Planning Reform: some recent and forthcoming legislative changes. Joanna Gliddon

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1 Planning Reform: some recent and forthcoming legislative changes Joanna Gliddon

2 Introduction Assets of Community Value Town and Village greens Heritage Protection New permitted development rights Affordable housing and viability Planning Procedure

3 Assets of Community Value Introduced by Localism Act 2011 Assets of Community Value (England) Regulations 2012 in force from September 2012 Land or buildings can be listed for 5 years Creates a "right to bid" Prevents the owner from selling during the moratorium of 6 weeks plus 6 months The process of listing The consequences of listing

4 The process of listing (1) Application must be made by a voluntary or community body, this includes neighbourhood forums, Parish councils, charities and CIC's Local connection requirement Contents of community nomination (Regulation 6) Description of the land and its boundaries A statement of the current occupants and owners "the nominator's reasons for thinking that the responsible authority should conclude that the land is of community value" Evidence of the nominator's eligibility

5 The process of listing (2) Council to notify Parish Council and owner of land of the application Application should be determined within 8 weeks Councils notify owner in writing of their determination Owner's right to ask for a "listing review" in writing within 8 weeks Council determine procedure for the listing review but must make a decision within 8 weeks of the request Appeal to First Tier Tribunal

6 The process of listing (3) The Council must accept the community nomination if the property falls into their administrative area and it is of "community value" The use must be non ancillary Property is of "community value" if either: - There is a current non ancillary use, that furthers social wellbeing of local community, and it is realistic to think this use can continue (whether or not in same way as before) or - There was a time in the recent past when there was a non ancillary use that furthered social wellbeing of local community, and realistically this use could continue in next 5 years (whether or not in same way as before) Where social wellbeing includes cultural, recreational and sporting interests.

7 What are the consequences of listing as an ACV? Unsuccessful nominations are listed separately successful nominations listed for 5 years > restriction on the title > register of local land charges Gives the community group a right to bid (not a right to buy) if a "relevant disposal" is made Relevant disposal: sale of freehold estate with vacant possession or grant or assignment of qualifying leasehold estate i.e. a lease which when granted had at least 25 years to run Examples: sale of an empty building that can be legally and physically occupied or assignment in 2013 of a lease granted in 2000 for a 30 year term A lease of a 15 year term that expires and is renewed would not be a "relevant disposal" caught by the Regulations

8 Relevant Disposal - Exclusions Land which cannot be listed (Regulation 3) - A residence together with connected land, provided it has a single owner - Licensed caravan sites - Land used by statutory undertakers Transactions that don't need to follow the notification process - S106 requiring disposal where S106 completed before ACV listing - Options/contracts completed before ACV listing - Mortgagees exercising power of sale - Certain disposals of churches and NHS property - Disposal where land will be a state school/academy/fe college.this is not exhaustive. See Schedule 3 of the Regulations and Section 95(5)

9 Moratorium Timescale Day 1: Owner notifies Council in writing of wish to dispose 6 weeks (beginning with date that Council receive the notice) marks end of interim moratorium period. Proceed with disposal if no expression of interest 6 months (beginning with date that Council receive the notice) marks end of full moratorium period. Proceed with disposal following receipt of expression of interest 18 months (beginning with date that Council receive the notice) marks end of protected period. Disposal by this date or repeat the whole process

10 In summary A Relevant Disposal cannot proceed until: a) the Council is notified in writing of the owner's wish to make the disposal and b) Either (i) (ii) and the interim moratorium period has ended without the Council receiving an expression of interest or the full moratorium period has expired c) The protected period (of 18 months) has not ended

11 Compensation for listing Compensation where Property is listed Payable by Council for losses/expenses incurred, which would not have been incurred, had it not been listed Includes claims arising from delay in completing disposals (following notification of disposal to Council) Claim must be made in writing to Council before expiry of 13 weeks after loss/expense incurred

