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  • 24/04/2017 Reporting on the Gender Pay Gap – What Employers need to know...

    The Equal Pay Act was introduced in 1970 and since then, employers have been under a duty to ensure that men and women receive equal pay for equal work.  Whilst this legislation has been in place for over forty years, the gender pay gap for 2016 was 18%.  

    The Equal Pay Act was introduced in 1970 and since then, employers have been under a duty to ensure that men and women receive equal pay for equal work.  Whilst this legislation has been in place for over forty years, the gender pay gap for 2016 was 18%.  

    As part of the Government’s plans to “end the gender pay gap in a generation” it has implemented “The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017” (“the Regulations”) which impose an obligation on private sector organisations to report on gender pay.  The Regulations came into force on 6 April 2017.

    In the public sector, obligations in relation to gender pay gap reporting have been implemented by way of the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (the “Public Sector Regulations”). These came into force on 31 March 2017.

    We set out below some key information applicable to the Regulations and the Public Sector Regulations. Further information can be found in the joint guidance “Managing gender pay reporting” produced by Acas and the Government Equalities Office.

    What will employers have to do?

    Employers need to publish an annual report setting out the following:

    • Mean and median hourly rate of pay gap between full pay male and female employees;
    • Mean and median bonus pay gap between male and female employees;
    • The proportion of men and women who received a bonus; and
    • The proportion of full pay men and women in each salary quartile.

    What does “hourly rate of pay” include?

    "Hourly rate of pay" includes ordinary pay and bonus pay during the relevant pay period but only the proportion of the bonus relevant to the pay period is to be taken into account. 

    What is ordinary pay?

    Ordinary pay includes basic pay, paid leave (e.g. holiday, sick, maternity), shift premiums, piecework and allowances. However, it does not include remuneration in relation to overtime, redundancy or termination of employment, pay in lieu of leave or benefits in kind.

    What is bonus pay?

    Bonus pay is any remuneration (other than ordinary pay, overtime or a redundancy or termination payment) that:

    • Is in the form of money, vouchers, securities options or interests in securities; 
    • Relates to profit sharing, productivity, performance, incentive or commission.

    What is the snapshot date?

    The snapshot date is the reference point for all gender pay gap calculations.  The snapshot date is 31 March for public sector employers and 5 April for private and voluntary sector employers.

    What is the relevant pay period?

    This means the pay period within which the snapshot date falls.  The pay period will usually be weekly or monthly but can be any other period over which the employee is paid.

    What is a full pay employee?

    A full pay employee is one who is not, during the relevant pay period, being paid at a reduced or nil rate as a result of being on leave.

    What is the mean pay gap?

    This is the percentage difference between the average hourly earnings of an employer’s full pay female employees and the average hourly earnings of its full pay male employees. 

    What is the median pay gap?

    This is the percentage difference between the median hourly earnings of an employer’s full pay female employees and the median hourly earnings of its full pay male employees. 

    What is the bonus pay gap?

    The mean bonus pay gap is the percentage difference in the average bonus paid to men and the average bonus paid to women over a twelve month period ending with the snapshot date. 

    The median bonus pay gap is the percentage difference between the median bonus pay of men and the median bonus pay of women over a twelve month period ending with the snapshot date. 

    What are “salary quartiles”?

    Employers will need to list each full pay employee’s rate of pay in ascending order and then divide that list into four quartiles.  An employer will then report on the proportion of men and women in each quartile. 

    Which employers will this effect?

    All organisations which have 250 or more employees (as at the snapshot date) will have to report on gender pay.

    When will employers need to publish their information?

    The first report needs to be published within 12 months of the snapshot date, i.e. by no later than 4 April 2018 for private sector employers and by no later than 30 March 2018 for public sector employers, and annually thereafter.

    Where the report should be published?

    The report needs to be published on an employer’s own website (which is accessible to the public) and must remain available for three years.  It will need to be signed by a director to confirm its accuracy.  Employers must also upload the information to a government sponsored website.  

    What should be published?

