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25th October, 2016

Housing and Planning Act 2016 – What next for Planning in England?

The Act received Royal Assent on 13th May 2016 and brings about changes to the Planning system in England with provisions to provide discounted Starter Homes, simplifying planning applications for housing led development, speeding up the adoption of Neighbourhood Plans and the publication and adoption of local plans.

Starter Homes

The Government is committed to building a million new homes by 2020/21 of which 400,000 are to be affordable homes including 200,000 discounted Starter Homes.  Starter Homes are only available to qualifying purchasers who are to be first-time buyers aged between 23 and 39 years of age, sold at a minimum discount of 20% below market value with a price cap outside London of £250,000.

There is a duty placed on Local Planning Authorities (LPAs) to promote Starter Homes generally when carrying out their planning functions and specifically when granting residential planning permission.  Housing developments to provide 20% of the houses built to be Starter Homes, with other tenure affordable housing still having to be provided by way of section 106 planning obligations.

Self-build and Custom Housebuilding

A duty is placed on LPAs to grant sufficient planning permissions for serviced plots of land for up to 4 houses to meet demand for those wanting to build their own homes.

Neighbourhood planning

The Government’s agenda, is to speed up the neighbourhood planning process and the Act restricts the LPA’s ability to amend neighbourhood boundaries as defined in draft Plans and sets out various time periods for local authorities to have made decisions on whether and when to hold referendums to approve plans and for adoption by the LPA once approved by residents at a referendum.

Neighbourhood forums to be notified of planning applications in their area.

Local Planning

Up to date Local Plans are of central importance to bring development forward and all LPAs not yet having published a Local Plan are required to have done so by early 2017.

The Secretary of State is granted the power to intervene in the LPAs plan making process to ensure that they are prepared, and if not for Central Government to prepare the plan and require the LPA to adopt it, submit a Plan to independent examination, publish an examiner’s recommendation and consider whether or not to adopt a local plan.

The Secretary of State to be able to direct an Inspector to suspend an examination.

Permission in Principle

A PiP is a new consent route which separates the decision making on “housing led” development on issues such as land use, location and amount of development from the technical details for the development.  The criteria for sites to be set out in a national development order and the sites then allocated by LPAs and neighbourhood groups – in “qualifying documents” to be future development plans, neighbourhood plans or identified in an LPA’s brownfield register.

Permission in Principle to be granted for smaller sites on an application made to the LPA, and an application can only be approved or refused and if refused there will be a right of appeal to the Secretary of State.

A PiP cannot impose planning conditions nor can a section 106 Planning Agreement be required.

Once a site has PiP a “Technical Details Consent” (TDC) will be required when conditions are imposed and any planning obligations agreed by way of a S106 Agreement as well as payment of the Community Infrastructure Levy.

The granting of PiP and TDC constitutes a full planning permission.

LPAs cannot re-open or reconsider the principle of development when determining a TDC.  However, a TDC can be refused if the proposed details are not acceptable or the PIP has been in force for longer than a prescribed period, and there has been a material change in circumstances.

There will be a right of appeal, against a refusal to grant a TDC.

Environmental Impact Assessment, Heritage issues, Habitats Regulations Assessments and the usual consultation requirements still apply.

Brownfield Register

LPAs to “prepare, maintain and publish” a register of brownfield land listing previously developed land suitable for housing led development.  The register is a “qualifying document” for the purpose of PiP and therefore land listed in Part 1 of the Register will be able to be developed once a TDC has been granted.

S106 Agreements – Dispute Resolution Procedure

The procedure is to speed up section 106 negotiations and used where the parties have failed to agree terms and the LPA is likely to grant planning permission if satisfactory planning obligations are entered into once terms are agreed.

The request to the Secretary of State to appoint a person to mediate between the parties can be made by the applicant, the LPA, or any prescribed person once the statutory timeframe to determine the planning application has ended.

Whilst the dispute resolution process is taking place the applicant may not appeal to the Secretary of State nor can the LPA refuse the application, though the parties can so proceed once the process has come to an end.

A report has to be published by the person appointed.  Once published and a section 106 Agreement entered into in accordance with the report’s recommendations and the LPA is content with those terms, planning permission cannot be refused on a ground that the terms of the S106 Agreement are inappropriate.  However, if the recommended terms are not entered into the LPA must refuse the planning application.

Processing of planning applications by alternative providers

The Act provides that an approved external provider can carry out all stages of the planning application management process, including negotiating a section 106 Agreement.

The external provider will make a recommendation to Members or if delegated the appropriate officer, on whether or not to approve the application though the determination of the application to remain with the LPA.

LPAs will also be able to offer processing of planning application services to other authorities.

Planning applications made direct to the Secretary of State

Applicants can now choose to apply direct to the Secretary of State for planning permission for minor developments where an LPA has been put into “special measures”, due to its poor performance in processing planning applications.

Planning Freedom Scheme

Provision is made to enable LPAs, following local consultation, to be granted time-limited powers to “dis-apply or modify” national planning rules “to facilitate an increase in the amount of housing”.

The Secretary of State has to be satisfied that the LPA’s area needs a significant increase in housing to be built and that the scheme proposed will achieve such an increase.

Information about financial benefits

Members are under a duty to consider the potential financial benefits of certain developments when deciding whether or not to grant planning permission, whether or not those benefits are material to the decision.

Nationally Significant Infrastructure Projects

Major infrastructure projects under the NSIP regime can now provide permanent housing under of a Development Consent Order.

Such housing to be for up to 500 units and the housing has to be linked either geographically or functionally to the Project.

David has written a second article to follow on from this one, Housing and Planning Act 2016 – Compulsory Purchase Reforms published in November 2016. If you would like to read this please click here


David Delaney

Partner & Head of Planning Law

Direct Dial:  01244 405538

Email:  [email protected]

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