2019 Planning Predictions

14 January 2019

2019 is likely to be an unpredictable and turbulent year in the UK and abroad, and few will be confident enough to predict whether Great Britain and Northern Ireland will leave the European Union in March; whether we will enjoy a heatwave in the Summer; or what the nation will watch now that Big Brother is off the airwaves.

In 1943, Winston Churchill said that "I always avoid prophesying beforehand because it is much better policy to prophesy after the event has already taken place." However our planning team have thrown caution to the wind and are sharing their predictions for the coming twelve months and what those changes might mean for our clients. Whether we are brave enough to revisit these predictions in December 2019 remains to be seen…



Permitted Development Rights

Expect new permitted development rights to be introduced allowing greater flexibility over changes of use in town centres as more and more traditional high street shops succumb to competition from internet retailers and changes in shoppers' habits. This is likely to include changes from shop (A1) to food and drink uses (A3, A4 and A5) (which changes have, until now, been eschewed) as well as leisure and community uses in a bid to retain activity and maintain vitality and viability.

Nigel Hewitson, Consultant

Technology

The industry will coin the term 'PlanningTech' as a sub-sect of 'PropTech'. Open data initiatives will increase the speed at which machine learning, artificial intelligence (AI) and visualisation tools (think virtual reality headsets) become important parts of the planning process. An inevitable tension will start to appear between the technology that developers are using, and local planning authorities/the Planning Inspectorate. It may be a few more years, however, until the first robotic Planning Inspector is unleashed.

Dominic Conte, Associate

Biodiversity

A new Environment Bill will be published in 2019 and that should receive Royal Assent without too much controversy. The primary purpose of the Bill will be to establish a new body to hold the Government to account for breaches of environmental duties (a role currently filled by the European Commission) but is likely to also include measures requiring new developments to offer mandatory biodiversity net gains. This may mean another angle for objectors to bring judicial review challenges in future and may even result in a re-examination of protected species legislation.

Ben Stansfield, Partner

Housing Delivery

The publication of 2018's Housing Delivery Test results may well spark some creative thinking from local planning authorities. This will apply to those that have failed to meet 95% delivery against assessed need, and which will then have to prepare action plans; and more importantly to those that have failed to meet 85% delivery, and which will then have to find a 20% land buffer of further deliverable sites to add to their supply. Against risks of speculative applications or for any authorities achieving less than 25% delivery, having their plans declared out of date, how radical will authorities be and will they turn to their compulsory purchase order (CPO) powers to unlock development on suitable sites?

Tim Sharp, Principal Associate

Infrastructure

Despite the push for greater delivery of housing, the Government is not neglecting the infrastructure needs of the UK. In 2018, the Government published its National Policy Statement (NPS) on Airports, which clears the way for an application from Heathrow Airport for a Development Consent Order for a third runway at the airport. While it is facing a series of legal challenges due to its decision to back Heathrow Airport as the site for expansion of the country's air capacity, it now looks like a new runway at Heathrow is all but inevitable.

The Government is currently consulting on a draft NPS for water resources, to set policy for new water infrastructure projects such as reservoirs and water transfer stations to tackle and limit the impacts of climate change and possibilities of droughts in the future. Also on the agenda this year should be the publication of an NPS for a new Geological Disposal Facility (GDF) in the UK to store higher activity radioactive waste. The need for a GDF in the UK has increased as construction has begun on a new nuclear power plant at Hinkley Point in Somerset and the UK is falling behind other nations, such as Finland, who are already building these facilities.

Nick Harding, Associate

Developer Contributions

New rules regarding the use of developer contributions towards essential infrastructure are likely to be introduced to achieve the Government's aim of facilitating housing delivery.

The Government wants to ensure that the infrastructure needs of the community (as opposed to the needs of the development proposed); will be identified at the outset, allowing projects to include the cost at an early stage. A new strategic infrastructure tariff is likely as are the widening of purposes for which developer contributions may be spent.

More controversially, the Government has proposed that community infrastructure levy responds to changes in land values so that larger contributions are paid. In addition, viability assessments will probably be "hardwired" into the local plan process.

It seems to me that as a result of these rules (if introduced):

  1. Housebuilders may consider that genuine viability issues will be lost in the consideration of applications;
  2. Developers will be anxious to see how the details of the "land value" changes will work. If (as seems likely) a percentage of the land value is to be paid to the planning authority (or maybe the education and/or highways authority), it is difficult to see how overall contributions would not increase;
  3. Developers will need to understand how any new strategic tariff will work in areas where there is already a Community Infrastructure Levy (CIL) charging schedule and whether there will be a procedure in place to ensure that there is no double counting
  4. For those authorities without a CIL charging schedule in place, there may be an added incentive to introduce a schedule if it is perceived that added value may result.

As a result, fewer planning applications will be submitted or, more applications will be refused because they do not contribute enough. In either case, housing delivery is not assisted.

Jan Hebblethwaite, Principal Associate

Habitats

Following a slew of rulings on protected habitats from the European Court of Justice in 2018, there will almost certainly be continued litigation on habitat matters in the coming year. In addition to any further landmark decisions from the European Court of Justice (ECJ), expect to see domestic cases providing (further) guidance around the decision in People Over Wind, as well as Grace and Sweetman, and Holohan, and also numerous objections (at various stages) to developments founded upon habitat protection issues. Furthermore, with the conclusion at the end of 2018 of a consultation on an amendment to paragraph 177 of the National Planning Policy Framework (NPPF) (relating to the presumption in favour of sustainable development), 2019 will undoubtedly be an active year in this context.

Vicky Fowler, Partner

Trees and Woodlands

At the very end of 2018, the Department for Environment, Food and Rural Affairs (DEFRA) published its Protecting and Enhancing England's Trees and Woodlands consultation paper. The proposals include: (i) a requirement for residents to be consulted over whether trees on their streets can be felled; (ii) obligations on councils to report tree felling and replanting; and (iii) giving the Forestry Commission increased powers to tackle illegal tree felling. The paper comes after the battle over mass tree-felling in Sheffield but, ironically, may do little to forestall a repeat of the Sheffield litigation. Leaving aside the administrative burden of consulting local residents in respect of every tree proposed for felling, the proposals contain notable exemptions from the requirements, including trees that are dangerous, diseased or damaged etc. As the Sheffield litigation evidenced, these are not terms that are capable of objective meaning. In an effort to appease all sides (but, in reality serve no one), the measures will be included (largely in their current form) as part of the Environment Bill and spark further high court challenges.

Laura Nation, Senior Associate

Our planning team represents landowners and occupiers, developers, investors, funders and public authorities in relation to all aspects of planning law, policy and procedures and advises on some of the UK's highest profile commercial, residential and infrastructure projects. We have extensive experience in dealing with planning applications, planning obligations and infrastructure agreements in relation to major development sites. We bring a practical, commercially-focused and cost-effective approach to our clients' problems. We achieve a negotiated solution wherever possible, but we also have considerable experience of planning appeals and call-in inquiries, examinations into local plans, compulsory purchase orders and judicial review litigation. Contact the team if you have any queries.


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