    Aside from the above specified information, an employer should consider explaining the reason for any factors which may have led to the pay gap and any action plan to be implemented to address any pay gap.  However, a gender pay gap does not necessarily mean that the employer is discriminating in relation to pay between men and women.  

    What if an employer does not comply?

    The Regulations and the Public Sector Regulations do not include a penalty for non-compliance.  However, the notes to the Regulations state that a failure to report can be treated as an unlawful act allowing the Equality and Human Rights Commission to take enforcement action. In any event, the adverse publicity and reputational damage which could be generated from a failure to report should not be underestimated.

    What should employers to do now?

    The Regulations and the Public Sector Regulations came into force on 6 April 2017 and 31 March 2017 respectively.  As such, employers should now: 

    • Capture the pay data for the relevant periods;
    • Consider who will be responsible for preparing the gender pay gap information;
    • Calculate the gender pay gap information and if there is any pay gap then identify whether there is an underlying rationale for the pay gap or any issue that needs to be addressed;
    • Review current pay practices and the gender make up of your workforce;
    • Consider how you will present the report both internally and externally, and
    • Finally, publish your report!

    For further information please contact Graham Irons, employment law partner.                        

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  • 18/04/2017 BREXIT - Now Article 50 has been triggered

    What steps, in light of Article 50 having been triggered,should you take to assess your business, contracts and other areas of risk or concern? View our Top 10 Checklist for Employers and Business Owners


    What steps, in light of Article 50 having been triggered, should you take to assess your business, contracts and other areas of risk or concern?

    View our

    • Top 10 Checklist for Employers and Business Owners, here  




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  • 06/04/2017 Breaking Up after Brexit: It’s EU or Me

    Brexit, dubbed the “world’s most complex divorce” by the Financial Times1, is having an effect on relationships beyond just that between the EU and the UK. 

    Brexit, dubbed the “world’s most complex divorce” by the Financial Times1, is having an effect on relationships beyond just that between the EU and the UK. 

    Relate, a charity which offers relationship counselling services, reported an increase in couples who have consulted them following disagreement on which way to vote in the Referendum.2  Whilst Brexit was unlikely to be the root cause of many relationship problems, it appears that the outcome of the referendum has increased pressure on couples and made some realise just how many things they disagree on.

    It seems likely that the effects of Brexit will place further strains on relationships in the future. Our Brexit survey (which can be downloaded here: showed that 50% of respondents are planning to make changes to their business in the next 6 – 24 months as a result of the referendum outcome.  With many businesses considering whether their long term future remains in the UK, couples may be divided over complex decisions of whether to relocate abroad.  

    This pressure will be felt hardest by international couples, particularly where children are involved.  Data released by the Office for National Statistics shows that there are more than 100,000 official recorded couples in London where one British national is in a relationship with someone of another EU nationality.3  Whilst it is unlikely that EU nationals currently living here will lose their right to remain in the UK, returning back home may pose an attractive option for some, especially if there is a shift in employment opportunities in the UK.

    The volatility of the pound is also having considerable implications for couples to reach settlement, particularly those with property or assets located abroad.  Calculating an accurate valuation of a pension fund, business shares or a property is more difficult than usual as a result.  It is important to ensure this is taken into consideration to prevent a settlement being unfair.

    Despite the uncertainty on the horizon, we remain hopeful that Brexit won’t result in all bad news for Family Law.  Hannah Butcher, Solicitor in our Family Law Team, comments: “Brexit will provide an opportunity for the Government to consider some much needed reform of current law, such as no fault divorce, rights of unmarried couples and the status of marital agreements.”

    If you would like any advice about the impact Brexit could have on your family or relationship, please contact a member of our Family Team who would be happy to discuss this with you. (£)

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  • 15/03/2017 Wills and Probate

    If your current Will was made before October 2007 and you were married at the time, there is every chance that it contains a Nil Rate Band (NRB) Trust.  Unless a trust is needed for reasons other than making sure the NRB was used, it is no longer serving any purpose and could soon pose the risk of actually causing additional tax.


