Each time a charity disposes of property, whether it is the sale or for leases of over seven years, a Charities Act Report has to be written by a qualified surveyor. This report, also known as a Qualified Surveyors Report (QSR), includes a valuation and a wider commentary of the circumstances that may need to be considered by the charity’s trustees. A Charities Act Report will represent the independent verification that the asset is disposed of in a manner that is in the organisation’s best interests and validate the strategic management of the charity.

Charities Act Report
Before a charity disposes of any interest in property its trustees are required to take valuation advice from a qualified surveyor to ensure that they execute the deal on the best terms that can be reasonably obtained for the charity. Whilst this is the case for a full disposal or a lease over seven years or over, for shorter term leases the requirement is less onerous requiring only a simplified review that does not have to be completed by a qualified surveyor.

Charities Act Reports are required for disposals including:
• Sales
• Leases over seven years
• Granting rights
• Assignment or surrender of leases

Trustees must:
• Obtain and consider a qualified surveyors report
• Advertise the disposal as advised by the surveyor
• Obtain the best terms reasonably attainable that are in the charity’s best interests

Surveyors:
• Must act solely for the charity
• May write the Charities Act Report and act on behalf of the charity with the disposal
• Have valuation experience of the property type and location
• Be a member of Royal Institution of Surveyors (RICS)

A Charities Act Report (Qualified Surveyors Report) will include:
• A valuation
• Most appropriate method of disposal
• Advertising and marketing advice
• Whether to carry out works or repairs ahead of the sale
• Whether to divide the property into parts for disposal

When a Charity purchases a property, whilst not a legal requirement, getting professional support in the form of a Charities Act report is best practice for the same reasons outlined above regarding a disposal.

Rapleys Not for Profit Sector
In addition to the development consultancy and the agency work of the Rapleys Not for Profit sector, we are authors of a great number of Charities Act Reports for many clients. Rapleys are able to maintain the independence and objectivity for each report with a number of qualified surveyors registered as valuers by the RICS, working within the Charities Sector. Our recent register of Charities Act reports has included a variety of subject properties:
• Former charity school
• Vicarage
• Community hall
• Church
• Agricultural land
• Town centre retail outlet

If you require assistance with a Charities Act Report in reference to any of the property types above, please contact Rapleys Partners Graham Smith and Adam Harvey.

As published in Forecourt Trader on 14 September.

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 A seven-fold increase in demand for petrol filling stations occurred in the first month following the easing of the UK’s Coronavirus lockdown restrictions, according to Rapleys, the property and planning consultancy. 

Rapleys’ Automotive and Roadside team, who manage the property needs of fuel retail operators of all sizes across the UK, received seven times as many enquiries in in the month of July, following the easing of lockdown restrictions, as they did in April during the height of the lockdown.

To read the article in full please click here.

Following new legislation introduced by the Government, a number of key changes have been brought in that affect property use classes. Those properties previously grouped together as D1 or D2 use are amongst those more significantly affected. As with all changes, there will be wrinkles to be ironed out in understanding how certain buildings fit into the new categories. In combination with Rapleys planning Team, we will be able to help clients with this substantial modification.

New Planning Use classes

The Town and Country Planning (Use Classes) Regulations 2020 amend the previous categories from those of 1987 and introduce significant changes to the system of ‘use classes’.

In force from 1 September 2020, subject to certain transitional provisions, the core changes introduce three new use classes for the classification of uses of property.

Class E (Commercial, business and service): including retail, restaurant, office, financial/professional services, indoor sports, medical and nursery uses along with “any other services which it is appropriate to provide in a commercial, business or service locality.”

Class F.1 (Learning and non-residential institutions): including non-residential educational uses, and use as a museum, art gallery, library, public hall, religious institution or law court.

Class F.2 (Local community): including use as a shop of no more than 280 sq m mostly selling essential goods, including food and at least 1km from another similar shop, and use as a community hall, area for outdoor sport, swimming pool or skating rink.

To view the most recent Use Class Order as of Summer 2020, please click here.

Of particular interest to Charities and Not For Profit organisations is the deletion of the previous Classes D1 and D2, non-residential institutions and assembly and leisure uses respectively; they are both removed as shown in the table, and combined into new use classes that now have a much wider range of property types within each class than before.

A change of use within the same use class does not constitute development and therefore does not require planning permission, so more mixed-use and/or faster and more flexible changes of use should be possible in the future.

If you would like to discuss the three additional use classes, which may have an impact on managing your property requirements within the Charities and Not For Profit sector, please contact our specialist Partners, Graham Smith or Adam Harvey.

Alternatively, Rapleys Town Planning team can be contacted in conjunction with changes to the planning system.

As published in Property Week on the 6 August.

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The government has released its long-awaited planning white paper, Planning for the Future. Its proposed reforms, including the replacement of Section 106 payments and fast-tracking “beautiful” buildings has been met with a mixed response from the property industry. 

Jason Lowes, Town Planning Partner at Rapleys shares his views on this radical reform.

“Announcements will not change the planning system overnight,” says Rapleys planning team partner

“The proposals are certainly radical, but with planning reform the devil is always in the detail,” said Jason Lowes, partner in the planning team at Rapleys.

“Experience shows it is likely to be some time before one can really judge how much of a game-changer the government’s initiatives will be, particularly as this is a consultation and we don’t know at this stage which measures will be implemented as currently proposed, and just as importantly which won’t.”

“It is likely to be some time before one can really judge how much of a game-changer the government’s initiatives will be.”

“The Government has hailed these proposed changes to the planning system as a means of getting Britain’s construction industry firing on all cylinders and generally encouraging economic recovery following Covid-19. What is clear at this stage however is that these announcements will not change the planning system overnight, as the consultation alone runs to nearly the end of October, and implementation of any measures is only likely to start early in the new year, at the earliest.”

Read the article in full here.

The long-promised Planning White Paper, heavily trailed in the media last weekend, has been released for consultation by the Government. The document promises “radical reform unlike anything we have seen since the Second World War” and “a significantly simpler, faster and more predictable system”. This is promoted in 24 proposals, upon which views are sought up to 29 October. The proposals are wide-ranging, and have the potential to affect almost all of the major aspects of the planning system – some of the more eye-catching proposals are summarised below:

