In our November planning and development club we covered: - Highways Act tips for developers - HCA Government house building initiatives and land supply - planning considerations in a retail context.

1. Planning and development club
Friday 11 November, Nottingham

2. Retail Impact Assessments
Dmitrije Sirovica

3. Overview
• Retail considerations
– Policy and Guidance
– Consideration of Case law

4. National Planning Practice
Guidance – Sequential Test
• Town centres first in plan-making & decision taking
1. Town centre locations first; if not
2. Edge of centre locations; if not
3. Out of town centre locations
• Preference for accessible sites well connected to
town centre
• Supports viability and vitality of town centres

5. NPPF Para 24
Local planning authorities should apply a sequential
test to planning applications for main town centre
uses that are not in an existing centre and are not in
accordance with an up-to-date Local Plan. They
should require applications for main town centre
uses to be located in town centres, then in edge of
centre locations and only if suitable sites are not
available should out of centre sites be considered…

6. NPPF Para 24
… When considering edge of centre and out of
centre proposals, preference should be given to
accessible sites that are well connected to the town
centre. Applicants and LPAs should demonstrate
flexibility on issues such as format and scale.

7. NPPF Para 26
When assessing applications for retail, leisure and
office development outside of town centres, which
are not in accordance with an up-to-date Local Plan,
LPAs should require an impact assessment if the
development is over a proportionate, locally set
floorspace threshold (if there is no locally set
threshold, the default threshold is 2,500 sq m).

8. NPPF Para 26
The assessment should include:
• the impact of the proposal on existing, committed and
planned public and private investment in a centre or
centres in the catchment area of the proposal; and
• the impact of the proposal on town centre vitality and
viability, including local consumer choice and trade in
the town centre and wider area, up to five years from
the time the application is made. For major schemes
where the full impact will not be realised in five years,
the impact should also be assessed up to ten years from
the time the application is made.

9. NPPF Para 27
Where an application fails to satisfy the sequential
test or is likely to have significant adverse impact on
one or more of the above factors, it should be
refused.

10. National Planning Practice
Guidance – Sequential Test
• Reiterates position in NPPF and the sequential
approach
• It is for the applicant to demonstrate compliance
with the sequential test
• LPA should support the applicant, including by
sharing any relevant information
• The application of the test should be proportionate
and appropriate for the given proposal

11. National Planning Practice
Guidance – Impact Test
• To ensure that the impact over time of certain out
of centre and edge of centre proposals on existing
town centres is not significantly adverse
• Impact must be assessed in relation to all town
centres that may be affected
• Applicant to demonstrate compliance
• To be undertaken in a proportionate and locally
appropriate way, drawing on existing information
where possible

12. When should the Impact Test be
used?
• Proposals exceeding 2,500 m2 of floorspace unless
a locally appropriate threshold is set
• Consider:
– Scale of proposals
– Viability and vitality
– Cumulative effects of recent developments
– Impacts on strategy and planned investment

13. Checklist for applying Impact
Test
• State of existing centres and the nature of current
shopping patterns
• Time frame for assessing impact-first five years
• Examine the ‘no development’ scenario
• Assess turnover and trade draw
• Consider a range of plausible scenarios
• Any conclusions should be proportionate

16. National Planning Practice
Guidance – Disaggregation
• Select Committee recommended disaggregation be
reintroduced in December 2014
• LAs required to ask developers to demonstrate
evidence of flexibility over "the scope for
disaggregating specific parts of a retail or leisure
development, onto separate, sequentially
preferable, sites"

17. National Planning Practice
Guidance – Disaggregation
• Argument that developers proposed development
was too big for town centre site- avoids sequential
test
• ‘Loophole’ in sequential test
– Other grounds for an authority to refuse a planning
application for an out-of-town development
• Government rejected proposals: not necessary to
reintroduce disaggregation to NPPF or to alter the
evidence requirements of LAs for sequential test

