London,
25
May
2017
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Howard Kennedy Planning Newsletter - May 2017

Summary

Welcome to the first newsletter produced by the Howard Kennedy Planning Team. It is a General Election and Brexit special, which we hope you will find informative.

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It has only been two years since David Cameron won an unexpected majority at the 2015 general election, but the UK's political landscape has changed dramatically in that time. Last year's EU referendum split the country down the middle and the Remain vs Leave rivalry has not gone away in the intervening 10 months.

Brexit is dominating the national conversation with the issue taking up a huge amount of the Government's energy, even before the negotiating process has officially commenced. The issues surrounding Brexit seem sure to influence the way that people will vote on June 8 and constituencies could well change hands depending on how much each party is trusted to negotiate the UK's exit from the EU.

All of the major parties accept that Brexit will take place, and although the recent YouGov poll suggested that more Britons think Brexit is bad decision than a good one (45% vs. 43%), that is unlikely to reverse the reality of Brexit – the die is cast. The snap election is therefore, as canvassed at the beginning, more a choice of the version of Brexit and the shape of the final deal with Brussels.

However, as far as the planning industry is concerned, the snap election can be a chance for the industry to make its voice heard and elicit commitments to protect the industry from the significant risks posed by Brexit. 

The challenges which Britain faces have not gone away, but if anything become more pressing – homes need to be built and jobs created. The economy needs assistance in the more uncertain times whilst Brexit is negotiated. Britain outside the European Union must create and deploy all of its advantages. From the planning perspective that is not only enabling development to take place but preserving and strengthening what makes Britain such a great place to live and work. The social, economic and environmental dimensions of sustainable development are all needed for Britain to compete and thrive in the world. The process of planning law reform needs to continue. The state of the economy today bears an uncanny resemblance to 2006, just before the financial crash. Waiting, hoping and ignoring these issues is only likely to lead to a downturn of the kind that nobody would benefit from.

In this month's round-up of key planning developments, we look at:

 

General Election 2017: Housing and planning policies compared

Labour, the Conservatives and the Liberal Democrats put forward their plan for tackling the UK housing crisis last week. The overall vision of all three of the main parties is broadly similar – to increase the provision of high-quality homes for sale and rent at affordable prices. However, unlike at previous election cycles, the three main parties are proposing drastically different methods for achieving this vision.

There is broad consensus among the three main parties on several key policy issues. All agree that upwards of 1.5 million new houses need to be built by 2022 and all have expressed a commitment to ensuring that new houses are of high quality, brownfield sites are prioritised, the Green Belt is preserved, and more homes are built to cater for the needs of older people and those with disabilities.

The key points of difference mainly surround the volume, means of delivery and level of support needed to boost housing supply and tackle some of the wider issues in the housing market.

Conservatives

  • The Conservatives' housing target is 1,000,000 new homes by 2020 and a further 500,000 by 2022.
  • The Green Belt National Parks and Areas of Outstanding National Beauty will remain.
  • The Conservatives have pledged to free up more land for development, give councils powers to intervene where developers do not act on planning permissions and diversify the house-building industry. They have pledged to implement the reforms proposed in the Housing White Paper.
  • The Conservatives make no firm commitment when it comes to building affordable housing, promising only to give housing associations flexibility to increase their housing stock and work with some local authorities – who demonstrate a suitably ambitious and pro-development attitude – to help them build new social housing.

Labour

  • Labour's housing supply target is more than 1 million by the end of Parliament.
  • Labour’s plan is to establish a new Department for Housing and give local councils new powers to build more social housing aided by a National Transformation Fund. They would suspend the right-to-buy, establish ‘new towns’ to prevent urban sprawl and aim to build 100,000 genuinely affordable council or housing association homes a year during the next parliament.
  • Brownfield sites will be prioritised and the Green Belt protected.

Liberal Democrats

  • The Liberal Democrats are proposing 300,000 homes a year by 2022.
  • The Liberal Democrats are proposing direct government investment in house building to fill the gaps left by the market. They would build 500,000 affordable homes a year and establish a British Housing and Infrastructure Development Bank to provide capital for new settlements, including 10 new garden cities.
  • They will penalise excessive land banking by developers who have failed to build after 3 years, and introduce a community right of appeal where planning decision go against an approved Local Plan.

