At our June planning club we covered the following topics: - air quality and the implications for planning - viability assessment in relation to S106 agreements - an update on the NPPF. To view further information and training visit our website - https://www.brownejacobson.com/sectors-and-services/sectors/public-sector

1. Public sector planning club
June 2018, Nottingham

2. Outline
• Update to NPPF
• Discussion regarding viability clauses in section 106
agreement
• Consideration of air quality issues

3. NPPF update
Ben Standing

4. Current position
• First review of the original NPPF since it was
published in 2012
• Consultation on draft text of framework and
guidance closed 10 May 2018 and govt currently
considering feedback
• No date confirmed for final version following
consultation

5. Overview
• Draft NPPF incorporates changes consulted on
following 2017’s housing white paper and “planning
for the right homes in the right paces” consultation
• Focus of the changes are to:
– Pressure on LPA’s to adopt up to date local plans and
introduce measures to make this easier process
– Pressure on developer’s not to delay in implementing
planning permissions and provide enough affordable
homes

6. Sustainable development
• Expectation for strategic plans to provide for objectively
assessed needs for housing and other development as well as
needs that cannot be met within neighbouring area unless
there are strong reasons not to
• Footnote 7 (old footnote 9) sets out constraints that would
limit application of presumption. Adds ‘irreplaceable
habitats including ancient woodland, aged or veteran trees

7. Sustainable development
• Removed "golden thread running through both
plan-making and decision-taking" to a simple
application of the presumption in decision-making:
– “decisions should apply a presumption in favour of
sustainable development".

8. Strategic plan making
• The draft revision says that local planning authorities (LPAs)
must "as a minimum" ensure there is a plan that "addresses
the strategic priorities for their area”
• Makes little reference specifically to local plans and does not
take forward the expectation in the existing NPPF that each
LPA should produce a single comprehensive local plan that
covers detailed issues as well as strategic issues
– where more detailed issues need addressing, local policies
"may" be produced for inclusion "in a local plan, or in a
neighbourhood plan".

9. Strategic plan making
• Strategic policies each LPA should include in its
plan – “limited to those necessary to address the
strategic priorities of the area”
• Strategic plans should "as a minimum" plan for and
allocate "sufficient sites to deliver the strategic
priorities of the area”

10. Plan making
• New method for calculating objectively assessed
housing need
• New housing delivery test
– Sec of State will publish annually the HDT for each
LPA in England in November
– “focused on driving up the numbers of homes
actually delivered…., rather than numbers planned
for”

11. Calculating objectively assessed
housing need
• Set out in consultation in November 2017
• Three stages:
– Step 1: Setting the baseline
– Step 2: An adjustment to take account of market
signals
– Step 3: Capping the level of any increase

12. Plan making - Soundness test
• “Sound” plan test:
– amended from “the most appropriate strategy” to
“an appropriate strategy”
– tightening the evidence which is expected in respect
of both local and strategic policies to support a
‘sound’ plan, to allow for a more proportionate
approach

13. Plan making - Soundness test
• Changing the ‘effective’ and ‘positively prepared’
soundness test so that these more clearly encourage
agreements and joint working
• Statement of common ground – for neighbouring LPA’s
• Make clear that the tests will be applied
proportionately to local policies according to the
extent to which they accord with strategic policies

14. Housing delivery
• 10% of homes on major sites required to be available for
affordable home ownership as part of overall affordable
housing contribution
– Exemptions for specialist groups, specific needs e.g.
purpose built accommodation for elderly or students)
• Encourage greater use of small sites to help diversify
opportunities for builders and increase number of schemes
– Proposal of 20% of sites allocated for housing should be a half a
hectare of less

15. Housing delivery
• From 2020 the presumption in favour of sustainable
development will apply where delivery is below 75% of
the authority’s housing requirement
• Planning conditions imposed to ensure development is
implemented within two years and authorities to
consider why sites have not been built out when
considering subsequent applications

16. Housing delivery test
• Test set out in Housing Delivery Test: Draft
Measurement Rule Book
• Sanctions on LPA if results indicate a significant under
deliver of housing
– Publication of action plan if falls below 95% - by the LPA
– 20% buffer on LPA 5 year land supply if housing delivery falls
below 85%
– The presumption in favour of sustainable development if
housing delivery falls below 75%, once transitional
arrangements have ended

17. Decision making
• Viability Assessments
– if proposed development accords with all local
policies a VA is not needed
– VA should accord with Government's recommended
approach in updated guidance
– VA to be made publically available
– Local plans should outline circumstances where VA is
required at decision making stage

