It all starts with planning – Amending planning permissions
28 January 2025
News
Despite the Town and Country Planning Act 1990 having been around for some time, there has been a run of case law on the scope of Section 73 (S73) applications, dealing with amending planning permissions.
Section 73 permits an already consented development to come forward with variations to the conditions on the original planning permission (or the deletion of conditions). Government guidance published in 2014 referred to section 73 applications being for “minor material” amendments. However, recent case law confirmed that this materiality limitation has no statutory basis.
Another way to amend a planning permission is under Section 96A which permits “non-material” amendments to be made to any part of a planning permission.
With the recent case law in mind, we’ve summarised the various ways that you can amend planning permissions under these two sections:
S96A
An application to make non material amendments to any part of the planning permission (e.g. description of development, conditions, informatives);
When deciding whether the proposed changes are within the scope of S96A (i.e. if they are non-material) you need to look at the changes within the context of the whole development;
You also need to consider whether cumulatively, the proposed changes, together with any others approved under previous S96A applications, are non-material;
Cannot be used to extend the time period for implementing a planning permission;
The application must be made by someone with an interest in the application site;
28 day determination period;
No requirement on the Council to consult on the application;
No right of appeal if the application is refused;
Automatically amends the original planning permission if the approval is granted. If you change your mind and want to build out under the original unamended planning permission you will need to submit a further S96A application to remove the changes granted by the first S96A approval;
A Council’s decision to grant a S96A approval can be judicially reviewed.
S73
An application that grants a new planning permission with varied conditions;
Can be used to vary or delete conditions, but not to add conditions or to vary the description of development or any informatives;
Case law in 2024 confirmed that variations approved under S73 are not limited to “no- material” amendments. This reference was included by the Government in guidance they published on amending planning permissions, but there is no reference to the materiality of amendments in section 73 of the Town and Country Planning Act 1990. Further case law has confirmed that as long as the proposed changes to the conditions do not result in a conflict with the operative part of the planning permission (i.e. the description of development) then there is no limitation of the extent of the variation that can be permitted;
Cannot be used to extend the time period for implementing a planning permission;
The application can be made by anyone (notice requirements must be complied with if the applicant is not the sole owner of the application site);
The determination period is the same as for the original planning application;
The applicant can appeal the Council’s decision to refuse to grant the S73;
If granted, the application results in a new planning permission with the same conditions as the original planning permission but amended as per the S73 application. The developer can therefore either implement the original planning permission or the new amended planning permission. Care needs to be taken if there are multiple S73 and S96A applications to ensure one planning permission picks up all of the proposed changes;
A Council’s decision to grant the new amended planning permission can be judicially reviewed.
The Levelling Up and Regeneration Act provides for a new way to amend planning permissions which has yet to come into force. Under S73B amendments that are not substantially different from what was originally consented can be made to any part of a planning permission, but cannot be used to extend the time periods for implementation. Whilst this is welcomed given the constraint of S73 only enabling variations to conditions it is feared that there could be a lot of case law around what is meant by “substantial”. There is also uncertainty as to when the provision will take effect as it will require secondary legislation to be brought forward, and the Government’s “To Do” list is pretty lengthy at the moment!
For more information on Planning you can get in touch with our team here.
Shaping the future of private client – Rosie Schumm co-chairing Private Client Global Strategy Forum 2025
23 January 2025
News
Partner in our Family team, Rosie, is co-chairing this year’s forum alongside Joshua Rubenstein, from Katten. Over 3 days from the 22-24 of January, Rosie and our Head of Private Client, Xavier Nicholas, will be amongst the industry leaders discussing the future of the private client sector.
The conference, taking place at Gleneagles in Scotland, includes expert-led sessions and strategic insights on some of the most topical issues facing the industry:
Global mobility- jurisdiction shopping
Intergenerational wealth transfer
Guarding against Predatory Marriages
Surrogacy: challenges, solutions and best practices for advisers
As co-chair Rosie will be leading the discussion on the challenges facing high-net-worth individuals and how advisors are best placed to guide them through the year to come.
Anyone who practices property law will recall 1925 as the year in which a comprehensive redrafting of English property law statutes was undertaken. The raft of legislation in that year included the first Land Registration Act which is therefore now coming up for its centenary. The purpose of that act was to consolidate earlier legislation relating to land registration and to facilitate the comprehensive registration of all property in England and Wales. Its centenary therefore provides a good opportunity to review the current state of registration.
