Our team are heading up to Leeds for UKREiiF, and are hosting an industry leading panel on building safety – not one to miss if you’re at the conference!
A multi-lens view on the development of higher-risk buildings and building safety issues
Join these industry experts as they delve into the impact of the Grenfell Inquiry and recent building safety legislation on higher-risk buildings. Explore how these changes align with the economic growth agenda, addressing safety, innovation, and resilience in construction. A key discussion shaping the future of building safety.
Tuesday 20 May, 3:00-4:00pm, Pearl Suite (Conference ticket holders only)
Speaking on the panel are:
Andrew Parker, Partner and Head of Construction Disputes and Building Safety Thérèse Marie Rodgers, Partner in Construction Disputes Matthew Evans, Partner in Planning Professor Jose Torero Cullen, Fire Engineering Expert Witness in the Grenfell Inquiry and Head of UCL Department of Civil, Environmental & Geomatic Engineering Myriam Stacey KC, Barrister at Landmark Chambers Dominic Glanz, Head of Development at Knight Dragon
UKREiiF is a leading conference, “bringing 16,000+ professionals from national and local government, investors, developers, end-users and the wider built environment industry together – it’s the place where conversations start to drive investment and regeneration in our regions.”
Matthew Evans writes for Property Week on the M&S verdict, planning, and carbon
13 December 2024
News
Two governments later, after rounds of decisions and appeals, detailed reports and public commentary, Marks & Spencer (M&S) have finally been granted planning permission by Angela Rayner to demolish its flagship Oxford Street store. Speaking to Property Week, I look at the main challenges that delayed this outcome, and how this affects planning as a whole.
Overturning Michael Gove’s previous decision, Rayner’s stance favouring redevelopment is cautiously welcomed by the planning industry. However, the debate around retrofitting or redevelopment is an example of how disrupted the UK’s planning system is, hindering rather than helping development.
A significant problem in the delayed decision making process were the broad range of environmental and planning experts involved, and their conflicting views on points that currently lack clarity or policy. The key issues being:
Whole-life carbon (WLC) assessments are a case of ambiguity, opinion versus opinion. As a developing tool, we need more certainty on the findings and the impacts, taking into account the lifetime of the build and not just embodied carbon.
We need to see much clearer policy on retrofitting, and how this is considered in the development process versus demolition, however this is already being addressed in government consultation.
If not demolition – what are the alternatives? Numerous options were put forward by M&S in their case for redevelopment, but these were not considered sufficient. We need more guidance on what is required for alternatives, to ease the process.
This decision goes beyond retail, with potentially hundreds of other similar situations to this across the UK across different sectors. Without better understanding on the issue of retrofit versus demolition, many buildings risk becoming obsolete given the work needed to improve their energy performance.
“The burning question that remains is whether the M&S case should ever have reached this stage. Does it say more about the previous political environment than the planning process, or was it the perfect storm of political incompetence and planning stagnation?”
Following the biodiversity net gain (“BNG”) requirements of the Environment Act 2021 coming into effect on 12 February 2024 and 2 April 2024 for major and small sites respectively, this note summarises some key points we have seen arise to date.
Please also refer to our previous notes of October 2023 and February 2024 for further detail on these obligations.
How are councils approaching BNG at application stage?
Broadly we have seen councils proactively engage with the BNG requirements but as expected, there are a number of issues arising due to local authority resourcing and the capacity to deal with the more onerous obligations associated with complying with the BNG requirements. Please refer to our note from February 2024 for details of what needs to be submitted at application stage.
We have seen some local authorities take an approach to the application requirements which does not accord with the legislative provisions. For example, we are aware of local authorities requiring the offsite gain units (where applicable) to have already been located and identified at application stage. There is no regulatory requirement for this and from a practical perspective, it is often unlikely that applicants and developers will be able to demonstrate this at application stage, particularly given the number of registered gain sites (see further comments below).
Does the bng regime apply where the council does not expressly impose the relevant condition on the face of the permission?
Yes, the pre-commencement condition requiring a biodiversity gain plan to be submitted is deemed to be imposed regardless as to whether it is included within the decision notice itself. It is important to bear this in mind when reviewing decision notices possibly with the intention of acquiring sites to develop or for investment purposes, as we are aware that some councils have not expressly included the condition even where the permission is subject to the BNG regime.
Are planning applications for alterations to building subject to the bng regime?