    If your current Will was made before October 2007 and you were married at the time, there is every chance that it contains a Nil Rate Band (NRB) Trust.  Unless a trust is needed for reasons other than making sure the NRB was used, it is no longer serving any purpose and could soon pose the risk of actually causing additional tax.

    Every person (unless they have used it in their lifetime) has a NRB available on their death in calculating the Inheritance Tax (IHT) due.  Before October 2007, it was a case of “use it or lose it”.  Most married couples wish the surviving spouse to inherit the estate of the first to die.  Since the gift to the spouse is exempt, it seemed to make good sense.  However, the unused NRB was wasted and, on the death of the survivor, the combined estates were taxed with only the surviving spouse’s NRB available.  Using today’s rates and assuming the survivor’s estate was greater than £650,000, this could cost £130,000.

    I use the terms “spouse”, “married” and “married couple” for simplicity but this applies equally to people in a civil partnership.

    So, the NRB Trust was developed.  On the death of the first spouse, an amount equivalent to the NRB went into a discretionary trust and the balance went to the survivor.  The surviving spouse could benefit from the trust but, because it was discretionary, the trust assets were not taxed with the survivor’s estate on death.

    What happened in October 2007 was that the Transferable NRB was introduced.  This meant that if the NRB was unused on the first spouse’s death, it could be used in the estate of the surviving spouse.

    Solicitors did not tell people to rush out and make new Wills to remove the trusts for two reasons:

    • The trust might be needed for other reasons; eg protection of assets for the next generation.
    • The trust could be wound up in favour of the surviving spouse within two years of the first spouse’s death if it was favourable to do so.  This preserved the NRB for the surviving spouse’s estate and it was less costly than making two new Wills. 

    From 6 April 2017, the Residence NRB is £100,000.  This will increase in stages to £175,000 by 2020-21.  If, on the second death, both elements of the NRB can be transferred from the first spouse’s death, it results in the “magical” £1 million NRB which has been much talked about.  There are other restrictions, not least a ceiling on the value of estate which can qualify for the Residence NRB.

    So, who will be affected?  If the following apply, you should arrange to review your Will: 

    1. Will made before October 2007 at a time when you were married or a post-October 2007 Will which includes a NRB trust.
    2. The Will contains a legacy of an amount equivalent to the NRB and provides for the legacy to go into trust.
    3. You are still married and you and your spouse have combined estates of over £325,000.
    4. You own (or have at some time) a property used as your home.

    If this applies, the review should preferably take place before 5 April 2017 in case a new Will is needed.

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  • 09/03/2017 Breaking News: Do new rules mean the end of legal challenges to planning permissions?

    Over recent years, local planning authorities and developers have seen an unprecedented rise in judicial review challenges to the grant of planning permissions. Planning law and judicial review specialist, Jay Mehta, reviews the implications of new cost capping rules and considers whether developments will now be less susceptible to legal challenge.


    Protective Costs Orders: A reminder… 

    The Aarhus Convention and a European Directive produced in 2003 (“the Directive”) safeguards the public’s right to challenge planning decisions affecting environmental issues (including the grant of planning permissions) by requiring that access to justice should not be “prohibitively expensive”. Protective Costs Orders (“PCOs”) have become one of the main ways in which the UK has attempted to meet this objective. 

    PCOs limit a claimant’s liability to pay the other side’s costs even if their challenge is unsuccessful. For example, a claimant’s cost liability would be capped at £5,000 for an individual or £10,000 if the claimant was a company. A claimant that is successful in quashing the planning permission could, however, recover up to £35,000 from the unsuccessful local planning authority (“LPA”). 

    It is accepted that these measures protect a legitimate claimant’s access to justice and ability to hold LPAs to account for unlawful or irrational decision making; irrespective of their financial means. 

    On the other hand, it may be difficult to shake the cynical view that the PCO regime has created a new breed of objector, i.e. those who are now prepared to use judicial review as a tool to defeat planning permissions without the usual cost risks of litigation.   