A summary of what the parties are promising is provided by Knight Frank here.

Crucially, Labour and the Liberal Democrats have rejected the previous notion that tweaking the housing market from above is sufficient to ‘fix it’, for a wholly interventionist stance involving central government and local authority investment. With housing a top priority for many voters, this principled policy schism could prove decisive on June 8th.

Purdah and its implications on planning

What is Purdah?

The term 'purdah' is used to describe the period of time immediately before an election or referendum is held. It is the pre-election period when central and local government are restricted from carrying out certain communications activities.

When is Purdah?

Whilst the pre-election period is often tied to dissolution of parliament, which occurred on 3 May 2017, the pre-election period began on 00:01 22 April for the 2017 general election as set by the Cabinet Office. Separately, due to the convergence of the General Election 2017 with the series of local elections in May 2017, the pre-election period for those local elections has already began for local authorities and civil servants.

The purdah period for general elections is not governed by statute. These conventions originated in central government, but have been applied in different forms in other contexts (such as local government). The Cabinet Office has published Guidance which took effect from midnight on 21st April, from which time purdah is in effect. Given we are now in this purdah period, nationally significant or contentious decisions are likely to be delayed.

What is restricted?

During purdah, local planning authorities must take care not to make policy announcements or decisions on matters which a newly elected body may have opposing views on and which may be politically contentious. This will impact emerging planning policy, such as the Housing White Paper and the National Planning Policy Framework revisions, and new Acts, such as the Neighbourhood Planning Act 2017, which was granted Royal Assent on 27th April 2017 and has seen only a handful of clauses being brought into effect. The period of purdah will now delay any further progress on the provisions or detail of the Act.

On a more local level, the Local Government Association has published guidance which cautions local authorities to 'think carefully' before launching any new consultations (other than under a statutory duty) or publish report findings from consultation exercises which could be politically sensitive.

However, the day-to-day functions of the local planning authority, in the main, remain unaffected. Most applications will not be affected by the state of purdah given their small-scale and apolitical nature and the local planning authority is still free to issue planning decisions. In the same vein, the majority of planning committees will also still proceed. However, controversial schemes, may feel the force of purdah and if they are sufficiently controversial, decisions may be deferred to after the elections.

Implications of Brexit on the planning system

On 23rd June 2016 the UK voted to leave the European Union ("EU"). Article 50 was triggered on 29th March 2017, thus beginning the process of leaving the EU. This article considers the implications for the planning system of the UK's departure from the EU.

Which aspects of planning law/policy could be affected by Brexit?

The planning system in the UK is largely legislated through domestic legislation, such as the Town and Country Planning Act 1990, but the main influence of EU law on planning is in relation to the requirements for the environmental assessment of development projects and policies.

There are three key EU directives, namely the Environmental Impact Assessment Directive 2011(the ‘EIA Directive’), the Strategic Environmental Assessment Directive 2001 (the ‘SEA Directive’) and the Habitats Directive 1992 (the ‘Habitats Directive’).

These EU Directives have been transposed into UK legislation primarily by way of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 (as amended) (the ‘EIA Regulations’), the Environmental Assessment of Plans and Programmes Regulations 2004 (the ‘SEA Regulations’) and the Conservation of Habitats and Species Regulations 2010 (the ‘Habitats Regulations’) respectively. Separate enabling legislation has been introduced in Wales and Scotland. The EIA Directive was amended by the EIA Directive 2014 which member states must implement by May 2017, and which the UK will still have to implement too given that it is before the two-year limit of June 2018.

The extent to which these provisions remain after Brexit depends on the terms of future treaties negotiated, if the EU requires certain regulations to be enforced as pre-requisites to other rights. Once the UK is no longer a member of the EU, regulations and treaty provisions would no longer apply to it from that point forwards. However, the regulations (through which the Directives have been imposed) were enacted under the European Communities Act 1972, which, it was announced on 2nd October 2016, will be repealed (discussed further below).

