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The Dormouse’s Revenge

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For centuries, back to Roman times and still in places such as Croatia and Slovenia, the dormouse was considered a delicacy, stuffed and then roasted or fried – yum, yum. To distinguish him from his from dormouse chums, Glis glis (according to Linnaeus in 1766) has become known as the Edible Dormouse or the Fat Dormouse – so much for political correctness, when such fattist comments are permissible. What bad luck when, had Glis been less portly and less appetising, he might have been protected by law and kept from the oven, in the same way that his relative Muscardinus avellanarius has been. Maybe Glis should have acquired a posher Latin name.

as this got anything to do with planning or has Thackeray finally lost his marbles? It has in fact, become increasingly more important to planning and to developers, though I think poor Glis is still on the menu somewhere.

The Hazel or Common Dormouse (Muscardinus etc) is one of the UK’s most endangered mammals, although, with a population of 45,000, you might be forgiven for agreeing that it is indeed common and questioning whether it needs protection. It is, nonetheless, afforded a very high level of legal protection and it is Natural England’s advice to LPAs that survey reports and mitigation plans are required when protected species might be affected, as a part of the planning application process and not as a condition of planning content.

Ok, we are becoming accustomed to having to take account of badgers and great crested newts or, in the Thames Valley, the dreaded Dartford Warbler (wasn’t that Mick Jagger?), but the common dormouse is becoming a particularly tricky customer. If the LPA will not deal with your planning application without a survey and mitigation and if your Stage 1 ecological report suggests a possible common dormouse habitat, then you’re stuffed, not quite in the same way as poor old Glis, but enough to make him chuckle, go on a diet and reach for the hazel Just For Dormice.

The problem is three-fold (as opposed to Penfold, who was, I believe, a mole and, therefore, not protected). Firstly, the dormouse is a particularly lazy fellow and, if it’s a bit chilly, can hibernate for up to nine months of the year. Secondly, through recent research, it has been shown that the dormouse habitat is far more extensive than was once thought, now happily living in hedgerows, scrubland, conifer plantations and coppiced woodland as well as the traditional chez dormouse areas, mature woodlands with a good supply of hazelnuts. Thirdly, the surveys required to establish a presence, or indeed a non-presence, are onerous to say the least.

The cuddly dormouse appears to have made the planning application a seasonal event, only to be submitted in the winter after an exhaustive and possibly fruitless search that has taken up all of the previous summer and extended across both the application site and neighbouring land with the same habitat characteristics.

Of course, the government has helpful advice on measures to be adopted by way of mitigation, top of the list being “persuasion”. This is probably not the same gun-law as might be used in Somerset or Gloucestershire to persuade badgers to leave town. It involves clearing the affected area, by hand, a bit at a time and only during the winter, so that, on waking, the dormice find that the habitat is not quite as nice as they thought it was when they went to sleep. This might take two winters for large development sites, and, even when the little darlings have been persuaded to move on, tree stumps and earth cannot be moved until the following summer, in case some of them overslept.

If, after all this, you have no option but to relocate them, subject to licence, they should not be moved to an area with an existing dormouse population. Hopefully, someone else will have spent the previous year checking that one out.

This is indeed the Dormouse’s Revenge for all those years when he was nothing more than a tasty snack. A creature which, according to Countryfile, weighs as little as two £1 coins has the capacity to cost house-builders and, consequently, house-buyers several million times its own weight, in delays to the building programme for the much-needed upsurge in new homes. For most of us, our knowledge of dormice began and ended with a fat chap sitting next to the Mad Hatter and nodding-off during a tea party, so it should come as no surprise to find elements of Lewis Carroll’s Wonderland here, in the level of protection afforded to these creatures and in the unreasonable demands placed by the government and by Natural England on applicants and LPAs charged with being pro-active in delivering ambitious housing targets. Perhaps Alice grew up to be ecologist.

