Fixing up Ghost Estates

The empty Ghost Estates are one of the most dramatic reminders of the Irish Property Crash. The Irish National Asset Management Authority is charged with what to do with the many repossessed properties on its books given as collateral on bad loans.

The Irish Times

THE NATIONAL Asset Management Agency will provide €3 million to fund urgent remedial work in ghost estates – partially completed and derelict housing developments – linked to loans held by the State agency.

Nama has loans linked to 28 of the 221 worst-case ghost estates. The remainder were funded by banks which did not transfer loans to the State agency. A spokesman for the agency said it hoped work on the housing developments would start by September.

“Whatever about longer-term solutions for the ghost estates issue, there is an urgent need to address particular problems in a number of these estates in the short term,” said the spokesman.

These included half-completed construction works, incomplete sewerage and road works and open-earth works, he said.

“Our focus in the short term will be on financing working to address these problems while we develop longer-term solutions for the problem.”

The agency is working with the Minister for Housing Willie Penrose TD and the Department of the Environment to fund the work on the housing estates.

Less than one-third of the funding available from the department to fix urgent health and safety problems in 180 “ghost estates” has been allocated to local authorities, it emerged last week.

A €5 million State fund was set up to allow local authorities address safety issues such as open manholes on the ghost estates.

Brendan McDonough, chief executive of NAMA, has stated that up to 90% of zoned land in the country was not suitable for development (Irish Times Report 25th March, 2011).

It has been estimated that Ireland’s discredited Local Authority planning system has zoned enough land for an additional population of 3-4 million. (Irish Independent report, 10th October 2009).

“The land speculation this fuelled during the boom years was a significant contributing factor to the banking and property collapse and hence the future debt burden the country now bears.” Charles Stanley-Smith, Chair, An Taisce The National Trust for Ireland

See the excellent Galway Planning Blog for detailed treatment of the problems in Ireland.

Laugh Out Loud Bad Drawings#1 Thetford Anchor

A new series of truly terrible, completely awful amateurish and downright bad planning drawings.

This is not from an application but from an Item being considered by the local regeneration board for Thetford on how to move forward on the Thetford Anchor site, designed to attract developer interest, more likely to scare them and the local community who will be voting soon on a referendum to move a bus station to make this happen.

Cat and Dog Fight over Norfolk Incinerator

West Norfolk District Council and Norfolk County Council are fighting like cat and dog over a PFI induced planning application, by Cory Wheelabrator for a CHP enabled “energy from waste” facility at the Willows Business park, Saddlebow south of Kings Lynnn. As a county matter Norfolk CC will determine the application but West Norfolk are claiming they have a ‘conflict of interest’ as they signed a PFI with a penalty clause if planning permission is not granted. At under 25 MW it is too small to be determined by the Major infrastructure unit which only deals with power stations over 50MW. West Norfolk has set aside a 200k warchest for legal challenges and even organised a local referendum which opposed the scheme. The Eastern Daily Press has been covering blow by blow the increasingly bitter arguments.

The committee report states that as the site is not central within Norfolk it will suck in waste from other counties and is contrary to the proximity principle. However the need for a river outfall restricts options. Plans for a Norwich site were dropped in 2006.

“There are concerns over the ability of the county council to deal objectively with this application,” the report to West Norfolk’s development control board states.

“Norfolk County Council is the PFI-partner to Cory Wheelabrator, which has lodged the application. If the application is not passed, Norfolk County Council will be liable to pay a £20.3m penalty to Cory Wheelabrator.

If the thresholds under the 2008 planning act were dropped to 20mw then the application would rightly be dealt with as a Major Infrastructure project, like the current inquiry in Bedfordshire.

Is there a ‘Parish Veto’ under localism?

One of the most common questions that used to come up in drafting core strategies under the previous government was ‘is there a [arish veto’ i.e. if a Parish said no to any housing could an LPA accept that as reason enough.

The answer clearly was no.  PPS3 and PPS12 required plans to be made according to a defensible strategy led by the evidence, and opposition to development alone, as we all know, is not a material planning consideration by itself.

With the shift to localism and the proposed NPPF what would the answer be now?  Clearly Neighbourhood Plans must take any housing requirements set out for their area to comply with the merging NPPF and the localism bill conformity test.  However is it acceptable to, as some LPAs appear to be attempting, draft a ‘local plan’ to be 100% ‘bottom up’, with a neighbourhood only being allocated what it wants?

After giving this some careful thought I dont think it can, for the following reasons.

Firstly a local plan will still need under the NPPF to have a coherent strategy that is justified by the evidence.

This leads onto the second point, if the evidence points to an area having planning advantages, but there is limited or no development due to local opposition, but a similar site elsewhere is then this shows a lack of natural justice to the land owner and a breach of a due process evidence and strategy led approach to plan making as indicated by parlimaent and in national policy.

There is a strong parallel here  with the multiple legal challenges in the US judging ‘spot zoning’ and ‘reverse spot zoning’ unlawful.  What relevance does the US have you might ask.  Well both us and the US share the same base of Common Law, as the number of US supreme court references to Blackstone illustrates, and now similar Bills of Rights.  Indeed the references in the states are to the ‘Common Law of Zoning’.

Some definitions – Spot Zoning – the application of zoning to a specific parcel of land within a larger zoned area when the rezoning is usually at odds with a  wider plan for the area.

Reverse Spot Zoning – when a zoning ordinance prevents a property owner from utilizing his or her property in a certain way, when virtually all of the adjoining neighbors are not subject to such a restriction, creating, in effect, a veritable zoning island.

Both of these have been judged to be unlawful in the States and my hunch is that similar arguments could be successfully applied in the UK if a ‘Parish Veto’, or Neighbour Plan Allocated at odds with a local plan – were to occur.

