Strategic Land & Property Advice

The implications of Town & Country Planning Acts on the promotion of land for development.

The following is not intended to be a complete and exhaustive explanation of Town & Country Planning in the UK but a brief summary concentrating on it's implications and relevance to strategic land.

For ease of reference the contents of this topic are arranged in 6 sections:

The planning system from 1947 to 2004

Planning from 2004 to now

The implications of the new planning regime

Some caveats on allocations and consents

Why promote land ?

Planning research and reports


Introduction to the UK Planning regime from 1947 to 2004
Since the Town & Country Planning Act 1947 became law the impact of planning on the use of land in the UK has been profound and wide reaching. This Act meant that landowners had to seek formal permission from newly appointed Local Planning Authorities to build and develop their land. Nevertheless the presumption was to permit development.

Whilst there had been more planning legislation since then, the 1990 Town & Country Planning Act was a landmark in planning law because it changed the presumption against development unless it was in accordance with the "Development Plan" for an area except where there were exceptional circumstances. This then created the need to promote land through the Structure & Local Plan stages to achieve an allocation of the land for development. Only when the land was allocated could any planning application be submitted to be reasonably sure of being granted consent for development.

At this stage planning had 2 levels or hierachies, firstly Structure Plans were usually County wide plans providing broad policies on all planning matters and except for specialist issues such as waste and minerals all decisions on planning applications were devolved to Local Planning Authorities. Local Plans were produced by Local Authorities at the District level but had to be in conformity with the Structure Plan at the County level. Whilst County Planning Authorities were consulted on major planning applications the decision to grant consent was down to the Local Planning Authority. Whilst the Secretary of State for Planning could 'call in' a particularly contentious or controversial planning application to determine at Minister level this was a relatively rare event.

The system worked but was often slow with Structure and Local Plans taking years to become legally adopted and then being overtaken by requirements for growth derived for example by increases in population and household formation. The system encouraged public participation which meant an enormous amount of representations could be made at any one of the many stages of plan making. It was also possible for Judicial challenges to be made by aggrieved parties to the process of adoption which again delayed the process.


The planning system from 2004 onwards
The Planning & Compensation Act 2004 introduced a revised system with policy for individual District's now being derived from each Region's RSS, (Regional Spatial Strategy). The RSS now replaces and supercedes the Struture Plan and the earlier form of Regional Planning Guidance (the RPG) for a region. The District Council's now have to produce a Local Development Framework (LDF), which is like a folder of Local Developent documents explaning what new development,in principle, is likely to be permitted.

The aim when promoting land is to achieve an allocation for development within the LDF, which means that the Planning Authority have accepted the 'principle' of the land being built on. However this is the just the Planning policy stage and provided there are no challenges it means that the first stage has been reached. However there is now an equally important second stage to be addressed but it is worth bearing in mind that an allocation does not necessarily remain indefinitely and it is not unknown for allocations of land to be deleted before a Local Plan is legally adopted.

Planning and it's division within a Local Authority Planning Department can be divided into 2 sections; Planning policy (sometimes called Forward Planning)and Development Control,(DC). The Development Control sections in a Local Plannng Authority deal with the actual processing and consideration of a planning application. This can range from a small householder extension to a complete new settlement of thousands of homes, shops, offices, industrial space, schools, roads, infrastructure and everything else that requires planning approval before it can be built.

In addition to the details of the application the DC officer has to check that it is consistent with Government planning guidance. This is contained in the many Planning Circulars and Guidance Notes that have been produced by Central Government over the years. The DC officer may have to liaise with other colleagues internally on specialist matters and/or external consultees and stakeholders and negotiate with the applicant or his agent or advisers. At the end of this exercise he should be able to make his report and offer a recommendation to the Planning Committee as to how the appplication should be dtermined.. Whilst there are guidance on the periods of time it should take to determine an application it generally follows that the larger, more complicated and contentious a planning application is the longer and more risky it is to achieve a consent.

As the planning system has evolved and become complicated the amount of work and cost of submitting a planning application, and successfully obtaining a consent, has increased enormously. This is always assuming that the land has already been allocated for development and the application is broadly consistent with that allocation. Promoting land within the planning system is supposed by the Government to have become easier for the public because the system is more open and available. The Government has recognised that as planning is now such a complicated, and often publicly contentious process, public participation is to encouraged and sought by Planning Authorities.

Whilst this is true the system has been tinkered with so many times by politicians that even professional planners struggle to keep up to date with the changes.

The practical implications of the new planning system

The reality of the new Planning Act is that there are now 2 distinct phases to the exercise of bringing forward land for development.

1.The initial planning promotion stage within the LDF to achieve an allocation.

2.The planning application stage to turn an allocation into a saleable and developable consent.

To achieve results in succesfully promoting land for development within the current planning regime takes experience, skill and speculative cash. Furthermore what works best is not in planning legislation or Government guidance notes because it is all about taking the right course of action at the right time.