18. Key Case Law

19. Tesco Stores Limited v Dundee
City Council [2012] UKSC 13
• Challenge to grant of planning permission by Tesco
for a supermarket on a large industrial estate out
of centre
• Council had to consider whether criterion in the
Development Plan were met
• “no suitable site is available in the first instance
within and thereafter on the edge of city, town or
district centres”

20. Tesco v Dundee Continued
• City Council interpreted “suitable” as “suitable for
the development proposed by the applicant”
• Tesco argued “suitable” meant “suitable for
meeting the identified deficiencies in retail
provision in the area”
• Court agreed with the Council
• “Suitable” meant suitable to the development
proposed by the applicant subject to a need for
flexibility

21. R (Zurich Assurance Ltd) v North
Lincolnshire Council [2012] EWHC
3708
“Developers, and planning authorities, work in the
real world. Marks & Spencer has assessed the only
available town centre alternative to the site, and
concluded that a development that was smaller than
that proposed, or one with a more restricted range
of goods, was neither commercially viable nor
suitable for their commercial requirements”

22. R (CBRE Lionbrook (General Partners)
Ltd) v Rugby Borough Council [2014]
EWHC 757
• JR: redevelopment planning permission
• C intended to redevelop retail space in town centre
• C gave 2 alternative sites; LPA held not likely to be
viable and deliverable within a reasonable timeframe-
LPA had not erred in concluding that no “available
sequentially preferable site”
• LPA not failed to comply with screening under EIA, not
erred in application of retail development plan, not
erred in applying sequential and impact assessment,
acted lawfully in rejecting proposed alternative sites

23. R (CBRE Lionbrook (General Partners)
Ltd) v Rugby Borough Council [2014]
EWHC 757
“Out of centre sites can be considered only if “suitable
sites” in the town centre or on the edge of a centre are
“not available”. Suitability and availability are matters
of planning judgment. They are not matters on which the
court will substitute its own view for that of the
decision-maker. The decision-maker's exercise of
judgment upon them will not be vulnerable to challenge
except on Wednesbury grounds.”

24. Aldergate Properties v Mansfield District
Council [2016] EWHC 1670 (Admin)
• JR of food store 3.5 miles out of town centre; retailer
also owned site 1 mile out
• C owned town centre site; objected as adverse effect
on ability to attract investment to own site
• C argued that LPA ignored sequential test on basis that
retailer already had site 1 mile from town, and failed
to consider development plan
• Individual commercial characteristics could not dictate
application of test
• Para 23 and 24 NPPF are not isolated from each other

25. Aldergate Properties v Mansfield District
Council [2016] EWHC 1670 (Admin)
“Suitable” and “available” generally mean “suitable” and
“available” for the broad type of development which is
proposed in the application by approximate size, type,
and range of goods. This incorporates the requirement
for flexibility in [24] NPPF, and excludes, generally, the
identity and personal or corporate attitudes of an
individual retailer. The area and sites covered by the
sequential test search should not vary from applicant to
applicant according to their identity, but from
application to application based on their content.

26. Rushden Lakes (Ref:
APP/G2815/V/12/2190175)
“If a site is not suitable for the commercial
requirements of the developer in question
then it is not a suitable site for the
purposes of the sequential approach”

27. Rushden Lakes (Ref:
APP/G2815/V/12/2190175)
“…in terms of size of the alternative site, provided
that the applicant has demonstrated flexibility with
regards to format and scale, the question is whether
the alternative site is suitable for the proposed
development, not whether the proposed
development could be altered or reduced to that it
can be made to fit the alternative site.”

28. R (Sainsburys Supermarkets Ltd) v
Hillingdon LBC[2015] EWHC 2571 (Admin)
• Sainsburys extending existing store
• New applicant applied for planning permission;
refused- did not meet sequential test
• Re-applied with smaller plan- planning permission
granted as would not significantly impact
Sainsburys
• Sainsburys sought Judicial Review on grounds that
once sequential or impact test had failed, proposal
should be refused