Alteration applications are not specifically excluded but some of the exemptions could apply. In particular, the BNG regime does not apply to the works carried out pursuant to a development right. Equally, the de minimis exemption is likely to apply in the context of alterations; in broad terms if the works will impact less than 25sqm of onsite habitat the statutory BNG regime will not apply.
It may therefore become important to consider the extent of the application boundary when applying for planning permission, to ensure this does not include any habitat at the property which is not in reality the subject of the application.
Is the biodiversity register working effectively?
The register itself is publicly available and (at the date of this note) shows 11 registered gain sites. The register of course only shows the sites once they have been registered and where applicable the allocation and as a result, it is not representative of the number of sites which are in the pipeline to come forward. We are aware there are various sites where preparation work is underway for the gain sites to be dedicated but where this has not yet completed. Commercially, this may be because landowners are reluctant to tie up their land for this purpose until buyers for the units have been found.
How is the market for offsite gain units emerging?
Given the number of developments which will not be able to deliver the entire required 10% gain on site, the market for offsite units will continue to grow in importance. The hierarchy of mitigation options means the BNG system is to an extent reliant on offsite units continuing to become available, otherwise the default position will be the purchase of the statutory credits which have been priced to disincentivise this option. This balance between the supply of the gain sites and the demand for the units is still emerging in these initial months since the regime became mandatory. As more applications which are submitted requiring offsite units it will become clear whether demand outgrows supply and at that point, whether the resort to the statutory credits becomes more prevalent than it has been to date.
Can applications to allocate units to a development be made at the same time as the registration of the gain site?
Yes, applications to register an offsite gain area and allocate the associated units can be submitted at the same time. This is achieved via the online registration platform. Operating via this approach would be taken where the dedication and allocation has effectively happened simultaneously, perhaps where a landowner has dedicated land specifically for the purposes of providing the relevant units to offset a particular development.
How long does it take to register a gain site and allocate units to a development?
The Government website currently indicates a 6 week period from receipt of the application to registration (provided the application is successful). The time period for this registration gap should be factored into transactional timetables which may be conditional on successful registration of the gain site.
Will it be less onerous to comply with the bng requirements when trying to develop brownfield land?
The level of difficulty in complying with the BNG obligations will often be dependent on the baseline number of units on the site, as this dictates the target level of the 10% uplift. The rules apply equally to brownfield and greenfield land and regardless of the level of the baseline.
The assumption is that often, brownfield sites will have a lower baseline ecological value than their greenfield counterparts. Whilst in some cases this will be the position, it is not necessarily the case. As a particular example, open mosaic habitats are often found on brownfield land and are classified as a ‘high distinctiveness’ habitat in the statutory metric. An open mosaic habitat is identified by hard surfaces interspersed with vegetated areas; an example would be broken or fragmented paving in which habitats have naturally grown and often developing over a long period of time.
It therefore remains important to do robust initial assessments of the onsite habitat as early as possible and not assume that a brownfield site will have a low ecological baseline value.
Is there an industry standard s106 agreement for the purposes of securing bng?
Each local authority will have its own preferred form of s106 agreement for addressing BNG, similar to any other type of planning obligation. In terms of dedicating land as an offsite BNG area, again this will often depend on the dedicating party and whether a local authority or habitat provider are party to the agreement who may have preferred form documents in place.
In terms of the BNG plan to be submitted to discharge the planning conditions, the government has prepared an example plan which can be used to apply to discharge the pre-commencement condition. It is expected that most local authorities’ preference will be that the BNG plans follow this template.
Please get in touch with our Planning Team for any specific advice or guidance on any individual sites.
Information correct as at September 2024. This note is a summary, please refer to the legislation and guidance for full details.
BNG planning obligations came into effect on 12 February 2024. This means that for most developments, any planning application submitted from this date will be subject to the BNG requirements. Any existing permissions, or applications pending at this date, are not affected.
The obligations are onerous and developers will need specific guidance. Forsters’ planning experts can offer guidance and practical advice on how to navigate the BNG requirements.
Outside the Box – Episode 1 – The Future of Freight
25 September 2023
Podcasts and videos
In Q1 2023 we quizzed investors and developers on the key issues affecting the industrial and logistics sector and the resulting research report, Outside the Box, set out what we characterised as an ‘industrial evolution’.
In this series of podcasts, we explore the sector’s key issues in more detail and discuss with some well-informed guests.
Episode 1
In our first episode, Magnus Hassett, Partner at Forsters and Co-Head of Industrial and Logistics, is joined by David Elvy, Head of Future Freight Strategy at the Department for Transport, and Matthew Evans, counsel in Forsters’ Planning team. Together, they take a closer look at the Department for Transport’s Future of Freight plan, with a particular focus on the role and impact of the planning system.