18. Decision making
• Additional reference to stat and non-stat consultees (para 41)
to encourage LPA to refer applicants to them for pre-
application advice where appropriate
• Text added (at para 42) on need for discussions about
infrastructure and affordable housing at pre application stage –
encourage early engagement on these issues
• New paragraphs 48 to 51 set out the weight that may be given
to policies in emerging plans (previously in Annex 1), and puts
into policy the approach to ‘prematurity’ previously contained
in national planning guidance

19. Vitality of town centres
• Paragraph 86d clarifies that in allocating sites to meet the
need for town centre uses, policies should look at least ten
years ahead
• Town centre boundaries should be kept under review so that
identified needs for town centre uses can be accommodated
• Paragraph 87 amends the ‘sequential approach’ to planning
applications, so that out of centre sites should be considered
only if suitable town centre or edge of centre sites are
unavailable or not expected to become available within a
reasonable period.

20. Healthy and safe communities
• Para 94 – reflects housing white paper that policies and
decisions should consider the social and economic benefits of
estate regeneration, and that authorities should use their
planning powers to help deliver estate regeneration to a high
standard
• Para 96 – new policy on ways in which planning policies and
decisions can help to counter malicious or natural threats
e.g. in crowded places – take into account wider defence
and security requirements

21. Effective use of land
• More intensive use of land is encouraged in terms
of density and height
• LPA need to regularly review land allocated for
development
– Where they consider no reasonable prospect of an
application coming forward for the allocated use, to
reallocate land as part of their plan review and in
interim support applications for alternative uses

22. The Green Belt
• Paragraphs 136-137 implement the housing White Paper
proposals that:
– certain criteria should be satisfied before ‘exceptional
circumstances’ are used to change Green Belt
boundaries; and
– where Green Belt is released first consideration should be
given to land which has been previously-developed or
which is well-served by public transport.

23. The Green Belt
• Plan-making authorities would need to show that they have
made "as much use as possible" of suitable brownfield sites
and underutilised land and have "optimised" the density of
development
• Require proposals for green belt releases to have been
"informed by discussions with neighbouring authorities" about
whether they could accommodate some of the identified
need for development, as demonstrated through proposed
statements of common ground to be prepared between
neighbouring authorities.

24. Review
• Many of the changes were expected and had been
announced at varying stages in 2017
• Will the changes together achieve the
government’s aims?

25. Questions?
Ben Standing
E: Ben.Standing@brownejacobson.com
T: 0115 976 6200

26. Viability and s106 agreements
Jonathan Allen

27. Discussion areas
• The effect of viability on planning obligations
• Viability and Section 106 agreements
• Recent developments and the future of viability

28. General principles
• “Planning law requires that applications for planning
permission must be determined in accordance with the
development plan unless material considerations
indicate otherwise”
• Paragraph 14 NPPF - Presumption in favour of
sustainable development should be seen as a golden
thread running through both plan-making and decision-
taking

29. General principles (2)
• Paragraph 173 NPPF – Ensuring Viability and
deliverability
• Sustainable development requires careful
attention to viability and costs in plan-making and
decision –taking
• Plans should be deliverable

30. General Principles (3)
• The sites and the scale of development identified in
the plan should not be subject to such a scale of
obligations and policy burdens that their ability to be
developed viably is threatened.

31. General Principles (3)
• Paragraph 177 NPPF encourages discussions with the
applicant and a full exploration of the options for
mitigation or compensation to keep such costs to a
minimum so that development is not inhibited
unnecessarily

32. Principles of understanding
viability in planning
• Evidence based judgement
• Collaboration
• Local knowledge
• Site considerations

33. Planning obligations & viability
• What is the policy requirement?
• What are the key priorities?
• What is the driving force?
• What would make the application acceptable in
planning terms?
• Is CIL payable?
• 5 year housing supply?
• Early engagement with the Developer

34. Planning obligations & viability
(2)
• Consultee responses
• Statutory consultees such as Highways are experts
in their area
• Neighbourhood Plan
• Expanding range of requests for funding

35. London Specific
• London Plan
• Draft London Plan
• Affordable Housing and Viability Supplementary
Planning Guidance (SPG)

36. Viability Assessment
• Where a Developer considers that the full range of
mitigation required will affect viability, they need to
submit a viability report to the Local Planning
Authority
• Does the Developer’s viability report addresses all
pertinent issues and is it acceptable?
• Consider whether an internal or external assessment
is needed
– Funding

