In support of sustainable development, the Government launched the Code for Sustainable Homes, making it mandatory to place a rating or nil-rating Certificate in Home Information Packs for new build housing to show it has either been assessed at a particular Code Level or not been assessed. Whilst the inclusion of these Certificates is mandatory, compliance with the Code remains voluntary.

Many LPAs, in an effort to achieve sustainable development objectives through planning, are seeking to condition developments so that they achieve Code Level 3. This makes compliance with planning more onerous than the voluntary meeting of the Code or the requirements of Building Regulations (which is set below the Code).

The differing progress LPAs in the South East have made with the new policy system (Local Development Frameworks) has had some influence on the Code as a planning objective, and the consistency with which different authorities condition permissions for new dwellings to ensure they meet Code Level 3 or higher.

Across Sussex (as it stands at February 2010), Brighton and Hove City Council and Horsham District Council condition all residential development to meet Code Level 3. Chichester District Council condition developments through PPS1 to achieve Code Level 2 in construction. Mid Sussex, Worthing, Lewes and Wealden District Councils only condition if the applicant volunteers to achieve a specific Code as one of the benefits of the scheme. These latter authorities do, however, condition all relevant developments to meet details of supporting Sustainability Statements, a required document for any application for residential development. This situation, however, is likely to change, either because LPAs continue to advance and adopt LDFs or because the Government will launch a new means of assessing sustainable construction.

In the meantime, developers should be aware of what LPAs are asking them to achieve in terms of the (voluntary) Code, the statutory basis for this and what Code Level any condition on the planning permission requires. DMH Stallard can advise on what Code Level is reasonable for LPAs to seek, as well as appropriate conditions for permissions.