12 Town and Village Greens Growth and Infrastructure Act 2013 Royal Assent on 25 April 2013 Main changes: In England, the grace period for registration is reduced to 1 year after cessation of use The right to register is suspended by "trigger events" New mechanism for lodging map and statement of land to defeat claims

13 Registration " a significant number of the inhabitants of any locality, or of any neighbourhood within a locality have indulged as of right in lawful sports and pastimes for a period of at least 20 years" (section 15 of the Commons Act 2006) The application to register must be made while the use is continuing or 1 year of its cessation (England)

14 Restrictions on the Right to register Trigger Event Publication of an application for planning permission, or for a development consent order under section 56 of the Planning Act 2008 for national infrastructure. The land is identified for potential development: In a draft development plan document or draft neighbourhood development plan: the date on which it is published for consultation. In a development plan document or neighbourhood development plan which is adopted Terminating event Application is withdrawn The council declines to determine the application Where permission is granted, the date on which permission expires, the development not having begun. Permission is refused (with all means of challenge/appeal exhausted) The document/plan is withdrawn The document/plan is adopted (but see below). The document/plan is then revoked or ceases to have effect The relevant policy is superseded by another policy Proposed application for a development consent order is first published The end of 2 years from the date of publication The application is published under section 57 of the 2008 Act.

15 Trigger events These provisions are retrospective i.e. if the trigger event occurred before the 25 April 2013, that right to register is suspended. A trigger event does not affect the accrual of 20 years use. A trigger event does put the "grace period" on hold, if the user has ceased.

16 Statement and Map The Commons (Registration of Town and Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) Regulations two procedures aligned. 60 Days Publicity Has to be updated every 10 years Brings to an end any recreational use "as of right" i.e. constitutes an interruption (triggering 1 year grace period). Does not stop a new period of 20 years from accruing New Guidance issued by DCLG in August

17 Heritage Protection Enterprise and Regulatory Reform Act 2013 Received Royal Assent on 25 April 2013, inserting new provisions into the Planning (Listed Buildings and Conservation Areas) Act 1990 Changes: Designation and exclusions. In force. Certificate of Immunity. In force. Certificate of Lawfulness of Proposed Works. 6 April Heritage Partnership Agreements. 6 April Listed Building Consent Orders 6 April Planning permission for demolition of unlisted buildings in conservations areas (not CAC). 1 October 2013.

18 Changes in designation Works for alteration or extension "in any manner which would affect the character of the listed building as a building of special architectural or historic interest" Changes to listing building designation (in force): Objects or structures not to be treated as part of the building; or Any part or feature of the building not of special architectural or historic interest can be specified in the listing. Certificate of Immunity can now be sought at any time.

19 Heritage Partnership Agreement In force from 6 April 2014 Owners, occupiers, anyone involved in the management of the building, or having special knowledge Can grant LBC for specified works Provide for public access, and provision of facilities Provide for a public authority to make payments inconsideration of any restriction, prohibition or obligation Must be in writing with provision for review Regulations may provide for consultation The LBC benefits the land. (But the burden does not)

20 Certificate of Lawfulness of Proposed Works From 6 April "works would be lawful if they would not affect the character of the listed building as a building of special architectural or historic interest". Proposed works only. Must describe the building, the works, and the reasons. Lasts for 10 years (unless revoked). Regulations will set out the detail for the procedure. Intended to be quicker and simpler. A quick (28 day limit) appeal procedure for refusal of Certificate growing a body of appeal decisions.

21 Listed Building Consent Orders In force from 4 April 2014 SOS/LPA may "Grant listed building consent for works of any description for the alteration or extension of listed buildings" Can be subject to conditions Councils can disapply national LBCO Consent is withdrawn if the LBCO is withdrawn/varied/revoked in some circumstances, compensation may be payable.