The scale of the UK’s freight and logistics sector is enormous with 1.6 billion tonnes of goods transported in and around Britain each year. Recognising the importance to the country of moving goods efficiently, in 2022 the Department for Transport published its Future of Freight plan. Developed in partnership with the UK’s freight and logistics industry, the plan sets out the Government’s long-term vision for UK freight, identifying some key challenges and objectives for the sector.
Could census data be better used to determine housing supply? – Matthew Evans and Helen Streeton write for CoStar
29 August 2023
Views
Commercial Real Estate Partner and Head of Forsters’ Build to Rent group, Helen Streeton, and Planning Counsel, Matthew Evans, have written for CoStar on how the data is there to get new homes built, and why it is not currently being mined.
The pair write how the local plan-making process to deliver new homes was further complicated by Michael Gove’s announcement earlier in the year that the government is scrapping housebuilding targets.
Even before this decision, the delay in implementing planning reforms had been causing severe challenges to the delivery of these new homes.
Evans and Streeton explain that “although local authorities still need to update (or in some circumstances, create) local plans, many are still adopting a wait-and-see-approach while they wait for further clarity on legislative reform within the Levelling-up and Regeneration Bill and the government’s response to its recent consultation on the National Planning policy Framework.”
Resultantly, housing needs continue to go unmet and rental levels continue to rise. This is particularly pertinent for the rental market, with average prices nationwide rising 4.8% in the 12 months to April 2023, “the highest increase since the national data series began in 2016.”
Despite widespread focus on community opposition to new homes, and a strong anti-development rhetoric in mainstream media, Evans and Streeton say that the reality is very different.
There is a genuine appreciation for the need for new homes, but the underlying concern is around the demands an increased population would place on local infrastructure.
“Would top-down housing numbers solve the problem? Potentially, if they leaned on data that gives a true representation of housing need. Utilising census data could be a more effective way of identifying the tenure and size of homes needed, and in what locations.”
The pair add that even though the Build to Rent sector is projected to grow rapidly over the next decade or so, moving from 1.5% to 8% of the total rental market by 2032, there continues to be a lack of knowledge and expertise around its role in meeting housing need.
It is a similar case for the later living sector. There is an urgent need for sector growth but insufficient amounts of suitable housing. The pair suggest that creating a separate use class could be helpful in expediting planning applications, thus alleviating the strain on the sector.
Evans and Streeton conclude that: “The answer to meet housing need is not to scrap housing targets. It is to be smarter about how housing numbers are calculated and tap into the incredible wealth of data that already exists on our current and future population, in order to provide the right homes in the right places.”
This article was originally published by CoStar on 22 August 2023 and can be read here in full (behind their paywall).
Releasing 1.4% of greenbelt could deliver 1m homes – Matthew Evans quoted in Property Week
25 August 2023
Views
Planning Counsel, Matthew Evans, has been quoted by Property Week reacting to a recent report that has revealed that building on just 1.4% of the green belt, would accommodate the government’s target of 1m homes before the next general election.
The research, conducted by Wood Harwick, claims that only 8.7% of England’s land area is of development use, compared to 12.5% which is designated as green belt. They therefore believe that building on the green belt is a solution that has been largely overlooked.
In response to this, Matthew commented ‘We need to be looking at land across the board, considering and balancing its relative value and the potential contribution it can make to housing our growing population. Not all green belt is created equal, and we need to move to a place where the quality of greenbelt is graded.’
This article was first published in Property Week on 24 August 2023 and is available to read in full here, behind their paywall.
Experts call for Crooked House to be restored to former glory – Matthew Evans speaks to Property Week
24 August 2023
Views
Planning Counsel, Matthew Evans, has been quoted in Property Week’s latest piece on the ‘iconic’ Crooked House in Dudley following its recent demolition.
The demolition of the quirky British pub following a fire earlier this month has ignited public outrage and calls for it to be rebuilt. An investigation into arson in ongoing however locals want to know if it can ever stand again, and what a rebuild may look like.
Property Week noted that the solution may lie 120 miles away at a pub in Maida Vale, London. The Carlton Tavern was re-built following its demolition after locals campaigned for it to be reinstated. Matthew provided commentary on the options available to the local planning authority to try and ensure the Crooked House is rebuilt as quickly as possible – likely through the issue of an enforcement notice giving a definitive timescale for its reprovision. Although such notices can be appealed, it is assumed that with this level of public and political pressure, such an appeal should be determined swiftly.