Outside the remit of EU Directives, future governments could amend or revoke legislation dealing with environmental issues. There may well be a tendency over time to weaken these as the superior obligations requiring them to be adhered to would no longer exist, and there would be economic pressures and temptations to do so. The UK would have a choice: mirror the EU protections (perhaps as a condition of free movement of goods and services) without having a say in their development, or fall behind with the protection of people and the environment. The UK could introduce greater protection, of course, but that could still happen while remaining in the EU. It must also be remembered that other, international treaties exist, which will govern the way the UK will legislate on environmental procedures.

These include the Aarhus Convention which grants the right to the public to access environmental information and participate in environmental decision-making, the Kyoto Protocol, which commits its members to reduce greenhouse gas emissions and the Paris Agreement which also regulates environmental measures in relation to climate change.

In addition, the UK is likely to want to continue to regulate the environmental impact of large developments, and so seek continuity in the existing system. The regulations have been in force for over a decade and are now embedded in policy-making and the decision-making process.

Many of the issues which may affect the planning and environmental position in UK law, are those which affect other sectors. For example, following the UK’s exit from the EU, the UK will have to bear the cost of developing its own regulatory system or, potentially, rely on EU policies/documents without having a seat at the table. This will largely depend on the negotiations and terms on which Brexit is settled.

The Great Repeal Bill

The Great Repeal Bill will repeal the European Communities Act 1972, and it is doing so through so-called "Henry VIII" clauses. These will bypass the need for the changes to go through Parliament. However, the Bill's purpose is to effectively lift EU law and write it into UK law pending the vast tranche of amendments that will need to be made in light of Brexit. The problem that the UK is left with is, in the absence of the EU and the ECJ, identifying who the regulators will be for the relevant industry or sector, ranging from banking to environmental issues. There are over a thousand laws affecting environment and rural affairs which derive from the EU. We run the clear risk of “zombie” laws which the UK cannot apply or be enforced effectively.

For example, issues such as air quality are currently regulated by EU law and there is the possibility that the Great Repeal Bill could be used to remove significant environmental protections. Standards may be relaxed and exceptions could be introduced, making it easier for developers to comply with new regulations, to the detriment of the environment. It is highly possible that, eventually, the scope of the law will change; for example, the threshold for developments requiring an EIA to be submitted may be increased so that only the largest projects need to submit an assessment. It would, however, be a matter of political decision as to how the UK addresses this.

For the time being, the Great Repeal Bill provides that the UK will preserve EU law as it stands at the moment it exits the EU and until alternative legislation exists. However, many developers would welcome a relaxation of the environmental laws, and it may be that without a top-down EU-centralised process that political motivations will change the landscape of the legislation, and the country. For example, the requirement for EIAs on large projects can easily run into six figures, imposing a substantial burden on developers, while habitats and birds protected by respective regulations can be a bar to potential, lucrative development.

Changing these provisions will be no small feat, however, and drastic change would not stand without recourse through the democratic process. It also needs to be put into the context of Brexit; many commentators have pointed out that in the next two years the government and its ministers will have more pressing issues to contend with before they can turn their attention to environmental change. If we are going to see a noticeable 'watering-down' in environmental protection, this is likely to come after the process of leaving the EU has been completed, which may take years.

What the Bill means for applicants and local authorities handling planning applications

The Bill, by virtue of its very purpose, will mean 'business as usual' in many respects. The main aim of the Bill is to ensure continuity of the legislation which has been passed down into UK law. There has been no indication as to what changes may be made, however fears have been expressed by some environmentalists, while other experts question how likely it is that current provisions under EU law will materially affect developer and local planning authorities in the next couple of years.

The UK's planning system is governed by domestic statute and policy. The impact of Brexit and the Great Repeal Bill will only be felt by local planning authorities in the applicability of measures, for example if the threshold for an EIA assessment changes. By the same token, developers will notice the changes where measures are relaxed so as to free up development, or in the alternative, hinder it if measures are tightened.

If you would like more information or advice on the content of this newsletter, please contact Martha Grekos, Laura Nation or Antonia Frangakis

Contact
photo:Martha Grekos
Martha Grekos
Partner, Head of Planning
+44 (0)20 3755 5707
photo:Laura Nation
Laura Nation
Senior Associate
+44 (0)20 3755 5390
photo:Antonia Frangakis
Antonia Frangakis
Paralegal
020 3755 5453
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