In the week before Christmas the Courts and the Government were still busy working on important issues relating to the planning system and a new year of course also brings with it the expectation of yet more reforms to the planning system.
In this blog post, we discuss the recent case concerning a legal challenge to the Government’s reforms to use classes and permitted development rights, new model S106 clauses for First Homes published by the Government, as well as what future planning reforms to expect in 2022.
Legal Challenge to Use Classes and Permitted Development Rights Changes
On 20 December 2021, the Court of Appeal handed down its judgement in the case of Rights: Community: Action v Secretary of State.
A link to the judgement can be found at the following website: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1954.html
The Court of Appeal in its judgement held that it was lawful for the Secretary of State to reform planning legislation including the introduction of new use classes and permitted development rights without carrying out a strategic environmental assessment. This was an appeal against the order of the Divisional Court brought by Rights: Community: Action which is a campaigning organisation which seeks to influence the Government’s approach to climate change and other environmental issues.
In 2020, the Government made significant reforms to permitted development rights (allowing upward extensions of residential and commercial buildings and to demolish and rebuild certain buildings as residential homes) and use classes (including the introduction of a new use class E encompassing a wide number of commercial, business and service uses). For more details on these reforms please see our previous blog post here.
The effect of these reforms was to allow a number of uses encompassed within the new use classes and operational development provided for under permitted development rights to occur without the need to obtain express planning permission. The legal challenge by Rights: Community: Action was brought in opposition to these reforms, however to date has proven to be unsuccessful before the courts and therefore it looks like despite all the previous uncertainty resulting from their legal challenge that these reforms will be remaining with us.
First Homes Model S106 Clauses
On 23 December 2021, the Government published new model clauses to be used in legal agreements entered into pursuant to Section 106 of the Town and Country Planning Act 1990 (“Section 106 Agreements”) to secure the provision of First Homes. The new model clauses can be found at the following website:
First Homes are a specific kind of discounted market sale housing and a type of affordable housing for planning purposes. First Homes are discounted by a minimum of 30% against the market value and sold to persons who are first-time buyers. There is also price cap of £250,000 (or £420,000 in Greater London) which applies to the first sale.
The new model clauses are quite detailed (being set out over some 11 pages), however having reviewed these clauses we consider that although helpful as a starting basis for drafting, these clauses will still require a lot of tailoring for each development and we are happy to advise you on this process as part of negotiating any Section 106 agreement on your behalf.
We also find the introduction of these new clauses particularly interesting given that the Government previously in its Planning White Paper (which we discuss under the next heading below) proposed the abolition of Section 106 Agreements, so why would they now be proposing new clauses for these agreements? Perhaps this demonstrates an intention on the part of the Government to now retain Section 106 Agreements in some form in the future, however we will have to wait and see.
Planning Bill – Taking Forward the Reforms in the Government’s Planning White Paper
In August 2020, the Government published for consultation its Planning White Paper entitled “Planning for the Future” (“the White Paper”) which proposed radical wholesale reforms to the planning system to streamline and modernise the planning process.
The White Paper notably included a proposal that local plans place all land into three categories being ‘Growth Areas’ (areas of land which are suitable for “substantial development” and will have the benefit of outline planning permission), ‘Renewal Areas’ (areas of land which are “suitable for development” and will have a statutory presumption in favour of development being granted for specified uses), and ‘Protected Areas’ (areas which as a result of their particular environmental and/or cultural characteristics would justify more stringent development controls). This essentially proposed the introduction a zonal planning system which has attracted a lot of controversy.
The White Paper also included the proposed introduction of a new consolidated “Infrastructure Levy” to replace the Community Infrastructure Levy and Section 106 Agreements. This reform lacked a lot of detail as to how apart from financial contributions all the other planning obligations currently secured by Section 106 Agreements would be secured in the future should these Agreements be abolished and also how the new Levy would work in practice.
For more details on the reforms proposed under the White Paper please see our previous blog post here.
Several of the reforms in the White Paper have been criticised for lacking much needed detail or simply being unworkable in practice. Since the consultation ended on the White Paper, the Government has failed during 2021 to provide its final response on the White Paper and to bring forward legislation to enact the reforms it proposed in the White Paper despite in the Queen’s Speech in May 2021 announcing its intention to bring forward a Planning Bill. We expect that at some point in 2022 we may see the introduction before Parliament of a Planning Bill which will contain reforms proposed in the White Paper, however we suspect a revised or watered down set out reforms, particularly given that Michael Gove has taken over the reins of what is now known as the Department for Levelling Up, Housing and Communities and previously announced he would be carrying out a review of the reforms proposed in the White Paper.
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