This article was first published in Property Week on 24 August 2023 and is available to read in full here, behind their paywall.
Government’s proposals to increase planning fees ‘broadly welcomed’ – Matthew Evans speaks to Property Week
27 April 2023
Views
Planning Counsel, Matthew Evans, has spoken to Property Week’s Ciaran Nerval on how the government’s proposals to “hike up planning fees for developers” have been “broadly welcomed”.
However, industry sources have called for “real change” to planning departments through the provision of additional funding.
Evans agreed that the proposals to increase planning fees (by 35% for major applications and 25% for all others) were “broadly welcomed”.
However, he said these proposals needed to deliver “real change to local authority planning departments and translate effectively into increased resource.
“Local authorities have seen budgets slashed due to austerity-era policies, so to see real change we need to ensure the funds generated from increasing planning fees are ringfenced and spent within the department; without this, any change to the fees won’t deliver genuine results.
“There is no quick solution, but there is an urgent need to establish a long-term plan that boosts resource, improves retention and is closely monitored; otherwise, we run the risk of slowing down economic growth, which is so intrinsically linked to the planning system and new development.”
This article was first published in Property Week on 26 April 2023 and is available to read in full here, behind their paywall.
We need to get the green belt back on the agenda’ – Matthew Evans writes for React News
12 April 2023
Views
Planning Counsel, Matthew Evans, has written a piece for React News on the need for the government to develop its strategy when it comes to housing delivery by once again focusing on green belt sites, rather than solely brownfields as they are currently.
Evans explains that while the government’s recent emphasis on the redevelopment of brownfield sites has been logical, noting to factors such as location, ecological value and offset considerations. However, many of the straightforward sites have now been developed, meaning only “difficult and constrained sites remain.”
The costly redevelopment of these challenging brownfield sites needs to be understood against the fact that they are better suited to high-density apartments rather than family housing (the latter of which is more greatly needed). While the government has put forward £60m via a new “Brownfield Land Release Fund 2”, this is an insignificant sum when looking at the wider issue.
Evans writes: “If we truly want to build the housing the country needs, green belt reviews need to be put firmly back on the agenda. It is a highly politicised topic, but it is crucial. There needs to be careful consideration of green belt versus protected. No one is advocating for runaway urban sprawl, but there are a lot of poor and allegedly green belt sites that are hardstanding or generally low quality – neither of which deserve the high level of protection that green belt designation affords.”
He goes on to recommend a new, additional categorisation of these sites (akin to the recent proposal for Grade-III buildings) that will differentiate between true green belt land and low-quality land that is suitable for housing developments.
“There are places in the home counties that haven’t reviewed their green belt for a very long time, and with changes to the national planning policy framework stating that green belt reviews will not need to be carried out to meet housing need, there is little chance of this changing now.”
Evans concludes by advocating for the need for greater public awareness of the sort of land that is being (unnecessarily) protected, framed against the trends of dwindling supply and rising house prices.
Without a reconsideration of both a reliance on brownfields and the funds required to do so, “it is hard to see how we are going to deliver on growth ambitions and provide the homes that people want and need.”
This article was originally published by React News on 29 March 2023 and is available here in full (behind their paywall).
No ‘planning panacea’ through Section 106 and CIL abolition: Matthew Evans speaks to Property Week
22 April 2022
Views
Earlier this month, the government announced its intention to replace Section 106 planning obligations and the tariff-based Community Infrastructure Levy (CIL) with a new, uniform infrastructure levy. Whilst the proposed change is expected to simplify the system, is a uniform levy really the answer?
Planning Counsel Matthew Evans says that the government’s announcement has already started to cause disruption, “many local authorities have paused CIL reviews on the basis that it is pointless to bring forward plans that will possibly change in a few years”. He believes there are difficulties associated with a one-size fits all levy, not least because one of the ideas behind the initial introduction of CIL was that “it was going to do everything that the new levy will”, which he says, didn’t work out because “fundamentally, there are complicated elements that still need these bespoke agreements, one of which is affordable housing”.
Evans stresses the need for greater detail on the government’s proposals (and soon) before development in some areas could either slow or stop altogether.
This article was first published in Property Week on 21 April 2022 and is available to read here, behind the paywall.
