Tribunal sets out guidance on public benefit test for use of rooftops as telecoms sites
Out-Law Analysis | 26 Mar 2020 | 11:37 am | 5 min. read
Housing secretary Robert Jenrick issued a letter to the mayor of London, Sadiq Khan, directing changes on his ‘intend to publish’ version of the London Plan, published in December 2019. Jenrick's direction prevents the mayor from publishing the new Plan until “inconsistencies with national policy and missed opportunities to increase housing delivery” are rectified.
The letter was published the day after Jenrick’s ‘Planning for the Future’ policy paper, which set out his ambitions to overhaul the planning system in England with a series of reforms to accelerate housebuilding and tackle affordability. Jenrick’s move puts the mayor in a difficult position – by law he cannot adopt the draft London Plan until the government is satisfied sufficient changes have been made, or withdraws the directions. The mayor must either accept the secretary's amendments, or withdraw the plan and start afresh.
Expect this process to be more drawn-out than it might have been. With the London mayoral elections now postponed until 2021 due to the coronavirus outbreak, the mayor has more time to attempt negotiations on Jenrick’s directions before purdah begins next year. In the meantime, our view is that when making planning decisions, significant weight will still be given to policies within the new London Plan that are not disputed in the secretary's letter, such as the policies on affordable housing.
The letter is clear: the new Plan has not gone far enough on housing delivery. Jenrick cited Khan’s failure to meet housebuilding targets and criticised the mayor's planning policies as lacking “ambition” in addressing the capital’s housing shortfall. The government wants more on density optimisation, and has exerted its statutory power of amendment with a heavy hand.
With the London mayoral elections now postponed until 2021 due to the coronavirus outbreak, the mayor has more time to attempt negotiations on Jenrick’s directions before purdah begins next year.
Jenrick criticised the mayor’s record on housing delivery in London, saying: “Housing delivery in London under your mayoralty has been deeply disappointing, over the last three years housing delivery has averaged just 37,000 a year; falling short of the existing plan target and well below your assessment of housing need”.
Jenrick condemned the overly prescriptive “layers of complexity” in the new Plan, making development in his view “difficult unnecessarily”. Jenrick said that the Plan as a whole is “inconsistent with the pro-development stance that we should be taking”, clearly echoing the frustrations with the planning system set out in the policy paper.
The letter also established an express requirement for closer working relationships between the government and the Greater London Authority (GLA), requesting regular meetings with officials and clear reporting lines.
The modifications directed by Jenrick are set out in a table annexed to the letter.
The letter directs the mayor that more can be done to increase density in parts of London and that “development must optimise site capacity” The policy directions look to identify areas that could absorb increased density levels, including “gentle densification” around locations of low to medium level density, such as high streets and town centres, as well as developing clusters of high density in appropriate places, such as Opportunity Areas.
Despite Jenrick's direction, the core focus of the new Plan remains a "design-led approach". The test remains "optimisation" to “make the most efficient use of land”, as opposed to "maximization". Therefore, the Plan still provides scope for local planning authorities to refuse schemes that aim to maximise the site's potential in terms of size, height and massing on the grounds of "overdevelopment". This will remain an issue in areas of historically low-density development which are traditionally against increased densities. Challenges will remain where local density potential has not been unlocked, particularly for small sites, which the new Plan has highlighted as a key component in the delivery of London's housing targets.
Jenrick has emphasised the need for providing appropriate dwelling mix across London, stressing his concern that the new Plan is to the detriment of family sized dwellings "which are and will continue to be needed across London". His letter directs the mayor to strengthen the Plan's housing policy to prevent the loss of family housing stock and ensure that London boroughs consider providing more family-sized homes when preparing local policies and making planning decisions on housing mix. This direction reflects central government's focus that increased density levels should not hamper the development of family homes. However, local housing mix policies will still be heavily influenced by market assessments at the local plan-making stage – the secretary's direction may have a limited effect on local policy here.
Jenrick has directed the mayor to change the new London Plan's policy on the green belt to reflect the position of the National Planning Policy Framework (NPPF), although he has made no mention of a strategic green belt review. The Mayor's proposed policy on green belt in the new London Plan not only placed a blanket ban on development within the green belt, but also backed its extension where appropriate. The Plan's policy proposal arguably went further than the protection offered by the current London Plan or the NPPF.
The examining inspectors advised the mayor that the new London Plan's green belt policy was "not consistent with national policy". The mayor rejected the recommendations to align the new Plan's policy with the NPPF’s position that Green Belt boundaries could be altered in "exceptional circumstances". The mayor also refused to give any commitment to the examining inspectors' recommended strategic green belt review.
It will be interesting to see how the mayor will respond to this direction – he may push back on this green belt direction as a more appropriate reform issue for central government to tackle outside of the new London Plan.
Policies on the borough-specific release of industrial land remain unchanged. The examining inspectors recommended a review of the mayor's decision on which boroughs should retain industrial capacity and which may allow "limited release" of industrial land. The mayor rejected those recommendations.
The new Plan goes beyond merely recommending that existing industrial capacity be retained by setting out a strategic framework to enable the provision of additional industrial capacity. Policy E4 of the new Plan states that there should be "no net loss of industrial floorspace capacity" within London's designated "strategic industrial locations" or "locally significant industrial sites".
Jenrick said the examining inspectors considered the mayor’s industrial land policies to be "unrealistic" and "taking an over-restrictive stance to hinder Boroughs’ abilities to choose more optimal uses for industrial sites where housing is in high demand". Jenrick's letter directs the mayor to take out the high threshold of “no net loss" of industrial capacity on existing industrial land sites in the new Plan. However, he was silent on the mayor's approach to affordable housing on industrial sites, meaning that developers will still be expected to delivery 50% affordable housing where there is a proposed loss of industrial capacity, unless the developer can demonstrate that this approach is unviable, in which case early and late stage review mechanisms would be imposed.
Once adopted, the new London Plan will act as the statutory framework within which London's local planning authorities must make their decisions on future development. Jenrick's directions have delayed the process, which will likely be exaggerated further by the Covid-19 pandemic and widespread lockdown.
The key issue for the mayor to address will be how to plug the gap between the new Plan's housing targets of deliverability and London’s increasing need for more homes to be built at a faster pace. This will inevitably lead to further delays, in a time where life in the capital has already been put on indefinite hold.
It is also likely that we will see increased exertion of the housing secretary's 'call in' powers to challenge and overturn planning decisions on larger residential development proposals within the capital.
The mayor is faced with little option but to consider reviewing the Plan and revising the "intention to publish" version further to address Jenrick's directions. The politics of this situation are clear. The net effects for the industry are, for the time being, less clear.
Jessica Craske is a planning law expert at Pinsent Masons, the law firm behind Out-Law.
13 Mar 2020
04 Dec 2017
Tribunal sets out guidance on public benefit test for use of rooftops as telecoms sites