The “No Scheme World”

At long last the government has decided to grasp the nettle and tackle the difficult issue , the concept of the “no scheme world”. It proposes to do this by introducing the concept of the “ statutory project”, which is the terminology used by the Law Commission in its report in 2003. It is to be assumed that the statutory project, or the scheme, to use more familiar terminology, will be the area covered by the cpo unless this is made clear by the acquiring authority at the outset. This is usually done in the statement of reasons and the purposes set out in the order. To date the secretary of state has taken the view that he has limited powers to amend the purposes of a cpo and if they are defective the cpo will not be confirmed. The extent of the scheme as contemplated in a cpo may be extremely important to a landowner when it comes to assessing compensation. However, it is well accepted that issues relating to compensation are not matters to be determined by the secretary of state when deciding whether or not to confirm a cpo.

The Law Commission proposals contemplate any dispute about the scheme being determined by the Upper Tribunal ( Lands Chamber). It is not clear as to the weight which the Tribunal would give to a confirmed CPO which “defined” the extent of the scheme in its purposes and/or statement of reasons and whether this would be determinative. Alternatively what would be the consequences if the Tribunal, when hearing a compensation case, presumably well after the cpo had been confirmed and implemented, ( on grounds that inter alia the scheme was viable based perhaps in part  on anticipated land acquisition costs) determined that the scheme was not the greater area promoted by the acquiring authority but a smaller area. This could have the effect of increasing compensation significantly if infrastructure recently constructed outside the now reduced scheme has had the effect of significantly increasing the value of land within the scheme.

We wish the government good luck in dipping its foot in this murky pond. We think there are no easy solutions but as a starting point there may be a need for a more flexible approach to dealing with the scheme at a public inquiry. However, our experience is that planning inspectors, who are the people who normally hear cases at public inquiry will be looking forward to dealing with arguments about the scheme like a hole in the head. The Civil Servant selected to write the circular advice on the application of the new rules should certainly be seeking a bonus if he/she is able to come up with clear guidance on the approach to be adopted.

Further reforms to the law of Compulsory Purchase, what lies behind them?

The law of compulsory purchase and compensation was introduced at the start of the industrial revolution to aid the construction of railways and canals. Until recently it had changed very little and many of the old statutes are still in force. Over the years there have been calls for root & branch reform and in 2003 the Law Commission produced a report outlining comprehensive reform. This was shelved by the Labour Government at the time as being too difficult to implement. In more recent times the government has recognised that compulsory purchase is a tool to help them “get things done” and the Treasury in particular is keen to introduce reforms , a number of which have just come into law in the Housing and Planning Act . Yet more are now proposed in the Neighbourhood and Planning Bill. Striking a balance between the interests of the state and the rights of the individual are never more sharply contrasted than in compulsory purchase.

For many years successive governments have sought to stimulate investment in various parts of the country by providing grant funding to cover the gap on marginal schemes to kick start investment in deprived areas, sometimes with help from the EU. This is at the heart of regeneration and the thinking behind this investment was that it would encourage other businesses to invest alongside the “flagship” investment so that not only did the area benefit from the initial investment but there was a ripple effect in the surrounding area as it began to “regenerate”. Many of our towns and cities have benefitted from this positive planning policy.

However there is a new line of thinking coming over the horizon, led by the Treasury who are looking for value for money in return for the expenditure now being contemplated  by government in major infrastructure projects in the UK. Where there is, for instance, a major infrastructure upgrade at say a station, then the effect may be to increase land values in the immediate vicinity in response to this investment. At present the landowner benefits from this uplift and can realise it when selling his land to a developer. The latest thinking is that local planning authorities could follow the infrastructure upgrade and compulsorily acquire key land for development but pay a level of compensation which ignores this uplift. It remains to be seen whether this new approach will encourage regeneration or whether land around transport hubs may be blighted as developers wait to see whether or not a local planning authority will proceed with a “complimentary scheme”. Hope value may in future take on a whole new meaning.

Office to Residential Permitted Development Rights: Central London

The Mayor of London’s office has issued new Supplementary Planning Guidance (SPG) on the Central London Activities Zone to help central London Boroughs avoid the office to residential permitted development rights, following the Government announcement that the current exemption in central London will end in May 2019.