Onwards and Upwards? – Londoners Reach for the Skies to Solve the Housing Crisis

At a Green Belt seminar in Oxford in 2015, faced with a tricky question from the floor regarding where new housing in rural Surrey might go, if not in the Green Belt, a CPRE delegate, without the hint of a smug grin, suggested “upwards”. There was no recorded presence of a DCLG or Mayoral mole in the audience, but who knows because, a few months later, (February 2016) DCLG/Mayor of London have issued a consultation paper “Upward Extensions in London”.

Answers, not on a seaside postcard referring to erections or mine being bigger than yours, are requested by 15 April 2016, online to www.surveymonkey.co.uk/r/Z6SGGNB. The consultation is not to be confused with the ongoing debate, especially in Westminster and Ken & Chel, about the propensity of wealthy householders to seek even more indoor pools and home cinemas by building under their existing houses and gardens.

The London Plan seeks to have 49,000 new homes built each year, this against the backdrop of an annual rate of 25,000 p.a. since 2008. Given that the Green Belt is a no-go area and brownfield sites just don’t seem to come up with the goods, the answer is to build tall. This is not specifically targeted at new builds, but by changing Permitted Development (PD) rights to allow additional storeys to be added to existing buildings. First reaction must be that creating taller homes does not automatically equate to more homes, but let’s look at the options put forward in the consultation.

PD rights, with prior approval, are, supposedly “a light touch approach to granting consent”, though anyone going down that route may be forgiven for sniggering. The consultation paper suggests that there might be a new PD right in London that provides for one or two additional storeys on an existing building, where the roofline of the adjoining premises is at least one or two storeys taller already, conditional upon the additional space being used to provide self-contained additional housing units. The right to grow would not be confined to existing houses, but could include shops and offices.

An alternative option, with the same objective, would be for London Boroughs to bring forward local development orders, permitting upward expansion in specific areas, perhaps around transport hubs or in town centres and high streets. The third option sees the London Plan introducing new planning policies to support additional storeys.

There are provisions in the consultation for multiple PD spurts, so that two or more neighbours, sitting next to and/or close to the big boy on the end of the block, could grow together, but only the immediate neighbour could grow on its own. The illustration, see below, rather suggests that if you press down on the tall building, one of the others may pop up, like the valves on a trumpet or a bump on a cartoon character’s head when whacked with a frying pan, but you get the gist. A and C in Example 1 can grow when they like and D can join in with C. B and E are good to go in Example 2 and could take C and D with them. It’s a good game.

Example 1 Example 2

If the consultation period did not run past April Fool’s Day, you might think that this was such a wheeze. Is it not one of the dafter ideas to come out of the DCLG and the Greater London Authority?

Are Londoners going to rush to build extra floors on their houses to provide self-contained flats on the roof? Where would the servants live? Are the foundations of London’s houses and shops built to take additional floors and do we have enough structural engineers to give us the answer. Granny can’t live up there in order to free up her one person, four-bedder, not with all those stairs, and, talking of stairs, will the PD rights include provision for a new stair tower, fire escape or lift to make sure that the “Crash in the Attic” is truly self-contained not to say safe? Are there enough lop-sided street scenes to make a difference and do we want building heights to be all the same?

A lot of government initiatives to promote new housing without trespassing into the green belt smack of desperation. This one has an element of comedy about it, even more so than recent escapades such as “Escape to the Industrial Estate” and a PD right to demolish an office block and rebuild it, bigger, as housing. Someone at the DCLG has an oversupply of imagination or maybe needs to cut down on the caffeine.

The ideas may be desperate, you might even say daft – but at least they are suggestions, there does not seem to be anything as definite from either of the London Mayoral candidates who seem only to rely on rhetoric.

Why not just have a sensible review of this country’s outdated Green Belt policy and leave the Permitted Development Order alone for a while, to recover from trauma of last year!!

Who knows, a review of Green Belt policy might also help to address housing difficulties in locations other than London. On the other hand, perhaps we should be grateful for any distraction from the prospect of months of political talking heads “debating” Brexit!

Walsingham Planning & Ian Jewson Planning combine practices

Walsingham Planning and Ian Jewson Planning are very pleased to announce that the two Practices are to combine. This combination will bring together greater experience, expertise and geographic spread to benefit existing clients, attract new business and re-invigorate the new company for the future.