    It is perhaps, for this reason, we have seen an unprecedented rise in challenges over recent years, with some objectors not stopping in the High Court, but pursuing their claim through the appeal courts and even the Supreme Court safe in the knowledge that their costs liability is capped at each stage. Even if the planning permission is ultimately upheld, the delay of litigation in itself may stifle new developments - particularly in an uncertain market where values are volatile. 

    The New Rules 

    There are numerous knee-jerk reactions concerning the new PCO rules. Many commentators - including local interest and environmental groups - consider that the new rules will prevent a claimant’s access to justice and fall foul of the Directive by making claims costs prohibitive. I do not immediately share these concerns. 

    To summarise the new rules, from 28 February 2017, judicial review claimant’s may only secure a PCO if: 

    1. the likely costs of proceedings would exceed the financial resources of the claimant; or 
    1. the likely costs would be otherwise unreasonable having regard to: 
    1. the situation of the parties;
    2. whether the claimant has a reasonable prospect of success;
    3. the important of what is at stake for the claimant;
    4. the importance of what is at stake for the environment; and
    5. whether the claim is frivolous. 

    By following the above tests and reviewing a schedule of the claimant’s financial resources now required to be submitted at the outset of proceedings, the Court may decide whether a PCO should be granted to a Claimant. This was not previously required. Further, the “otherwise unreasonable tests at paragraph 2 above only apply if the claimant cannot prove lack of means and may still obtain a PCO if these tests are met. If the Court decides to award a PCO, it may also decide whether the existing £5,000 / £10,000 liability caps - or the £35,000 reciprocal costs cap that may be recovered by the claimant from the defendant LPA - should be increased. 

    The new rules are being challenged by ClientEarthFriends of the Earth and the RSPB and a decision should be forthcoming in the coming months. In the meantime, or until such time as the new rules are overturned, they will apply to judicial review claims commenced from 28 February 2017. 

    The End of Judicial Review Challenges? 

    Even if the new rules are upheld, I doubt it. Whilst I do consider the introduction of means testing is a step in the right direction to a fairer and more balanced system (as those with sufficient means should not benefit from liability capping), much will depend on how bullishly the Courts apply the new rules; the level of evidence required from claimants to prove lack of financial resource; or if the Court is prepared to interrogate such evidence when considering whether to award a PCO. 

    Somewhat cynically, we may also see an increase in individual claimants fronting challenges in attempt to more easily prove lack of means to secure a PCO. At the end of the day, the new rules will still - in the same way as the previous rules - allow PCOs to be secured by those who really need them.

    Objectors are also becoming wiser in terms of how planning permissions may be challenged. Courts are least likely to interfere in the merits of the development, which is why objectors are continuing to scrutinise the application process and committee reports more than ever. 

    Common grounds of challenge include the lack of proper application of the section 38 (6) balancing exercise; misinterpretation or application of planning policies; publication or notification defects; and/or failure to properly screen for Environmental Impact Assessment or undertake Appropriate Assessment. Indeed the upcoming changes to the Environmental Impact Assessment regulations in May this year will provide another battleground for objectors and ammunition to seek to challenge new consents. A summary of the changes may be found at here.

    The largest frustration on behalf of many developers (and us when instructed to defend judicial review proceedings) is that many of the errors alleged could have been easily resolved through the LPAs decision making process. For example, the issue of a robust screening opinion immediately prior to the issue of planning permission could easily address challenges on EIA grounds, and an additional sentence or two in a committee report could sufficiently address criticisms concerning policy interpretation or allegations that the LPA failed to discharge its duty to assess the application against the development plan as a whole.   

    It, therefore, continues to be important for developers and LPAs to work together to ensure their planning applications and decision making is robust to minimise the risk of significant cost and delay of judicial review. There are many practical ways that this may be achieved and it is, therefore, important for advice to be obtained at the earliest opportunity.

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  • 09/03/2017 Housing White Paper and Legal Update – Small Sites, CIL and Section 106

    The Government’s long anticipated Housing White Paper was published earlier this month.  In this article, Jay Mehta considers the White Paper’s proposals affecting small and rural sites, CIL and section 106 agreements. Jay also reviews recent appeal decisions in these areas that will be of interest to developers, landowners and investors.