The Mayor’s office believe that valueable office space in the area has recently been lost to new housing, which it is concerned could impact upon London’s economic success in the future.

The SPG provides advice from the Mayor for putting together the necessary evidence for a successful Article 4 Direction.


Permitted Development Rights – April 2016 amendments (Mineral PD rights)

I blogged earlier this week about the changes to permitted development rights being brought in by the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2016. In that blog I reported on rights to enable further changes of use to dwellinghouses from offices, launderettes and light industrial uses. This blog considers the changes being brought in in relation to mining and mineral exploration permitted development rights.

From 5 March to 16 April 2015 the Government undertook a consultation seeking views on proposals to amend permitted development rights for mining and mineral exploration to enable the drilling of boreholes for groundwater monitoring for petroleum exploration.  Following consideration of the consultation responses a feedback report was published on 13 August 2015 whereby the Government noted that it would amend permitted development rights to allow for the drilling of boreholes for groundwater monitoring for petroleum exploration.

The Government then immediately launched a second consultation which ran from 13 August to 24 September 2015.  That second consultation sought views on further amendments to permitted development rights for petroleum exploration for the drilling of boreholes for seismic investigation and monitoring, for the location and appraisal of shallow mine workings and in relation to the extension to 24 months (from 6) for the duration of the proposed new permitted development rights for groundwater monitoring.  The Government published its response to this second consultation in December 2015.

The amendment order published last week takes forward the outcome of these two consultations.

The existing mining and mineral exploration permitted development rights are set out in Part 17 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015.  Articles 12, 13 and 14 of the 2016 amending order will permit, subject to conditions and limitations, the drilling of boreholes for the purposes of:

  • carrying out groundwater monitoring;
  • carrying out seismic monitoring; and
  • locating and appraising the condition of mines.

This is provided that these works are preparatory to petroleum exploration.

The development may take place for a period not exceeding 28 consecutive days under new permitted development right Class JA of Part 17 (temporary use of land etc in respect of petroleum exploration).  However, a further new permitted development right, Class KA of Part 17 (use of land etc in respect of petroleum exploration), enables the developer to have the benefit of the permitted development right for a longer period of time. The developer must notify the relevant mineral planning authority in writing of its intentions and then the permitted development may take place for a period not exceeding 24 months (drilling of boreholes for groundwater monitoring) or 6 months (all other cases) unless the mineral planning authority agrees otherwise in writing. It is possible for authorities to restrict the rights otherwise permitted under Class KA.

The height restriction on any structure assembled or provided in respect of such permitted development is increased from 12 metres to 15 metres.

Development under the existing Class J (temporary use of land etc for mineral exploration) will no longer be permitted in the Broads.  It is already not permitted within a National Park, an area of outstanding natural beauty, a site of archaeological interest or a site of special scientific interest.

The amendments to the mining and mineral exploration permitted development rights have been broadly welcomed by those in the shale gas industry.

Permitted Development Rights – April 2016 amendments (changes of use to dwellinghouses)

Amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the 2015 Order”) were laid before Parliament at the end of last week. The amending Order can be viewed here and it comes into force on Wednesday, 6 April 2016.

The amendments cover two main areas comprising further changes of use to Dwellinghouses (Use Class C3) as well as amendments in relation to minerals permitted development.

Changes of use to C3 Dwellinghouses

(i) Offices

On 13 October 2015 the Planning Minister issued a statement in relation to the temporary office to residential permitted development rights.  He announced that they were to be made permanent but with some significant amendments.  My blog post of 14 October provided the details from that Government statement.

The Order issued in Parliament last week amends the existing Class O of Part 3 of Schedule 2 to the 2015 Order to bring forward a number of changes to office to residential PD rights.

There are 17 local authorities that have areas which are exempt from the current office to residential permitted development rights.  Those areas are referred to as Article 2(5) land and are listed in Part 3 of Schedule 1 to the 2015 Order.  Those areas will remain exemption areas until 30 May 2019.  After that date LPAs will need to make an Article 4 Direction to remove the office to residential permitted development rights.

