Development Viability Legal Perspective Roy Pinnock Dentons Planning

Development Viability Legal Perspective Roy Pinnock Dentons, Planning & Public Law

VIABILITY IN PLANNING

VIABILITY IN PLANNING • Housing development - DM • Listed Buildings • Community Infrastructure Levy • Retail impact • Local Plans • Valuation advice

SITE SPECIFIC VIABILITY • The Development Plan is the starting point (but is it 'up to date' - para 174, 14? ) • NPPF starting point for DM • Para 96? • para 205 "take account of changes in market conditions over time and, wherever appropriate, be sufficiently flexible to prevent planned development being stalled. " • What is being subsidised, recklessness? • Land costs vs Existing Use Value • Development costs • Development Profit • ‘Exceptionals’

SITE SPECIFIC VIABILITY • Is policy realistic? What does it actually say Wokingham – Manor appeal • Resist ‘planning by numbers’ – viability=permission Amber Valley, Hounslow, Fareham, Wokingham Manor • Need for market homes, may justify a cut • What is the planning balance – 5% of something… • Fight the battles you can win • …properly advised • at the applicant’s cost • use the tools available • There is no Viability 'Rulebook' 'Shinfield Principles' - 50/50 split above EUV - 'sufficient incentive' Lack of flexibility by LPA and failure to use Section 106

LOCAL PLAN VIABILITY (1) • NPPF starting point: para 173 • Ensure viability • "Competitive returns. . Willing owner… willing developer" • Objective - deliverability • NPPF starting point: para 174 • Assess likely cumulative impacts of all requirements • Cumulative impact of standards and policies should not put implementation of the plan at 'serious risk' • Facilitate development throughout the economic cycle. • Proportionate/ appropriate / available evidence THEORY

LOCAL PLAN VIABILITY (2) • SO… • Does land value expectation adjust to policy 'needs' • Or the other way round? • Every site viable at every point in the cycle? • NPPF starting point: paras 14, 152 & 182 • Meet objectively assessed needs • …including social and environmental • Secure net social, environmental and economic gains. • Proportionate/ appropriate / available evidence CONUNDRUM

LOCAL PLAN VIABILITY (3) • RICS Guidance (August 2012) • HARMAN GROUP Guidance (June 2012) • SECTION 106 BA - APRIL 2013 : Meet objectively assessed needs • Annex A may help • Market value should 'disregard that which is contrary to the development plan'. . • Common sense • CIL approach • CPO market value… GUIDANCE ON THE GUIDANCE

SECTION 106 • A static offer is usually unreasonable Clay Farm • Hedge the risk, sophisticated mechanisms – catch up (phases) – bounce-back (notional start vs substantial start vs completion) – deferred contributions (cashflow) – Realised Value recovery Flemmingate • Section 106 BA TCPA 1990: Growth and Infrastructure Act • Be careful with Section 106 • Use conditions – planning balance • December 2012 CIL Guidance USE IT OR LOSE IT

COMMUNITY INFRASTRUCTURE LEVY • Section 205 Planning Act 2008 / Localism Act 'not make development of the area economically unviable' • Viability is rarely a killer point, but it can be Greater Norwich, Bristol - sums wrong • Allocations and Uses should stack up Mid Devon - affordable housing • Major Allocations and Types, do they work? December 2012 CIL Guidance • Major allocations, are you going to get ripped off? Cranbrook, Beaulieu Park

CONFIDENTIALITY of VIABILITY DATA • Disclosure is often necessary, even where there is harm Aarhus/ Environmental Information Regulations ICO: Lakota Building (no harm), Hampton Court (harm, but disclosure) CLG Guidance May 2013 …and particularly where there is an LPA land interest • Summary data only, for public disclosure R (English) v East Staffs BC (2010) • A balance is required Section 41 FOIA 2000 • Is the information actually confidential? • Is there really likely to be prejudice? • Mechanisms to compromise • Data ring • 3 rd party adviser