News

The Ministerial Statement issued on July 1^st sets out proposals to ensure that policy on Article 4 Directions is used in a highly targeted way to protect the thriving core of historic high street areas, but does not unnecessarily restrict the ability to deliver much needed housing through national permitted development rights. The new policy will apply to all Article 4 Directions. Formal changes were made to the National Planning Policy Framework in July 2021 and a new Paragraph 53 now reads:

The use of Article 4 Directions to remove national permitted development rights should:

• Where they relate to change from non-residential use to residential use, be limited to situations where an Article 4 Direction is necessary to avoid wholly unacceptable adverse impacts (this could include the loss of the essential core of a primary shopping area which would seriously undermine its vitality and viability, but would be very unlikely to extend to the whole of a town centre);
• In other cases, be limited to situations where an Article 4 Direction is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 Directions to require planning permission for the demolition of local facilities);
• In all cases, be based on robust evidence, and apply to the smallest geographical area possible.

The new Paragraph aims to protect established retail areas without preventing the provision of housing. The policy of providing and supporting mixed and flexible high street uses remains and new Article 4 Directions should be applied only to the smallest of areas and ‘the irreducible core of a primary shopping area’. The statement expressly states that Local Authorities will need to have robust evidence to justify the Article 4 Direction and the area it covers and are required to notify the Secretary of State about new Article 4 Directions.  All new Article 4 Directions will be scrutinised to ensure compliance with the new guidance.

After a year and a half of the pandemic, the importance of securing adequate funding for the NHS should not be in dispute. There is an essential debate regarding the source of such funding and the extent to which new development might increase demand for blue light services. Some will argue, with some justification, that these services free at the point of delivery are and should be funded through general taxation.

On the other hand, there is the argument that an increase in the population within an area will increase the demand for all blue light services which will not be recognised in the funding regime and as such there will be a funding gap. It is accepted that development has a legal requirement to mitigate its impacts, but a rational basis for funding these services through planning obligations has often been lacking.

Of course, the issue does not end there. For blue light services, one must separate out the population that are new households forming from people already in the area (thus captured by existing funding formulae). Any unfunded impact should be assessed with reference to the new population moving into the development from outside existing catchments for blue light services. ‘Backfilling’ through in-migration resulting from the freeing up of the accommodation of those already living in the area should also be considered.

DLP, working for a number of NHS Trusts, have developed a model to inform the calculation of requests for planning contributions that is responsive to details of individual schemes in terms of location, tenure mix and scale, all of which act to determine the characteristics of the total population (in terms of age and sex) and patterns of migration into any new development.

The model has been accepted by Inspectors at appeal as identifying the extent financial contribution would be fairly and reasonably related in scale and kind to the development. Negotiations have been conducted more quickly and have been agreed as part of Statements of Common Ground with developers, indicating a fair deal for both developers and the blue light services.

DLP’s recent work has been with Worcestershire Acute Hospitals Trust and Leicestershire’s Clinical Commissioning Group and we are currently advising on levels of contributions that may be required for large Sustainable Urban Extensions (SUEs) in emerging Local Plans.

For developers, this work can determine the level of funding and prevent the over-exaggeration of claims that are based upon total population or lack of recognition that the funding regimes will in future recognise the increase in the population.

Look out for the Webinar from DLP on Blue light services and Section 106 Agreements.

We are delighted to have secured approval from Sheffield City Council for the use of Thorncliffe Hall as a new school facility for Paces Sheffield.

Paces delivers the National Curriculum through the framework of Conductive Education. It is a small, specialist school for children living with Cerebral Palsy and other neurological disorders from Sheffield and other neighbouring authorities. Currently located at Pack Horse Lane, High Green, the existing school is within close proximity to the proposed new site.

The pupils at Paces thrive on the high expectations that staff have of them and the constant encouragement and opportunity to develop their independence. The aim of the school is to provide and develop a curriculum that enriches the learning opportunities for all the children. Each day at Paces is very carefully planned by their fantastic team of staff who are dedicated to providing the highest level of education possible for the children.

The welfare and safeguarding of pupils is a consideration of paramount importance. Everyone is committed to working closely with parents/carers and other professionals. The success of Paces requires additional accommodation and facilities both now and in the future.

