The Government's long awaited Housing Bill has now been published and it seeks to transform the planning system to deliver more housing. Those closest to the housing debate will particularly note the changes to speed up the local plan system. In the report we commissioned recently, "Housing – Nationally Significant Infrastructure" we found that only one in four Councils had an adopted plan in place that complied with the National Planning Policy Guidance. 

Local Plans

The Productivity Plan published just after the Summer Budget stated that it is vital that local planning authorities (LPAs) use their powers to put in place local plans that set the framework for the homes and jobs local people need.  The Bill now contains the following provisions in summary: 

  • Clarity that the Secretary of State may make a direction relating to the subject matter of the documents specified in the local development scheme 
  • A new power for the Secretary of State to 'suspend' the local plan examination to consider specified matters
  • Amendments to the Secretary of State's existing default power that will enable him to direct a LPA to prepare or revise a document, to submit that document to examination, publish the recommendation and to consider whether to adopt the document, in circumstances where "the Secretary of State thinks that a LPA are failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document".  

The Government had stated that they will intervene if Councils fail to have an adopted plan in place by 2017. In this respect, the Bill's provisions will amend section 21 of the Planning and Compulsory Purchase Act 2004 which will dramatically increase the scope of the Secretary of State's existing default intervention power in the local plan making process.  It is expected that the Government will use these powers to step in if plans are not in place.  

The Bill will also streamline the neighbourhood plan system by introducing powers to allow automatic decisions on designation of neighbourhood plan areas, introducing time periods for making key decisions by the LPA, and allowing the Secretary of State to intervene on the decision to send a neighbourhood plan to referendum.

Housing and nationally significant infrastructure

Clause 107 of the Bill provides the Secretary of State with the power to grant development consent for housing which is linked to an application for a nationally significant infrastructure project (NSIP).  It also provides that the Secretary of State must consider factors set out in guidance when determining whether to grant consent for housing.  The Guidance to be produced by the Department for Communities and Local Government (DCLG) is likely to cover matters such as the amount of housing that may be granted consent within a development consent order (DCO).  

The Notes to the Bill state that this will include housing which is functionally linked to the infrastructure project and gives the example of "housing required for the workers during the construction phase or for key workers during the operational phase".  

The Bill as currently drafted defines related housing development as development that consists of or includes the construction or extension of one or more dwellings in England, and which "is on the same site as, or is next to or close to, any part of the development [for which development consent is required], or is otherwise associated with that development (or any part of it)".  Interestingly, the Notes to the Bill state that the Secretary of State will also be allowed to grant consent for housing "where there is no functional link but there is a close geographical link between the housing and the infrastructure project".   

Starter Homes and Affordable Housing

Existing Planning Policy Guidance already provides for Starter Homes on exception sites but the Bill goes further and provides:

  • A new legal duty on LPAs to carry out its relevant planning functions with a view to promoting the supply of Starter Homes in England
  • A power for the Secretary of State to make regulations to provide that a LPA may only grant planning permission for specified residential development if the Starter Homes requirement is met.  The requirements are to be set out in regulations but could provide that a LPA may only grant planning permission for residential development above a certain size if a S 106 agreement provides for a certain number of starter homes or contribution towards the authority's provision of these.

There is no reference to any changes to the definition of affordable housing as trailed by the Prime Minister in his speech last week to include low cost market dwellings. However that change would probably materialise through an amendment to the NPPF in any event.

Brownfield land and permission in principle through plans and registers

  • The government will require local authorities to prepare, maintain and publish local registers of specified land (Brownfield Register)
  • Provisions to give the Secretary of State the power, by a development order, to grant permission in principle to land allocated for development in a qualifying document
  • Initially the government intends only that land allocated in the Brownfield Register, Development Plan Documents and Neighbourhood Plans will be capable of obtaining permission in principle
  • The development order would set out the type and scope of the development.  The current intention is for the provisions to apply to minor housing development (fewer than 10 units)
  • If land is allocated and satisfies the requirements the development order it will automatically grant permission in principle.  The Development Management Procedure Order 2015 will be amended to set out the process for applicants and local authorities and the type and scope of development
  • The government will consult on the details of the application process for the technical detail consent in due course.  The technical consent will be required to commence development  
  • LPAs will be required to keep a register of permissions in principle and there is a power to issue statutory guidance.

The government had stated that they would be introducing a dispute resolution mechanism for section 106 agreements, to speed up negotiations and allow housing starts to proceed more quickly.  But this does not appear to have made its way into the draft Bill yet.  

Kevin Gibbs, partner in the Planning and Infrastructure Team commented, "It's good to see that the government is taking aim at the local plan system. For years some local authorities have stalled in bringing forward local plans that fully accommodate for housing needs.  However, the challenges that lie ahead shouldn't be underestimated. Arguments over housing needs assessments and the complexity of the system can cause inordinate delays even if the government were to use its powers. However, the government's push towards the re-development of brownfield land is sensible but we'll see how the permission in principle pans out when regulations are made. .The Starter Home initiative has been boosted but its relationship with affordable housing generally needs to be clarified.  It is to be welcomed that the government has taken the step to bring an element of housing within the infrastructure planning regime. Whilst it currently has caveats, further ways should be explored to allow large scale housing and new settlements to use a system that has been demonstrated to work well for the delivery of nationally strategic projects."