This is an exciting time for the housebuilding industry. Amid what appears to be a genuine drive by the government to address the UK’s housing shortage, the housing market is poised for further growth. So the “Cutting Red Tape” review of housebuilding, which focuses on cutting unnecessary regulatory barriers to housing delivery, is to be welcomed.
As planning advisors, we need to navigate the planning process for developers and investors and this has given us first-hand experience of the plethora of unnecessary rules and procedures that hinder rather than help. In order to maintain productivity in the housing market, a healthier balance between regulation and delivery must be found.
Speeding up the process
So how can unnecessary obstacles to the submission, validation and timely determination of planning applications be removed without undermining the safety and quality measures that are equally important to deliver sustainable growth?
National and local information requirements for the validation of planning applications have mushroomed in recent years and are often excessive and unnecessary. Local planning authorities (“LPAs”) should be entitled and, indeed, encouraged to approach validation in a more bespoke and pragmatic way and to only request relevant, necessary and material information. In particular, the validation requirements for outline applications should, in most cases, be much more limited. At present, LPAs are taking a tick-box approach rather than asking for genuinely necessary information.
The introduction of a right of appeal for non-determination where the LPA fails to validate without good reason is part of the solution, but for most developers it would be far better if the problem did not arise in the first place. Perhaps then the validation date should be recorded as the date of receipt of the application unless there is something missing that is genuinely required. Alternatively, deemed permission might be an option in the absence of validation if there has been no meaningful engagement with the applicant.
Once an application is validated, the LPA’s focus should be on the principle of sustainable development and overall design. Issues are often raised by planning officers that are not relevant in a planning context, for example technical details relating to the construction of a building or its sustainability credentials. These matters could and should be dealt with at the building regulations stage.
Conditions and obligations
Measures could also be taken to enable development to start more quickly on site after planning permission is granted. The statutory necessity test must be more rigorously applied to planning conditions and obligations. LPAs should not apply planning conditions that are controlled by other statutory requirements – for example, drainage or the passage of sound – that are legislated under the Building Regulations. This duplication causes unnecessary costs and delays for both the public and private sectors.
Time limits should be in place to conclude section 106 agreements within a certain period, with a right of appeal for non-determination after the period has expired. While it is acknowledged that section 106 obligations still play an important part in the planning system to mitigate against the impacts of a particular development and to deliver local policy objectives, there can be long delays to delivery while the obligations are negotiated. Following the introduction of CIL, the level of section 106 obligations should be reduced and therefore negotiations with the local authority should be concluded more quickly, but this is rarely the case.
In the housing sector, section 106 agreements focus heavily on the issue of affordable housing. More and more complex review mechanisms are being introduced by LPAs post committee resolution. Much of this negotiation could instead take place during the application determination period, creating greater certainty on both sides earlier in the process.
Planning appeals
In relation to the planning appeal system, we would propose that non-determination appeals should be fast-tracked. It is unreasonable and uneconomic to subject planning applications to long delays at local level and then many more months in the appeal system, sometimes for no better reason than that LPAs are too under-resourced to determine planning applications within the statutory deadlines.
In addition, when an LPA decides that it does not approve of one aspect of a scheme as a matter of principle, it will often then adopt a “kitchen-sink” approach, ie to include a number of
other reasons for refusal in its decision notice, many of which could have been resolved through discussion with the applicant. The applicant is then forced to address all the reasons for refusal in
any subsequent appeal, which may ultimately turn on the original point of principle.
In order to avoid this scenario, we propose that a “preliminary issue” appeal system is introduced, under which, when faced with a number of reasons for refusal, an applicant can select one reason (such as heritage, or land use) to be determined at an initial hearing, before proceeding to a more detailed appeal focusing on design, amenity etc. This proposal may also have the benefit of increasing the availability of appropriate inspectors, who will only need to attend a single day’s hearing, instead of a lengthier inquiry.
Investing in planners
Finally, while further streamlining of the system and cutting unnecessary red tape is part of the solution, and necessary to improve delivery times, this type of government initiative must be supported by appropriate education and investment in local authority planning departments and the Planning Inspectorate. Historic underinvestment in planning departments across the country is as much, if not more, of a barrier to the housebuilding resurgence than unnecessary and burdensome regulations.
The government still needs to address some fundamentals if it is serious about achieving growth in the housing sector.
Daniel Drukarz is a partner and head of the London office and Marianne Barker is a senior associate at Asserson Law Offices