The initial proposals are for the use of Thorncliffe Hall as a Special School for up to 60 disabled children with up to 45 members of staff. This will accommodate the expansion of Paces School, which currently stands at 34 full time equivalent places, with the hope to increase to a new full-time capacity of 60 pupils in 5 years’ time.

There have been a number of recent important appeals relating to later living development schemes in both urban and rural locations. These mostly involve larger retirement village (extra care) proposals. The appeals are often quite complex and involve a range of planning policy and strategy issues.

DLP, who are currently involved with 6 separate retirement living schemes, provided expert planning evidence at a recent public local inquiry into a proposal for a 133-unit Extra Care village at Sonning Common in South Oxfordshire in April/May led by Chris Young QC, assisted by Leanne Buckley Thomson. The scheme comprised a continuing care retirement community by Inspired Villages (part of the Legal & General) on a greenfield site within the Chilterns Area of Outstanding Natural Beauty. The Inspector, Harold Stephens, after the 10-day inquiry allowed the Appeal.

The scheme compromised major development in the AONB, and the Appellant, in addition to rebutting the allegations of harm, had also to demonstrate that the proposal satisfied both the “exceptional circumstances” test and “the public interest” test, pursuant to paragraph 172 of the National Planning Policy Framework, in light of the requirement that decision makers give great weight to conserving and enhancing the natural beauty of the AONB.

DLP also, as part of the case, addressed the prevailing shortfall in housing land supply, notwithstanding that the South Oxfordshire Local Plan had only very recently been adopted, but had been delayed by political changes within the Council. DLP’s evidence demonstrated a 4.21 year supply.

In terms of the main issue, Inspector Mr Stephens acknowledged that Sonning Common is a large village which borders the edge of the AONB and was itself “very much part of the local landscape context” in this area. He also acknowledged “Planning policy and statute give equal protection to all parts of the AONB” but went on to observe “I saw that the AONB in this location already contains a significant amount of built development. That contrasts significantly with the deep, rural area of countryside within the AONB” (para 56).

A significant factor in the appeal was the need case, as well as the existing supply of dedicated housing for the elderly and alternatives to the proposal.  Specialist evidence was provided on the matter of need, and this was used by DLP in putting the planning balance case.  Equally DLP provided an assessment of alternative development options based upon the council’s own evidence base and both together demonstrated a substantial shortfall in supply when assessed against need and also an absence of alternative sites, such that this provided the basis for both the exceptional circumstance and public interest tests.

In commenting on the position Inspector Stephens observed in relation to the Council’s case that “In my view there is a strong case that Mr Appleton’s 45 per 1,000 overall, with 30 per 1,000 to market extra care, should be far more ambitious given not only the true tenure split in the district but also what it could mean for the ability to contribute towards addressing the housing crisis”

The Inspector also accepted the case, put by DLP on behalf of the Appellant, that whilst the new Local Plan does have a policy encouraging specialist housing for older people, including seeking allocations on the strategic allocations, the policy requirement is generic. It does not allocate any sites specifically for Extra Care provision and that is significant because the Appellant was able to show how Extra Care delivers a lower return in terms of land value than other forms of age restricted and retirement living accommodation.

The Appellant, along with another Extra Care operator from their umbrella organisation Arco, attended the Local Plan Examination-in-Public to request the Plan be amended to ensure an Extra Care specific policy and allocations.

Inspector Stephens also found that the benefits associated with the development were significant material considerations and, taken together with the absence of landscape harm, the noted shortfall in the provision of specialist housing for the elderly, and the housing land supply situation overall, concluded that both the exceptional circumstances and public interest tests were made.

The new Local Plan, arising from the Rectory Homes decision, introduced a policy which requires affordable housing for C2 uses including Extra Care. This was introduced after the planning application had been made and raised difficulties insofar as the deal entered into by the Appellant and the landowner was concerned.  A viability assessment was undertaken which demonstrated that the proposal, in conventional terms, was unviable. However, the landowner and appellant agreed to make provision for a financial contribution via a Section 106 Agreement in order to comply with the policy requirement.

The Council refused to negotiate on the sum required, notwithstanding the viability assessment, and this subsequently led them to make a cost claim against the Appellant, which was dismissed by Inspector Stephens.