    Anticipated to be the greatest reform since the National Planning Policy Framework of 2012 (“NPPF”), the Housing White Paper (“HWP”) was finally published on 7 February 2017. With the primary aim of addressing Britain’s “housing crisis”, the HWP is focussed on the delivery of new homes and meeting the very clear need for more housing across the country. 

    In this article, I focus on perhaps some of the more subtle measures in the HWP or those that could lead to dramatic reform, but are deferred until the Autumn Budget. In particular, this article focuses on the HWP’s encouragement towards small and rural exception sites; new permitted development rights; and the proposed reform to Community Infrastructure Levy (“CIL”) and section 106 planning obligations. Reforms concerning habitats and environmental impact assessment are also briefly covered below. 

    Small Sites, Affordable Housing and West Berkshire

    West Berkshire 

    The HWP quite rightly acknowledges that small sites and developers are a vital part of the development industry and a contributor to growth and that the provision of affordable housing may render small schemes unviable. This was the very clear mantra of the previous housing minister Brandon Lewis, which culminated in the Written Ministerial Statement of 2014 (“WMS”). The WMS advised decision makers not to seek affordable housing obligations on schemes of fewer than 10 units (or 5 in designated rural areas), subject to a 1,000 square metres of floor space threshold. 

    The WMS was initially overturned in the High Court following a legal challenge brought by West Berkshire and Reading Councils, but this was ultimately upheld by the Court of Appeal in May last year. This resulted in the reinstatement of the NPPG to reflect the thresholds and guidance of the WMS. Many expected this to be the end of the debate, with the certainty for developers that so long as the thresholds are met, no affordable housing may be sought. Unfortunately not... 

    By way of a reminder, the effect of the Court of Appeal’s decision was: 

    • the WMS was considered lawful; 
    • the WMS is, therefore, an up to date material planning consideration, supported and emphasised in the NPPG; 
    • it is a matter for the Local Planning Authority (or Inspector on appeal) as to what weight should be attached to the WMS. 

    It is the final point that formed the battleground for developers and local planning authorities (“LPAs”) over the past year, namely how much weight should be attached to the WMS / NPPG and in what circumstances LPAs may afford more weight to their local affordable housing policies. 

    Eagerly awaited appeal decisions have materialised recently but, much to my disappointment and the frustration of many, inspectors have offered conflicting views. This is best emphasised through no less than five conflicting appeal decisions involving Richmond Borough Council (“RBC”) during 2016. 

    In some decisions, the inspector afforded automatically less weight to the local plan policy requirements for affordable housing and held that the WMS / NPPG effectively “trumped” the local plan policies and found that no affordable housing provision was required to make the development acceptable in planning terms. Other inspectors found that the chronic need for affordable housing outweighed the WMS / NPPG and refused permission for lack of affordable housing provision. 

    RBC has since written to the Planning Inspectorate and, quite understandably, raised concern as to the lack of consistency in approach. In its response this month, the Inspectorate apologised for “errors in judgment” in respect of the two appeal decisions where the inspector automatically applied less weight to the local plan policies. The Inspectorate most importantly endorsed the correct approach to applying local affordable housing policies and the WMS / NPPG, i.e. that decision makers should a) decide the application in accordance with the adopted local affordable housing policies); b) decide the weight to be attached to the WMS / NPPG as a material consideration; and then c) decide whether the WMS / NPPG outweighs the local policy requirement for affordable housing. 

    Whilst the Inspectorate’s letter is a useful reminder of how the WMS / NPPG should be applied, it is hardly ground-breaking and simply reminds us of the section 38 (6) duty when determining planning applications affording primacy to the development plan policies unless material considerations indicate otherwise. 

    The uncertainty will, therefore, continue as the weight to be attached to the WMS / NPPG will be left to the decision maker and will inevitably vary from LPA to LPA and indeed from inspector to inspector. Further, as the HWP provides no clarity on the application of the WMS or NPPG, further clarification may be left for Government through further policy or the Courts. In the meantime, developers will inevitably be seeking to bolster their applications with a range of material considerations to support the grant of planning permission to justify why the local affordable housing policies should not be complied with. This may include viability issues amongst many others. 