Landmark us cases include  De Groot v. Sheffield , 95 So.2d 912 (Fla.1957) the action of the local governmental body needs to be supported by substantial, competent evidence.

In many parts of the US courts have found spot zoning illegal on the ground that it is incompatible with the existing land use-zoning plan or in an overall zoning scheme for the community. Whether the exception carved out is reasonable and supported by the facts, often turns on public interest, the effect the spot zoning has on the current uses of neighboring properties, and any ramifications created by the zoning.

A zoning amendment that favors a particular landowner over nearby landowners has been seen seen as arbitrary and discriminatory unless there is substantial evidence of change in the neighborhood justifying rezoning a small tract in keeping with the comprehensive plan.

McKenzie v. Shelly, 77 Nev. 237, 243, 362 P.2d 268 (1961). No. 6. “The test of [lawful] spot zoning is whether the amendment was made with the purpose of furthering a comprehensive zoning scheme or whether it was designed merely to relieve the land of a restriction which was particularly harsh upon that particular land.”

The same tests apply to inverse spot zoning.  So restricting one site because of a parish veto, over another similar not subject to that veto would fail the ‘comprehensive zoning scheme’ test.  This has been found to be unconstitutional.

 Barrett v. Hamby, 235 Ga. 262 (219 SE2d 399) (1976) provides the test for determining whether the application of a local zoning ordinance to a given piece of property constitutes an unconstitutional taking of the property without just compensation.

As stated in Barrett v. Hamby: “As the individual’s right to the unfettered use of his property confronts the police power under which zoning is done, the balance the law strikes is that a zoning classification may only be justified if it bears a substantial relation to the public health, safety, morality or general welfare. Lacking such justification, the zoning may be set aside as arbitrary or unreasonable. Nectow v. Cambridge, 277 U. S. 183, 188 (1928); City of Thomson v. Davis [92 Ga. App. 216, 221].

“As these critical interests are balanced, if the zoning regulation results in relatively little gain or benefit to the public while inflicting serious injury or loss on the owner, such regulation is confiscatory and void. City of Jackson v. Bridges, 243 Miss. 646 (139 S2d 660); Weitling v. DuPage County, 26 Ill. 2d 196 (186 NE2d 291)

The application of the Barrett v. Hamby test was embellished upon in Guhl v. Holcomb Bridge Road Corp., 238 Ga. 322, 323 (232 SE2d 830) (1977): “ ‘A zoning ordinance is presumptively valid, and this presumption may be overcome only by clear and convincing evidence. The burden is on the plaintiffs. The validity of each zoning ordinance must be determined on the facts applicable to the particular case, but certain general lines of inquiry have been regarded as relevant, to wit: (1) existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of the plaintiffs promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public, as compared to the hardship imposed upon the individual property owner; (5) the suitability of the subject property for the zoned purposes; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the area in the vicinity of the property.’ La Salle National Bank v. County of Cook, 60 Ill. App. 2d 39, 51 (208 NE2d 430) (1965).”

Now of course UK courts might take a different view, this is entirely untested ground. however the general principles over arbitrary planning, unsupported by planning or a comprehensive strategy apply.  A bottom up emphasis is welcome, but glueing together incompatible plans on different assumptions does not a comprehensive plan make.

Challenge to Wealden Draft Core Strategy judged ‘Premature’

This may case has not been widely reported but it deals with an important issue.

Wealden published a draft submission core strategy, proposing a reduction in housing to 400 a year as opposed to the 550 a year in the RSS (SE Plan). This was before CALA II.

Pelham Homes challenged this on the basis that the impact of the reduction was not assessed in the SEA and this would make the CS unlawful.

This issue is critical in many CSs due to undergo the examination process shortly, such as Bath.

Mr Justice Harrison ruled that this attempt to challenge Wealden District Council’s Core Strategy in the High Court was premature, as the developer was able to make representation to the Independent Examination of the Core Strategy which will take place later this year.

In practice whenever an objector says, this is unlawful we will challenge the CS if adopted, inspectors have tended to play it very cautiously, as for example in West Berks recently.

With the CALA II decision, and with an inspector at the unsuccessful S78 appeal at a major site (the Pelham Homes Site) strongly hinting that there would be no local case for a reduction down from 550 Wealden would be unwise to submit at less than 550 as there is a good case this would be found unsound and unlawful by an inspector, indeed the inquiry might not get beyond the preliminary meeting.

Note: Need to declare an interest as I previously did consultancy work for Wealden preparing teh Core Strategy Issues and Options paper and a recommendation that the Pelahm Homes site should not be allocated as a preferred site at Polegate – I still hold to that view.
The

Landmark Bude Appeal Redetermination due by Thursday

Last year the SoS determined three Cornwall appeals, in effect saying that calculation of housing need was a matter for local decision.

One of those appeals CATESBY PROPERTY GROUP: LAND AT BINHAMY FARM, STRATTON ROAD, BUDE was successfully challenged in court on the basis of the CALA decision, although oddly this case has been little reported.

The SoS did not reopen the inquiry and the decision is due by Thursday – watch this space.

We will see if the SoS, as in Andover, now sticks to the RSS targets.

Second Hand Cars Cost Twice as Much as New Cars in Beijing

China Daily

A second-hand Volkswagen Bora is on sale in Beijing for 210,000 yuan ($32,308), more than double the price of a new model, because of strict limits on car purchases in the capital…

The Beijing municipal government said last December that this year the city’s traffic authorities will issue only 240,000 new license plates – one-third of 2010’s total – to ease the gridloc…In June, there were nearly 33 applications for each plate available.

Those unwilling to risk the lottery or who are not qualified to apply for a plate are forced to look for cars registered before Dec 23.