29. R (Sainsburys Supermarkets Ltd) v
Hillingdon LBC[2015] EWHC 2571 (Admin)
• JR dismissed- impact and sequential tests passed.
• Officers not obliged to accept claimant's view- had
evidence to substantiate conclusion
• Reasons for differential conclusions clear
• Claimant’s need for further floor space would be
met by the claimant's redevelopment and new
development not likely to impact significantly on
the claimant's expansion; both could be supported

30. Warners Retail (Moreton) LTD v Cotswold
DC & Ors [2016] EWCA Civ 606
• Appeal against refusal of JR
• Proposed development situated 500m from the
town centre- appellant's food store 120m from
edge of town centre
• Further development was contrary to local plan,
but material considerations justifying development
• Appellant submitted that the committee had been
misled by decision in Tesco Stores Ltd v Dundee
City Council

31. Warners Retail (Moreton) LTD v Cotswold
District Council & Ors [2016] EWCA Civ
606
• No “rigid, mechanistic” application
• Need test withdrawn from policies for retail
development in the NPPF
– However, ‘need’ considerations still material
• Para 24 of NPPF: applicants and LPAs expected to
"demonstrate flexibility on issues such as format
and scale”
• Policies in Tesco Stores case were similar enough to
allow for comparison- did not vitiate decision

32. Teleford & Wrekin Borough Council v SoS
Communities & Local Government [2014]
EWCA Civ 507
• Appeal against refusal of planning permission for
out of centre food store
• Conflict between two sites, X and Y; inspector had
to determine which site was preferable
• Decided on "sequential advantage if one out of
centre site could achieve better town centre
linkages than the other“
• Y was not superior to X, despite being 500m closer
to town

33. Teleford & Wrekin Borough Council v SoS
Communities & Local Government [2014]
EWCA Civ 507
• Maintained definition of ‘sequential advantage’-
better town centre linkages
• Drive to X was 1.5 minutes longer than Y from town
centre- inspector was entitled to hold that “not
likely to put people off combining a trip to the
food store with a visit to the town centre by car”

34. R (Tesco Stores Ltd) v Forest of
Dean DC [2015] EWCA Civ 800
• Appeal against LPA grant of planning permission for out
of town development, inc rival supermarket
• Significant adverse impact on nearest town centre
contrary to NPPF & local development plan
• S106 agreement agreed to fund shuttle bus and town
centre improvements
• Planning officers recommended permission be refused-
benefits did not outweigh conflicts
• Argued s106 did not comply with s122 of CIL Regs 2010-
“not fairly and reasonably related in scale and kind”

35. R (Tesco Stores Ltd) v Forest of
Dean DC [2015] EWCA Civ 800
• Held: officers had advised that package could
mitigate in part, but not possible to make an
informed judgement on how far it would mitigate
• Whether prospect of mitigation was too speculative
was a matter of planning judgement
• Conclusion that package could mitigate the harm
was not irrational
• S106 did not fail to comply with s122 of CIL Regs
2010 on basis that mitigation could not be
quantified- not required in every case

36. Determining the Application
• Outcome of sequential test and impact test will
inform the decision
• Other material considerations must still be
considered
• Mitigation
– Potential use of conditions
– Potential use of Section 106 obligations

37. Questions?

38. Tips in relation to the Highways
Act 1980
Stephen Coult

39. Introduction
• Highways Act 1980 now 36 years old.
• Consolidated previous provision
• Deals with the creation, diversion, obstruction and
extinguishment of the public right of way itself,
and the creation, funding and maintenance of the
physical features of the way itself and associated
apparatus.

40. Highways Act – Main Provisions
• Familiarity with
– S38 Agreements for adopting roads once brought up
to acceptable standards
– S278 Agreements for execution of works by a
highway authority at the expense of others.
• But want to identify some of the more unfamiliar
provisions of the Highways Act.