Land registration had first been introduced for some London boroughs as early as 1899. Initially it was not compulsory to register transfers of land but this was bought in according to local authority areas over the following century so that by 1990 all transactions for value triggered first registration of the title. Take up of registration was therefore initially relatively slow and by 2004 only some 40% of land (by land area) had been registered. However, a broadening of the requirement for registration (for example to cover gifts as well as transfers for value) led to an acceleration of the process and by 2018 the Land Registry was estimating that 85% of all land in England and Wales had been registered. The latest estimate is that some 89% of land is now registered with around 26.5m Land Registry titles in existence.
In its 2016 five-year business plan the Land Registry included a section entitled “a comprehensive register” and set out an aspiration for all publicly held land to be registered by 2025 with all remaining private land to be registered by 2030. Almost certainly this plan was derailed by the Covid pandemic and it is interesting to note that the three year business plan published in 2022 makes no reference to completing the registration process. By that stage the Land Registry was presumably distracted by the need to improve its service following the disastrous collapse in its efficiency caused during Covid.
So, a century after the 1925 Act there is clearly still some way to go with at least 10% of land still unregistered. If you look at the registration map it is clear that in the countryside there are quite large swathes of agricultural land still unregistered, presumably because this land has not changed hands in the last 35 years. In due course this will therefore be registered. In urban areas there are small pockets of unregistered land and examination shows that these often relate to churches, schools and other communal facilities where there has been no change of ownership for a long period. This land might never be registered unless some form of compulsion is brought in. An interesting conclusion to draw from this is that it takes a very long time to change anything in UK property law. The government should therefore remain cautious when making promises to “bring the feudal system of leasehold to an end” within a few years – let’s watch this space.
New year, new opportunities for Build to Rent – Helen Streeton writes for BTR News
14 January 2025
News
Build to Rent was once considered a niche segment of the UK’s housing market. It has now gained significant attention from investors over the past year.
Despite the UK’s continued macro-economic headwinds and uncertainty in terms of new legislation, the Build to Rent market is poised to play an increasingly important role in the UK’s housing delivery.
Investor interest ticking upwards
Overall, investor appetite for residential assets is increasing across all living sectors. Interest in Build to Rent is now at a level comparable to that seen in other high-demand sectors such as data centres, logistics, and purpose-built student accommodation (PBSA).
Investors are increasingly recognising the potential of Build to Rent as a sustainable long-term investment, combined with growing demand for rental properties, since fewer people can afford home ownership due to high property prices and restrictive mortgage access.
With more individuals and families having no option but long-term rental solutions, Build to Rent has positioned itself as a solution to the chronic shortage of homes in the UK. The sector offers stability and resilience amid broader market volatility, making it an attractive proposition for institutional investors looking for reliable returns.
Tax changes have already led to a reduction in the number of buy-to-let properties – the abolition of mortgage interest rate relief being one measure that has impacted supply.
Landlords also face higher costs due to new legislation such as the Renters’ Rights Bill, once it becomes law. These changes are expected to continue shrinking the private rented sector (PRS) market, further driving demand for Build to Rent homes.
Obstacles to look out for
Looking ahead in 2025, considerable funds are available for deployment in Build to Rent, but there is a challenge around achieving satisfactory returns – factors such as high construction costs, interest rates, inflationary pressures and the broader economic climate all impact here.
A key concern is the potential impact of government policies and other demand-side stimulants aimed at revitalising the Build to Sell market. These initiatives could inadvertently shift resources away from Build to Rent, leading to a reduction in supply.
Developers may opt to focus on traditional sales, given the stronger demand from the home-buying market, ultimately reducing the volume of Build to Rent stock available.
Building Safety Act requirements around higher-risk buildings together with a sticky planning system remain obstacles to getting buildings out of the ground. These factors are resulting in delayed or stalled projects, putting pressure on an already constrained housing supply.
Build, build, build: the role of Build to Rent
One solution which the government has recently proposed to the UK’s housing crisis is its revised National Planning Policy Framework (NPPF), which is far less prescriptive than previous versions, focusing more on addressing local needs for both ownership and rental housing.