Sonning Common Parish Council also opposed the development and appeared separately at the public local inquiry.  The Sonning Common Neighbourhood Plan (2016) has a policy supporting the provision of extra care but does not allocate any land for that purpose, and notably, Sonning Common has a large elderly population and the provision of specialist housing for the elderly was seen as a key objective.  The Neighbourhood Plan is in the process of review but that has not progressed beyond an initial issues and options stage in the last two years and therefore attracted no weight.

The Appeal Decision is important not only because it allowed major development in the AONB, but also because of its findings on the weight that should be given to the need/provision of specialist housing for the elderly, and its contribution towards five-year land supply.  In addition, the overall housing land supply was a further significant factor and, in particular, how this should be demonstrated.  At the time of writing an application for permission to apply to the High Court to challenge the Appeal Decision, under Section 288 of the Town and County Planning Act 1990, has been made by South Oxfordshire District Council on a number of grounds. The outcome of this is awaited.

DLP Planning working with 39 Essex Chambers and Saloria Architects are delighted to have secured planning permission at appeal, on behalf of our client, for the change of use of the existing ancillary outbuilding on site to an independent dwelling for the sole use of our client at Macs Farm, Stoke Poges.

The site has an extensive planning history. In 2009, a CLOPED was issued for an outbuilding (which formed the appeal site) and was erected as an ancillary building to the rear of Macs Farm, a detached dwelling house accessed from Farthing Green Lane. However, the Council considered that a separate dwelling had been erected, which became the subject of enforcement action with a Notice being served in 2012 requiring its demolition and the removal of all resulting materials from the land.

An appeal against the enforcement notice was dismissed, but this decision was subject to a High Court Challenge. At the interim hearing, the Judge suggested Alternative Dispute Resolution as a means of resolving the differences between the parties. Through this process both parties agreed a Section 106 agreement in 2014, which ‘stayed’ the effect of the Notice which remains valid. The agreement between the Council and the Applicant meant that the outbuilding could remain provided it was used for purposes ancillary to the main dwelling house in accordance with the requirements of the S.106 Agreement.

The Council refused the initial application, which proposed the change of use of the existing ancillary building on site to an independent dwelling, solely for the use of the Applicant on the grounds of inappropriate development in the Green Belt and the impact on openness.

However, in allowing the appeal, the Inspector agreed with the Appellant’s case that the appeal proposal would reuse a building of permanent and substantial construction that is readily capable of conversion, which would preserve the openness of the Green Belt and would not conflict with the purposes of including land within it.

The Inspector also found that the creation of a separate dwelling would result in limited activity and associated paraphernalia and would not result in any additional harm to the Green Belt or the character and appearance of the area.

DLP have just secured outline planning permission, on Appeal, for two dwellings situated in the Green Belt on land off Mount Pleasant, Aspley Guise. This is one of a series of developments for which DLP have gained planning permission in the Green Belt through successfully arguing the case of Limited Infill.

The site has a previous planning history for residential development, which includes refusals and a dismissed Appeal.  A reduced scheme was prepared and a new application, carefully justified, was submitted to Central Bedfordshire Council. The Council refused the scheme on the grounds of inappropriate development in the Green Belt and impact on the character of the Countryside.

However, having reviewed our Statement of Case and subsequent Rebuttal Statement, the Inspector agreed with our case – that the site and proposed scheme did constitute as ‘Limited Infilling’ in the Green Belt. This meant that ‘Very Special Circumstances’ did not need to be achieved and the impact on the openness of the Green Belt was not a material consideration. The visual amenity of the proposals has also been considered as relating to openness due to the development being classified as Limited Infill.

In relation to the assessment of the site being Limited Infill, the Inspector concluded the following:

“The site is a vacant plot that forms a substantial gap between existing dwellings along this part of Mount Pleasant. While I note the size of the gap in the otherwise built-up frontage and that the site is not entirely enclosed by residential development on all sides, given the number of dwellings proposed and the size of the site, I see no reason why the two dwellings could not constitute small-scale development and complement the surrounding pattern of development.”