41. Todays Talk
• Protection against creation of new footpaths
• Getting repairs done
• Stopping Up
• Hoardings
• The Advance Payments Code
• Adoption by Notice
• Disabled Ramps
• Trees and the Highways Act

42. Protecting against creation of new
footpaths S31(6).
• The problem
– It is possible for members of the public to claim that
a track / route has been dedicated as a right of way
by the landowner by their failure to interrupt the
use of it.
– If a route has been used without force, without
secrecy and without permission for more than 20
years it may be deemed to have been dedicated as a
public right of way

43. Cases
• The Godmanchester and Drain House of Lords
Judgements 2007
• Wright v SoS Environment Food and Rural Affairs
2016

44. The solution - S31(6)
• Landowner can give rights of way authority the
appropriate evidence to negate an intention to
dedicate ways over the landowner’s land as
highway / public right of way.
• The effect of submitting a deposit, if followed
by further declarations every 20 years, is to
stop / negate any claim that there is public
rights of way.

45. The Process - S31(6)
• Application Form which must be signed by every
owner of land
• Ordnance Map showing the boundary of the land in
coloured edging.
• Coloured lines used on the map to represent each
classification of public right of way (Footpath,
Bridleway, Restricted Byway, Byway Open to All
Traffic (‘Byway’).
• Applicant to sign a statement of truth

46. Getting Repairs Undertaken. S56
• Section 56 of the Highways Act 1980 provides a statutory process by which a
member of the public can go to the court and obtain an order requiring a highway
authority to repair a highway maintainable at the public expense.
• The highway authority's room for manoeuvre in this process is limited. If the
highway in question is publicly maintainable — even if it is not properly recorded as
such — and is out of repair, then the court will make the order the complainant
seeks.
• The highway authority can plead lack of funds or alternative priorities, but these
will buy little extra time: once the complainant has satisfied the necessary tests,
the order will follow.
• The courts have taken a narrow view on what constitutes an out of repair situation.
Obstructions — things wilfully placed on, or done to, the highway — will not usually
make a highway out of repair.
• An out of repair condition arises from neglect and decay, from the failure of a
highway authority to keep the highway in repair. See Worcester County Council v
Newman [1975] WLR 912; Westley v Hertfordshire County Council (unreported),
Byway & Bridleway 1998/10/74.

47. Getting Repairs Undertaken
• Complaint under S56
• s.56(1) A person ('the complainant') who alleges that a way or bridge
is:
– a highway maintainable at the public expense or a highway which a
person is liable to maintain under a special enactment or by reason of
tenure, enclosure or prescription,
– out of repair,
may serve a notice on the highway authority or other person alleged
to be liable to maintain the way or bridge ('the respondent') requiring
the respondent to state whether he admits that the way or bridge is
a highway and that he is liable to maintain it.
• Complaint made to Magistrates or Crown Court if no action taken

48. Periods for repair. S56
• Plainly the Justices cannot be 'Wednesbury unreasonable' in
stating a time period.
• Barnes v Metropolitan Borough Council of Bury (1990) Case
No. A90 2375: The crown court gave the highway authority
between 19 and 20 months to do the work.
• Sorensen v Cheshire County Council, 9 November 1979:
Judge David QC, in Knutsford crown court, allowed 24
months for completion of the work; the roads were ancient
stone carriageways then badly out of repair. The order of
the court was that the out of repair section should be
repaired at least to the same width as the good parts.

49. Periods for Repair S56.
• Riggall v Hereford County Council (1979), action brought by a landowner resident
near one end of a long rough stone lane. Hereford justices ordered the road
repaired by 1 December 1980 — 12 months. Interestingly the highway authority put
a tarmac surface on this road consequent on the order.
• Seymour v British Waterways (1983): Leeds crown court ordered that a new bridge
be constructed over a canal within nine months and, in the meanwhile, a
temporary bridge be erected at that point to accommodate users.
• Kind v Cumbria County Council (1998): Judge Phillips in Carlisle crown court gave
Cumbria County Council 18 months to repair an old stone turnpike that was
seriously waterlogged.
• Kind v North Yorkshire County Council, (2000): Harrogate magistrates gave North
Yorkshire County Council 27 months to repair a very badly eroded and waterlogged
stone unclassified road at Pockstones Moor, near Pateley Bridge.
• Seymour v East Riding of Yorkshire Council, (2000): Hull crown court ordered the
repair, with tarmacadam or concrete, of a section of carriageway, inside six
months.

