New Models for Planning Affordable Hous HBF conference

New Models for Planning & Affordable Hous – HBF conference Planning Agreements – use, abuse and some possible solutions Paul Winter, Eversheds LLP 14 th September 2006

Introduction and overview • A mechanism to deliver sustainable development • Social and Economic Context • Historic Perspective and Trends • Legal framework • Policy framework • Abuses and problems • Some possible solutions

Social and Economic Context • Need for sustainable development: – More homes to meet need and reduce house price inflation – Respond to increasingly competitive global market – Achieve environmental imperatives • Kate Barker reports – planning obligations identified as source of considerable delay and uncertainty • How will the system cope in recession and/or falling house prices? • Need for reform

Historic Perspective and Trends • Evolution of the statutory powers in an increasingly complex planning system • Planning Guidance and the key tests • Case Law – distinction between “vires” and policy issues & judicial challenge • Growth in the use of planning obligations and the value delivered • Expanding their scope and complexity – Affordable housing – Tariffs, Formulae, & Standard Charges • PGS and the contraction of planning obligations

Legal Framework – some current issues • Statutory powers and duties – Who can be parties? • Scope to extend in the interests of effective delivery of infrastructure? – Purposes of obligations are broadly stated • What extensions are needed? – Scope for expansion of powers – contributions • Will the 2004 provisions achieve it? – Modification and discharge – too rigid? – Public involvement and transparency

Policy Framework • Circular 05/05 and the Practice Guidance • Key Principles – pp should not be bought or sold • Policy Tests – paragraph B 5 of C. 05/05 – Relevant to planning – Necessary to make the proposed development acceptable – Directly related to the development – Fairly and reasonably related in scale and kind – Reasonable in all other respects • Should never be used as a form of betterment levy (B. 7) • Conditions preferred to obligations if possible (B. 51) • PPS 3 – expected September 2006 earliest • Audit Commission Report (August 2006) • Policy flux – clarification urgently needed

Practical problems and abuses • Planning obligations and developers with no (or limited) “interest” in the site • Third parties delivering infrastructure – parties? • Bottom drawer policies • Unreasonable demands + delay as a lever – Appeal and seek costs? – Mediation or experts? – Quick and binding arbitration by PINS? – Extension of Mayor’s powers? – The Model Agreement – Statutory monitoring and AMR’s? • Viability and the open book approach

Contributions to infrastructure • On site works and directly related improvements • R v South Northamptonshire ex p Crest Homes – specific sharing of costs • Stroude v Beazer Homes • Patel v Brent LBC • Tariffs, formulae and standard charges – Importance of robust LDD policies – Future improvements and works – Retrospective costs • PGS –delivery mechanism or stealth tax?

Affordable housing • Need for Affordable housing is a material consideration • Transfers to RSL – mechanism • Enforcement of affordable housing obligations • How far can LPAs go: – Specifying the RSL? – Capping price to RSL? – Nomination of residents? • Will such policies get through the DPD process in future? • Need for clearer guidance and control

Conclusions • The need for sustainable development is paramount • Planning obligations have a vital part to play in the delivery of sustainable development • The LDF process is vital to a robust and fair system • This is not the time to retract their use in favour of PGS because it will undermine delivery • Improving the system is the best way to fulfil the overall goal of delivering sustainable development