  • Simplifying the Local Plan system to identify three types of land – “Growth” areas that are “suitable for substantial development”, “Renewal” areas “suitable for development”, and areas that are “Protected”.
  • Growth areas “would automatically be granted outline planning permission for the principle of development, while automatic approvals would also be available for pre-established development types in other areas suitable for building”.
  • Development management policies established at national level, with a suggestion that local development management policies be restricted to “clear and necessary” site or area-specific requirements.
  • Replacing the existing tests of soundness (including removal of the Duty to Co-operate with neighbouring authorities) with a single statutory “sustainable development” test.
  • Establishing a fixed 30-month period to develop Local Plans, streamlining the “disproportionate burden of evidence” that supports them.
  • Changes to how local housing need is assessed, seeking to address housing affordability and having regard to local constraints. A new standard method would be a means of distributing the national target of 300,000 new homes annually, and one million homes by the end of the Parliamentary term.
  • Housing Delivery Test and Presumption in Favour of Sustainable Development to be retained.
  • Faster and more certain decision-making, with “firm” deadlines. Legislation will be brought in requiring local authorities and the Planning Inspectorate to meet statutory timescales, with the possibility of sanctions if they fail to do so.
  • Neighbourhood Plans to be retained, with greater emphasis on incorporating digital tools and data in their preparation.
  • Local design guidance and codes to become binding on development. In addition, a “fast track for beauty”, reflecting the propositions of the Building Better, Building Beautiful Commission is mooted.
  • The current system of planning obligations is to be abolished and the Community Infrastructure Levy reformed to an “Infrastructure Levy”, with a mandatory nationally-set rate “to be charged as a fixed proportion of the development value above a threshold”. The Infrastructure Levy regime might be extended to include changes of use implemented through permitted development.
  • A radical overhaul of how people engage in the planning process, establishing a “digital-first approach” to engagement with local communities.
  • An overarching commitment to net-zero greenhouse gas emission by 2050.

In parallel, the Government has also released a more technical consultation paper for comment until 1 October. This seeks views on a range of matters, including:

  • The Government’s proposals to change how local housing need is assessed (as flagged in the White Paper).
  • How the “First Homes” home ownership scheme will be delivered through the planning process.
  • Extending “Permission in Principle” to major development.
  • Measures to assist small and medium size housebuilders, and new entrants to the housing market.

The Government is clearly heralding these changes as a root and branch reform of the planning system, and taken at face value it is fair to say that they would be. However, given that the Government is at consultation stage, it must be assumed that implementation of the proposals will not start in the coming months, some proposals may be subject to change, and some may not be implemented at all. Further, with planning reform the devil is always in the detail, and experience indicates it can take many years before the impact of any changes can be properly assessed.

With that in mind, we will be studying the detail of the consultation closely in the coming days, and will provide a more detailed analysis, going beyond the headlines, shortly. However, if you have any questions about the Government’s consultation, or would like Rapleys to help get your organisation’s voice heard, please contact one of our national team.

As published in Property Week on the 23 July

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On 1 August, a new permitted development right (PDR) comes into force, which will allow additional storeys to be built on top of buildings without the need for planning consent.

The new PDR, which applies to detached residential blocks built between 1 July 1948 and 5 March 2018, was announced by housing secretary Robert Jenrick in early March. At the time, The Guardian wrote that it was “expected to transform the skyline of residential areas”, but less than a month away from its introduction, legal experts and airspace developers have conflicting views on how effective the new legislation will be.

Jason Lowes, Town Planning Partner shares his view on PDR.

“The line between getting planning permission and prior approval for permitted development may start to get blurred,” says Jason Lowes, a partner at Rapleys, adding that we are not quite at that point yet.

Read the article in full here.

As trailed a few weeks ago, the Government laid further changes to the planning system before parliament on Tuesday, bringing significant changes to the current Use Classes Order, coming into effect on 1 September 2020, and the Permitted Development regime, coming into effect on 31 August 2020, representing a major overhaul of key parts of the town planning regime.

• A new ‘Commercial, Business and Service’ Use Class: (Class E) will subsume and replace Use Classes A1 (Shops) (albeit with a notable exception – see below), A2 (Financial and Professional Services), A3 (Restaurants and Cafes) and B1 (Offices, Research & Development and Light Industrial), as well as certain D1 (Non-Residential Institutions) and D2 (Assembly and Leisure) uses such as health/medical centres, gyms and nurseries which will not fall within the new Class F. Under normal circumstances, this will permit premises to switch between these uses without the need for prior approval or planning permission. However, shops smaller than 280sqm mostly selling essential goods, including food, and at least “1km from another similar shop” will fall within a new Class F.2 (see below);

• Class D to be replaced by a new Class F: the current Use Classes D1 (Non-Residential Institutions) and D2 (Assembly and Leisure) will be revoked, and replaced with the following:
*Class F1 (Learning and Non-Residential Institutions) which will include educational premises, museums, galleries, libraries, public/exhibition halls, places of worship and law courts.
*Class F2 (Local Community) which will include some small shops (as detailed above), community halls and meeting places, outdoor sports and recreational facilities, swimming pools and skating rinks.

• Other Use Class Order changes: consequentially, a number of different land uses which currently fall into Use Classes will become sui generis, and therefore planning permission will be required to change to and from them, including: pubs and bars, hot food takeaways, music venues, bingo halls and dance halls.

• Permitted Development for the Demolition of Vacant Buildings to Residential Development: specifically, the demolition of a single detached purpose block of flats, or building used for office, research and development or industrial purposes, and its replacement by a single detached block of flats or detached dwelling within the footprint of the old building. The building to be demolished must have been vacant for a period of at least 6 months, have a footprint no larger than 1,000 sqm and be no taller than 18 metres. There is, also, a more wide-ranging prior approval process which will require confirmation from the Local Planning Authority that the new development is acceptable, before the work can commence. In this regard, the Local Planning Authority will consider, amongst other things: the design and appearance of the new building, possible transport and highway impacts, residential amenity impacts including the right to light, and the impact on heritage and archaeology.

• Two-storey Upward Extensions: the upward extension of existing dwellings and blocks of flats by up to two storeys. The rights will only apply to dwellings constructed between 1 July 1948 and 28 October 2018, and to buildings for flats, between 1 July 1948 and 5 March 2018. The new rights are also subject to a number of other limitations and conditions, including the requirement for prior approval from the Local Planning Authority in relation to matters such as the design and appearance of the new extension, possible transport and highway impacts, and residential amenity impacts including the Rights to Light.

Guidance providing further details about how the changes will work in practice is still to be published, but they are likely to have wide-ranging consequences. From a landowner and developer perspective, they are very likely to present a range of opportunities to repurpose existing residential, commercial and retail assets in order to respond and adapt to fluctuating market conditions. If you have any questions following these announcements, particularly in relation to the exceptions, limitations and conditions to such measures, please contact Jeevan Thandi or any member of our nationwide Town Planning team.

As published in Property Week on the 16 July

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The government shut down many industries in response to the Covid-19 pandemic, but not the construction industry.

Virtual future: online meetings have stopped the planning process from grinding to a halt during lockdown, as an increase of VPCs (Virtual Planning Committees) take place.

Duncan Parr, Town Planning Partner comments “Put simply, without the ability to progress applications virtually, the planning system in large parts of the country would grind to a halt, particularly affecting large and important schemes and having a detrimental impact on the long-term development pipeline,”

Read the article in full here.

As published in RICS –  Journal for July / August 2020

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An article by Dan Tapscott, Partner and Head of Neighbourly Matters and Angela Gregson of Child & Child. A recent case Peter Knox QC in Beaumont v Florala [2020] has illustrated how new technologies might be used to measure losses of light.