An applicant currently has to apply to the LPA for a determination as to whether the prior approval of the authority will be required in relation to (i) transport and highways impacts of the development (ii) contamination risks on site and (iii) flooding risks on the site.  A new topic for determination has now been included (which was not referred to in the October 2015 statement) whereby an applicant must apply to the LPA for a determination as to whether prior approval will be required in relation to the impacts of noise from commercial premises on the intended occupiers of the development. “Commercial Premises” are widely defined.

The permitted development right imposes a condition requiring that the change of use must be completed within a period of 3 years starting with the prior approval date.  The prior approval date is defined as (i) the date prior approval is given by the LPA, or (ii) the date a determination is made by the LPA that prior approval is not required, or (iii) the expiration of the time in which the LPA should have notified the applicant that prior approval is required, or is given, or is refused – currently 56 days from the date on which the LPA received the prior approval application.

A proposal set out in the October 2015 statement to widen the permitted development right to enable demolition of office buildings and the building of new residential developments has not been taken forward.

(ii) Launderettes

Class M of Part 3 of Schedule 2 to the 2015 Order has been expanded to permit a building currently used as a launderette to change use to C3 dwellinghouse.  It will also permit building operations that are reasonably necessary to convert the building to be carried out.  Class M includes a number of restrictions on the use of the PD right and a number of conditions – these will also be applied to launderette changes of use.  Advance notice of this change was given in the October 2015 statement.

(iii) Light Industrial Use

A new 3 year temporary right to change from light industrial (B1(c)) use to dwellinghouse (C3) is to be brought in via a new Class PA of Part 3 of Schedule 2 to the 2015 Order. The change of use is limited to a  building with a gross floorspace of 500 square metres or less.  There are restrictions in terms of the site and the premises including that the PD right will not apply if the building is listed or is within the curtilage of a listed building.

An application will have to be made to the LPA for a determination as to whether prior approval will be required as to transport and highway impacts of the development and contamination and flooding risks in relation to the building. In addition, a statement will have to be submitted addressing whether the introduction of, or an increase in, residential use of premises in the area would have an adverse impact on the sustainability of the provision of  industrial, storage or distribution services in that area where the change is in an area regarded as “important” for these activities.

No applications in respect of this PD right are to be accepted on or before 30 September 2017.  Councils therefore have time to bring forward Article 4 directions to remove the PD right should they decide this would be appropriate.

The change of use must be completed within a period of 3 years starting with the prior approval date.

(iv) Statements

A developer changing the use of a building to residential use pursuant to classes M, N, O, P, PA and Q of Part 3 of Schedule 2 to the 2015 Order will have to supply to the LPA a statement with the prior approval application specifying the net increase in the number of dwellinghouses proposed by the development alongside its application for determination as to whether prior approval will be required.  For the avoidance of doubt, this does not apply to applications made on or before 5 April 2016.


Developers and funders will welcome the fact that details have now been issued following the Government’s October 2015 announcement about office to residential PD rights.

A further blog will be issued shortly in relation to the amendments to mineral permitted development rights.

Technical Consultation on Implementation of Planning Changes

On the 18th February 2016 DCLG published a 64 page “Technical Consultation on implementation of planning changes“.  The proposals relate to England only and the Consultation closes on 15 April 2016.

The Consultation states that it is seeking:

“..views on the proposed approach to implementation of measures in the Housing and Planning Bill, and some other planning measures. Responses to the consultation will inform the detail of the secondary legislation which will be prepared once the Bill gains Royal Assent.”

The Consultation then sets out 12 chapters of planning proposals and raises 77 consultation questions.  Additionally, a 13th chapter raises 2 questions relating to the Equality Act 2010.  A summary of some of the main elements of each of chapters 1-12 of the Consultation are set out below.

Planning Fees (Chapter 1)

Planning fees are set nationally.  They were last revised, in line with inflation, in 2012.  The Government proposes to increase fees on an annual basis linking that increase both to inflation and performance whereby under-performing authorities would not obtain the fee increase or only those in the top 75% of performance (based on speed and quality of decisions) would benefit from the increase.  Consideration is also being given to setting fees at a local level in exchange for a fast track service or where there is competition in application processing (see further in Chapter 8).

