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Housing White Paper and Legal Update –5YHLS and Delivery- Further Proposals For Reform
28th February, 2017
At 104 pages and accompanied by numerous associated documents, reports and responses dealing with proposed changes to the NPPF, Local Plans, starter homes regulations, CIL, Planning and Affordable Housing for Build to Rent, planning application fees and custom build housing, the much awaited Housing White Paper greets the reader with a foreword from Theresa May proclaiming that “Our broken housing market is one of the greatest barriers to progress in Britain today”. It contains a bewildering array of firm ideas, plans, proposals and commitments to consultation which are guaranteed to be a continued source of fertile debate for many months to come.
A copy of the White Paper can be accessed here.
In this article, I focus primarily on some of the proposals relating directly to boosting housing supply and delivery. The Government identifies a number of challenges with building more homes which can be briefly summarised as follows:
- Over 40% of local planning authorities do not have a plan that meets the projected growth in households in their area.
- The pace of development is too slow.
- The structure of the housing market makes it harder to increase supply.
The Government’s responses to these challenges are:
- We need to plan for the right homes in the right places.
- We need to build homes faster.
- We need to diversify the market.
Before looking at the recommendations which have flowed from these challenges, I start by briefly summarising the current position on five-year housing land supply in the NPPF.
The relevant parts of paragraph 14 of the NPPF provide as follows:
“At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking”.
“For decision-making this means:
- approving development proposals that accord with the development plan without delay; and
- where the development plan is absent, silent or relevant planning policies are out-of-date, granting permission unless:
- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in this Framework taken as a whole; or
- specific policies in this Framework indicate development should be restricted.”
The last part of the quote above refers to the so-called Footnote 9 policies which relates to the Birds and Habitats Directive, SSSIs, Green Belts, Local Green Space, AONBs, etc.
Paragraph 49 provides purported clarity as to what is meant by a planning policy being up-to-date in the context of housing applications:
“Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”
As a consequence of these policies, numerous planning applications and appeals have been pursued on unallocated sites with the central issues being:
- Is there a five-year supply of deliverable housing sites? In the absence of any clear guidance in the NPPG, numerous approaches and nuances have emerged.
- If there is not, what is meant by a relevant policy for the supply of housing?
- Does the presumption in favour of sustainable development apply where the local planning authority can demonstrate a five-year supply of deliverable sites?
These issues have been complicated by Gavin Barwell’s Written Ministerial Statement relating to housing land supply where a Neighbourhood Plan allocating sites for housing has been adopted. Those issues are outside the scope of this article.
The above questions have of course also been the subject of judicial review and statutory challenges. The Court of Appeal decision involving Richborough Estates Partnership LLP, Hopkins Homes Limited, two local authorities and the Secretary of State and relating primarily to what is meant by a relevant policy for the supply of housing and therefore what policies reduced weight should be applied to, has been challenged in the Supreme Court. It remains to be seen if the wide interpretation favoured in the Court of Appeal will be upheld. We will know soon once the decision is issued as the hearing started last week.
In addition, we can expect conflicting appeal and High Court decisions on the third question to be resolved in the Court of Appeal this year and you can find Chris May’s commentary on the recent East Staffordshire Borough Council case here: https://www.howespercival.com/resources-and-events/articles/inconsistent-sustainable-development
Turning back to the White Paper, the simply stated challenges and solutions are then supported by a raft of proposals. In respect of the boosting of housing supply, the following are worthy of note:
- Making sure that every part of the country has an up-to-date and “sufficiently ambitious” plan so that local communities decide where development should go.
- Simplifying plan-making and making it more transparent.
- Ensuring plans start from an honest assessment of the need for new homes.
- A legal requirement for development plans to be reviewed every five years.
- Reinforcing the need for every authority to have a plan but remove the expectation that they should be covered by a single plan. This is also important in the context of the statutory duty for local authorities to cooperate with each other.
- Clarifying what land is available for new housing including, in particular through greater transparency on contractual arrangements used to control land (e.g. at the Land Registry) and improved availability of data about wider interests in land.
- Making more land available for homes in the right places, by maximising the contribution from brownfield and surplus public land, making efficient use of land through avoiding low densities and increasing densities in urban locations well served by public transport.
- Supporting the release of more small and medium-sized sites. The latter would be achieved through a specific requirement on local planning authorities to have a minimum percentage of their housing need to be from small “windfall” sites and greater support for using small undeveloped sites within settlements for homes.
- Changing the way that land supply for housing is assessed through a standardised approach to assessing housing requirements with that new methodology applying by April 2018.
- Amending the NPPF to give local authorities the opportunity to have their housing land supply agreed on an annual basis and fixed for a one-year period. It can also be expected that the Written Ministerial Statement referred to above will be enshrined in the NPPF which rather makes any victory secured by the claimants in the current High Court case pyrrhic.
- To ensure greater transparency through planning and build-out phases, local authorities will be able to require more information about the timing and pace of delivery of new housing. Subject to further consultation, large housebuilders will be required to publish aggregate information on build out rates.
- The NPPF will be strengthened to encourage local authorities to consider how realistic it is that a site will be developed when deciding whether to grant planning permission on sites where previous permissions have not been implemented. The Government has invited views on whether an applicant’s track record of delivery should be taken into account when determining planning applications.
- The introduction of a new housing delivery test to ensure local authorities are accountable for their role in ensuring new homes are delivered. Where under-delivery is identified, the Government is proposing a tiered approach to be set out in the NPPF and guidance.
A criticism levelled at the White Paper is that it is long on ideas and short on detail. Much of what I have set out above is dependent on the outcome of the consultation on the White Paper and/or on separate consultation exercises. Specifically, in relation to housing need, the standardised approach to OAN is to be welcomed provided it is fair and balanced. I have long since argued that the exclusive focus on housing need, as opposed to housing delivery, creates problems. We are all familiar with local planning authorities arguing that the majority of housing will be delivered in the latter parts of the five year period and it is to be hoped that the new housing delivery test makes local planning authorities properly accountable for delivery and not just supply.
The above said the devil will be in the detail. There have been numerous attempts over many years to simplify the plan making system. Can it honestly be said that those efforts have been an unqualified success?! Decisions on what sites are allocated are not straightforward with a vast range of factors needing to be taken into account. The notion that this exercise can be made more simple and quicker is, I think, optimistic. The interface between the presumption in favour of the development plan and the need to boost housing where there is housing supply, and now delivery, challenges will continue to be a source of conflict.
Howes Percival’s planning team is running a series of planning update seminars in Leicester (14 March 2017), Cambridge (15 March 2017) and Norwich (16 March 2017) which shall include a summary on the implications of the HWP, supporting consultations and recent case law. Please contact Victoria Wozencroft - Leicester (victoria.wozencroft@howespercival.com), Harriet Green – Cambridge (harriet.green@howespercival.com) or Katrina Tipler - Norwich (katrina.tipler@howespercival.com) to book a place at any of these seminars.