The recent judgment of Peter Knox QC in Beaumont v Florala [2020] EWHC 550 CH was met with some surprise by commentators. In this case, the owner of neighbouring land obtained an injunction ordering the cutback of a development that caused relatively small losses of light to the claimant’s office accommodation. In this article, we consider the court’s comments on the methods of measuring losses of light in the context of the future of how these losses should be measured.

Among other things, the court considered both the Waldram analysis and radiance testing methods.

Waldram analysis uses the principles set out by Percy Waldram in the 1920s, whereby a proportion of light (1/500th of a notional sky dome from a given point within the room being tested) is calculated at multiple points, to show where diffuse skylight can reach the working plane. Before Beaumont v Florala, the Waldram method was the only method of measuring rights to light that had ever been considered by the courts.

To read the article in full please click here.

Rights to Light and Daylight & Sunlight Amenity are two separate neighbourly matters which require consideration during the course of a development. Ignore them and they can have serious implications on a scheme. Embrace them and there is scope for maximising the development potential on your site.

Rights to Light and Daylight & Sunlight Amenity are two separate neighbourly matters which require consideration during the course of a development. Ignore them and they can have serious implications on a scheme. Embrace them and there is scope for maximising the development potential on your site.

A Right to Light is an easement, similar to a Right of Way, where apertures such as windows, doors, even rooflights, can acquire or be granted rights that are protected by law.

The easiest way of considering the light which can be protected is thinking about the amount of ‘blue sky’ which can be seen at the working plane (roughly desk or kitchen work surface height) within a room.

If ‘interference’ in the level of ‘blue sky’ is caused by the construction of a new building or structure and this is deemed to be to an unreasonable degree, then there may be grounds for the neighbour to take action. An objection could then be raised through the courts that could lead to either damages in the form of compensation being paid or even worse, an injunction being granted to cease construction and / or remove the offending part of the development causing the injury.

By contrast, Daylight & Sunlight Amenity is purely a Planning matter with the final decision as to what is considered acceptable belonging to Local Authorities. This subject reviews the orientation of buildings, room uses and the effects on external amenity space in terms of shadowing. It also considers the light within a development itself; not just the surrounding properties.

This should be a reminder to all developers, large or small, not to confuse these two subjects; just because a scheme may have been granted planning permission, this does not necessarily mean it can be constructed without further action. If a Rights to Light risk management strategy has not been fully developed or if the disclosure of sensitive information is prohibited by an insurer, tabling the wrong report could be significantly detrimental to a development proceeding.

It is therefore crucial that consideration of these subject areas is given as early as possible, designing out risks or managing them accordingly.

For further advice on the above or any other Neighbourly Matters such as Party Wall or Access Arrangements for crane oversail, scaffolding or hoarding licences, Rapleys Neighbourly Matters team operating throughout the UK will be well placed to assist.

 

Yesterday, the Prime Minister announced measures that are promoted as “the most radical reforms to our planning system since the Second World War, making it easier to build better homes where people want to live”.

Much of the announcement anticipates further reform of the permitted development regime, to allow the following without the need for planning permission:
• The change of use of retail floorspace to other town centre uses;
• The expansion of the types of commercial premises that can be converted to residential;
• The redevelopment of “vacant and redundant” sites, provided they are developed for housing, and
• Upward extensions—coming hot on the heels of last week’s proposed changes to the permitted development regime (which included the ability, under certain circumstances, to build new homes on top of existing blocks of flats).

Although many developers and landowners would support the above initiatives, those watching closely will recall that very similar measures were subject to consultation, by the Government, over a year and a half ago.

Also announced was the commitment to a cross-government strategy to improve the use of public land, alongside reiteration of spending commitments.

We can expect further detail relative to the above in next month’s planning policy paper, which it is said will introduce “comprehensive reform of England’s seven-decade old planning system, to introduce a new approach that works better for our modern economy and society”. Following this will be a “Local Recovery White Paper”, which will, amongst other matters, introduce wider deregulation. Therefore, there will evidently be a few more hurdles to come before all of the reforms come into force.

As ever, Rapleys will continue to keep a close eye on the Government’s planning reform initiatives, and continue to issue regular updates once announcements are made. In the interim, if you have any questions following the Government announcements, please contact Jason Lowes, Town Planning at Rapleys or any other member of our nationwide team.

Planning updates are coming thick and fast this Summer. Following the Government’s announcements on Monday, the associated Business and Planning Bill has received its first reading in Parliament. This includes the further legislation required to enact the following interventions to support the development industry:

  • ‘Automatic’ extensions to time-limits for implementation of planning permissions, where these would have expired during the lockdown period;
  • ‘Fast-tracking’ requests for changes to construction working hours; and
  • Greater flexibility for planning appeal proceedings.

The Bill also includes a series of changes to licensing laws to ease rules for consuming food and drink outdoors.

The ‘automatic’ extensions will come into force 28 days after the Act is passed, the construction site working hours proposal will come into force six days after the Act is passed, while the appeal procedure flexibility would be implemented as soon as the legislation is passed.

Most notably, the detail on the ‘automatic’ extensions confirms the following:

  • Planning permissions with expiry dates ranging from 28 days after the date on which the Bill is enacted to 30 December 2020 will benefit from an automatic time limit extension up to, but not beyond, 1 April 2021.
  • Planning permissions that have already expired during the lockdown period (i.e. between 23 March and any day up to 28 days after the Bill is enacted) will be required to secure ‘additional environmental approval’ from the relevant local authority, who will have 28 days to respond to any request for such approval, with deemed approval being the default position if no response is received in that timescale. The additional approval process, in short, requires that the LPA is satisfied that environmental impact assessment and/or habitats assessment information is up to date.
  • The extension provisions will also apply in a similar manner to outline permissions, where there are deadlines for submission of reserved matters or the commencement of works, which have expired, or are due to expire, in the above period (23 March – 31 December 2020).
  • Listed building consents with ‘expiry’ dates from 23 March, up until 31 December 2020, will benefit from automatic renewal until 1 April 2021.

The Bill is due to be ‘fast-tracked’ through all stages of Parliamentary approval in the coming days. It will be advisable to document any extension in writing, with the relevant authority, to avoid any future uncertainty.

In other Planning news, changes to Permitted Development (PD) rights have also been announced, which come into force from 1 August. These will allow existing blocks of flats to be extended upwards by two storeys to create new homes without the need for planning permission. The new right is restricted to buildings of three storeys or more and the extended building must not be more than 30 metres in height. The right only applies to buildings built after 1 July 1948 and before 5 March 2018. Prior approval will be required, which will consider transport and highways impacts; air traffic and defence asset impacts; contamination and flooding risks. In addition, Councils can consider external appearance; daylight; impact on neighbouring amenity and protected views.

Further reforms of the planning system are expected over the Summer, including a new PD right to allow the demolition of existing commercial premises and replacement with new build homes. This is seen as a response to the rapidly changing nature of demand for office and retail space, in particular in town and city centres, as a result of Covid-19.

