Out-Law / Your Daily Need-To-Know

Out-Law Guide 3 min. read

Garden communities: planning and delivery policies

Several planning documents are relevant to proposals for the development of garden communities in England.

The documents that are fundamental are a local authority’s local plan policies, together with any supplementary planning documents (SPD) such as for a more detailed masterplan, set of principles for the garden community, and any CIL charging schedules which support crucial infrastructure for the garden community; working alongside section 106 planning obligations, requirements and contributions.

Local plan policies drafted in support of the garden community are required to meet the tests of soundness as set out in the National Planning Policy Framework (NPPF) (75-page / 556KB). Those tests are designed to ensure plans are ‘positively prepared’; ‘justified’; ‘effective’; and ‘consistent with national policy’.

Local plans are subject to independent examination. Some garden community proposals have struggled under scrutiny, particularly in relation to questions of deliverability and viability. Developers need to ensure that the evidence they put forward to support their proposals is robust: it is not just the policy wording of the garden community housing allocations that are important to set out in policy and evidence, but also the infrastructure that will support them and how this is to be funded.

The best approach will often be to allocate the area designated for garden communities as a strategic site within a local plan or allocations development plan document

The best approach will often be to allocate the area designated for garden communities as a strategic site within a local plan or allocations development plan document. Clear boundaries shown on the proposals map with detailed policies in the local plan specifying the type and amount of development work well.

From the perspective of delivery, the policies should set out how developers intend to assemble the land needed for the garden community, how they will deliver housing – including market for sale, build to rent and affordable housing – in phases, the costing and phasing of required infrastructure, the funding strategy and the overall viability testing of the proposals, including any affordable housing viability reviews.

It is not uncommon for a viability model for a garden community to project that the scheme will not run at a cashflow profit until around year seven or later of the 20-year build life. Garden communities require a particular focus on funding. Developers can expect this element of their proposals to come in for scrutiny during the local plan promotion phase, as well as at the planning application stage.

One option for developers is to withhold some detail from their local plan policies in favour of elaborating further in an SPD. There is sometimes a practical tactical benefit to this approach in the local plan examination phase.

However, there should be no over-reliance on any SPD. Core issues of deliverability and viability should be dealt with in the local plan policies. It is also important to recognise that the SPD cannot itself generate new policies – this is a classic area of legal challenge. However, an SPD can provide a useful vehicle to convince a planning inspector that there is an incremental plan to some of the detail around the infrastructure delivery and viability challenges. Developers could also consider creating ‘Area Action Plan’ documents, if this can be carefully managed alongside the wider local plan process.

The appropriate approach will be dependent on factors such as the local planning authority’s five-year housing land supply, the complexity of the land ownership and infrastructure considerations, and the importance of the garden community in respect of the wider plan.

Other policies may be helpful to support the delivery of garden communities. These include policies dealing with site-wide viability appraisals, site-wide masterplans and comprehensive delivery to help incentivise or require 'equalisation' between landowners and/or developers where appropriate – including facilitating retrospective payments from later landowners/developers to those that involved from the outset. Equalisation agreements effectively reflect the fact that land needed for garden communities will often be owned by multiple landowners and that the value of their land can vary greatly over time because of how it is to be used. A ‘framework section 106 approach‘ has been successfully used in relation to a number of projects to achieve this, with strategic infrastructure funded via common provisions in Part A of a standard form section 106 agreement and site specific requirements, including affordable housing, dealt with in Part B of the section 106 agreement.

Support for the garden community in any mayoral or combined authority plans and local enterprise partnership plans is also important. If infrastructure upgrades are required for National Highways’ roads, Network Rail rail lines or utility infrastructure, those plans need consideration too, including thought as to when review periods are open for those plans when the garden community requirements can be inserted.

Pinsent Masons has asked 70 market participants about garden communities, and you can find out what they said in our results (40-page / 5MB PDF). And you can find out more about a step by step approach to garden communities in this guide (40-page / 6MB PDF).

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