26th June 2016
The controversial Housing and Planning Act introduces into legislation key changes with wide-ranging implications for the delivery of new housing. The Act has been described as the most radical planning legislation for a generation. Secondary legislation, which will set out the working details, is expected from October. Andrew Bradshaw looks at the Act’s likely impacts.
Following the first reading in October 2015, and subsequent debate in the Commons at the second reading in November 2015, the Housing and Planning Bill passed to the Lords in January 2016. The Lords tabled various amendments which were nearly all rejected by the Government apart from provisions relating to the tapering of the Starter Homes discount, the removal of the requirement for Starter Homes on rural exception sites, and an amendment under the Right to Buy provisions requiring the funding of one replacement affordable house outside London and two inside.
The Act’s key provisions and their implications
The Act includes a duty on all LPAs to promote the supply of Starter Homes, both through the preparation of local plans and in determining planning applications. Starter homes are defined as dwellings to be sold to first time buyers between the ages of 23 and 40 at a discount of market value. Secondary legislation will set out the discount percentage tapered from the date the dwelling was first sold to the qualifying first time buyer, over a maximum period of eight years.
The view of the market is mixed on Starter Homes. There are some concerns about reduced delivery of affordable homes for rent, the overlap with Help to Buy, and shared ownership schemes. But, while selling these homes at open market value at any time will inevitably create a one-off injection of cheaper stock into the housing market, they should help a generation on to the housing ladder and increase the availability of smaller homes in the longer term. A tapered relief, that reflects the longer commitment to an area but allows people to move if their circumstances change, would certainly be sensible.
Many local authorities are unwilling to discuss Starter Homes until secondary legislation is published.
Planning permission in principle (PiP) will be granted for housing-led developments through two prescribed routes. In the first, councils and neighbourhood groups will be able to grant PiP for housing sites through allocations in qualifying documents that include registers of brownfield land, development plan documents, and neighbourhood plan documents. The site allocations will need to include ‘prescribed particulars’ - the core ‘in principle’ matters that form the basis of the PIP. In the second route, LPAS can grant PiP in response to an application.
Under both routes, full planning approval is not deemed consented until an application for technical consent is submitted and approved. The anticipated time frames to determine a PiP application are five weeks. There is then a further five weeks for technical details consent (TDC) with a right of appeal where either the PIP and TDC applications are refused.
PiPs may possibly speed up planning approval and subsequent delivery. But without details, it is unclear what the advantages are for housing developers and whether PiPs are much more than rehashed outline permissions. Outline permission at least offers certainty that it can be implemented in some form. In contrast, the PiP seems to offer little more certainty than a site allocation in a Local Plan or a favourable policy wording. PiPs could also increase the workload for local planning authorities, causing delay and cost. Currently, the PiP appears to be equivalent to ‘zoning’ in other countries – this tends towards areas of single land uses whilst successful place-making integrates different and complementary uses within areas of higher density.
The act provides for significantly enhanced powers to the Secretary of State (SoS) to intervene in plan-making for both local plans and neighbourhood plans. For local plans, the SoS can direct that a development plan document is submitted for preparation or revision. The SoS can suspend the examination, consider specified matters, hear from specified persons or request other procedural steps.
Intervention will be prioritised where there is under-delivery of housing in an area, where the least progress has been made in local plan-making and where plans have not been kept up-to-date. Similarly, for neighbourhood plans, the Act provides greater support for the timely designation of Neighbourhood Areas. This includes new powers for the SoS to intervene when local planning authorities are deemed not to be adequately fulfilling their duties to progress with a neighbourhood plan on time or in line with the recommendations of the Independent Examiner.
Although there are shades of centralism here, these powers are more about ensuring that LPAs prioritise plan-making to support the delivery of new housing and other forms of development. This has to be good news for housing developers and landowners. It is right that there should be consequences for local authorities where plans are either not in place or patently out-of-date. If decisions are to really be plan-led, up-to-date coverage is vital, in particular for unlocking housing supply.
But, as the Planning Inspectorate is already struggling with current caseloads, it will be interesting to see how widely the SoS uses these increased powers. Local planning authorities, who are responding to continuous change to the planning system, are also struggling because of a lack of resources. Simplifying the adoption process and providing greater assistance may be the most productive means of tackling delayed Local Plans.
The act allows applications to be processed by alternative providers - a ‘designated person’ (including other local planning authorities) - rather than the local planning authority "if the applicant so chooses". The LPA would maintain responsibility for determining the application, but the "designated person" would be solely responsible for processing the application and making a recommendation.
This measure is already proving contentious, with some concerns over impartiality and fairness in decision-making. But it is not wholly dissimilar to what happens already where a consultant acts for an LPA in a case officer role through Planning Performance Agreements.
Local authorities and approved providers will need to form positive relationships with one another if ‘alternative providers’ are to work. It won’t be practical for approved providers to carry out all the tasks that a local planning authority would ordinarily undertake. To avoid delay, the recommendation of the approved provider would have to be unalterable before consideration in the political arena.
The many other provisions include:
Secondary legislation is expected to be published in the autumn. This will provide much needed detailed regulations and requirements and will take into account the outcome from the Local Plans Expert Group and specific consultations in relation to Starter Homes, the NPPF and NPPF Technical Guidance.
We will publish our analysis of secondary legislation when it appears and will keep you posted. For further information please contact Andrew Bradshaw, Director, on 0161 874 8798 or at email@example.com