50. Stopping up under Highways Act.
S116
• Where areas of public highway are considered by the County
Council, as Highway Authority, to be unnecessary for highway
purposes, the highway rights can be extinguished or ‘stopped up’
by an Order made by Magistrates.
• Also diverted, provided a suitable alternative exists
• Process - application made to the Magistrates Court by the Council
on behalf of an applicant under Section 116 of the Highways Act
1980.
• If successful the Order will extinguish the highway rights over the
land concerned and free it from Highway Authority control.
• Should the owner then wish to enclose or develop the land,
planning consent may be required, including for the erection of
fences over 1 metre in height (if adjacent to the highway).

51. Stopping up by Squatting
• But note – no squatters rights on highway.
• Smith v Land Registry 2010 Court of Appeal.
– S had lived in caravan on a highway for 12 years.
– Claimed adverse possession
– Land Registry submitted highway did not cease to be
simply because not used. Acquiesence could not authorise
obstruction.
– CA upheld maxim “once a highway, always a highway”.
– No means in law by which as a result of occupying land
forming part of a highway any squatter could bring to an
end the public’s right of passage.

52. Stopping Up Legal Implications S263.
• Under s 263(1) of the Highways Act 1980 ("the Act") the surface of any
public right of way vests in the highway authority
• Once the highway rights are extinguished, control over the land reverts to
the freehold or leasehold owner of the subsoil. In many cases, this will
not be the Highway Authority.
• Where the owner of the subsoil is known, an applicant will need to
negotiate a transfer of the land. For example, on many housing estate
developments the land still belongs to the developer.
• It may be prudent for an applicant to both ascertain the owner of the land
and to negotiate any costs involved prior to section 116 procedures being
commenced.
• Where the owner of the subsoil is not known and cannot be found, there is
a rebuttable legal ‘presumption’ that the owners of the adjoining
properties own the subsoil beneath the former highway out to the centre-
line of the former highway. This is more often the case with older areas
of highway.
• However note Southwark v Transport for London (now at Court of Appeal)
and vesting of highway land.

53. Stopping Private Access s66 and s80
• Private access can be stopped up without compensation.
• Matter determined in the recent case of Cusack v Harrow LBC [2013] the
Supreme Court.
• Court asked to consider whether Harrow Council should have used s.66
Highways Act 1980 instead s.80 of the same Act.
• Both empower a local highway authority (the Council) to do the same
thing, that is, block someone’s private access to the public highway (the
road). The thing is, if they had used s.66 then the Council had to pay
compensation; in contrast, by opting for s.80 no compensation was
payable. For obvious reasons the claimant (Mr Cusack) argued that the
Council should have used the s.66 power.
• Whilst the Court of appeal found for Mr Cusack, The Supreme Court took a
different view, finding in favour of the Council for the following reasons:
– the argument that s.80 was of more general application and s.66
specific, was not accepted – just because s.80 did not specifically
mention safety as a reason for using the power did not matter, it was
implicit; and
– on the human rights point, deprivation of access to the public highway
did not amount to a deprivation of property, but instead was an
exercise of control over property.
• Although still an action subject to the Human Rights Act, in this case it
was held that the use of the s.80 power was consistent with the Council’s
Human Rights Act obligations.

54. Hoardings S172
• A developer is under a statutory duty to erect the
hoarding before the beginning of works so as to
separate the buildings from the street.
• If the developer does not erect a hoarding or fence he
could be prosecuted under ss5 of S172 for not having a
hoarding.
• The County Council can require that a convenient
covered platform and handrail is erected to serve as a
footway for pedestrians outside the hoarding but this is
a discretionary matter.

55. Hoardings in Practice
• BJ involved in case where shopkeepers complained about the absence of
a covered platform and footway which was badly impacting on their
business.
• Advised our client that complaints should be directed at the County
Council for not reasonably exercising its powers to require the platform
• There are no statutory compensation provisions that apply to such
instances.
• Providing the developer has not interfered with private covenants, albeit
on a temporary basis and, it would be stretching public land compensation
law to the limits to suggest that a developer could be liable for any
temporary diminution in the value of the shopkeepers interests, even if
the developers actions have been causal.
• Ultimately should be the developer’s defence, that he or she has done
what they were required to do by the law.

