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Planning Law Issues Affecting Higher Education Institutions

on Monday, 18 April 2016.

In this article, we take a look at planning law issues which could help or hinder higher education property developments.

Local Plans and the 'policy vacuum'

The planning policy of a particular area is governed by various plans at different levels:

  • at a national level - by the National Planning Policy Framework (NPPF)
  • at a local level - by adopted Local Plans, which set the tone for development in individual local authorities
  • at a parish/neighbourhood level - by Neighbourhood Plans, which may promote or restrict development

All planning applications must be decided in accordance with these plans however, in the event of any conflict, the NPPF prevails.

According to government data, about 18% of local authorities still do not have a published draft Local Plan, and less than 65% have adopted one.

This has led to a 'policy vacuum', with an increased reliance on the Planning Inspectorate to determine appeals where local authorities have been unable or unwilling to decide applications. In these cases, the Planning Inspectorate takes on the role of deciding which Local Plan policies are consistent with the NPPF and can therefore be given weight in planning decision making.

The lack of an adopted Local Plan could be a tactical advantage for the higher education developer, whether that be for commercial or education development, housing or student accommodation. This is because, without an adopted Local Plan, any application can only be decided in accordance with the general principles set out in the NPPF. The presumption in the NPPF is that development should be permitted as long as it is sustainable.

The government has openly challenged local authorities to complete their Local Plans by March 2017. The Housing and Planning Bill (expected to become law in spring 2016) contains provisions for the Secretary of State to step in and take over parts or all of the process.

Neighbourhood Plans - the importance of getting involved

Neighbourhood Plans were a flagship part of the coalition government's localism agenda. However to date, their take up has been slow. Although the government has not published the total number of Neighbourhood Plans adopted, it is possible that it is fewer than 100 across the country.

Once they are adopted though, Neighbourhood Plans are important: they can define areas where development should and should not happen, and the type of any such development. If a Neighbourhood Plan is proposed for an area in which a higher education institution has an interest, it would therefore be sensible to get involved.

Neighbourhood Plans have been challenged recently in the High Court on a number of occasions.

If you have a site with development potential, whether for housing, educational or some other use, then watch out for a proposed Neighbourhood Plan. If your site is already identified by the local authority as a strategic site, then great. If not, you will need to stress the importance in the neighbourhood planning process and get involved to seek to influence the plan.

The impact of the Community Infrastructure Levy on student accommodation developments

The Community Infrastructure Levy (CIL) was introduced in 2010 and was intended to be fairer and more efficient than the previous system, which many had accused of causing lengthy delays. The CIL operates by defining a standardised mechanism for payment, rather than relying on individual agreements and the pooling of funds.

Local authorities must develop their own CIL 'charging schedule' which sets out what they will charge for different types of development, on a cost per square metre basis.

We have noticed that many local authorities have set rates for CIL for student accommodation higher than rates for residential use. It must be assumed that those authorities are discouraging further student accommodation development. This is most prevalent in London, where several authorities have set very high rates. There is a disparity in some regional cities, but less of a difference.

We have not seen any legal challenge to the legitimacy of this approach by local authorities so, for the foreseeable future, it looks like for some local authority areas new student accommodation will be a challenge.

For more information, please contact David Bird on 0117 314 5382.