We will provide regular updates on what is currently a fast changing planning system. In the meantime please get in touch with Neil Jones or any member of our national planning team for further advice.

 

 

 

The Ministry of Housing, Communities and Local Government (MHCLG) yesterday announced further measures intended to assist the development industry and boost the economy, including:

  • ‘Automatic’ extensions to time-limits for implementation of planning permissions, where these would have expired during the lockdown period;
  • ‘Fast-tracking’ requests for changes to construction working hours; and
  • Greater flexibility for planning appeal proceedings.

MHCLG stated that the new measures will be introduced this week, albeit they will require secondary legislation to be passed before coming into effect.

‘Automatic’ time-limit extensions

Following strong lobbying from within the industry, the Government has followed some of the devolved nations in confirming that planning permissions which have expired, or are due to expire, during the lockdown period will benefit from an automatic time-limit extension. This means that planning permissions (and listed building consents) which expired from 23 March, or will expire before 31 December this year, will remain valid until 1 April 2021.

Fast-track for changes to construction hours

The Government will temporarily introduce a new fast track route to apply for changes to planning restrictions on construction hours, to allow longer hours to support safe construction working. Local Authorities will have 14 days to determine applications, after which time they would be deemed to be approved. This measure is intended to be in force until 1 April 2021, but will not apply to construction work on individual houses.

Greater flexibility for Planning Appeal procedures

Currently, regulations only permit the pursuit of planning appeals, in any given case, under one procedure (written representations, hearing or inquiry). The proposed changes, which would be permanent, will allow more than one procedure to take place at a time, with the intention of speeding up the decision making process for inquiries and hearings.

In principle, these measures are welcomed as interventions that seek to support the development industry in uncertain and challenging times. There is little detail in yesterday’s announcement, and as ever this will be key to the effectiveness of the measures.

We will provide updated commentary when this detail is known, but meanwhile, should you require any further advice at this stage, please contact Neil Jones or any member of the Planning team.

As the government takes the first tentative steps to bring us all out of lockdown, measures to make it easier for the housing market and planning system to operate have been included in a raft of announcements made over the last 48 hours. These measures, when followed safely, can only be welcomed by everyone in the industry. They will further mitigate the impact of current events on the housing market and planning system, over and above the extensive efforts already being made at a national and local level to, as far as possible, keep local plans and planning applications moving.

Restarting the Housing Market

Housing Secretary Robert Jenrick has announced a series of measures to allow buyers and renters to complete purchases and view properties in person, while estate agents, conveyancers and removals firms can return to work while following social distancing guidelines. In addition, and as well as reiterating planning related guidance released shortly before the speech (see below), measures were announced to allow builders to agree more flexible site working hours with the local authority to assist social distancing, not least to ease pressure on public transport.

New Central Government Guidance

The government has released further guidance about how the planning system should continue to adapt to the ongoing situation, this includes:

  • CIL: Amendments to the current CIL regulations will be introduced to help address cashflow issues for small and medium-sized developers with an annual turnover of less than £45 million. The amendments will enable charging authorities to defer payments, to temporarily disapply late payment interest and provide a discretion to return interest already charged.
  • Publicity and Consultation for Planning Applications: New regulations come into force today (Thursday 14 May) which supplement the existing statutory publicity arrangements for planning applications, listed building consent applications and environmental statements. The regulations extend the minimum time period given to residents to make representations and remove the requirement for physical hard copies of certain documents (e.g. environmental statements) to be available for inspection.
  • Local Plans: MHCLG are looking at temporarily relaxing requirements on community engagement and the need for physical documents. They are also engaging with the Planning Inspectorate on the use of virtual hearings and written submissions.

Significantly, the guidance includes confirmation that there will be no amendments to application time limits, with the rights of applicants to appeal against non-determination remaining unchanged.

Other news

The Planning Inspectorate has updated its guidance in relation to Covid-19, confirming that:

  • Inspector site visits will now resume, breaking a significant logjam in the process.
  • The first digital appeal hearing was deemed a success, and the Inspectorate is planning 20 examinations, hearings and inquiries in May and June. A major step towards Robert Jenrick’s request that the Inspectorate “make all hearings virtual within weeks”.
  • A variety of methods need to be used when prosecuting these virtual events, reflecting the fact that the public have differing levels of access to digital technology.

As we have confirmed in previous newsletters, many in the planning industry have been struck by the great efforts that have been taken to keep the planning system moving through what are unprecedented events. It is hoped these further measures will build on that, and it is very likely that some of the reforms that are being brought in now will stick long after the current situation has passed.

If you would like to discuss the above further, please get in touch with Dan Sharp or a member of Rapleys nationwide team.

As published in Planning Resource on 30 April 2020.

The secretary of state last week allowed two appeals totalling more than 800 homes on green belt sites. Commentators suggest that the decisions indicate the weight that ministers place on schemes’ potential contribution to meeting housing need when considering whether they demonstrate the “very special circumstances” required for green belt permission.

Generations of young planners have passed through the doors of Oxford Brookes University’s Wheatley campus. It is fitting therefore that the site, located 3.5km outside of Oxford, should have been the site of a potentially significant planning decision.

In the second of two important decisions on green belt sites, both issued last week, housing secretary of state Robert Jenrick granted the university permission to redevelop the campus and turn it into 500 homes. Just a couple of days earlier, Jenrick had approved plans for 325 homes and a special needs school in the Greater Manchester green belt in Stockport.

However in both appeals, the most important factor was meeting housing need. Claire Dutch, partner and co-head of planning and environment at law firm Ashurst, said the Stockport decision “swung” on the issue of housing need. Similarly, housing was the key factor in the Oxford Brookes decision, said Jason Lowes, town planning partner at Rapleys. “Even though there was a five-year supply, the fact that there was such a shortage of affordable housing was given strong weight.” While meeting housing need in itself is not usually deemed very special circumstances by councils, said Lowes, it formed a large part of the secretary of state’s thinking in both of these decisions.

Lowes believed that while housing need was probably given sufficient weight in the Oxford Brookes decision to justify consent, other factors were deemed to be important too, such as the benefit of getting rid of the campus’s tower that looms over the surrounding countryside. Burden agreed, adding: “It’s not saying that residential sites in the green belt are up for grabs – you have to look at the special circumstances of the site and the planning constraints.

To read the article in full please click here.

As published in Property Week on 30 April 2020.


Roadside retail was in the fast lane before Covid-19 struck. UK petrol forecourt property value grew by 3% in 2019, its eighth consecutive year of growth, according to the Barber Wadlow/Experian Catalist Forecourt Property Index. This is being driven by growing profits, which were also up 3% in 2019.

Customer Flow

Pay at pump terminals are also key to improving vehicle circulation and ensuring customer flow is not stifled by the growing range of goods and services on offer. So too is ‘pay and spray’ contactless technology, allowing motorists to pay for jet washing their cars without needing to queue in store. Many operators are installing banks of up to five jet washes on mostly residential sites because of the boost to profits they can deliver.