Local authorities will be increasingly willing to consider Build to Rent as a solution to meet housing demand, particularly in areas where high levels of rental demand exist. However, developers will need to demonstrate through the planning process how their Build to Rent schemes will address specific local needs. This approach allows for greater flexibility, offering developers the opportunity to tailor projects to meet the diverse requirements of local communities.
Whilst changes to the NPPF aim to unclog the planning system, Labour’s proposed housing target of 300,000 homes per year until 2029 is unachievable within the current economic climate and regulatory framework.
However, Build to Rent is well-positioned to contribute significantly due to its investment structure and offering, which isn’t contingent on sale absorption rates. By providing high-quality rental homes, Build to Rent can help to alleviate pressure on the broader housing market.
Another piece of legislation working its way through Parliament is the Renters’ Rights Bill, which includes provisions to abolish Section 21 no-fault evictions and introduce rent review processes.
While these changes primarily affect the PRS sector, they highlight a broader trend towards tenant protection. Investors in the Build to Rent sector will need to adapt to these changes, ensuring that their properties remain compliant with evolving tenant rights regulations.
In conclusion, the Build to Rent sector is well positioned to play a pivotal role in shaping the UK’s housing landscape in 2025. The sector has the potential to meet the growing demand for rental homes, contribute to ambitious housing targets, and provide stable investment returns.
As new challenges and opportunities emerge, stakeholders in the Build to Rent sector must remain agile and proactive, ensuring that this vital sector continues to thrive amidst the ever-changing housing landscape. Build to Rent is a necessity if Labour wants to meet the UK’s housing needs.
This article was published on BTR News on 10 January 2025, and can be accessed here.
Xavier Nicholas named one of ePrivateclient’s 50 Most Influential for 2025
14 January 2025
News
Head of our Private Client team, Xavier Nicholas has again been recognised in ePrivateclient’s 50 Most Influential rankings.
Following a judging process based on achievements in the last 12 months, the listing identifies the leading practitioners in the private client sector, showcasing the most talented and highly regarded advisors.
Xavier has led our Private Client team for over half a decade. During this time, his focus as head of the group has included the growth of the practice and succession planning within the partnership team – particularly within our international practice. Over the last year, Xavier has spearheaded the firm’s response in advising clients on the impact of the upcoming non-dom changes.
This is the third consecutive year that Xavier has been included in the 50 most Influential list, as he continues to be recognised for his technical aptitude and his experience in advising on complex international matters.
Sophie Smith speaks to Property Week on NPPF response and Nature Reservation Fund
10 January 2025
Views
In December, the Ministry of Housing, Communities and Local Government published their response to the National Planning Policy Framework, developing their green-belt policies and further defining grey belt land. Adding to the discussion, they also published plans for a new Nature Reservation Fund, designed to help developers with their environmental mitigation costs.
A key takeaway is that the government has changed plans for a flat 50% affordable housing requirement on green belt land, instead having a variable premium ranging from 15% to 50%, on top of the targets set by local plans.
Sophie Smith, Associate on our Planning team, spoke to Property Week on how open to interpretation these requirements are now, and how this will affect identifying grey belt land.
“[The number of appeals will depend on] how local authorities seek to interpret and apply the new policy on a local application specific level”.
On the new Nature Reservation Fund, this could “iron out the delays in the development process”. With scheme environmental aspects often the cause of additional work and delays, the fund could possibly give “greater certainty to developers as to how these issues can be addressed and mitigated much earlier in the development process”.
Andrew Parker speaks to The Times on Building Safety Gateway Delays
7 January 2025
Views
Post Grenfell and the subsequent Building Safety Act, a new rigorous gateway regime has been established to ensure the safety of residential high-rise buildings. However, numerous building and construction projects up and down the country are being held in an everlasting bottleneck, halting construction progress. Red tape, confusion around the completion of forms, and understaffing of the BSR has led to decision waiting times being more than twice the legal limit of 12 weeks. Further complicating the process, less than 15% of applications made to the BSR are approved, with 31% being returned as “invalid”.
Speaking to The Times, Andrew Parker, Head of Building Safety and Construction Disputes, gives his insight on these delays:
“[The new regime] is the result of a fairly damning critique of the construction industry in terms of how they procured, designed, tested, built and actually managed high-risk buildings. Nobody is under any illusion now that it’s a tick-box exercise. It needs to be handled properly. Maybe I’m naïve but it would be great to think that people realise that this is a problem that now affects everybody – contractors and developers, investors. It may well be that it just gives the construction industry the shot in the arm it needed for collaboration.”
