Martin Edwards takes an in-depth look at the government’s planning proposals, designed to meet the targets of its productivity plan
On 13 October 2015, the government introduced into the House of Commons its Housing and Planning Bill, heralding even more change to the planning system. Some may think that this reinforces the view that the political class is addicted to change. Whatever your view, this new bill is an inevitable but necessary hotchpotch of proposals stemming from the government’s productivity plan: Fixing the foundations. It stretches to 145 clauses and 11 schedules and covers a wide variety of areas: starter homes, rogue landlords, abandoned premises, social housing, housing, estate agents and rent charges, planning and compulsory purchase.
As usual, much of the detail is uncertain but will be set out in subsequent subordinate legislation. Arguably it is the planning-related changes that have the greatest potential to affect development prospects. This article seeks to highlight some of the most significant proposals. Not everyone will welcome the changes and to some they represent the death knell for localism and a return to centralised planning.
Digging in to the detail
Most, but not all, of the bill applies to England only. The bill seeks to achieve the government’s objectives by amending a wide range of existing statutes. Inevitably, drafting inelegancies abound for which the draftsman may be forgiven. Nevertheless, the government must be chastised for section 139, which states: “Schedule 11 gets rid of legislation replaced by section 137 and 138.” I may be wrong, but I have been unable to find any other examples of legislation that uses that inelegant and potentially vague term. Why use three words when the word “repeal” works perfectly?
The explanatory notes that accompanied the bill set out the government’s intentions in some detail, beginning with an account of the policy background, which centres on the current housing crisis, a problem that Westminster has allowed to get out of hand over the past two decades and which requires further wholesale (and some might say ideologically convenient) “streamlining” of the planning system, at the local level, to solve.
Supplying starter homes
Part 1 begins the task of increasing the supply of new homes in England by introducing new provisions for “starter homes” and self-build and custom housebuilding. This suggested change has attracted a degree of controversy already, with some fearing that it will have a detrimental effect on the provision of affordable homes generally and especially in London.
The underlying intention is to address a Conservative manifesto commitment to “build more homes that people can afford including 200,000 starter homes for first-time buyers under 40”. Thus “starter homes” are to be new dwellings available for purchase by qualifying first-time buyers only and sold at a discount of at least 20% of the market value and at less than the price cap (£250,000 outside Greater London and £450,000 within), subject to any restrictions that may be imposed by the secretary of state. The objective is to ensure that starter homes become a common feature of new residential development.
Clause 3 imposes a new general duty on all planning authorities to promote the supply of starter homes when carrying out relevant planning functions, such as preparing local plans and determining planning applications. Sub-paragraph (2) will oblige authorities to “have regard” to any guidance given by the secretary of state. Of course, to have regard is not synonymous with adherence and so authorities may still retain a degree of discretion.
To further this objective, clause 4 provides that planning authorities will only be able to grant planning permission for certain residential developments if specified requirements in relation to starter homes are met. These requirements are currently uncertain but will be set out in regulations in due course. Clause 5 requires authorities to monitor their performance of their starter homes duties and clause 6 provides that if an authority fails to comply with its duties and has a local policy which is incompatible with these duties the secretary of state can direct that the policy should not be taken into account when certain planning decisions are taken.
New duties in relation to self-build and custom housebuilding are to be found in Chapter 2 supplementing those already found in the Self-build and Custom Housebuilding Act 2015. Clause 9 creates a new duty on local authorities to grant sufficient suitable development permissions on serviced plots of land in their area to meet demand for such plots as evidenced by the number of people on registers held by the authorities under the 2015 Act. A “development permission” is defined as a planning permission or a permission in principle (see below) under the Town and Country Planning Act 1990 (“the 1990 Act”).
Permission in principle
The main planning changes are to be found in Part 6, “Planning in England”. Clause 102 introduces the concept of “permission in principle” into the 1990 Act. Grants of “permission in principle” will be by means of a development order and will relate to land that is allocated for development in a “qualifying document”.
The order will set out the detail of the type of document which will allocate the land but it is understood that initially the government intends that only land allocated on the Brownfield Register (to be compiled under clause 103), in development plan documents or neighbourhood plans would be capable of being the subject of a permission in principle. Similarly there will be a power for the secretary of state to set out in a development order a procedure for granting permission in principle on application.
Authorities will not be able to impose conditions on such grants as those will be left to the “technical details consent” stage. The current intention is that these provisions will be limited to minor housing development of fewer than 10 units. However, there is clear potential for mission creep and some might even see this as a further erosion of local controls over planning.
Clauses 92-95 give new powers to the secretary of state to intervene in the neighbourhood plan process so that if an application for designation of an area as a “neighbourhood area” is not determined by the planning authority within a prescribed period, or where the application meets prescribed criteria, then the whole of the application area will be designated.
New powers to take over key neighbourhood planning functions are to be given to the secretary of state when planning authorities fail to set a date to hold a referendum, go against the independent examiner’s recommendation or make modifications to the plan that had not been recommended by the examiner.
Micro-management
Similarly, new powers are given to the secretary of state in clauses 96-100 to intervene in the preparation of local plan documents, supplementing the existing powers set out in the Planning and Compulsory Purchase Act 2004.
Clause 97 introduces what have been described as “micro-management” powers, giving the secretary of state the power to direct inspectors to suspend proceedings, consider specified matters, hear from “specified persons” or take other specified procedural steps.
Clause 99 gives the secretary of state the power to take over a local authority’s plan preparation or to direct it to prepare or revise a local plan, take it through the examination process and even consider whether to adopt it.
Clause 100 enables the secretary of state to recover the examination costs from the authority. This is clearly a very big stick with which to beat tardy planning authorities, with no discernible sign of any carrots. One recently retired inspector has even been reported as suggesting that clause 97 effectively ends independent examination.
Other changes
Clause 107 gives the secretary of state the power to grant development consent for housing that is linked to an application for a nationally significant infrastructure project. Guidance will set out the details of the amount of housing that may be granted consent on this basis and it will include housing which is either functionally linked to the infrastructure project or, where there is a no such link, a close geographical link between the housing and the infrastructure project exists.
The bill also includes provisions amending various aspects of compulsory purchase law and procedure in England and Wales in relation to the right to enter and survey land, confirmation and time limits, vesting declarations, possession following notice to treat, compensation, disputes and the power to override easements and other rights.
Finally, the government has also announced that it will be extending the temporary permitted development rights introduced in 2013 beyond the current expiry date of 30 May 2016. These rights allow the conversion of office premises to residential use, subject only to prior approval of a limited range of matters. This move, while unsurprising, is yet another nail in the coffin of localism.
Martin Edwards is a barrister at Cornerstone Barristers