22 Conservation Areas In force from 1 October 2013 Demolition of an unlisted building in a Conservation Area is a criminal offence if carried out without planning permission (rather than Conservation Area Consent) or without complying with conditions on demolition, courtesy of ERRA 2013 Listed buildings and scheduled monuments will need LBC etc anyway Demolition will be dealt with as part of the planning application. No time limits on enforcement action against a relevant demolition.

23 New Permitted Development Rights From 30 May 2013 Some are temporary requiring development to be completed by May 2016 Some introduce/elaborate on a prior approval procedure Town and Country Planning Act (General Permitted Development) (Amendment) Order 2013

24 Key features Offices to residential (until May 2016) Excluded areas Prior approval Article 4 Directions Larger householder extensions (until May 2016) prior approval where a neighbour objects > assessment of impact on amenity Normal householder appeal procedure applies Rural Enterprise

25 Rural Enterprise and PD New Class M Agricultural buildings and land within its curtilage may change to a flexible use falling within one of the following: A1, A2, A3, B1, B8, C1 and D2 Not permitted where the building has not solely been in agricultural use since 3 rd July 2012 or for 10 years where brought into use after that date Cumulative max. of 500m2 of floor space within an agricultural unit that can change under M Explosives storage areas/safety hazard area/listed building/scheduled monument

26 Conditions "flexible" allows a change from agricultural use to any one of the approved uses, and for any subsequent change, subject to applying to the LPA as to whether prior approval is needed This flexible use makes it sui generis so exercise caution if you are switching from these uses Where cumulative floor space of buildings that have changed use under M within an ag. unit is < 150 m2, simplified procedure of applying information to the LPA of the nature of the use and a plan of which building(s) have changed use. Where cumulative floor space within an ag. unit is between 150 m2 and 500 m2

27 Prior Approval (1) where the cumulative floor space of buildings which have changed under M, within an original ag. unit is between 150 and 500 m2 must apply to LPA as to whether prior approval is required as to: Transport and highway impacts Noise impacts Contamination and flood risks Procedure Prior notification: written description of the development, plan, contact details, and any fee payable (Planning Portal) Possible consultation with highways and/or EA. Publicity May request additional information as to risks?

28 Prior approval (2) Can commence after Notice that prior approval is not required; or With approval of those details; or Expiry of 56 days after receipt by the LPA of the application If it will be contaminated land the LPA can refuse to give prior approval

29 Planning Obligations and Affordable Housing Growth and Infrastructure Act 2013 New procedure for applying to local authority to modify the "Affordable Housing requirement" Until 30 April 2016 Not applicable on rural exception sites Guidance, April affordable-housing-requirements-review-and-appeal

30 Viability "The evidence indicates that the current cost of building out the entire site (at today's prices) is at a level that would enable the developer to sell all the market units on the site (in today's market) at a rate of build out evidenced by the developer, and make a competitive return to a willing developer and a willing landowner" "A viable AH provision should be proposed" "Clear, up-to-date and appropriate evidence"

31 AHR procedure Appropriate authority must deal with the AHR so that it becomes economically viable May be modified, removed or replaced The authority must have regard to the guidance and to representations made by the Mayor of London Application is in writing supported by evidence Appeal time limit of 6 months Modifications may be time limited 3 years on appeal

32 Modifying a planning obligation By agreement at any time. Under s106a "no longer serves a useful purpose" For agreements dated 28 March 2008 to 6 April 2010, can apply after 3 years In all other cases, after 5 years

33 Planning Appeal Procedure Planning applications can be made direct to the Secretary of State (new section 62A of the 1990 Act) where the LPA has been designated Speeding up Appeals! From 1 October: Hearings and Inquiries Regulations 2013 condense the timetable documents to be submitted with a planning appeal and listed building appeal are now more detailed, requiring a full statement of case and where relevant, a draft statement of common ground Start point of the period within which an appeal must be made 6 months of the Decision Notice (not 6 months of receipt of the Notice)

34 Summary Assets of Community Value Town and Village greens Heritage Protection New permitted development rights Affordable housing obligations and viability Planning Procedure

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