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Welcome to this month's Inform: Planning & Environmental
This month includes a gentle reminder about three important changes which come into force on 6 April under the Planning Act 2008. We also look at the problems of preserving planning permissions and renegotiating s106 Planning Obligations and the Government's announcement in relation to amalgamating planning guidance.
6 April Changes
With effect from 6 April the Planning Inspectorate can now impose the method of planning appeal on an appellant and costs can now be claimed on written representation appeals. Local Planning Authorities can also decline to determine repeat applications and, land acquired or appropriated by a local planning authority for a planning purpose and which is subsequently developed will now be fully protected from the breach of any covenants which previously affected the use of the land.
The life of planning permissions and renegotiating S106 obligation
Due to the economic downturn there are thousands of unimplemented planning permissions, many of which are linked to s106 planning obligations. There are schemes which were in the pipeline and which are now not going forward due to the reduction to the life of planning permissions made by the Planning and Compulsory Purchase Act 2004 as developers are unhappy about spending money on obtaining planning permissions which only have a three year life. So in order to bring these pipeline developments forward, developers must persuade local planning authorities to exercise their existing power under section 91 of the 1990 Planning Act to permit longer periods in which to implement planning permissions.
This of course doesn't help those developers who are in the unenviable position of possibly only having a year or so left on their permissions and which they are unable to implement without triggering sizeable s106 obligations. It is therefore good to see that the Government is bowing to pressure and is looking at reintroducing the ability to extend the life of planning permissions by possibly bringing back in s73 extensions.
There has been much debate about reassessing viability of schemes due to the changes in land value and, renegotiating s106 obligations. Developers need to implement their permissions without triggering their s106 obligations and the local planning authority should therefore be prepared to agree to alternative phasing of contributions, the provision of affordable housing and the provision of infrastructure. It is important that any payments and infrastructure requirements are looked at again from a viability point of view but also that the requirements for these are not triggered until first occupation. This will enable developers to have some certainty on income generated by prelets or off plan sales before the s106 obligations fall due.
Alternatively it may be possible to reduce payments and/or link them to an overage mechanism or look at payment on a pro-rata basis. For example on a housing scheme it may be possible to agree a reduced payment based on current unit values with a later uplift if the values of units increase over the life of the development or, in relation to a mixed use scheme which includes affordable housing, agree a pro rata portion of contributions for the affordable housing element of the scheme and allowing the bulk of the remaining sums to be paid as and when any commercial element is commenced or first occupied. It is good to see that a few local planning authorities are now agreeing to defer or reducing payments under s106 obligations already entered into.
And finally, how many s106 Agreements are out there with repayment provisions which developers have long forgotten about because the sums were paid some time ago? The Department for the Communities and Local Government has announced it is to conduct research into the amounts of s106 money there is currently sitting in local planning authorities' bank accounts and how it can ensure that this money is actually spent for the purposes it was intended for. Now is the time to start checking those old s106 Agreements to see if any money should now be repaid?
Government's intention to amalgamate planning guidance
The Government has announced its intention to amalgamate all or part of five Planning Policy Statements (PPS). These are PPS4 on economic development, PPS5 on simplified planning zones, PPS6 on planning for town centres, PPS7 on sustainable development and part of PPS 13 on transport. The new draft PPS on "planning for prosperity" will be published for consultation shortly. |