UK: Enabling Development: A Look At The Position Post-NPPF

Last Updated: 18 March 2013
Article by Mark Challis

The term 'enabling development' is not a statutory one. It generally refers to a state of affairs in which development that would otherwise be considered harmful is considered acceptable because it would facilitate (or 'enable') benefits that outweigh that harm. Typically the benefits in question are the generation of funds that will be used to pay for work to be done to a listed building or other heritage asset that is in pressing need of substantial repairs.

Enabling development cases are rarely straightforward and there are a number of reasons for this. First, as a matter of public policy, enabling development should not provide an easy way out for owners of listed buildings (or other heritage assets) who have failed to take reasonable care of them. Nor should enabling development act as a lifeboat to rescue property owners from ill-judged transactions, such as overpaying for a property in the first place. Generally, therefore, enabling development should be seen as a long-term solution of last resort, with proposals coming forward when other solutions have been tried but have failed. This tends to mean that enabling development cases come forward with a certain amount of past history or 'baggage'.

There is a further difficulty in that, public policy considerations aside, the welfare ofthe heritage asset in distress is at the heart of enabling development cases. Everyone concerned will be aware that the longer it takes to find a solution, the more the asset will deteriorate and the more money will be needed to repair it. In short, there willbe pressure to find a solution even if it is an imperfect one.
The classic enabling development case is one where new houses are proposed in the grounds of a listed building in disrepair, with the owner claiming that this is the only way to fund desperately needed repairs. It may be that the new houses are perfectly acceptable in planning terms in any event. They might have no adverse impact on the setting of the building and be in a location where house-building is perfectly acceptable. That being the case, the new houses will not be 'enabling development' in the terms of this article. However, if, for example, the property is in the green belt then new housing would not normally be allowed and the issue becomes one of whether the new houses are nonetheless acceptable as 'enabling development'.

Until the publication of PPS5 (Planning Policy Statement 5: Planning for the Historic Environment) in March 2010, which contained a single policy on enabling development (Policy HE11), there was no government policy on the subject. English Heritage (EH), however, issued its own enabling development policy in 1999. It reissued it in 2001 together with a detailed practical guide that drew heavily on planning appeal decisions involving enabling development proposals, many of which are quoted from the guidance. The 2001 policy and guidance were both updated in 2008 and reissued as Enabling Development and the Conservation of Significant Places, not least to bring them into line with EH's thinking on the historic environment in Conservation Principles issued earlier that year. The 2008 guidance still stands fornow (as a revision is in prospect) as it was broadly but not wholly consistent with PPS5, which has in any event been superseded by paragraph 140 of the National Planning Policy Framework (NPPF) which says, simply, that:

Local planning authorities should assess whether the benefits of a proposal for enabling development, which would otherwise conflict with planning policies but which would secure the future conservation of a heritage asset, outweigh the disbenefits of departing from those policies.

The NPPF policy is expressed as a straightforward balancing exercise: will the proposal do more harm than good? In reality many local planning authorities have approached enabling development cases in this way for years. The EH policy is, however, more sophisticated but also more stringent than the one-sentence NPPF policy and also the now superseded policy in PPS5. The EH policy requires enabling development proposals to meet eight criteria if they are to be considered acceptable. It is thereby more than a 'good v harm' balancing exercise and more proposals are likely to fail the test than under the NPPF, particularly as the first EH criterion is that the proposal will not materially harm the heritage values of the place or its setting.

However, as is the case with much of the NPPF, the simple expression of the policy position belies the complexity of the issues in practice. It is for this reason that EH's practical guide will continue to have a useful role to play, as enabling development cases throw up some thorny issues, some of which are discussed briefly below.

First, how much enabling development is appropriate? What if on an NPPF "good v harm" analysis 30 new houses in the grounds would do more good than harm, but then so would 20? To meet the EH criteria the enabling development must be demonstrated to be the minimum necessary to secure the future of the asset. An understanding of the financial position is therefore necessary to get to the bottom of the conservation deficit (the amount by which the cost of repairs exceeds the market value of the asset when repaired) and how much money is likely to be generated by the scheme. Although this can never be an exact science, the EH guide provides a useful overview of the sorts of costs involved, the extent to which they can legitimately be included in the calculations and how to factor in profit margins and site value. It urges local authorities to take professional advice on the financial aspects if they do not have an in-house capability and points out that developers who seek permission for enabling development will need to be open about the financial situation.

Second, it is essential that there is a means by which the benefits claimed for an enabling development materialise. This will involve the use of planning conditions and usually a section 106 agreement as well. Phasing will often be an important factor, with the section 106 agreement stipulating not only the works to be done to the heritage asset but the sequence in which they are done alongside the new development. The situation that the local planning authority will want to avoid is one in which the new development proceeds too far ahead of the repair work, with enforcement of the repair work obligations being difficult, particularly if the developer has run out of money. Accordingly, restrictions upon the occupation or construction of the new development are often appropriate, as is the requirement to enter into a bond that can be called upon by the local authority if all else fails. In these cases there is no one-size-fits-all section 106 agreement, but the EH guidance identifies the main issues to take into account.

Third, would the enabling development be needed at all in the hands of another owner? To deal with this point, the EH guide, when re-issued in 2008, contained a new section on 'market testing' and how it ought to be done. The market testing issue is consistent with the notion that enabling development generally ought to be a solution of last resort and that a new owner might be willing to approach the conservation deficit issue from a different perspective without the need for enabling development. It is also a means of testing the existence of a conservation deficit, as this would ordinarily deter buyers.

Fourth, what to do about the long term? This is a particularly difficult issue because of the inherent uncertainty over what may happen in years or decades to come, but the starting point is that enabling development ought to be a one-off long-term solution, even though there can be no generally applicable definition of the 'long term'. There are, therefore, difficult judgements to be made about the extent of repair work that ought to be financed by enabling development, bearing in mind that the greater the extent of those repairs, the greater the amount of (otherwise harmful) enabling development that will be required to produce the necessary funds.

That said, the local authority will want to avoid a situation in which, having permitted enabling development, in a few years time the developer or a future owner comes back and asks for more (referred to in the EH guidance as a 'second bite of the cherry'). Ideally, as well as permitting the appropriate amount of development, there will be arrangements in place, probably in the section 106 agreement, whereby the ongoing management of the asset may be assured. This also implies that the new development will not become wholly separated from the heritage asset in ownership terms, a concern described as 'fragmentation' in the EH guidance, that term also being used in Policy HE11 of PPS5.

The historic environment has rightly been accorded a high priority in the planning system from the start and that priority is maintained by the NPPF. Although enabling development is dealt with in short order in the NPPF, it retains the thrust of the PPS policy it replaced. In a difficult economic climate, enabling development is potentially a solution in an increasing number of situations. Not least for the reasons mentioned in this article, however, it remains a solution that is not for the faint hearted.

Article reproduced from The Building Conservation Directory 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.