56. Advance Payments Code (S219)
• If no S38 in Place fallback can be S219 Advance Payments Code.
• S219 states
– Where it is proposed to erect a building
 for which plans are required to be deposited with the local authority
in accordance with building regulations,
 and the building will have a frontage on a private street in which the
street works authority have powers under the private street works
code to require works to be executed or to execute works.
No work shall be done in or for the purpose of erecting the
building unless the owner of the land on which it is to be erected
or a previous owner thereof has paid to the street works
authority, or secured to the satisfaction of that authority the
payment to them of such sum as may be required under section
220 below in respect of the cost of street works in that street.

57. APC Process (S219)
• Service of S220 Notice within 6 weeks of planning permission being
granted.
• Specifies amount to be deposited or secured in respect of street
works charges for those dwellings for which approval has been
granted.
• Prevents work (and work would be an offence) with fines for
breach.
• Can have exemption notice
• Payments registered as a land charge
• Alternatives forms of security include
– a mortgage or second mortgage on the development land;
– a completed Section 38 Agreement; or
– a temporary bond.

58. Adoption by Notice - Section 228
• If an area of land is required to be adopted by the County Council, for
reasons such as facilitating further development or because it has
previously been maintained by the Council, the County Council may
exercise the Highway Authority's functions under Section 228 of the
Highway Act 1980 in respect of adopting the area of land as highway
maintainable at the public expense.
• The Section 228 procedure must only be used where the owner of the
relevant area of land is not known.
• The procedure involves posting notices in accordance with Section 228
along or in the vicinity of the land to be adopted.
• The notices states that if any landowner wishes to object to the adoption
they do so in writing to the named council within one month from the
date of the notices being displayed on site.
• If no objections are received, the land is deemed to be adopted. Should
objections be received, these are determined by a Magistrates Court.

59. Fun and games with Adoption
• Redrow v Knowlsey (2014)
– Court of Appeal determined S38 did not limit what could
be required by way of payments.
– Redrow forced to pay £39k as commuted sum for street
lighting maintenance.
• Betterment Properties v James Carthy (2010)
– Contract required road to be made up under S38.
– Subsequent contract failed to address the S38 proposals
and left B without access to public highway.
– Intention of agreement held not relevant.

60. Fun and Games with Adoption (2)
• Beezer v Durham (2010)
– Contract to provide adopted road for school site
– Durham no longer require and want to sell.
– Court of Appeal held that Beezer still had to provide
road.
• Bovis v Persimmon (2010)
– Bovis had exercised option but right to rescind if bypass
not “open to public” by date.
– Part of dual carriageway coned off on due date.
– Court of Appeal held that bypass not open to public and
Bovis able to get money back.

61. Disabled ramps S147ZA
• Section 147ZA provides for agreements relating to improvements for
benefit of persons with mobility problems
• Agreement allows either owner, lessee occupier or to carry out works
or highway authority to carry out works on payment.
• Conditions can be imposed
– for the maintenance of the structure as replaced or improved, and
– for enabling the public right of way to be exercised without undue
inconvenience to the public.
• Consent still required from owner or others with interest who are not
party to agreement.

62. Trees and the Highways Act.
• Lots of Tree Powers under the Highways Act
• Section 64 The Highway Authority may plant trees, shrubs and other
vegetation either for ornament or in the interests of safety.
• Section 79 The Highway Authority may direct a landowner to alter any
tree, shrub or other vegetation that obstructs the view at a corner
• Section 96 The Highway Authority may plant trees and shrubs and
undertake works as necessary to maintain, protect or remove them. If
damage is caused to an adjacent property by the planted trees and
shrubs, the owner may be entitled to compensation.
• Section 132 It is an offence to inscribe or affix any picture, letter, sign or
other mark upon a Highway tree without the consent of the Authority.

