Housebuilding: applications related to major infrastructure would be able to use Planning Act 2008 regime

The Housing and Planning Act 2016 Digested: Update 16 June 2016

Legislation adopted last month brings in wide-ranging changes to the planning process in England. This updated guide summarises the key points and sector views on their implications

The Housing and Planning Act 2016, which received Royal Assent on 12 May after seven months of parliamentary procedure, brings in a swathe of legal changes largely designed to meet the government’s overriding commitment to increasing the supply of new homes.

The Housing and Planning Bill was introduced to parliament on 13 October 2015. Following initial publication, significant new provisions were added during its parliamentary passage. They included a pilot scheme to test the merits of "alternative provision" of application processing services, default plan-making powers for the mayor of London and combined authorities, limits on the enforceability of planning obligations for affordable housing and a whole new schedule setting out measures to resolve disputes over the terms of planning obligations.

In the meantime, the Department for Communities and Local Government (DCLG) has published technical consultations explaining how it envisages the act’s provisions will be implemented through secondary legislation. A technical consultation on implementing many of the key provisions was published on 18 February 2016, with a 25 April deadline for comment. A technical consultation on Starter Homes was published on 24 March 2016 seeking comment by 22 April, later extended till 10 June. The DCLG is now considering responses to these consultations.

Some of the act’s provisions came into force on 12 May. They include powers to pilot alternative provision of application processing, duties for councils to keep brownfield and self-build sites registers, enhanced call-in powers for the mayor of London, scope to vary application fees in different areas and some aspects of the neighbourhood planning reforms.

Further sections come into force on 12 July, including parts of the planning permission in principle provisions and new rights to make applications direct to the central government in areas of poor development management performance. But large swathes of the act will only take effect once detailed regulations are drawn up.

Starter Homes

Chapter 1 of the act introduces new duties for councils to pursue the government’s flagship Starter Homes initiative, under which new-build houses will be made available to first-time buyers under 40 at a 20 per cent discount on full market value. In return, developers will be exempt from planning obligations. The act introduces a general duty to promote Starter Homes through councils’ planning functions. More specifically, councils must ensure that Starter Homes are delivered on "all reasonably sized sites", subject to a "general exemption" where this requirement would make schemes unviable. More. 

Self-build and custom build

Chapter 2 introduces a duty for councils to grant planning permission for sufficient serviced plots sufficient to meet demand for self-build and custom housebuilding, as evidenced by council-compiled registers of suitable plots to be created and maintained by local authorities under the Self-Build and Custom Housebuilding Act 2015. More.

Assessment of housing needs

Section 124 removes the Housing Act 2004 duty on local authorities to assess the accommodation needs of Gypsies and travellers in their area as a distinct category. Instead, it specifies that local housing authorities should consider the needs of people "residing in or resorting to their district with respect to the provision of sites on which caravans can be stationed, or places on inland waterways where houseboats can be moored". In March, the Department for Communities and Local Government published draft guidance on how it expects local authorities to interpret this provision.

Neighbourhood planning

Sections 139 to 142 enhance the secretary of state’s default powers on neighbourhood planning. They include powers to direct districts and boroughs on requests to designate neighbourhood areas and to set tighter timescales and deadlines for the neighbourhood planning process. More.

Local planning

Sections 143 to 148 bring in new powers for the secretary of state to intervene in plan-making, reflecting the government’s commitment for all planning authorities to produce a local plan by early 2017. More.

Strategic authority default plan-making powers

Section 147 and schedule 11 pave the way for the mayor of London and combined authorities to prepare or update development plan documents (DPDs) for any council within their area. More.

Mayor of London development control powers

Section 149 gives the mayor of London additional powers to require boroughs to consult him before granting planning consent or permission in principle for certain classes of development. This section came into effect on 12 May.

Planning permission in principle

Section 150 paves the way for "planning permission in principle" (PPIP) to give developers more certainty about consent for "housing-led" development, which could include an element of retail, community and commercial uses. More.

Local brownfield land registers

Section 151 requires councils to compile and maintain registers of types of sites to be prescribed in regulations. The government has signalled that the requirement will include registers of brownfield land suitable for housing development and self-build site registers. More.

Permitted development

Section 152 gives the secretary of state power to make further provision for operational development under the General Permitted Development Order. In the first instance, this provision is expected to facilitate the government’s proposed permitted development right to demolish offices and replace them with new-build homes. More.

Poor performance regime extended

Section 153 gives developers the right to submit applications for minor development direct to central government in areas where the local planning authority has a track record of very poor performance in the speed or quality of its decision-making. More.

Planning freedoms scheme

Section 154 introduces a "planning freedoms" scheme whereby councils, following local consultation, could be granted time-limited powers to "disapply or modify" national planning rules "in order to facilitate an increase in the amount of housing". Under the provision, which follows a cross-party amendments in the bill’s Lords stages, councils would have to persuade ministers that there is a need for a significant increase in homes in the area and that the freedoms scheme would contribute towards it. The act says the secretary of state may decide to restrict the number of planning freedoms schemes in force at any one time.

Information about financial benefits

Section 155 places a new duty on local authorities to consider the potential financial benefits of development proposals when considering whether to grant planning permission, with a view to persuading local people to voice support. More.

Variable fee rates

Section 157 eases the path for higher planning application fee rates to be charged in some areas. It provides that any proposal for local variations in fee rates under section 303 of the Town and Country Planning Act 1990 should not be treated as a hybrid instrument under Commons and Lords standing orders. A Department for Communities and Local Government technical consultation issued on 18 February said higher fees would need to be tied to improved performance. This section came into force on 12 May.

Resolution of obligations disputes

Section 158 and schedule 13 allow for the secretary of state, following a request from an applicant or council, to bring in an "appointed person" to resolve issues holding up completion of planning agreements "if he thinks that the local planning authority would be likely to grant the application if satisfactory planning obligations were entered into, but not otherwise". More. 

Enforcement of housing obligations

Section 159 empowers the secretary of state to make regulations imposing restrictions or conditions on the enforceability of planning obligations for affordable housing, or on prescribed descriptions of affordable housing. The provision would not apply to obligations related to permissions granted wholly or partly on the back of rural exceptions policies, nor in national parks or areas of outstanding natural beauty. For these purposes, the act defines "affordable housing" as Starter Homes or "other housing to be made available for people whose needs are not adequately served by the commercial housing market". These provisions will come into force on a date to be prescribed by regulations.

Development consent for housing

Section 160 extends the Planning Act 2008’s definition of nationally significant infrastructure projects (NSIPs) to proposals that include an associated housing element, thus making them eligible to be included in development consent orders. More.

Alternative processing providers

Sections 161 to 164 allow the secretary of state to introduce regulations piloting "alternative provision" for processing planning applications. The procedure would give applicants the option to submit applications for processing, but not determination, by a "designated person" other than the local planning authority. More.

Home energy performance review

Section 165 requires ministers to review minimum home energy performance requirements approved under the building regulations in relation to dwellings in England. This measure was accepted to ward of peers’ demands for restoration of the former Zero Carbon Standard.

Urban development corporations

Sections 168 and 169 are intended to create a faster, more efficient process for establishing urban development areas and urban development corporations, while ensuring that interested parties are consulted at an early stage. These sections came into force on 12 May.

Sustainable drainage systems

Section 171 commits the secretary of state to carrying out a review of planning legislation, government planning policy and local planning policies on sustainable drainage systems (SUDs) in relation to the development of land in England. The review was promised to head off House of Lords demands for measures requiring all new homes to be provided with SUDs.

The DCLG technical consultation document can be viewed here