The Housing & Planning Bill 2015 now takes forward some of the elements of the Treasury’s 2014 Autumn Statement to speed up planning decisions. It does not pick up the commitment to introduce a dispute resolution mechanism for Section 106 negotiations to speed up housing starts trailed earlier this year (and announced in the July 2015 Productivity Plan).
The Government is still considering its options, including a combination of legislative changes and ‘soft’ measures to steer the S106 process. Our Manifesto for Planning 2015 called for a model agreement to be adopted, to limit the current reinvention of the wheel for each scheme. Once the dust has settled on the Housing & Planning Bill, there are a few further things that Government could do to nudge the process.
Dispute resolution system (DRS) challenges
The responses to the 2014 Autumn Statement reflect the challenges in applying a dispute resolution approach to planning decisions, not least:
- The risk that DRS may drain scarce resources away from the core development management process itself.
- What can/ should be binding and non-binding. Recognising that a DRS outcome cannot override committee resolutions means that the timing of DRS needs careful consideration. Going back to committee to give effect to a DRS decision is unlikely to appeal to many applicants.
- Allowing DRS to be triggered before committee consideration, including binding elements (for example, on compatibility with regulations 122 and 123 of the CIL Regulations 2010) and providing incentives to behave responsibly would help.
Dispute avoidance – better behaviours
Nudging stakeholders towards dispute avoidance would be a more effective short term approach with long-term benefits, encouraging common gaps in the planning process to be plugged:
- Far more structured Section 106 negotiations
- Reducing the number and complexity of obligations
- Up to date, detailed, site allocations with clear, detailed, mitigation requirements.
The last remains a pipe-dream in the current system and it remains to be seen whether the Housing & Planning Bill will really change much.
Government could make a big difference now, by:
- Adopting a Model Section 106 agreement along the lines of the CLG/Law Society Model 2010 Second Edition. A more coherent and effective set of mechanisms for deferred/ catch up contributions would be positive.
- Adopting Model Conditions. There are some good Call In decisions out there with sensible, short and effective conditions that can rob Section 106 agreements of most of their content.
- Recommending in the PPG that:
- The Model Conditions and Model Agreement clauses are used, unless there are clear justifications for departure (and making it clear that the reasons may be subject to DRS).
- Proper Heads of Terms or a complete Model Agreement are submitted with an application.
- Detailed delivery programmes are agreed for Section 106 negotiations, which would finally give some purpose to Planning Performance Agreements.
- Amending the Planning Guarantee provisions in the Fees Regulations so the ability to claw back the application fee is not lost where an extension of time is agreed but then exceeded. That would provide the intended incentive to get on with it in the way that the NPPF and Planning for Growth require.