Permission in Principle (Chapter 2)

The Housing and Planning Bill introduced the concept of a Permission in Principle and a Technical Details Consent (see blog post of 16 October 2015) which together will comprise planning permission for a site. The Bill sets out that Permission in Principle would be granted:

  • on allocation in a locally supported qualifying document that identifies sites as having Permission in Principle and which contains “prescribed particulars” (the core “in principle” matters that will form the basis of the Permission in Principle); or
  • on application to the local planning authority.

It is not until Technical Details Consent stage that conditions can be imposed by the local planning authority and s.106 obligations and CIL will apply.

Whilst the Bill sets out the framework for Permission in Principle, details will be set out in a Development Order.  The Consultation seeks views on 8 areas of detail including which locally supported qualifying documents can grant Permission in Principle on allocation.  The proposal is for future local plans, future neighbourhood plans and brownfield registers to be the relevant qualifying documents.  Interestingly the Government is considering expanding the form of development which can benefit from Permission in Principle to include “major” development.  It had previously stated in the accompanying notes to the Bill that it would apply to minor housing development involving the creation of fewer than 10 units.

It is proposed that “in principle” matters only would be determined in relation to a Permission in Principle, these matters being:

(i) location (a red line site plan including parameters (details of the proposed parameters are not specified in the Consultation)),

(ii) uses (housing led development, not simply housing development), and

(iii) amount of development (a minimum and maximum level of residential development that is acceptable and the amount of non-residential development will not have to be specified).

Anything other than the above would be determined at the later Technical Details Consent stage. Appeal mechanisms will be brought in in relation to Permission in Principle applications and Technical Details Consents.

The consultation notes that the requirements of the EIA Directive and the Habitats Directive will still need to be adhered to.

The Consultation proposes timescales for determination of Permission in Principle applications and Technical Details Consents as well as proposed durations of a Permission in Principle (on allocation and separately on application) and the Technical Details Consent.

Brownfield Register (Chapter 3)

Brownfield Registers are proposed to be one of the qualifying documents to grant Permission in Principle.  Brownfield registers are to comprise a list of brownfield sites that are suitable for housing, this is to include housing-led schemes where the housing element is the predominant use.  The register should be available at Council offices and on-line and the Consultation proposes that the register should include:

  • site reference
  • site name and address
  • grid reference
  • size (in hectares)
  • an estimate of the number of homes (in a range of provision) that the site would be likely to support
  • planning status
  • ownership.

In order to identify suitable sites for brownfield registers, the Consultation proposes that an up-to-date Strategic Housing Land Availability Assessment (“SHLAA”) should form the starting point as well as other relevant sources. Regulations are proposed which will set out criteria for establishing whether a site should be regarded as suitable for housing.  The criteria are that the site is available, capable of supporting five or more dwellings or more than 0.25 hectares and capable of development.

In assessing progress towards the Government’s target of 90% of sustainable brownfield sites having planning permission by 2020, measures could be put in place that would mean that LPAs that fail to make sufficient progress towards the brownfield objective would be “unable to claim the existence of an up-to-date five year housing land supply when considering applications for brownfield development, and therefore the presumption in favour of sustainable development would apply.”

Small Sites Register (Chapter 4)

The Housing and Planning Bill contains a power to make regulations requiring local planning authorities in England to keep and publish  a register of particular types of land in the authority’s area.  The Consultation proposes the establishment of small sites registers for sites of 1-4 plots in size. The Government’s aim is to assist self-build and custom housebuilding.  The sites would not have been assessed for their suitability for development.  The register would simply include details of the location of the site, approximate size and owner contact details.

Neighbourhood Planning (Chapter 5)

Proposals are set out for restricting the ability of local planning authorities to amend the boundary of the neighbourhood area applied for, in limited circumstances; for setting various time periods for LPA decisions on neighbourhood planning and the procedures to be followed where the Secretary of State chooses to intervene in sending a plan or Order to a referendum.  It is also proposed that existing Regulations will be amended to include designated neighbourhood forums as consultation bodies for the purpose of local plan preparation where it is considered that the forum may have an interest in the preparation of the local plan.