The two Practices will continue under their own names as separate businesses during a period of integration and will then combine as Walsingham Planning in 12 months.

All staff and Directors are committed to the long term future of the businesses and to a successful integration. All three offices at Bourne End, Bristol and Knutsford will continue to operate as normal.

Stephen Brooker and Mark Krassowski will join Ian on the Board of Ian Jewson Planning during the integration period whilst Ian will join the Walsingham Planning Board. When the companies combine they will then be joined by Jonathan Vose to form the Board of Walsingham Planning once the integration is complete.

Work on all of our projects will continue as normal advising our clients, securing planning permissions, achieving positive Local Plan outcomes and resolving planning conundrums.

We see a bright future together providing an enhanced service to new and existing clients.

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Move Over Eric – Dave and George Want a Go at Crusading

Remember the good old days when the only person in the government interested in planning was Eric Pickles? The days when, if Eric hadn’t said it, it didn’t matter? Nowadays the planning system is fair game for each and every politician who thinks he knows his green belt from his brown field. Government policies and bright ideas (rarely combined) now come from a variety of sources, starting at the top. While there has been no major overhaul of the planning process for, what, several weeks now, there have been any number of terrific wheezes coming from all directions. In this article we can consider a few of them.

The First Crusade - Local Plan Delivery: – in October the Prime Minister, no less, pitched in with the announcement of a “National Crusade to get homes built”. This came some time before the more recent crusade in a part of the world more familiar with them, so the two should not be confused. The key role, in what we can call The First Crusade, rests, as ever, with local councils and with their local plans.

Twenty percent of councils do not have any sort of local plan at all and about a third do not have an adopted plan, this despite the fact that the requirement to produce them dates from about ten years ago. The crusading PM has set a target to enforce delivery of all missing local plans by 2017, a huge ask given the obvious lack of progress to date. Luckily, DC has a cunning plan, more Blackadder than Baldrick, so, if they are not delivered on time, the local plans will be produced by the government, maybe the Planning Inspectorate who seem to do everything else that local government can’t cope with, or perhaps by local people for whom DIY town planning is a popular hobby.

The Second Crusade - Living in the Office: – Permitted development rights were extended in 2013 to allow the conversion of offices to dwellings, up to 2016 and subject to the convoluted Prior Approval procedure, more of an expeditionary force than a full crusade. Our Lionhearted Prime Minister, him again, has now announced that this will be made permanent, and, the very next day, Planning Minister Brandon / Baldrick Lewis said the same , (“right you are, Mr C”) so it must be true. In addition, the new PD rights will permit the demolition of offices and their replacement with dwellings, along with the conversion of light industrial factories and, wait for it, launderettes to housing units. A touch of Pickles about this latest new right – remember his long-overdue rewriting of the Advert Regs dealing with flags?

If this is to contribute to the desperate need for starter homes – see below - then the new PD rights surely need to be tied in to ongoing changes to the CIL and affordable homes legislation. Changes of use by Permitted Development tend not to attract CIL; nor do they require the S106 agreements that deliver affordable homes, so maybe a bit more joined-up-thinking is to follow. The recent appeal case on the Thames near Tower Bridge, where a developer of luxury riverside penthouses pleaded an inability to afford all the due affordable housing contribution begged a number of questions in this regard:- why were the starter homes not on site? why only £15 million to pay? if an office can now be redeveloped as housing as PD, what price any affordable dwellings in central London?

The Third Crusade - Planning Permission in Principle: – Is it really such a radical change to promote more certainty for housing developers by introducing PPIP in the emerging Housing and Planning Bill? Didn’t this used to be called “outline planning consent”? – a red line round the site, “residential” written on the application form and a consent with about six conditions. Now that was certainty! Under PPIP, that consent will be automatic when local plans, neighbourhood plans and brownfield registers are in place beforehand, referring us back to the top of the page and the still–worrying lack of such documents in so many areas.