It may come as a surprise that services like this, along with offerings such as coffee and food to go, are playing a greater role in the growing size of forecourt sites than technology that’s expected to eventually revolutionise the way world gets from A to B: electric vehicles (EV).

“We’re in a chicken-and-egg situation regarding the provision of reliable charging points nationwide which address consumer anxieties around range versus the inevitable explosion in electric cars with bigger batteries,” says Phil Blackford, head of automotive & roadside at property and planning consultancy Rapleys.

Indeed, just 0.5% of the UK’s licensed cars were ultra-low emission vehicles such as pure electric or plug-in electric/petrol or diesel hybrids in 2018, according to Department for Transport figures.

Yet by 2030 this is expected to have grown to between 7% and 27% and to between 49% and 89% by 2040, predicts the National Grid. One reason for the gap between the highest and lowest expectations for EV take up is the scale of the barriers that need to be overcome.

To read the article in full please click here.

Gateway 14 Ltd, advised by its development manager Jaynic, has appointed property consultants Avison Young and Rapleys to market the 156-acre mixed-use and logistics scheme at Junction 50 of the A14 at Stowmarket, Suffolk. Jaynic was appointed as development manager earlier this month.

Strategic real estate advisor Avison Young has been appointed to market the overall scheme both in the UK and internationally and Rapleys has been appointed to investigate the roadside potential of the site given its immediate proximity to the A14. A further marketing agency appointment will be made in the near future with local and regional expertise to identify occupier demand in East Anglia.

Sir Christopher Haworth, chairman of Gateway 14, said: “We are moving ahead rapidly with Gateway 14 and realising our vision of delivering a multi-million pound boost for the wider economic area of Mid Suffolk. We are delighted to have Avison Young and Rapleys on board alongside Jaynic to deliver this very exciting scheme.”

Ben Oughton, development director of Jaynic, said: “This is a key site for Stowmarket, and East Anglia as a whole and with the help of Jaynic and the agents we are seeking to attract a mix of occupiers providing a range of employment opportunities that could create thousands of jobs for the town.”

John Allan, Director, National Industrial & Distribution at Avison Young, said: “We are delighted to have been appointed as lead marketing agent on this strategically important scheme for Suffolk.”

Alfred Bartlett, Head of Retail & Leisure Group at Rapleys LLP, said: “We are delighted to have been instructed to advise on this strategically located and highly prominent opportunity, and look forward to working with Jaynic to bring the development forward. Our appointment at such an early stage in the master planning of the scheme allows us to influence the layout, mix make up of occupier to reflect the market and more importantly adapt to specific operators’ requirements. We would encourage interested parties to make contact to discuss how they might be accommodated at Gateway 14.”

Gateway 14 Ltd, is a wholly owned subsidiary of Mid Suffolk District Council and has just appointed Jaynic as the development manager for the scheme. This will provide up to 2.3 million sq ft of business, logistics and commercial accommodation over the next 10-15 years, with the first buildings being available in 2021/2. A planning application will be submitted by the end of 2020, to enable a phased development on the 156-acre site.

The masterplan layout is still being developed, however the site could accommodate logistics buildings up to 1,000,000 sq ft, with roadside uses alongside the A14 frontage, and headquarters office/R&D campus style buildings.

The site can support the growth of creative and technology businesses, a sector which is already important to Mid Suffolk, while also maximising opportunities for inward investment and job creation.

The A14 corridor is one of the principal trunk routes for UK logistics offering access from the Port of Felixstowe into the heart of the UK and it is also a primary route for export to European and world markets. The site is 26 miles from the Port of Felixstowe, 12.5 miles to Ipswich and the A12, and 45 miles to M11 and links to Cambridge.

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Website: https://gateway14.com/
Agents contact details: John Allan – Avison Young John.Allan@avisonyoung.com
Alfred Bartlett – Rapleys – Alfred.Bartlett@rapleys.com

As published in CoStar on 22 April 2020.

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Will Primrose, Senior Surveyor in the Retail & Leisure Group at Rapleys, looks at the rights and obligations.

Recent weeks have seen massive uncertainty across near enough all business sectors as a result of the Coronavirus, and the Government recently announced a further three-week extension to the lockdown. The majority of retail and leisure occupiers are suffering from a complete suspension of trade and many landlords have announced breaks, rent reductions or rent holidays to aid them during this period. Many operators will have questions regarding their rights and obligations during this unprecedented crisis. Will Primrose, Senior Surveyor in the Retail & Leisure Group at Rapleys addresses some of these key questions.

Can a tenant adversely affected by Coronavirus terminate their lease?

Essentially the answer is no – the only exception in this case would likely be if their lease contained a rolling break clause. Commercial leases generally don’t contain force majeure clauses. The only common factor that would change this is if the tenant went into liquidation.

Can a tenant withdraw from an exchanged Agreement for Lease?

This will depend on the provisions and clauses within the Agreement for Lease (AFL). We will likely see Coronavirus Clauses becoming more common within legal documents. Standard force majeure clauses usually refer to events such as terrorist attacks, wars, acts of God and do not apply here. However, we are seeing Pandemic Clauses become more prevalent. A possible reason for a tenant to withdraw would be on a conditional AFL, with the landlord unable to satisfy certain conditions – for instance delivering a scheme before a long stop date due to issues resulting from Covid-19.

Can a tenant withhold rent or pay a reduced amount due to the financial implications of COVID-19?

The simple answer is no, the tenant is not automatically entitled to such benefits. Rent suspension provisions (common in most leases) don’t apply here as they relate to damage to the premises by insured / uninsured risks. However, Landlords are encouraged to be sympathetic during this time. Covid-19 may lead to CVA’s for tenants, which involves negotiation with all of their creditors, including landlords. A rent holiday can mean a number of outcomes and the tenant is unlikely to be fully released from their payment obligation. It is more likely that a negotiation will result in a deferral / repayment programme. It is advised that these are documented by a solicitor.

Can a landlord evict a tenant for non-payment of rent?

We are now seeing these unfortunate issues coming to the press following the March quarter day. The Coronavirus Act 2020 introduced last month banned forfeiture until 30 June 2020 – or longer if the government deems necessary – for non-payment of rent. However, at the time of reporting they do not prevent landlords from taking steps to force tenants to pay rent withheld because of the lockdown and a number have decided to pursue statutory demand notices and Commercial Rent Arrears Recovery (CRAR). This can be catastrophic for a tenant with little or no income. Whilst many tenants are having open and constructive discussions with their landlords during this difficult, period, others are in danger of receiving statutory demand notices or winding up orders.

Does a tenant have to continue paying Business Rates?

Under a lease the tenant is usually responsible for Business Rates. There have been government initiatives and concessions to assist them, particularly in Retail & Leisure. During a lease, Business Rates are an arrangement between the tenant and Local Authority, not the landlord.

Whose responsibility is it to manage the virus within a let premise?

The tenant, as they will have a covenant within their lease to comply with all acts of parliament, by-laws and regulations; including health and safety of all customers employees and visitors. However, it should be noted of the difference between leases of whole and leases of part. It can get more complicated when common parts are a factor – e.g. within multi-let office buildings and shopping centres.