    I suspect that many LPAs will also be growing in confidence to disregard the WMS and NPPG in favour of their local policies based on, for example, the need for affordable housing. Developers may, therefore, be required - in the short term at least - to have one eye on an appeal when progressing smaller sites and seeking to avoid affordable housing obligations.

    The HWP on small and rural sites 

    With the intention of promoting a “good mix of sites” and “meeting rural housing needs” the HWP proposes a range of amendments to the NPPF. The key measures include: 

    • an expectation that LPAs will have policies that support development of small “windfall sites”, i.e. those sites not allocated in plans but which come forward on an ad hoc basis; 
    • an indication that “great weight” should be given to developing “small” undeveloped sites within settlement for homes where appropriate i.e. sites of fewer than 10 units or smaller than 0.5 hectares. The HWP makes clear - much to the disappointment of many - that LPAs will still be able to protect valued areas and “stop unwanted garden grabbing”
    • highlighting the opportunities in neighbourhood plans to identify and allocate small sites for housing; 
    • providing stronger support for “rural exception sites” to provide affordable homes for local people; 
    • making it clear that at least 10% of the sites allocated for residential development in local plans should be on sites of 0.5 hectare or less. This is in addition to the windfall allowance. 

    The above support would be welcomed by developers of small sites, although the challenge will be the practical and administrative burdens of allocating small sites. In addition - as with much of the HWP - the devil will be in the detail when the draft amendments to the NPPF are published. 

    Permitted Development Rights (“PD Rights”) 

    PD Rights are an extremely useful tool to allow certain developments to be undertaken without the need for express planning permission, or subject to a more streamline prior approval process. The most successful and popular permitted development rights have been those that allowed office or agricultural buildings to be converted to residential dwellings subject to certain criteria being met. The beauty with these rights is that, in most cases, no affordable housing or CIL contributions would be required. 

    Further measures are mooted in the Government’s response to the “Rural Planning Review” of February 2016. These are briefly summarised below, which shall be subject to further consultation and regulations in due course: 

    • expanding existing agricultural PD Rights and thresholds; 
    • new agricultural to residential PD Right to allow conversion of up to 750sqm for a maximum of 5 dwellings, each with a maximum of 150sqm. These must meet local need for rural workers; 
    • the existing threshold in the Class Q PD Right allowing agricultural buildings to be converted to dwellings will be increased from 450sqm to 465sqm; and 
    • various rights to permit development of state-funded schools.  

    Most disappointingly, however, the Government is not currently proposing to introduce new PD Rights allowing “upward extensions” in London, that allow a limited number of additional storeys on existing buildings. This could have been an important tool to boost housing delivery in the City of arguably the most need and I consider it - perhaps similar to many other measures in the HWP - a missed opportunity. 

    Community Infrastructure Levy

    Developers have mixed feelings towards CIL. One cannot deny it is a clear tax on development, with the benefits of certainty having to be balanced against the inflexibility of an over-complicated and inflexible CIL regime. 

    Since its adoption in 2010, less than 40% of LPAs have adopted CIL. A third of LPAs do not even have a draft charging schedule. The “pooling restrictions” that came into force in April 2015 were aimed to encourage LPAs to adopt charging schedules or otherwise run the risk of not being able to insist upon infrastructure contributions from more than 5 developments for the same project. Needless to say, there are many ways around this poor drafting of legislation by Government. Consequently, such measures have not had the desired effect. 

    The HWP has frustratingly parked the issue and consideration of CIL until the Autumn Budget. It is however recognised that the current system does require change and there is a need to offer greater flexibility to developers that is more readily available through the section 106 regime, e.g. the ability to recover unspent payments and more appropriately secure phased payments of contributions to assist with cash flow and avoid significant up front contributions. Many LPAs have also understandably found the CIL regime “incredibly resource intensive” with “the wealth of regulatory changes has made it complicated to administer”. 

