In the first part of our Q&A on the Housing & Planning Bill as it passes through the Parliamentary process, we look at the implications for the Local Plan system of the changes put forward in Clauses 96-100 of the Bill.

Is there a duty to plan?

Not under the Planning & Compulsory Purchase Act 2004 regime. Where local authorities choose to adopt Local Plans, the National Planning Policy Framework (NPPF) already requires that policies ensure that objectively assessed needs will be met in full (or that a failure to do so is justified by environmental constraints, such as Green Belt).

How is need currently addressed where there are local constraints?

There is no freestanding duty on authorities to plan for needs in this way though.  The solution to the ‘larger than local‘ question – of meeting needs beyond a local authority’s boundaries where it does have insurmountable constraints  – is meant to be found in the ‘Duty to Co-operate‘ (introduced to the Planning & Compulsory Purchase Act 2004 regime, via the Localism Act 2011).  There are potential successes. There are outright failures. The following are lacking:

  • explicit incentives (fiscal or otherwise) to plan;
  • any reserve power of final intervention by the Secretary of State.

Where local authorities fail to adopt up to date plans – able to meet needs in full on allocated sites – they instead  face ‘planning by appeal’ via the NPPF presumption in favour of sustainable development.

What would the Bill change?

Clauses 96-100 are intended to incentivise and control plan-making, with the ultimate sanction of the Secretary of State being able reject, write or correct Local Plans. The main changes are in fact limited, but most generously can be seen as a statement of political intent to take responsibility for future performance:

  • Clause 96 widens the Secretary of State’s existing power to make a direction requiring amendments to an authority’s Local Development Scheme (LDS) under Section 15 of the 2004 Act. A direction could require a timescale for “full and effective coverage (both geographically and with regard to subject matter)”.
  • Where Local Plans are being examined, the Secretary of State would also be able to pause and control the proceedings under the proposed changes to ss.20 and 21 of the 2004 Act. He would have a power to direct changes to parts of plans and then release the holding directions, as well as charge the authority his costs for intervening, examining and ‘correcting’ the plan.

What would stay the same?

If some early examples are made, the changes may provide an incentive for authorities with defective plans. They may have little or no real effect though:

  • There is no mechanism to step in and determine the objectively assessed needs required by the NPPF for the relevant Strategic Housing Market Area.
  • Nor is there any basis for the Secretary of State to undertake other evidence base work in a streamlined way.
  • The risk remains that an offer to allow some authorities to continue to abdicate responsibility or avoid sharing in growing pains will be taken up. …