How are tenants with a Keep Open covenant being affected?

Whilst many leases in the retail sector contain these Keep Open clauses (e.g. shopping centres or with anchor tenants), in ‘normal’ circumstances these are not usually enforced. Courts are typically reluctant to implement Keep Open clauses and you would expect implementation to be even less likely in the current climate – especially with the aforementioned Government protection for tenants affected by COVID-19.

What are some of the Landlord’s obligations in this situation?

A key obligation will be to comply with Government guidelines which will likely fall within their service charge and estates obligations – a situation that has escalated quickly in the last few weeks. In conjunction with Government guidelines, what started as an obligation to provide enhanced hygiene / sanitising products has become full premises closures. Costs for measures such as deep cleaning, hand sanitisers and other items are usually recoverable for the landlord through the service charge.

Any potential risks to a landlord here?

Potentially. In theory the tenant could make a case that the recent closures mean that the landlord would be liable for damages under a lease under derogation from grant – e.g. breach of quiet enjoyment of the premises or loss of profits. Again, if such claims are brought forward, you would imagine the courts would be reluctant to award damages in this climate with the Government’s lockdown and social distancing guidelines as the backdrop.

Summary

As is often the case with landlord and tenant relationships, it is a question of who bears the loss? Whilst a lot of press has been about landlords being sympathetic to tenants, they rely on their rental income for many reasons – to pay borrowings, loans, staff etc. We are now seeing figures published which emphasise the drop in rents that some landlords are receiving and many have as much to be concerned about as tenants. A collaborative approach that focuses more on open discussions and negotiation rather than litigation is going to be key here.

In a move to further the significant Town Planning successes Rapleys has already been delivering in the region, the firm is delighted to welcome to the partnership, from April, its new lead of Town Planning in Cambridge, Richard Sykes-Popham.

Richard, previously of Carter Jonas and Januarys, brings with him a wealth of experience in Cambridge and across the eastern region and enjoys an excellent reputation as a trusted and focused planning advisor.

He joins, the business, as a Partner.

Richard’s background has given him exposure to a broad range of work and to business and team management. In addition to the promotion of planning applications and appeals, Richard has a particular focus on public inquiries, Examinations in Public (EiPs), environmental impact assessment, green belt cases and sustainable urban extensions.

He is able to bring his expertise, to the table, on town planning and wider multidisciplinary instructions: the latter in association with our other service lines in the Cambridge office, including development consultancy.

On his move to Rapleys Richard commented: “I am delighted to be at Rapleys. In the process of joining I have been able to get a good measure of their ethos and values, which have the firm’s clients and its people at their centre. The culture of the practice coupled with its excellent fundamentals make it an extremely exciting business to be part of. My focus will be on getting our planning services to clients and to ensure that we add value in the pursuit of future instructions and commissions.”

Rapleys’ Senior Partner, Robert Clarke, adds “I am delighted to welcome Richard to the partnership. He is a significant appointment in the growth of the Cambridge office. He brings a wealth of local, and national, experience to the business: to the benefit of our client base. I have no doubt that, under his leadership, the town planning team, in Cambridge, will become an important player in the city, its hinterland and wider region”.

In common with all aspects of day-to-day life, the property world has been hugely affected by current events. However, in terms of the planning system there is a huge push by government at national and local level to “keep calm and carry on” as much as is possible. Therefore, if they are in position to, there are several things that companies with property portfolios can do to protect themselves in the immediate term, and prepare for the future, once the storm has passed. 

1. Keep monitoring local plans and applications of interest
Although there are well publicised delays to local plan examinations and planning committees, most local authorities are still doing what they can towards the preparation of local plans and processing planning applications, so it is still vitally important to keep a close eye on local plan consultations, and the progress of planning applications, that are relevant to you.

2. Take stock of what you have
Even if you are not able to actively promote development at the moment, the current situation provides an opportunity to step back and review portfolio strategy.

3. Don’t lose your planning permissions
There are rumours that the Government will announce measures to extend the life of planning permissions. However, until then make sure you are discharging any relevant conditions and planning obligations, in the interests of commencing development at the earliest possible stage.

4. Instruct ecological surveys
Such surveys are time critical, as they can only be taken at certain times of the year, and for many species we are coming into season. Despite the lockdown, a number of ecological consultants are still able to carry out surveys. To avoid missing the window, make sure these are undertaken so you don’t have to wait another year.

5. Keep your eye on the ball
Measures to encourage development and keep the planning system going are being announced on a very regular basis. Make sure that you are up-to-speed with all the changes as they happen.

Summary
As the situation is constantly changing, so are the regulations and responses that are being put in place to support the system. For example, and as reported in our previous newsletter, the Coronavirus Act 2020 has received royal assent last week to enable planning committees to ‘meet’ without being together in the same place – regulations providing further detail of this were published this week, and will be reported in full in our next newsletter. Also, some local authorities are seeking to reduce the need for committees in the first place, by expanding powers of delegation.

Rapleys will continue to closely monitor the situation and will keep you updated. If you have any questions or wish to discuss this or any other queries you might have arising as a result of the current circumstances, please contact Jason Lowes, Town Planning at Rapleys.

As published in Property Week on 7 April 2020.

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As part of the UK government’s response to Covid-19, Boris Johnson announced the closure of all pubs, restaurants, cafes and leisure facilities, with the closure of retail units following shortly afterwards.

The exception to the rule is a relatively small number of essential services such as supermarkets and other food shops, pharmacies, post offices and petrol stations.

To assist in supporting businesses through the coronavirus outbreak, the government has temporarily relaxed planning legislation to allow pubs, restaurants and cafes to speedily implement a change of use and operate temporarily as food takeaways.

Hot food takeaways operate in a different land use to pubs, restaurants and cafes, and would ordinarily require the submission of a planning application to the local authority. An over-concentration of hot food takeaways is commonly resisted by many local authorities owing to their perceived impacts on residential amenity, including noise, odours and loitering, as well as more general concerns relating to public health. However, in light of lockdown restrictions, limited food supplies and the closure of many businesses, the need for takeaways and food deliveries is more essential than ever and they are in incredibly high demand.

The Town and Country Planning (General Permitted Development) (England) Order is a statutory instrument permitting certain types of development without the need for planning permission, including both physical development and changes of land use. To enable pubs (use class A4), restaurants and cafes (use class A3) to operate for the provision of takeaway food, amendments to the order were laid before parliament on 23rd March 2020 and came into force the following day.

The provision of takeaway food is interpreted as: “any use for any purpose within class A5 of the schedule to the use classes order, and any use for the provision of hot or cold food that has been prepared for consumers for collection or delivery to be consumed, reheated or cooked by consumers off the premises.”