Local Plans (Chapter 6)

The Government proposes to prioritise intervention in local plan preparation where:

  • there is under delivery of housing in areas of high housing pressure;
  • the least progress in plan-making has been made;
  • plans have not been kept up-to-date;
  • intervention will have the greatest impact in accelerating local plan production.

LPAs will be able to cite exceptional circumstances which they consider make it unreasonable for Government intervention in the plan making process at that time. General “exceptional circumstances” tests are proposed.

Expanding the approach to planning performance (Chapter 7)

The Consultation seeks views on:

  • the revised thresholds for assessing the quality of performance on applications for major development and new thresholds for non-major development for both speed and quality;
  • the approach to designation and de-designation for non-major development; and
  • which applications may be submitted to the Secretary of State in areas that are designated for their handling of non-major development.

The proposed thresholds for non-major development are:

  • speed of decisions: where authorities fail to determine at least 60-70% of applications on time over the two year assessment period they would be at risk of designation;
  • quality of decisions: where authorities have had more than 10-20% of their decisions on applications for non-major development overturned at appeal, they would be at risk of designation.

For major development, the speed of decisions threshold has been raised to 50% made on time and the Government confirms that this will be kept under review.  In terms of the quality of decisions, this has remained at 20% since 2013. The Autumn Statement proposed a reduction to 10% of decisions on applications overturned on appeal and the Consultation seeks views on this.

Testing competition in the processing of planning applications (Chapter 8)

The Housing and Planning Bill contains powers to enable the testing of competition in the processing of planning applications.  A pilot is proposed in a number of specific geographic areas, for a limited time, whereby a planning applicant would be able to apply either to the LPA or to an “approved provider” to have their planning application processed. Decisions would remain with the LPA but the processing of the application, consultation, s.106 negotiation, EIA screening and the issuing of a report with a recommendation to the LPA could be carried out by the approved provider. Fees could be self-set or operate within a range set by Government. The LPA would have to make a decision within 1-2 weeks of receipt of the approved provider’s report and recommendation.

Information about financial benefits (Chapter 9)

Planning Practice Guidance has been amended to make it clear that local finance considerations may be cited in reports to committee, even where they do not constitute a material planning consideration.  However, Government remains concerned that potential financial benefits are still not being fully set out.  The Housing and Planning Bill contains a clause which requires “local finance considerations” (section 70 Town and Country Planning Act 1990) to be listed in reports to committee.  The Consultation notes that other financial benefits should also be listed in planning reports and the Bill enables Regulations to prescribe those other financial benefits. A consultation question also queries which other financial benefits should be listed that are paid to bodies other than the Council making the planning decision – for example, shale gas community benefit payments.

Section 106 dispute resolution (Chapter 10)

It is proposed that the dispute resolution procedure should apply to all planning applications where there are unresolved issues relating to section 106 agreements. It is proposed that the existing 8/13/16 week statutory timeframes should be the time limits before the dispute resolution process can be triggered by the applicant, the LPA or another party listed in regulations. The dispute resolution process would be undertaken by an independent body on behalf of the Secretary of State and there would be a 2 week cooling off period following a request to initiate the dispute resolution process. It is  proposed that the costs of the process would be shared evenly between the LPA and the applicant unless one party fails to engage or otherwise acts unreasonably.

Permitted Development Rights for State Funded Schools (Chapter 11)

There is a Government commitment to open at least 500 new state-funded free schools during this Parliament.  Increasing the current permitted development rights for new state-funded schools and the expansion of current schools is proposed to assist in this delivery.  The proposals involve:

  • extending from 1 to 2 academic years the existing temporary right to use any property within the use classes for a state-funded school;
  • increasing from 100m² to 250m² the threshold for extensions to existing school buildings (but not exceeding 25% of the gross floorspace of the original building);
  • allowing temporary buildings to be erected for up to three years on cleared sites where, had a building not been demolished, the existing permitted development right for permanent change of use of a building to a state funded school would have applied.