63. Trees and the Highways Act.
• Section 136 The Highway Authority may seek a court order requiring an owner to
cut, prune or plash (layer) a hedge or prune a tree if the highway is being damaged
by the exclusion of the sun and the wind by a hedge or tree.
• Section 138 It is an offence to plant a hedge in a Highway without written
authority.
• Section 141 It is an offence to plant a tree or shrub within 15ft of the centre of the
carriageway subject to sections 64, 96 and 142.
• Section 142 The Highway Authority may grant a license to the owner of an
adjoining property to plant and maintain or to keep and maintain trees and shrubs
in the highway.
• Section 154 The Highway Authority may serve notice requiring the cutting or
felling of a hedge, tree or shrub which endangers, obstructs or interferes with the
passage of vehicles or pedestrians, including the view of drivers or the light from a
street lamp. The work is required be carried out within 14 days.

64. Trees and the law
• Dillner v Sheffield City Council (2016)
• Dillner sought to protect trees from felling.
• Claim brought challenging powers to carry out
works.
• Court held that Highways Act 1980 provided all the
power that a local highway authority required to
carry out works.

65. Supplement on Highway Trees and
Protection through TPOs etc
• Neither S198 (power to make Tree Preservation Orders) nor S211 (Trees in
Conservation Areas) Town and Country Planning Act 1990 provide any
exclusion for Highway Authorities from the effect of either provision.
• In 2008 the law changed such that urgent works to trees, which previously
required no particular action, now require prior notification of the Local
Planning Authority.
• The test is that there is an immediate risk of serious harm. Five working
days prior written notice is required.
• Work should only be carried out to the extent that it is necessary to
remove the risk.
• When a highway authority gets consent for a highway scheme from the
Secretary of State this also authorises works to trees.

66. Contact us…
Dmitrije Sirovica
E: dmitrije.sirovica@brownejacobson.com
T: 0115 976 6238
Stephen Coult
E: stephen.coult@brownejacobson.com
T: 0115 976 6152

67. Strong communities with homes and jobs
Government Housebuilding initiatives
& Housing Supply
Mark Banister FRICS ACIH
Senior Manager (Nottinghamshire)
Homes and Communities Agency

68. POLICY CONTEXT
Delivering Major Projects

69. Strong communities with homes and jobs
Government priorities
• Ambition to deliver 1 million homes by 2020 and
support people to buy own home
• Spending Review set out 4-point plan for housing,
focused on low-cost home ownership and reforms to
planning system to free up more land
• £20 billion of capital investment over 5 years – most
ambitious housing plan in a generation with doubling of
budget

70. Strong communities with homes and jobs
Housing and Planning Act
• Act introduced in October 2015 and received Royal
Assent on 12 May 2016
• Wide-ranging Act, legislating on housing, planning,
compulsory purchase and land use
• In some areas, detailed implementation will be
through secondary legislation

71. Strong communities with homes and jobs
Starter Homes
• Act provides statutory framework for the delivery of
Starter Homes
• Detail of what will be in secondary legislation –
including the duty on local authorities to require a
proportion of Starter Homes on reasonably sized
sites – currently awaiting Gov’t response to
consultation

72. Strong communities with homes and jobs
Self build and custom build
• Requires local authorities to meet demand by
granting permissions for suitable sites
• Detail of the duty – and exemptions – to be set out in
secondary legislation
• Potential to increase demand for self build and
custom build through new HCA Home Building Fund

73. Strong communities with homes and jobs
Planning system
• Devolves further planning powers to London Mayor
• Creates local registers of land – to be used for
brownfield land and custom and self build register
• Introduces concept of permission in principle
• Extend planning performance regime to apply to
smaller applications

74. Strong communities with homes and jobs
Planning system
• Allows conditions to be attached to development
orders for building operations so they are consistent
with those for change of use
• Requires financial benefits of proposals for
development be reported to planning committees
• Allows SoS to place restrictions or conditions on the
enforceability of planning obligations relating to
provision of affordable housing