The change of use can be brought into force any time between 24 March 2020 and 23 March 2021 and is subject to the following conditions:

  • The developer must notify the local planning authority that the land is being used for the provision of takeaway food during the period;
  • The use of the land for the provision of takeaway food does not affect the use class for the purposes of the use class order – in other words, the original land use is retained even during use of the permitted development right;
  • The use of the building and its land will revert to its previous lawful use at the end of the relevant period, or earlier if the temporary use ceases before 23 March 2021.

Those wishing to benefit from the amended legislation must therefore notify the local planning authority to ensure the temporary use is lawful, and must be aware that any physical changes associated with the temporary use are likely to still require planning permission (for example, the installation of an external flue).

Jason Lowes is a partner and Olivia St-Amour an associate at planning and property consultancy Rapleys.

 

Recent weeks have seen massive uncertainty across near enough all business sectors, nowhere more so than in the Retail & Leisure sector. An issue that has been well publicised throughout the press is tenant’s obligations on their lease – with many seeking breaks and rent reductions/holidays as the impact of Covid-19, and particularly the ongoing lockdown, on property assets has become apparent. Some common Questions & Answers below.

Can a tenant adversely affected by Coronavirus terminate their lease?
Essentially the answer is no – the only likely exception in this case would be if their lease contained a rolling break clause. Commercial leases generally don’t contain force majeure clauses.

Can a tenant withdraw from an exchanged Agreement for Lease?
This will depend on the provisions and clauses within the Agreement for Lease (AFL). We will likely see Coronavirus Clauses becoming more common within legal documents. Standard force majeure clauses usually refer to events such as terrorist attacks, wars, acts of God and do not apply here.

A possible reason for a tenant to withdraw would be on a conditional AFL, with the landlord unable to satisfy certain conditions – for instance delay to Practical Completion (PC) due to issues resulting from Covid-19.

Can a tenant withhold rent or pay a reduced amount due to the financial implications of Covid-19?

The simple answer is no, the tenant is not automatically entitled to such benefits. Rent suspension provisions (common in most leases) don’t apply here as they relate to damage to the premises by insured/uninsured risks. However, Landlords are encouraged to be sympathetic during this time.

Covid-19 may lead to CVA’s for tenants, which involves negotiation with all of their creditors, including landlords. A rent holiday can mean a number of outcomes and the tenant is unlikely to be fully released from their payment obligation. It is more likely that a negotiations will result in a deferral/repayment programme. It is advised that these are documented by a solicitor.

Does a tenant have to continue paying Business Rates?
Under a lease the tenant is usually responsible for Business Rates. There have been government initiatives and concessions to assist them, particularly in Retail & Leisure. During a lease, Business Rates are an arrangement between the tenant and Local Authority, not the landlord.

Whose responsibility is it to manage the virus within a let premise?
The tenant as they will have a covenant within their lease to comply with all acts of parliament, by-laws and regulations; including health and safety of all customers employees and visitors. However, it should be noted of the difference between leases of whole and leases of part. It can get more complicated when common parts are a factor – e.g. within multi-let office buildings and shopping centres.

How are tenants with a Keep Open covenant being affected?
Whilst many leases in the retail sector contain these Keep Open clauses (e.g. shopping centres or with anchor tenants), in ‘normal’ circumstances these are not usually enforced. Courts are typically reluctant to implement Keep Open clauses and you would expect implementation to be even less likely in the current climate.

Are there any risks to landlords here?
Potentially. In theory, the tenant could make a case that the recent closures mean that the landlord would be liable for damages under a lease under derogation from grant – e.g. breach of quiet enjoyment of the premises or loss of profits. Again, if such claims are brought forward, you would imagine the courts would be reluctant to award damages in this climate.

Summary
As is often the case with landlord and tenant relationships, it is a question of who bears the loss? Whilst a lot of press has been about landlords being sympathetic to tenants, they rely on their rental income for many reasons – to pay borrowings, loans, staff etc. Some landlords can have as much to be concerned about as tenants and a collaborative approach is likely to be key here. It is going to be crucial to look at negotiation rather than litigation between landlords and tenants.

To discuss commercial leases and any other queries arising as a result of the current situation, please contact Will Primrose or James Clark in the Retail & Leisure Team at Rapleys.

Dan Tapscott, Head of Rapleys Neighbourly Matters team comments on important reminders and lessons learned from a recent Rights to Light case.

Rights to Light case law moves at a relatively slow pace. It has been 10 years since the notable HKRUK II (CHC) Ltd v Heaney [2010] judgement, where the courts awarded an injunction against a constructed and occupied scheme in favour of a neighbouring office rather than allow compensation to be paid. We then had Coventry v Lawrence [2014] which questioned whether the courts’ willingness to opt for an injunction first before allowing compensation was correct or has been adopted too readily. Scandia Care Ltd and another v Ottercroft Ltd [2016] reminded us of the importance of the conduct of the parties. Now we have the outcome of Beaumont Business Centres Limited v Florala Properties Limited [2020] to consider.

It is a case where Rights to Light matters have been rumbling along for quite some time between the parties, but in brief:

• Beaumont’s property is a serviced office building which was refurbished and extended by a further storey in 2011/12.

• Florala purchased their property in 2013 and raised concerns over their Rights to Light because of Beaumont’s building work, with a reciprocal agreement tabled for Florala’s impending development of their building.

• Discussions surrounding this continued, but in 2015 Beaumont sold its freehold interest and a sale and leaseback agreement resulted in another Beaumont property taking on a leasehold interest in the property. The original Rights to Light claim remained with the new freeholder which resulted in Florala arguing that the end goal was therefore a ransom demand rather than a preservation of light.

• Meanwhile, in 2015 Florala obtained planning permission for the redevelopment of their own building into an apart-hotel. In 2017/18 Florala proceeded with these works which included a vertical extension of 11.25m. Beaumont had objected to the proposals and although proceedings for an injunction began, they did not apply for an interim injunction for the works to be paused. Florala sought a summary judgement claiming that Beaumont had no grounds for the injunction but this was dismissed.

• Beaumont’s proceedings reached the High Court which led to an injunction being granted requiring Florala to pull down part of its offending development which had been completed almost 2 years ago.

The court considered a wide variety of aspects of Rights to Light and there are a number of key conclusions and reminders for the industry. These can be summarised as follows:

1) The primary remedy the court will use is awarding an injunction before damages via compensation. Developers should not assume compensation in the commercial world is the natural default;

2) The pre-existing Rights to Light Deed between the defendant and the landlord of the claimant’s property didn’t help the defendant even with changes in ownership to contend with. Careful consideration of such documents needs to be paid, when relying on them or on the drafting when entering into them;

3) The claimant’s neighbouring property was poorly lit to begin with therefore the court found the remaining light received to be precious and worth protecting. The fact that there was a previous reliance on artificial light in these offices was irrelevant;

4) The analysis used in the case to quantify the levels of interference was Waldram analysis (based upon the calculations of Percy Waldram in the 1920s). Comparable analysis was submitted considering ‘Radiance testing’ which is more advanced and, in our opinion, more holistic, considering reflected light bouncing off adjacent surfaces. However, this was largely ignored by the court;

5) If damages via compensation were to be accepted (by Beaumont choosing not to join the tenant) then the basis of these calculated by the court was again a third of the developers profits from the offending parts of the massing; and

6) The matter was dealt with over a long time and on a reactive basis. Hindsight is a great thing but ‘neighbourliness’ at the outset seemed to be thrown out of the window. Conduct of the parties remains key, proceeding at risk of is unadvisable. The ‘high handed’ manner the courts regarded of the developer pressing on when there were clear and unresolved objections did not help them. Florala has sought to appeal this decision. It will be interesting to see what arises from this or whether the matter is resolved ‘on the steps’ as was the case with the appeal for HKRUK II (CHC) Ltd v Heaney leaving the construction industry to either proceed at risk or to prudently tread carefully.