Before embarking on any promotion exercise you need to have done some careful research to ensure one is promoting the best site in the most effective way, and the planning policy supports the arguments in favour of allocation. One also needs to have done the background research on the competing (or potentially competing land) to evaluate the strength of the competition and their impact on the promotion strategy. Timing is a key element. If appropriate written representations are not made at the right time to meet deadlines on particular planning documents, then however good a site is, it's chances will have been impaired. Effective planning promotion rests not just on any personal rapport with a planning policy oficer but on the evidence that can be provided to support a case and argument.


Some important points to bear in mind on allocations and consents
1.
Allocations are not necessarily permanent until the Local Plan is finally adopted. Land can be allocated at one stage of the Local Plan making process but deleted at a later stage. There can be many reasons for this so it is essential to keep on top of the plan policy process as it continues and not assume that once a site has been allocated that is the end of it and the allocation will remain there.

2.
Outline planning consents generally have a duration of 3 years before the detailed consent needs to be submitted. Full permissions often have a life of 5 years before they lapse, so it is important to implement any planning consent within the time period specified in the consent. If a consent is not implemented then it is deemed to have lapsed. Local Planning Authorities in the past regularly renewed old consents by granting a further consent if the original had not been implemented. This is now not the case. Landowners should be closely aware that planning policy now allows a Local Planning Authority to look afresh at all the relevant considerations when considering whether to renew a consent, it is no longer an automatic right.

3.
Implementation of a consent may not necessarily be a straightforward issue. In the past developers often secured a consent and stopped it from expiring by undertaking some small physical building task to show they had started works on site. This often took the form of digging a small trench on site and then filling it in. This level of implementation is no longer significant and material enough to satisfy the Planning Authority. It now has to be some major building works. However before any implementation works are started it is now important to check all the provisions of any planning agreement and any conditions of the consent to establish the full financial implications of commencement. For example the implentation of a consent could trigger a payment to a Health or Education Authority and/or the requirement to undertake enabling highway works outside the site.

Why promote land for development given the current economic slowdown?

The current Government has publically made clear its desire to provide 3,000,000 new homes in the period 2006 to 2026 in the UK. This is a very tall order especially since the level of housebuilding is already falling sharply and the credit crunch has had such an impact on the financial health of PLC housebuilders. In 2009 it looks as though barely 100,000 housing units will be started whereas the number needed to achieve the Government's target is more than 200,000 per annum for each of the next 16 years.

Whilst the Government's aim is to achieve 3,000,000 new homes not all the land for these new homes can be accommodated on brownfield/previously developed land (PDL)or windfall sites. There is therefore going to be a need for greenfield land to be identified for amongst other purposes new housing.

In the period from 2000 to 2006/7 there was a massive increase in the amount of flats and appartments that were built as a proportion of all the new homes built. In 2000 about 10% of all new homes built were flats, but this had increased to 56% by 2006. This was a result of the publication of PPG3 in 2000 which actively encouraged the use of brownfield land first for housing development before considering the release of any greenfield sites. The result of this was to increase densities on brownfield land to achieve more housing units per acre and so there was a massive rise in the number of schemes with medium and high rise flats and appartments. Unfortunately even before the credit crunch there was an oversupply of flats and prices stopped rising then started to fall, very dramatically in some areas! The logical outcome of this is that housing developers will be unlikely to speculate building many more flatted schemes until the market absorbs all the existing surplus units.

What I predict will be needed are the more traditional houses with gardens. As they cannot be built to the same densities as flats and apartmnets this will require more land. I further predict that most of this land requirement will be for greenfield in urban locations rather than brownfield land in cities, where market economics will still probably favour apartment schemes due to density.

Practical Planning Research & Reports

I offer 3 types of planning reports to suit various situations as follows:

Format 1

For prospective owners and investors in strategic land I offer an impartial report into the likelihood of succesfully promoting land for development. As will be clear from the above the current planning regime is complicated and needs careful thought and a proactive approach in order to be succesful.

These reports are written from the angles of planning, land and practical development issues by someone experienced in all of these specialisms.
Any report will address the following in a practical way and offer clear recommendations :

A full evaluation of the Planning policy history of the District.

The current planning policy and the stages within the next 5 years.

A summary of the property's key advantages in future planning promotion.

An outine of the property's main disadvantages and how these could be mitigated.

The competing interests and their strengths and weaknesses.

A list of the recommended activities and representations needed to promote land within the formal planning system framework.

A list of recommended contacts and consultees to be approached to discretely lobby to obtain local political support and/or or establish prospective levels of opposition.

A reasoned and pragmatic insight into prospects for succesfully promoting land for development within a specified timescale.

Format 2

If you are actively seeking suitable land to promote I can also offer land and site search reports within particular Planning Authority Districts using a variety of search techiques.

Format 3

For landowners who have already granted options to developers and may be concerned that the promotion of their land is not proceeding as well or as quickly as they envisaged, I offer a planning check report. This is similar to the above report but highlights the evidence of what action has been taken and what could have been done.

If the promotion exercise is proceeding as well as it can be within the planning framework, this report will give a landowner a degree of comfort that all the actions that can reasonably be done to promote the land have been completed. If the property is not being promoted as fully as it could be, the report will bring to the issues to the landowner's attention and identify any gaps, problems and deficiencies. These may be capable of remedy but some may be irrevocable and the promotion exercise undermined.

To discuss any requirements for an insight report or any other planning issues please contact David Price.