Developers will be able to apply direct for PPIP – not to the government or the Inspectorate, as we are now coming to expect, but to the local council. Who would ever have thought of that novel concept?

Brownfield sites, the intended target of PPIP, will therefore benefit from a sort of automatic planning permission. Shortcomings in the planning process are not, however, to blame for the country’s failure to delivery affordable new homes on brownfield sites. This goes far deeper than any delays in securing planning permission – if only it was as simple as a bit of pink colouring on the local plan map and a slip of green paper.

The Peasants’ Crusade - Loosen your Belts: - Of course, not all brownfield sites are contaminated, inner city, ex-industrial plots. Many are in unsustainable countryside, even green belt, locations where, in time-before-planning, country estates, factories and office HQs were built with no regard to what have become today’s land use criteria. The presumption of “brownfield-good, greenfield-bad” has always been a strange one, bringing with it the apparent right to redevelop an inappropriately located site on the basis that it had an equally inappropriate pre-planning history. This is to be compounded, following George (Lord Flasheart) Osborne’s own crusading venture, the recent Spending Review statement, which included the provision that Green Belt re-development for starter homes will be favourably treated in a manner similar to that for other “brownfield” sites. Most of these brown-field, green-belt sites are surely not in locations with good access to cheap public transport and are not best-placed to provide starter homes close to employment. If we are going to build in the Green Belt, and there is every reason why we should, let’s not pick the sites just because they were built on for a different purpose in a wholly different time.


The recent announcements from the PM, the Chancellor and the Minister may in time set the wheels turning for up-to-date local plans, major housing developments in redundant buildings and on derelict sites and vast quantities of affordable homes for first time buyers in sustainable locations. Time is, however, of the essence and in relatively short supply, and, if we are to emerge victorious from The Crusades, this continued tinkering with the planning system, a-la-Pickles, has to be replaced with more fundamental strategy to address the problem of house- and land-prices at its roots. Now that would be a cunning plan!!

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Affordable Housing – Court Ruling Wraps Minister’s Knuckles and it’s “As You Were” (for now)

When Planning Minister Brandon Lewis issued a ministerial statement in November 2014 announcing that LPAs could not impose affordable housing or S106 commitments on housing schemes of fewer than ten units, it was seen as government help for small-scale buildiers for whom modest sites are their main business and who are potentially crippled by 30-50% affordable requirements. Some LPAs, especially those with tight boundaries and little housing land apart from windfall sites of fewer than ten units, saw this as depriving them of the limited opportunities available to secure affordable housing. Reading Borough Council and West Berkshire Council challenged the proposal.

In a ruling dated 31 July 2015 Mr Justice Holgate quashed the Secretary of State’s attempt to adopt national policy by way of a ministerial statement and with it those parts of the NPPG that introduced the changes. The DCLG has indicated that it will be seeking leave to appeal the decision.

The ruling effectively constrains the government in seeking to override adopted development plans by way of what is basically national guidance. Those development plans which already sought affordable housing or contributions thereto for sites of fewer than ten units have now been reinstated. Those plans which previously applied their policy to a greater number were unaffected by the ruling and are unaffected by the judgement. Those LPAs which have yet to adopt a development plan need to get a move on, but at least they are not, for now, constrained by the November 2014 statement.

The winner in the process are authorities, like Reading, who can continue to seek affordable housing from smaller sites, although, to do so, they are likely to have to deal with more claims for exemption based on reduced viability. The losers appear to be the small local buildings for whom the policy change was intended, especially those who, since November last year, have secured or promoted development sites based upon the presumption that there would be no affordable housing.

This is unlikely to be the end of the story. The High Court ruling does not pass judgement, one way or the other, on the need for a threshold below which affordable housing may not be sought. It simply rules on the process by which the Secretary of State chose to introduce that threshold. He will have to think twice before using a ministerial statement to change on-line planning guidance and in presuming that, in so doing, he has created or changed national policy. Rules is rules, Brandon.