Rapleys Neighbourly Matters team operate throughout the UK providing Rights to Light, Daylight & Sunlight, Party Wall and Access Arrangement services for both developers and neighbours to development.

If you are planning a development where we can be of assistance, please do not hesitate to contact Dan Tapscott or a member of the Neighbourly Matters team at Rapleys.

In March, housing secretary Robert Jenrick outlined a number of measures to reform the English planning system. Announcing his plan the day after the Budget (11 March), he said the proposals would create a more efficient planning system, enabling more houses to be built in the places where people want them. Jenrick promised that the white paper would be “ambitious” enough to create a “planning system truly fit for the 21st century”.

Planning for the Future included: fully digitising the planning system; setting a deadline of December 2023 for completion of all local plans in England before government intervention; and extending permitted development rights. Jason Lowes, Town Planning at Rapleys spoke to The Planner and give his view on this ambitious measurement.

The need for speed

Many people involved in the planning process will have experience of “multi-dimensional delays” due to the planning system’s complexity and the lack of resourcing at a local level, said Jason Lowes, partner in the planning team at Rapleys.

“One of the government’s main priorities should be to speed up the planning system and create more certainty in the development management process, and aid better decision-making. The Planning for the Future paper indicates that the planning white paper will contain a number initiatives aimed at streamlining the system – for example, zoning tools – which, if done properly and effectively, have the potential to have a long-lasting impact to help meet housing need.”

Connected to this is the need to speed up the system to meet the demand for housing and, said Lowes, developers “will no doubt welcome” further extensions to permitted development rights. In doing this, the government needs to ensure that permitted development rights help to increase housing supply, he urged, “whilst also being mindful that the focus on streamlining the delivery of housing should not be at the expense of the quality of accommodation or design”.

“The government appears to be going in the right direction to continue to utilise permitted development rights as a means to drive forward housing, whilst also confirming that changes will have regard to design, and meeting light standards, all of which should be welcomed and it will be interesting to see the detail on this.”

Read The Planner article in full, which includes other professionals opinions on the White Paper.

In common with everything else in these unusual days, the restrictions imposed on movement as a result of the coronavirus outbreak have had a huge impact on the planning system, resulting in well-publicised delays to local plan examinations and public inquiries. However, it is a credit to decision-makers at both a national and local level that great efforts are being put into reducing the disruption as far as possible.

To date, these efforts and changes have included the following:

The Coronavirus Act

Passed in Parliament last week, in addition to giving the Government considerable powers, this emergency legislation allows the convening of planning committees via video-conferencing, addressing a major potential hurdle to planning decision-making.

Temporary relaxation of planning regulations

Extended permitted development rights came into force on 24 March 2020 to enable pubs, restaurants and cafes to operate as food takeaways for a 12-month period. This is on top of other government advice aimed at cutting red tape, for example the Written Ministerial Statement by Robert Jenrick on the 13 March 2020, in which local planning authorities are encouraged to act flexibly, and not to take enforcement action that would result in unnecessarily restricting the deliveries of food and other essential items during this period.

Activity at local authorities

It is fair to say that the current performance of local authorities is mixed, but working from home has become commonplace in many councils over the last few years and in a lot of places decision-making is still happening, including at committee level (and we can expect this to increase as a result of the Coronavirus Act – see above). As a result, in local authorities with good technological support, the immediate impact has been relatively limited to matters which require human contact, such as meetings and consultations, and even here there seem to be improvements all the time.

Keeping the system moving

Last week the Chief Planner, encouraged local authorities to be innovative in decision making, including exploring opportunities to use technology for meetings and consultations, anticipating and seeking to address the areas of greatest challenge – ie officer/applicant meetings, and public consultation exercises (both pre-and post-application).

In short, things are changing on a daily basis, but one of the bright points of the situation is the commitment that the Government and many local authorities have to maintain their planning services as far as possible and under very challenging circumstances. Therefore, our advice to clients is that – where possible – development should continue to be vigorously promoted in order to ensure that proposals are in “pole position” once normality starts to set in again.

As the situation evolves, further updates will be circulated over the coming weeks. In the interim, to discuss this and any other queries arising as a result of the current situation, please contact Jason Lowes, Town Planning at Rapleys.

Dan Tapscott, Head of Rapleys Neighbourly Matters team comments on the Government’s “Planning for the Future” guidance [published in March 2020] and considers the direction of travel regarding vertical extension rights.

It is applauded that the Government are looking at ways to enable ‘innovative’ development to happen, including building upwards with vertical extensions. However, we know this is an area that will still warrant detailed consideration by developers in order to avoid Rights to Light objections. These could be quite costly or make developments unviable, even if they get a green light in terms of planning.

A Right to Light (or Right of Light; there is no difference) is an easement, similar to a Right of Way. This enables the passage of diffuse skylight through a defined aperture such as a window to be protected by law. If the level of light received is reduced to an unreasonable degree, then the relevant owners of the property who can make use of the right can raise an objection. The remedy to an objection would either be damages via compensation or the awarding of an injunction to forbid the offending construction commencing, or for its removal, even if the new building is occupied.

Planning laws do not override common or civil law and therefore it is important that before detailed design work progresses, developers ensure they are aware of where the risks are and their strategy for dealing with them. The use of Rights to Light Envelope Studies is an area that could prove invaluable to help guide a design team to work within certain parameters, to avoid unreasonable levels of interference to the neighbouring properties. We believe that in taking this course of action prior to considering what can be achieved via any relaxation in planning laws for Permitted Development, would be the best all-round approach.

The remaining options for developers to deal with matters arising are negotiation with the effected parties in a proactive manner, ignore the issue and wait six years after the injury has been triggered for an objection to arise or consider an insurance based approach.

There has been talk of reform in the Rights to Light industry since the issuing of the Law Commission report in 2014, although nothing has progressed since then. As and when this comes back online (when we hope that the advances in technology for calculating light loss are taken into account), it will be interesting to identify areas of joined up thinking rather than those which conflict.

Rapleys Neighbourly Matters team operate throughout the UK providing Rights to Light, Daylight & Sunlight, Party Wall and Access Arrangement services for both developers and neighbours to development.

If you are planning a development where we can be of assistance, please do not hesitate to contact Dan or a member of the Neighbourly Matters team at Rapleys.