    To tackle these concerns, and in consideration that the complete abolition of CIL is impracticable, Government has proposed replacing CIL with the introduction of the “Local Infrastructure Tariff” (“LIT”). LIT is essentially CIL but at a considerably lower rate, calculated using a national formula based on local market value on a per sqm basis. Government has suggested that LIT would apply to larger sites and only usually be required for smaller developments of 10 units or less which would have no other planning obligations. 

    Government is also proposing to remove the “pooling restrictions” under Regulation 123 and make the Regulation 122 tests much stronger to ensure only those contributions really necessary to make a development acceptable may be sought. This is clearly welcomed as compliance with the Regulation 122 tests continues to be a point of contention during applications and appeals. 

    It is anticipated that section 106 agreements will, therefore, play a much wider role for major applications and, similar to the position prior to CIL, secure the majority of contributions that are required to make development acceptable in planning terms, including any environmental mitigation that cannot be sensibly conditioned. This is, after all, a system that worked extremely well for many years. The devil will again be in the detail and we shall have to await final CIL proposals through the Autumn Budget. 

    Section 106 Agreements 

    One of the largest frustrations for developers and promoters is the time taken to conclude section 106 agreements following a resolution to grant planning permission. Ultimately until the section 106 agreement is completed, the planning permission should not be issued. 

    Whilst I often advise developers to take a view on many points in a section 106 agreement so long as the agreement works, protects their position and is commercially sound, many LPAs and their solicitors use the negotiation of section 106 agreements as an academic exercise or to create a piece of literary art! 

    The time taken to conclude these agreements is not assisted by each LPA having different preferred templates and - in many instances - not necessarily willing to deviate from precedent drafting. Government has for some time proposed the standardisation of section 106 agreements to have a precedent form of drafting that may be utilised and adapted nationally and for all development projects. This will inevitably be welcomed as often the delays and costs are caused not by agreement on the commercial terms, but the drafting of the agreement itself. 

    The HWP has also parked these section 106 reforms until the Autumn Budget, which includes the proposed dispute resolution mechanism provided for in the Housing and Planning Act 2016. In summary, this procedure is aimed to allow either the LPA or developer to refer the negotiation of the section 106 agreement to a third party arbitrator if terms cannot be agreed in a timely manner. Proposals are also suggested to require heads of terms to be submitted with the planning application to increase transparency. 

    In the meantime, I consider it crucial for applicants to engage in the section 106 process as soon as possible. Heads of terms may be sensibly agreed shortly after the end of the consultation period once the likely contributions and mitigation are known and the parties may begin negotiating the draft agreement thereafter; ideally with a view to having a completed agreement (or advanced draft) by the time of planning committee. Whilst there is a cost risk involved with such early engagement in the event of a refusal, this would ensure that the planning permission may be issued with minimal delay following resolution to grant. 

    Habitats and Environmental Impact Assessment (“EIA”) 

    Worth a brief mention is the HWP’s proposal to streamline the licensing system for managing great crested newts; a protected species that is recognised to significantly delay new developments whilst site specific surveys, mitigation and licensing are secured with the involvement of Natural England. The proposals include the implementation of the pilot scheme of Woking Borough Council to replace the site licencing approach with a more plan level approach, whereby surveys, habitats compensation and licensing can be undertaken at the District level. This is aimed to significantly reduce cost and delay, and will inevitably be welcomed. 

    Developers will also be aware of the new Environmental Impact Assessment Regulations coming into force in May this year. An article summarising the implications of the new legislation may be found here

    The Wait Begins… 

    Government’s detailed proposals contained in the HWP are now eagerly awaited, and in the meantime, it will be business as usual. 

    Howes Percival’s planning team are running a series of planning update seminars in Leicester (14 March 2017), Cambridge (15 March 2017) and Norwich (16 March 2017) which shall include a summary on the implications of the HWP, supporting consultations and recent case law. Please contact Victoria Wozencroft - Leicester (, Harriet Green – Cambridge ( or Katrina Tipler - Norwich ( to book a place at either of these seminars.

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