Greening Greenwich: Matthew Evans writes for Opportunity London
4 April 2022
Views
Planning Counsel, Matthew Evans, has written for Opportunity London – New London Architecture’s brand new website, launched in partnership with Mayor of London, City of London Corporation, London Councils and London & Partners.
Contributing to the launch, Matthew shares experience from Knight Dragon’s Greenwich Peninsula (which Forsters has advised on from the outset) as a project that demonstrates ESG value and confirms London’s status as a leading world city for global investment.
In 1994, author and entrepreneur John Elkington coined the phrase the “triple bottom line”. With it he introduced the “3Ps”: people, planet, profit. His vision was that in future, organisations would measure success not solely by profit, but also by reference to the positive or negative effects organisations had on society more broadly.
Over the following decades, the shift away from the supremacy of shareholder value towards stakeholder value has become a defining trend in management thinking and is exemplified in projects like the 150-acre, £8.4bn Knight Dragon Greenwich Peninsula regeneration project in Southeast London.
Forsters LLP has advised on the project from the outset, engaging with a broad group of stakeholders on a vision that prioritises people and planet, but achieves these aspirations through attractive investment opportunities.
The project is among Europe’s largest regeneration schemes, comprising 17,487 new homes, 75,000 sq. ft. of offices, 23,000 sq. ft. of retail and restaurants, and 42,000 sq. ft. of education facilities, serving five new neighbourhoods.
People
Twelve years prior, the Greenwich Peninsula was an industrial wasteland. What has followed is a model of urban transformation in which the economic, social, educational and welfare needs of residents have guided the planning, design, and build. The project is expected to provide 12,000 new jobs and includes three new primary schools (one already provided), a healthcare centre and sports facilities. Among innovative features of the development has been a community fund – calculated on a per-household basis – to which developers contribute as construction begins on different phases. Its purpose is to maximise the social value and community investment and supplements the work of Greenwich Local Labour and Business (GLLaB).
Planet
De-carbonisation has been a dominant theme in the project, which includes sophisticated offset mechanisms, and developer contributions to borough-wide council funds. Each building must not only comply with the UK’s forward-looking building regulations, but also meet ambitious green targets specific to the project. In the event of failure to meet requirements, remedies include re-work or enhanced financial contributions to carbon offsets. Other initiatives include a centralised energy centre providing hot water and heating across the entire site, with the goal of helping decarbonisation.
Profit
The economics of the project, especially job opportunities for residents, have been a high priority. Interests have been carefully balanced between profit maximisation and the need to make this landmark development open and accessible. Most obviously this manifests itself in balancing provision of ‘affordable’ homes with homes at the higher end of the market. By working with stakeholders, it has been agreed that housing developer L&Q Group will deliver a minimum of 60% Affordable Housing (AH) in Brickfields and a minimum of 28% AH will be delivered across the Peninsula as a whole.
Balancing the ever-evolving interests of such diverse stakeholder groups is a phenomenal challenge, but central to achieving the ambitious vision of this project. Its successful completion will transform an over-looked site on the Thames and uplift the lives of resident individuals and communities alike. I’m sure John Elkington would approve.
opportunity.london is the definitive guide to development and investment opportunities in London, investing in London’s communities and promoting sustainable investment into real estate, regeneration and green infrastructure across London’s boroughs and communities.
Government presses on with plans to scrap section 106. Matthew Evans speaks to React News.
31 March 2022
Views
The government has recommitted to scrapping section 106 and replacing it with a new infrastructure levy, with further details on the long-awaited planning reforms to be revealed in the Queen’s speech on May 10th.
Planning Counsel, Matthew Evans spoke to React News about the government’s plans and whilst applauding the intentions to bring forward a uniform levy to simplify the system, commented that “.. it is difficult to see how this will work in practice. Affordable housing provision is complicated because of the number and variety of stakeholders involved in its delivery. There have been numerous previous attempts to abolish S106 and bring forward a single levy over the years, including Planning Gain Supplement and the Community Infrastructure Levy. However, these were shelved or altered, and s106 prevailed, largely due to the complexity of dealing with the provision of affordable housing. Given the sheer number of affordable housing options and the viability stress testing that already takes place, it is highly unlikely that there is a simple replacement to S106.
“The lack of both clarity on timeframes and detail also makes it difficult for developers and local authorities. We are already seeing cases where Local Plans and Community Infrastructure Levy charging schedules are being paused, affecting local authority budgets and their ability to plan. I suspect that number may increase after this response.”
The article was first published in React News on 30 March 2022 and is available to read in full here, behind the paywall.