37. Parkhurst Road Ltd case – Base
Land Value
• Parkhurst Road Ltd v Secretary of State for
Communities And Local Government & Anor [2018]
EWHC 991 (Admin)
• Local planning policies required new residential
developments to provide the "maximum reasonable
amount of affordable housing" in the context of a
borough-wide target of 50%

38. Parkhurst Road Ltd case
• Developer used BLV method to calculate that
providing more than 10% AH would make it
unviable – based on market information
• Council argued developer overpaid for the site –
and that Developer argument was circular and
counter to paragraph 023 of the PPG as didn’t
reflect affordable housing expectation

39. Parkhurst Road Ltd case
• Decision covered:
– Viability assessments
– EUV plus method
– Land price comparison
– Other observations
 Uncertainty
 RICS 2012 guidance note should be update

40. Section 106 Agreements &
Viability
• What are your experiences?

41. Section 106 Agreements &
Viability
• Are the viability issues agreed? Refuse
consent/further discussions.
• Reduced obligations?
• Clawback/Overage
• Calculation/formulas
• Viability reassessment
• Triggers

42. Example Provisions

43. What next for viability?
Developing area:
– Land Value Capture Inquiry
– NPPF changes

44. Land Value Capture Inquiry
• Communities and Local Government Committee to
consider:
– the effectiveness of current land value capture
methods
– the need for new ways of capturing any uplift in the
value of land associated with the granting of
planning permission or nearby infrastructure
improvements and other factors
• Submissions received – available online

45. NPPF updates
• Updates to NPPF and accompanying guidance in respect
of viability
• Removes ensuring viability and deliverability, and any
reference to ‘competitive returns to a willing land
owner and willing developer’
• Shift on focus of viability assessments at plan-making
stage - Local Plan setting out where further
assessments required at planning application stage

46. NPPF updates
• No viability assessment at the planning application
stage if proposal accords with all relevant policies in an
up-to-date development plan
• Viability assessments should be publicly available
• Viability assessment to reflect Govt approach in new
draft revised NPPG
• Viability review mechanisms in the draft revised NPPG

47. Any questions?
Jonathan Allen
E: Jonathan.Allen@brownejacobson.com
T: 0115 948 5620

48. Air Quality and Planning
Update
Will Thomas

49. What we will cover
• Background
• Case Law Update
• What to expect going forward

50. Legal Framework
• EU Ambient Air Quality Directive 2008/50/EC
implemented in the UK through Air Quality
Standards Regulations 2010
• Compliance originally required by 2010
• Schedule 2 – Limit Values – Nitrogen Dioxide limit
value at 40 micrograms per cubic meter annually;
daily limit of 200 micrograms per cubic meter, not
to be exceeded more than 18 times a year.

51. Current News
• Success! It took us until February to breach the Limits
of the Directive in 2018.
• Health bodies generally consider air pollution to
present a public health crisis. Study suggests that in
2008, air pollution was responsible for nearly 29,000
premature deaths in those aged 30 or older in the UK.
• Increasing suggestions for the car industry to pay
compensatory contributions for air pollution – “polluter
pays principal”

52. Requirements to implement
• As part of implementing the Directive the UK
Government is required to produce an Air Quality
Plan
• The Air Quality Plan must evidence how the UK will
reach compliance with the Directive in the shortest
possible time
• The Air Quality Plan has now been declared
defective by the English Courts three times

53. ClientEarth No.3
• Most recent of the three is ClientEarth No.3 2018
• In the Plan the Government had identified 45 local
authorities that were projected to be compliant by
2021 and therefore planned no further measures
and did not identify if they could reach compliance
sooner.
• This was found non-compliant by the Supreme
Court.

54. Affects on Planning Policy
Nationally
• NPPF – currently one of the twelve core principles
to “contribute to…reducing air pollution”.
Consultation on the revised NPPF has just closed.
More focus on the housing crisis than air pollution.
• PPW – core principle to respect environmental
limits and stop irreversible damage.
• Both encourage local policy compliance with the
Directive and local air quality action plans.

55. Affects on Planning Policy Locally
• When deciding local development plans, LA’s must
have consideration of national guidance (NPPF /
PPW) on air pollution.
• How this has been interpreted locally differs
substantially across the UK.
• Birmingham Development Plan 2031 – no specific
air quality measures.
• London Development Plan – proposals must be at a
minimum air quality neutral.