75. Strong communities with homes and jobs
Planning system
• Allows developers who wish to bring forward
applications for housing relating to a major
infrastructure project to apply for consent under
nationally significant infrastructure planning regime
• Modernises and speeds up process for creating
Urban and New Town Development Areas and
Corporations

76. Strong communities with homes and jobs
Land use
• Wide range of measures to improve CPO regime by
making it clearer, fairer and faster – to be
strengthened further through Neighbourhood
Planning and Infrastructure Bill
• Creates duty on Ministers to engage with councils
when preparing to dispose of land; requires public
bodies to report on use of land; and extends powers
of SoS to direct bodies to dispose land

77. HCA PROGRAMMES & DELIVERY UPDATES
Delivering Major Projects

78. Strong communities with homes and jobs
Public land
• Release of public land for 160,000 homes by
2020/21, HCA acting as the main disposal agent for
surplus government land
• Working with public bodies, HCA’s aggregate public
sector land role will provide capacity for 36,000 new
homes of which 13,000 will be directly commissioned
• Also purchasing and selling brownfield private sector
land to facilitate at least 30,000 Starter Homes

79. Strong communities with homes and jobs
Accelerated Construction
• In January, PM set out that Government would pilot
the direct delivery of housing – ambition to deliver
13,000 homes through a pilot on HCA land, with 40%
Starter Homes
• HCA will contract directly with the private sector to
build homes at an agreed pace, with the agency
taking increased sales risk in return for a greater
share of the rewards

80. Strong communities with homes and jobs
Starter Homes
• £1.2 billion land fund to support delivery of 30,000
homes
• Equity investment and acquisitions
• Prospectus launched March 2016,
• Initial EOI May 16,

81. Strong communities with homes and jobs
Estate Regeneration
• Government has made available £150m of loans
available to private sector developers and RPs
• Funding is available for 4 years to 2018/19 for a
range of regeneration activities
• Will increase the quality of housing on estates
encouraging ambitious redesigning of estates in ways
that make them better

82. Strong communities with homes and jobs
Private sector housebuilidng
• New Home Building Fund, which will provide £3 billion of loans
to house builders
• £2 billion in long term loans focused on delivering infrastructure
to support strong future pipeline of housing supply – unlock
160,000-200,000 homes
• £1 billion in short-term loans to diversify and support innovation
by supporting small and medium builders, custom builders and
innovative construction methods – deliver 25,500 homes

83. Strong communities with homes and jobs
Home Building Fund (1)
• Loan thus schemes viable
• Competition or Complimentary

84. Strong communities with homes and jobs
Home Building Fund (2)
• Timescale – 10 to 20 years +
• Innovation – market not proven eg housing
specifically for the disabled
• Difficult projects eg brownfield regeneration, listed
buildings
• Financing flexibility – fund against peak cash flow on
phased scheme, recycle sales income

85. Strong communities with homes and jobs
Housing Zones
• Prospectus launched August 2014
• 20 Housing Zones announced March 15 to support
delivery of 34,000 homes,
• Shortlist of 8 to support further 8,000 homes
• £6.3m capacity funding

86. Strong communities with homes and jobs
Garden Towns & Villages
• Prospectus launched March 2016 - EOI by 31 July
2016.
• Development which are free standing, good design,
use of brownfield sites, between 1500 and 10,000
• Possibility of further round and funding
• Announcement?

87. Strong communities with homes and jobs
Shared Home Ownership AHP
• £4.7 billion Capital Grant to support delivery of new
affordable homes
• Prospectus launched April 16, bidding closed 2 Sept.
• 135,000 Help to Buy: SO
• 10,000 Rent to Buy
• 8000 Supported Housing

88. Strong communities with homes and jobs
Conclusion
• Government committed to increasing housing supply and
supporting demand
• HCA provides development finance for both private and public
organisations
• HCA combines land and investment programmes to make it
easier for house builders to develop and to help get homes built
more quickly

89. Strong communities with homes and jobs
Next…….
• Autumn Statement November 24th
• Housing White Paper announced by Gavin Barwell