Viability and enabling development

Viability and enabling development


Author: Rosalind Prue

With the UK set for another year of economic uncertainty in 2012, developers and landowners will again be looking for alternative ways to make development viable

Viability assessments of proposals are already commonplace when negotiating developer obligations in Section 106 Agreements, although the introduction of the Community Infrastructure Levy (CIL) will ultimately affect the scope for such negotiations where the provision of 'infrastructure' is concerned.

With the first CIL 'Charging Schedules' now in place, and with more to follow shortly, it appears in practice that viability assessments will become even more important for the negotiation of any non-CIL-related (ie site specific) contributions requested; such as affordable housing.

A recent Secretary of State decision also provides some scope for arguing that the concept of 'enabling development' should also be added to the viability mix for certain schemes.

Enabling development is defined in Planning Policy Statement 5 as 'development which would be unacceptable in planning terms but for the fact that it would bring heritage benefits sufficient to justify it being carried out, and which could not otherwise be achieved'.

The beneficiary for enabling development has to be a 'heritage asset' which is defined as including 'a building, monument, site, place, area of landscape'. The definitions of 'enabling development' and 'heritage asset' have both been carried through to the draft National Planning Policy Framework.

The concept is a well-established principle for the preservation of historic buildings: if the only viable way to secure the future of the building is to allow development which would otherwise be unacceptable in planning terms, then this development could be permitted.

The Secretary of State has recently had to consider this concept and whether it can be extended to enabling development for development unrelated to the preservation of historic buildings.

The appeal in question involved proposals to redevelop London Irish Rugby Club's current training ground, in Sunbury-on-Thames, for housing, a health centre, and care home, the receipts of which would enable the development of a new state-of-the-art academy training facility at a site nearby. It was argued that the club and its facilities should be seen as the 'place' to which the enabling development principles should relate.

The inspector's report concluded that 'as a matter of principle, this does not seem an unreasonable proposition'; but concluded that in this case the primary benefit of the scheme would be to the club itself as owner, rather than the proposals being required due to the inherent needs of a 'place'.

The Secretary of State agreed with the inspector's concerns about the application of enabling development in this case. The reasons given related to the lack of a 'place' distinct from the owner, the fact that the two sites were physically just over a kilometre apart and so not clearly linked for a viability assessment, and that there was no development plan support for London Irish's need for improved facilities.

However, as a matter of principle, the decision does not appear to close the door on an argument that enabling development principles should be considered in context which is wider than just historic buildings.

It remains possible that the concept of enabling development may help a landowner or developer to unlock finance for a scheme which has specific development plan support, by allowing another development that might otherwise be unacceptable.