56. Affects on Planning Policy Cont.
• Nottingham Submission (not yet approved) –
requirement for “clear air zone” by 2019. New
developments should be designed to reduce pollution
and won’t be approved if they contribute to poor air
quality.
• Manchester Development Plan –
“Developers will be expected to take measures to minimise and
mitigate the local impact of emissions from traffic generated by the
development, as well as emissions created by the use of the
development itself…”

57. R (on the application of Shirley) v SoS for
Communities and Local Government [2017]
• The Second Interested Party had applied to the LPA for
permission for an urban extension to Canterbury comprising
4,000 dwellings.
• The Application evidenced an air quality assessment which
found the threshold NO2 limit wouldn’t be breached.
• The LPA requested a review – the professor of the Report
found the conclusions were inaccurate based on traffic
modelling flaws.
• The LPA favoured the former report and resolved to grant
permission, subject to s106 Agreement being completed.

58. Shirley cont.
• The Professor and the Claimants wrote to the Secretary of
State for a determination under s.77 Town and Country
Planning Act 1990.
• S.77 allows the SoS to call in permissions for determination
by him instead of being dealt with by LPAs.
• The SoS refused on the basis that air quality issues were a
matter of local consideration.
• The claimants judicially reviewed the decision as they
considered the SoS to be the “competent authority”
responsible for ensuring compliance with the Directive in as
shorter time as possible.

59. Shirley Cont.
• Found that there was no wider duty on the SoS to make
determinations on developments under the Directive
and therefore no requirement under s.77 to call issues
in.
• S.77 did not create a duty on the SoS to supervise local
planning functions and the parties still had local routes
to protest to the development.
• Whether or not the SOS calls in a decision is a matter of
planning judgement (Persimmon Homes Ltd 2007
applied)

60. Gladman Developments v SSCLG
and CPRE [2017]
• Application made for planning permission of 470 dwellings +
60 care home units in Kent.
• Refused in the first instance and on appeal.
• Application brought to quash the decision of the planning
inspector on appeal on 11 issues.
• High Court considered the matter of air quality.
• The Inspector had applied ClientEarth No.2 and considered
the NPPF paras 120 and 124 in concluding that the site would
have an adverse impact on the environment and could not be
approved.

61. Gladman Cont.
• The Claimants disagreed with the application of
ClientEarth No.2 noting that the Government
were required to produce a plan which would
make the Country compliant shortly.
• The Court found that the inspector had been
correct in his interpretation. The inspector was
not required to assume the UK would become
compliant with the directive and was at liberty
to consider reducing air pollution.

62. Gladman Cont.
• Inspector had concluded that the developer’s
proposed mitigation measures were insufficient.
Mitigation measures needed to be measurable. This
was upheld by the Court.

63. Planning considerations
• Air quality often a material planning consideration
• Weight given to air quality in a planning decision will depend
on:
– Policies in Local Plan
– Severity of impacts
– Existing air quality surrounding development
– Likely use of development
• Assessment of impacts is key
• Where adverse impacts, planning may be granted if those
impacts can be mitigated

64. Changes to be expected
• LPAs to start asking for:
– Better design;
– Air quality impact assessments;
– Measurability of reduction;
– Increased S.106 obligations / contributions;
– Mitigation plans;
– Higher planting requirements;
– Electric charge charging points

65. Measurability
• Developers should be expected to produce accurate
projections of the impact the proposed plan will have
on air quality including evidence of alternatives
considered.
• Local authorities will be increasingly expected to
consider reduction as part of planning policy and will
want accurate projections. Important not to rely on the
Governments Air Quality Plan until it is considered
compliant.
• Provision of air quality impact assessments as standard.

66. Obligations in s.106 Agreements
• Likely to see an increase in s.106 requirements to
mitigate and compensate for any effects on air
quality
• Possible requirements to contribute to clean air
projects such as electric bus services/park and ride
schemes

67. Monitoring
• Once air quality plans are approved as part of
planning permission / ongoing s.106 obligations,
there are likely to be increased monitoring
requirements –
– Annual reports during construction
– Measuring instruments around the site
– Increased site inspections

68. New site requirements
• Planting
• Spatial planning
• N02 charge boxes
• Electric car charge points
• Bus routes
• Park and ride options
• Secure bike storage

69. Car restrictions
• At present air quality plans/local plans focus on commercial
vehicles only. Very unpopular to start targeting private
vehicles.
• However critics anticipate increased traffic
regulation/minimisation will be the only way to reach
desired air quality expectations.
• Welsh Government recently announced two consultations
into tackling air quality with a focus on reducing roadside
NO2 to produce clear air zones. Clean air zones may be
required to restrict vehicle access or introduce a charging
scheme as road traffic is a “significant source of airborne
pollution”

70. Questions?
Will Thomas
E: Will.Thomas@brownejacobson.com
T: 0115 934 2007

71. All information correct at time of production.
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illustrates the law as at the published date. If in doubt, please
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