Why councils are not using new powers to spur developers to faster delivery

There is little evidence of local authorities using new powers in the revised National Planning Policy Framework to push developers to speed up delivery, says Stuart Watson.

At the Conservative party conference in October, housing minister Kit Malthouse trumpeted three new policies in the revised National Planning Policy Framework (NPPF) that he said would enable local authorities to be "tougher" with developers "in this game of chicken that takes place in the planning system" over housing delivery. These policies, he argued, would allow authorities "to be much more assertive in their power to grant and remove planning permission".

Malthouse said: "In the NPPF, we’re encouraging local authorities to give only two-year permissions and also to make sure they’ve got a plan B [for allocating alternative sites in local plans]. So if that permission runs out, they can say: ‘You know what, your land’s now out [of the local plan]’." Thirdly, he added that planners would now also be able to "look at an applicant’s record of delivery in the granting of permission".

The first of these measures is found in paragraph 76 of the NPPF. It states: "To help ensure that proposals for housing development are implemented in a timely manner, local planning authorities should consider imposing a planning condition providing that development must begin within a timescale shorter than the relevant default period, where this would expedite the development without threatening its deliverability or viability."

That is not a new power, says Mary Cook, a planning barrister at law firm Town Legal. She points out that local authorities have always been able to impose implementation times longer or shorter than the default three-year period through planning conditions. "By last year, there was a reasonably well-established practice where councils started to impose shorter periods – usually from three years to two years – when they were granting planning permission because there was a shortfall in their five-year housing supply," she says. "The justification for the grant of permission on a greenfield site was the shortfall, so they wanted to incentivise landowners and developers to get on and deliver the development."

But the policy has not been greeted with enthusiasm by local authorities, says Richard Crawley, programme manager at the Local Government Association’s Planning Advisory Service. Council planners are reluctant to impose shorter implementation periods, he observes, "because most of their major developers are serious people with whom they have long-term relationships". He adds: "It would be a very brave council that would say ‘we don’t think you’re serious and therefore we will impose this condition on you’." Planning could find no examples of councils having used the policy. "What might happen is that one council will give it a go and all the others will see how successful they are," he says.

Central Bedfordshire Council is one authority that has been trying to tackle slow delivery. But its efforts, using section 106 agreements to specify the rate at which homes should be built, pre-date the 2018 NPPF. Director of regeneration Jason Longhurst sees little benefit in imposing shorter implementation periods for development, describing the NPPF clause as "naïve". "Implementation as currently legally defined is as little as digging a trench – hardly a requirement for the subsequent fast delivery of housing. I don’t think the changes to the NPPF will help either local authorities or developers to drive delivery," he argues.

Speaking at the party conference, Malthouse also said authorities could now look at applicants’ "record of delivery" before granting permission. This was a measure first proposed in the January 2017 housing white paper. Some commentators believe a form of it has been introduced in the second sentence of NPPF paragraph 76: "For major development involving the provision of housing, local planning authorities should also assess why any earlier grant of planning permission for a similar development on the same site did not start."

"They are basically saying that, if a developer has applied for lots of planning permissions and hasn’t delivered, this can be a material consideration. It is a significant departure from the general principle that the identity of the applicant and their behaviour is not relevant," says Claire Dutch, head of the planning team at law firm Hogan Lovells.

However, Andrew Whitaker, planning director at housebuilding industry body the Home Builders Federation, disputes that this clause involves examining applicants’ track records. "The idea of looking at whether a previous allocation has been implemented or not is about whether the site is deliverable and should be de-allocated." He believes the government’s intention is to ensure that local authorities maintain a dialogue with developers about the deliverability of housing sites and the pace at which they can be brought forward.

As with the shorter implementation periods, Planning found no evidence of council use of the so-called ‘track record’ clause to date. Mike Kiely, chair of the Planning Officers Society, which represents public sector planners, suspects that developers would find ways around it, which authorities would find difficult to challenge. "If Acme Housebuilders had a terrible track record, their applications might be fronted instead by Bloggs Developments. They will arrange affairs so they become opaque in the planning application process."

Finally, Malthouse’s call for councils to consider deallocating sites refers to paragraph 120 of the 2018 NPPF. This new policy states that, where an authority "considers there to be no reasonable prospect of an application coming forward for the use allocated in a plan... they should […] reallocate the land for a more deliverable use that can help to address identified needs (or, if appropriate, deallocate a site which is undeveloped)". Kiely says having back-up sites within a plan, which Malthouse describes as the "plan B" option, is "potentially possible, but it does become a very complicated document".

"You can’t do that for all the sites in a single plan," he says. "It becomes impossible to have 20 sites and another 20 plan Bs for each site." However, where allocations don’t come forward "then reviewing the plan and choosing another site is possible", he says. "But the gap between those two events is five years at least. The NPPF is saying you shouldn’t allow dormant allocations to persist in your plan."

It appears unlikely that the changes to the NPPF will lead to a sea-change in the pace at which housing schemes are delivered. "I think what Kit Malthouse is making clear is that there isn’t a single silver bullet for speeding up delivery," suggests Crawley. "There needs to be a co-ordinated approach covering lots of different aspects, some of which are about how councils behave and some of which are about how developers behave."

How one council is using planning to speed up delivery

Members had become frustrated that regeneration aspirations on the island were being thwarted by slow delivery of some housing schemes, says Ollie Boulter, strategic manager, planning and infrastructure delivery at Isle of Wight Council. He adds: "We want to give development every chance to be brought forward, but also wanted to bring in a mechanism that would allow us to do something about it if it was starting to look like development wasn’t about to be achieved within the timescales we were aiming for."

Consequently, the local authority adopted a policy in January to use powers that predate the 2018 National Planning Policy Framework. In cases where it is does not believe reasonable efforts have been made to begin a development, and after two years without visible activity, the council will consider implementing a two-stage process.

Initially, a notice is issued under section 215 of the Town and Country Planning Act, requiring the owner to improve the quality of the site’s environment. If that notice is not followed, then the council could take steps to revoke the planning permission under section 97 of the Act.

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