Almost two weeks after the Bill received Royal Assent, the Government has published the Housing & Planning Act 2016 which contains key changes to the planning system. On publication of the Bill, the Government said it would kick-start a “national crusade to get 1 million homes built by 2020” by speeding up the planning system.
Whilst much of the detail is yet to be set out in secondary legislation, technical consultations on the implementation of the changes are underway, providing some guidance as to how the new provisions will work in practice.
The Act will introduce the concept of “Starter Homes” that will be required on new development sites by way of Section 106 obligation. The technical consultation has suggested a requirement for 20% of homes delivered on new sites of more than 10 dwellings or 0.5ha to be starter homes. There will also be a general duty on local authorities to “carry out its relevant planning functions with a view to promoting the supply of starter homes in England”. Starter Homes are new dwellings available for purchase by first time buyers between the age of 23 and of 40, to be sold at a discount of at least 20% of the market value, for less than £250,000 outside Greater London and £450,000 in Greater London. Starter homes will also be subject to restrictions on sale or letting, which may include a prohibition on the sale at full market value for a restricted period, or a tapered approach depending on how long the starter home has been owned.
Permission in Principle & the Brownfield Register
The Act will also enable automatic planning permission in principle to be granted for housing-led development allocated for that purpose in a Development Plan Document, Neighbourhood Development Plan or Brownfield Register (a register of previously developed land which is suitable for housing development which local authorities can be required to prepare under the Act). Alternatively, a development order can enable permission in principle to be granted for development of a prescribed description following an application to the local planning authority. The Government’s current intention is that this latter provision will initially be limited to minor housing development of fewer than 10 units. There is then provision for “technical details consent” to be obtained in accordance with the relevant permission in principle, giving rise to grant of full planning permission. Conditions and section 106 obligations will not be imposed at the “in principle” stage and will be reserved for the technical details consent stage.
Dispute Resolution Procedure for Section 106 Agreements
The Act will introduce new procedures for settling disputes relating to the negotiation of planning obligations. The Secretary of State will be required to appoint someone to resolve such issues where there is a request to do so, usually from the local planning authority or from the applicant. This process will have to be participated in fully before the applicant may appeal against the planning obligations or the local planning authority can refuse the application. There will be an obligation upon the parties to fully cooperate with the appointed person and comply with all reasonable requests by them to supply relevant documents and participate in meetings. The appointed person would also have to set out in a report their recommendations about what obligations would be appropriate and the local planning authority would not be able to refuse permission if the applicant has agreed to the obligations. Similarly, if the recommended Section 106 Agreement is not entered into within a certain period of time, the authority must refuse the application.
The Act introduces provisions to allow for the processing of planning applications by “alternative providers”, rather than the local planning authority. The purpose of this is to enable the Secretary of State to introduce pilot schemes to test the benefits of introducing competition in the processing of planning applications. Regulations will be put in place allowing certain applications to be processed by a “designated person” if the applicant chooses. The regulations will set out the eligibility criteria for “designated persons”, including whether other local planning authorities could act as the alternative provider, as well as other details such as procedure, fees, performance standards, conflicts of interest and complaints procedures. Although they will have responsibility for processing the application and compiling a recommendation report, the designated person shall not be responsible for determining the planning application, which will remain the responsibility of the local planning authority.
The Act will also enhance the powers that allow the Government to step in where local authorities fail to produce local plans for their area. Many local authorities still do not have an up to date plan and, as they should set out how many homes the authority plan to deliver over a set period, the Government considers local plans to be critical if housing supply is to meet local need. The Planning & Compulsory Purchase Act 2004 already provides that, where the Secretary of State thinks that a local planning authority is failing or omitting to do anything it is necessary for it to do in connection with the preparation, revision or adoption of a development plan document, the Secretary of State may step in. The new Act will expand these provisions so as to enable the Secretary of State to instead give directions to the local planning authority to prepare or revise the document, submit that document to independent examination, publish the recommendations of the person appointed to carry out the examination, and consider whether to adopt the document. It is felt that this is a more proportionate approach to intervention.
The new provisions in the Housing & Planning Act will also enable the Secretary of State to invite the Mayor of London or a combined authority to prepare a development plan document for a local planning authority, again where the Secretary of State believes that the local planning authority is failing or omitting to do what is necessary for them to do in connection with the preparation, revision or adoption of such a document. The Mayor or combined authority will have the power to take over responsibility for preparing/revising the development plan document and having it examined. The Mayor or combined authority will then be able to approve the document or direct the respective local planning authority to consider adopting it. This new power is designed to incentivise local planning authorities to produce their own local plans, or risk having one enforced upon them by the Mayor or a combined authority, and may help to align local plans within regions.
The Act introduces provisions designed to make it easier for communities to make use of their neighbourhood planning powers. There will be automatic designation of neighbourhood areas in certain cases, and various time periods will be set for local planning authority decisions on neighbourhood planning, including the question of whether or not to submit a neighbourhood plan or order to a referendum. The Act also introduces a power for the Secretary of State to intervene where local planning authorities delay in making decisions, or depart from the recommendations of the examiner. Neighbourhood forums will also gain a new right to ask to be notified of relevant planning applications. Self-Build The Act will also introduce reforms to support small builders by placing a duty on local authorities to allocate land to people who want to build their own home.
and Custom Housebuilding Act 2015 introduced new duties on local authorities to keep, and have regard to, registers of people seeking land for self-build and custom housebuilding. These new provisions will go one step further and require local authorities to grant sufficient suitable development permissions on serviced plots of land to meet the demand for self build and custom housebuilding in their area as evidenced by the register. It remains to be seen whether the above provisions will be effective in speeding up the planning system and delivering the level of additional housing the Government wants to see provided. Many of the controversial elements of the legislation have been left to be dealt with by way of secondary legislation, which will take time to bring forward. In the meantime, housebuilders will be faced with uncertainty, which is becoming all too common in the planning system.
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