It stalls implementation of previously commissioned reports, for example in relation to CIL. I’m sure that the recommendations of the Raynsford report will be wise and wide-ranging. But it will land with a silent thud. 
Has there been any governmental activity that has been subject to quite so many reviews as has the planning system? Perhaps this is inevitable given that planning is a wholly artificial policy construct, a political intervention, but it’s quite a roll of honour:
– Barlow Commission report on the Distribution of the Industrial Population (1940) 
– Utthwatt report on Compensation and Betterment (1941)
– Scott report on Land Utilisation in Rural Areas. (1942)
– Beveridge report on Social Insurance and Allied Services (1942)
– Reith report on New Towns (1946)
– Planning Advisory Group report on the Future Of Development Plans (1965)
– Skeffington report on Public Participation in Planning’ (1969)
– Dobry review of the Development Control System (1975)
– Those influential white papers Lifting The Burden (1985) and Building Businesses Not Barriers (1986)

– Lord Rogers report Towards An Urban Renaissance (1999)
– The green paper Planning: Delivering A Fundamental Change (2001), together with four daughter papers published at the same time. 
– Barker reviews of Housing Supply (2004) and of Land Use Planning (2006)
– Eddington review of Transport (2006)
– Lyons Inquiry into Place Shaping (2007)
– White Paper, Planning For A Sustainable Future (2007)
– Killian Pretty Review: Planning applications: A faster and more responsive system (2008)

– Penfold review of non-planning consents
– The Conservative party’s Open Source Planning manifesto document (2010)
– Lord Heseltine report No Stone Unturned: In Pursuit Of Growth (2012)
Local Plans Expert Group (2016)
– Liz Peace’s CIL review (2017)

Those are just some of the reviews that have been undertaken or sponsored by government, to which we can add work by think tanks and campaign organisations such as the TCPA. There are almost too many to catalogue but how about, for instance, the work of: 
– Policy Exchange eg A Right to Build: Local homes for local people (2016)

– CPRE eg Getting Houses Built: How to Accelerate the Delivery of New Housing (2016)

– the Labour party sponsored Lyons Housing Review Mobilising across the nation to build the homes our children need (2014, updated in 2016)

– Shelter eg Solutions for the housing shortage: How to build the 250,000 homes we need each year (2013)

– Institute of Economic Affairs eg Abundance of land, shortage of housing  ( 2012)

– IPPR eg We must fix it: Delivering reform of the building sector to meet the UK’s housing and economic challenges  (2011)

Lastly, we need to keep an eye on what we can learn from the changes currently underway in Scotland. An independent review of the Scottish planning system Empowering Planning To Create Great Places that concluded in May 2016 has led to the June 2017 Places, People and Planning consultation paper. 

Hats off as always to the TCPA for not giving up, sitting on the sidelines or focusing on the here and now. They deserve, and will need, our support because the review’s outcome will not be a soundbite-sized, easy-to-swallow happy pill but will look worryingly like the work of…

experts. 

Simon Ricketts, 28 August 2017
Personal view, et cetera