Sophie Wilson on parental alienation – The Family Justice Council’s guidance
6 January 2025
News
The Family Justice Council (“FJC”) has recently released guidance on how the courts should treat allegations of ‘alienating behaviour’ in court proceedings involving children. The FJC is an advisory body, whose guidance will be followed by Family Court judges across England and Wales.
This guidance outlines three elements that need to be evidenced for there to be a finding of alienating behaviour by the court, as well as explaining how these allegations cross over with allegations of domestic abuse.
Defining Parental Alienation
The guidance outlines that there is no scientific basis for ‘parental alienation syndrome’, and expresses concern that parental alienation is being increasingly exploited within family litigation. This guidance has therefore been produced with the aim of assisting the court in prioritising the welfare of the child where such allegations have been made.
Instead of referring to a generic concept of ‘alienating behaviour’, the guidance offers a narrower definition: it is the child’s unexplained reluctance, resistance and refusal (“RRR”) to spend time with a parent that has come about due to psychological manipulation by the other parent. The guidance suggests that findings of alienating behaviour will be ‘relatively rare’.
There are 3 elements to alienating behaviour, and these all need to be fulfilled for a finding of alienating behaviour. These are:
The child is reluctant, resisting or refusing to engage in a relationship with a parent or carer;
The RRR is not a result of the actions of the parent making the allegations (for example, if the parent making the allegations is found to have perpetrated domestic abuse then a finding of alienating behaviour would not be appropriate, as the RRR of the child would be an appropriate justified reaction (“AJR”) to the abuse), and the RRR is not a result of other factors such as a child’s attachment; and
One parent has engaged in psychological manipulation that has directly or indirectly impacted the child and led to the child’s RRR to engage in a relationship with the other parent.
Emphasis is placed on the fact that a child can have alignment and attachment issues that result in RRR without any alienating behaviour having occurred from the other parent. It explains that children respond to their parents separating with a wide range of emotions, and this can play out in resentment or anger towards one parent, or through other situations such as the child making derogatory comments about a parent to third parties. Such behaviours in themselves do not amount to alienating behaviour as that additional element of psychological manipulation has to be evidenced and found.
Psychological manipulation can arise, for instance, where a parent reinforces a child’s loyalty with emotional warmth, whilst withdrawing emotional warmth in response to their child’s perceived disloyalty when they are wanting to maintain a relationship with the other parent.
Crossover between domestic abuse allegations and alienating behaviour allegations
The guidance emphasises how parental alienation and domestic abuse are very different. If domestic abuse is found, this may have resulted in an AJR (where a child’s rejection of a parent is understandable given the circumstances). There also may be protective behaviours displayed by one parent if the other parent has been abusive. Both of these scenarios will not lead to a finding of alienating behaviour.
Although allegations of domestic abuse and alienating behaviour can be heard at the same court hearing, the court will first determine whether domestic abuse occurred and then consider the allegation of alienating behaviour in the context of that finding. If there is a finding of domestic abuse which led to an AJR, then the allegation of alienating behaviour will fail.
How will it affect the children involved?
The court is directed to have regard to the wishes and feelings of the child concerned, and the guidance offers a reminder that the welfare of the child is always the paramount consideration in any case. The voice of the child should not be dismissed, even in the absence of compelling evidence showing that psychological manipulation has taken place.
The court is also directed not to treat a finding of alienating behaviour in relation to the parent with whom the child lives as an automatic trigger for a change in the child’s placement. In such a case, the court should consider what the welfare consequences of moving the child would be. The finding of alienating behaviour should be looked at in the ‘wider factual matrix’ of the child and family’s circumstances, and in some cases Cafcass will produce a report outlining whether a change in placement is appropriate and/or practical.
There may also be a variety of steps taken by the court, designed to support the child throughout proceedings. These include appointing a guardian, working with third parties such as schools or consulting with Cafcass as to programmes that could support the family.
This helpful guidance should lead to clearer and swifter outcomes for families in some of the most difficult cases which appear in the Family Court. For most parents, going to court remains a last resort. Whether within the court process or outside of it, we routinely work with a variety of parenting experts, therapists and mediators who can help support parents and children even in the most difficult situations.