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

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

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

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

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

Policy Framework Circular 05/05 and the Practice Guidance Key Principles – pp should not be bought or sold Policy Tests – paragraph B5 of C.05/05 –Relevant to planning –Necessary to make the proposed development acceptable –Directly related to the development –Fairly and reasonably related in scale and kind –Reasonable in all other respects Should never be used as a form of betterment levy (B.7) Conditions preferred to obligations if possible (B.51) PPS 3 – expected September 2006 earliest Audit Commission Report (August 2006) Policy flux – clarification urgently needed

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

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

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

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

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