The same challenge/ruling also dealt with the lesser-known matter of vacant building credit. Developers of sites in which vacant buildings were to be re-used or redeveloped as part of a larger scheme could discount those buildings against the requirements for affordable housing. This “policy” has also been quashed, so, while buildings that have been lawfully occupied for the requisite period may be exempt from CIL, affordable housing policies in adopted local plans will apply across the whole site.

A DCLG challenge to Holgate J’s ruling appears, on the face of it, to be a pointless reaction. If the government thinks a threshold is appropriate and necessary, then it needs to ensure that, in seeking to change policy, it does so through the proper channels and not in a manner described in the High Court as inconsistent with the statute, unfair and unlawful, failing to deal with obviously material considerations and a breach of its public sector equality duty. These strong words seem to undermine the government’s idea that changes to planning policy and practice can be introduced by periodic tweaking of the NPPG. Think again, chaps.

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The Green Belt - Nice or Noose

In an earlier article I asked what the election had in store for planners and developers, and I came to the mixed conclusion that we might expect a comparatively quiet time, given the upheaval and constant tinkering that has beset the profession/industry in the last parliament. Now the ace-tinkerer, Sir Eric Pickles, has moved from his post at the DCLG, we should indeed expect a period of consolidation, all the more so when the coalition’s last act was to produce a comprehensive update of the GPDO, the first since 1995. Surely, when we’ve printed 160+ pages and understood the new numbering and rehashed PD rights, we’ve earned the right to a bit of peace and quiet?

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New Midfielder for Planning United FC – but will the tinkering ever stop?

INTRODUCTION

It’s been months since the last shake-up of the planning system. How on earth have ministers been filling their time since last having a bash at it? For the most part they’ve been changing jobs in the departmental transfer window. We’ve lost Bolesy and have a new Minister for Planning – Brandon Lewis. While bums on seats have been shifting, there has also been a good deal of turmoil in the fraught world of planning tactics and strategy, to get Planning United FC working as the Premier League outfit that it should be.

DCLG published an important consultation paper which picked up on a lot of the 2013’s temporary measures, on a lot of ideas thrown up by the autumn statement, Queen’s speech and budget and on some crackpot notions that seemed like a good idea at the time.

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Latest News on the Planning System

INTRODUCTION

It’s been, what, months since the last shake-up of the planning system. How on earth have ministers and civil servants been filling their time since last having a bash at CIL? For the most part they’ve been changing jobs. We’ve lost Bolesy and have a new minister of state for planning – Brandon Lewis (catchy nickname to follow) assisted by Penny Mordaunt and Kris Walker, the latter having special responsibility for pubs (nice work if you can get it). While bums on seats have been shifting there has also been a good deal of turmoil in the fraught world of planning policy and wizard ruses.

As a result there has now been published an important consultation paper which picks up on a lot of the temporary measures introduced last year, on a lot on ideas thrown into the pot in the autumn statement, Queen’s speech and budget and on a few crackpot notions that seemed like a good idea at the time.

The consultation runs to 26 September, and anyone who makes planning applications, or better still, employs Walsingham Planning to make them needs to be aware of the proposals. It’s a lengthy read, with a few laugh-out-loud jokes, but here is a brief summary and commentary which will hopefully allow a meaningful and timely response to the new proposals.

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Launch of National Planning Policy Guidance (NPPG)

The Government discarded many 100’s of pages of planning guidance amid much fanfare and controversy when NPPF was introduced in March 2012. NPPF has continued to hit (some) headlines as some Councils and local residents have felt besieged by applications for housing in areas that cannot meet their requirement to have a 5 year supply of housing sites available. Many such applications have been allowed because of the NPPF requirements.

It was with very much less fanfare that the Government re-introduced 100’s of pages of planning guidance in a web based form as NPPG a couple of months ago. It will take time before the subtle differences between previous Guidance and NPPG become apparent and there has already been much investigation of the minutiae of wording to see if NPPF is being gently nudged in a different direction.

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2014 saw Walsingham Planning celebrate 30 years in business as a town planning consultancy. We would like to thank all of our clients for their continued support and look forward to the next 30 years.