On the 29 January 2021, Robert Jenrick, the Secretary of State for the Ministry for Housing, Communities and Local Government, confirmed that he would allow the Mayor of London to publish his London Plan with no further changes being made. This was more than four years after the first draft of the planning guidance for the capital was first published. It is currently anticipated that the Plan will be formally published by the end of March 2021.

The London Plan sets out an integrated economic, environmental, transport and social framework for the development of London over the next 20-25 years. The focus of the new London Plan is on “Good Growth” that is growth which is socially and economically inclusive and environmentally sustainable.

There are six main objectives of Good Growth:

Building strong and inclusive communities

• Making the best use of land
• Creating a healthy city
• Delivering the homes Londoners need
• Growing a good economy
• Increasing efficiency and resilience

The Plan also responds to a number of key manifesto commitments made by the Mayor including:

• Making London a zero-carbon city by 2050.
• A long-term target to achieve 50% all of new dwellings as affordable homes
• Supporting a modal shift so that 80% of journeys are by walking, cycling or public transport by 2041
• Protecting London’s Green Belt

Other significant themes are the identification of Opportunity Areas where the most significant changes will occur and focusing development on transport hubs and on small sites in Outer London. Key priorities going forward will include ensuring sufficient levels of well-designed and affordable housing and refocussing our high streets and commercial areas.

If you have any queries regarding the London Plan or specific policies please contact Frances Young, Director of our London Office.

DLP and BE1 have worked in partnership to prepare and submit an application to Luton Borough Council for a mixed-use scheme comprising a community centre and residential units. The site is a former car park that was previously associated with the neighbouring office building which has since been converted to residential under permitted development.

The community centre is intended as a landmark building and reflects the civic nature of the intended use. It includes flexible and adaptable interior spaces to suit the needs of the local community whilst there are also a number of office spaces that could be utilised for hourly or daily use. The residential units are a mix of 1, 2 and 3-bed dwellings to meet the requirements of Luton Borough Council’s housing needs. Space is at a premium in the area and as such the proposal utilises the entire roof area as a terrace for both the users of the community centre and the residential properties. An under-croft parking area is proposed to ensure suitable parking provision can be provided. There is also easy access for less ambulant users via street level lifts.

Following submission of the Publication Draft Local Plan, the Inspector was appointed by the Secretary of State to carry out the independent Examination of the North East Derbyshire Local Plan 2014 – 2034. As part of the Examination, the Inspector held Hearing Sessions in November and December 2018 and March 2019. Following the Hearings, the Inspector has identified a number of Main Modifications considered necessary to make the Plan sound and/or legally compliant.  These were issued without prejudice to the Inspector’s final conclusions on the Plan.

DLP have made representations in respect of the draft Local Plan main modifications. The consultation ran until the end of January 2021 having been extended from a period of 7 ½ weeks due to the COVID-19 restrictions. Councillors have advised residents to have their say on the changes proposed by the Inspector to the draft Plan so far, including the removal of three large previously allocated Green Belt sites and the updated housing land supply in the District. Comments are expected to be made in respect of the Green Belt revisions proposed throughout the Borough. We have supported a wider range of land to be released from the Green Belt to deliver more housing and also to accurately reflect the capacity available from emerging sites.

The Council has published their proposed main modifications to the Doncaster Local Plan. The Inspector will be issuing a note shortly regarding whether other main modifications or changes to the policies map are required to ensure that the Plan is sound. The Inspector will then ask the Council to carry out a public consultation on the proposed modifications.

The key points to be aware of at this stage from the Council’s proposed main modifications are:

• All of the proposed main modifications and changes to the policies map have been subject to sustainability appraisal, and the report on this will be published soon
• The general extent of the Green Belt will remain the same
• A policy amendment is proposed to reference the revised minimum of 15,640 net new homes in the remainder of the plan period 2015 – 2035
• No additional housing allocations are proposed
• The currently proposed housing allocations remain

A number of amendments are proposed to policies regarding Doncaster Sheffield Airport.  In this respect, Doncaster Council is currently working with the Airport, Sheffield City Region, the Department for Transport, Network Rail, and Transport for the North. This is to further plans for a new railway station at the Airport which connects to both the East Coast Main Line and the Lincoln Line. Emerging evidence shows that this is a preferred alternative to the Lincoln Line station, but the scheme is yet to secure funding at the point of Plan adoption.