Changes to Statutory Consultation on planning applications (Chapter 12)

Statutory consultees are under a duty to respond to the LPA within 21 days (or a longer period if agreed with the LPA) and to provide a substantive response to the application concerned.  Data obtained indicates that statutory consultees  requested an extension of between 7-14 days to respond in 5-12% of cases. The Government is considering imposing a maximum period to any extension sought and that that period should be 14 days.

This is an extensive Consultation and the document merits a detailed review as there are a number of potentially far reaching proposals.


Planning and Housing Bill 2015 – Starter Homes

The Planning and Housing Bill is now reaching the later stages of its passage through the House of Lords. Affordable housing measures, including Starter Homes, continue to dominate the headlines.

The definition of Starter Homes is set out in clause 2 of the Planning and Housing Bill and comprises the following:

  • A new dwelling (a new build that has not been previously occupied or part of a building adapted for use as a single dwelling which has not been occupied since its adaption)
  • Available to purchase by qualifying first time buyers (a person who has not previously purchased freehold or leasehold (over 21 years) residential property in the UK, or its equivalent elsewhere in the world) under the age of 40
  • Sold at a discount of at least 20% of the market value
  • Price capped at £250,000 outside of London and £450,000 in London (net of reduction)
  • Subject to any restrictions on sale or letting as specified in Regulations made by the Secretary of State – at present a purchaser will be unable to sell on the dwelling at market value for a period of 5 years – any resale in the 5 year period following purchase must be at the reduced price.

English planning authorities will have a duty to promote Starter Homes in England and will be required to have regard to any guidance given by the Secretary of State when carrying out that duty. The Bill states that Regulations under clause 4 of the Bill may, for example, provide that a planning authority may only grant planning permission for residential development if a planning obligation has been entered into to provide a certain number of Starter Homes or to pay a contribution to be used to provide Starter Homes.

A lot of the detail for how Starter Homes will work in practice has been left to Regulations. However, amendments to the Bill tabled by the House of Lords so far seek to flesh out some of the detail of the Bill now, rather than leaving this to Regulations. Their Lordships are seeking that the discount applied to Starter Homes should apply to future sales of each dwelling in perpetuity – rather than for just 5 years, for local connection criteria to be applied to purchasers of Starter Homes and to require that Local Authorities have a duty to promote all forms of affordable housing, rather than just Starter Homes.

The Bill is presently at Committee Stage in the House of Lords with the next session timetabled for 1 March 2016. Report stage, where voting on amendments takes place, is due later in March.

Points to consider:

What impact will Starter Homes have on other affordable housing tenures? Might Starter Homes be favoured over other affordable tenures such as social rented housing or shared ownership?

Will a 10% deposit be required in order to secure the purchase of a Starter Home? This may still leave Starter Homes out of the reach of many first time purchasers.

Will the ability to sell on a Starter Home at full market value after a period of 5 years remain in the final drafting? Commentators are concerned that this short term restriction may mean that purchasers could benefit from a windfall on a resale after a relatively short period of time and that such Starter Homes could then be ‘lost’ to the open market.

There are lots of questions, such as the above, which are worthy of further consideration. The discussions taking place within the House of Lords will be watched with interest by many. We will blog further on this matter as developments take place.

Housing and Development Consent Orders

My blog post of 16 October summarised the main planning proposals in the Housing and Planning Bill as introduced in the House of Commons on 13 October 2015.  On 28 October the Government published a briefing note entitled “Nationally Significant Infrastructure Projects and Housing”. This blog reviews the contents of that briefing note.

Clause 107 of the Housing and Planning Bill proposes amendments to section 115 of the Planning Act 2008 thereby enabling applications for development consent to include “related housing development”.  The power for the Secretary of State to grant development consent for projects including housing will not apply to any project in Wales, only those in England.

I noted in my earlier blog post that guidance would be produced by the Department for Communities and Local Government.  The briefing note published earlier this week includes the draft guidance.

The draft guidance re-states the position that projects which only comprise housing will not be granted development consent.  Housing will only be consented if there is a functional need or it is in geographical proximity to the nationally significant infrastructure project which is the subject of an application for development consent in England.

Maximum amount of housing that may be consented

Where housing is being included in the application as a result of geographical proximity then the maximum amount of housing that may be consented is 500 dwellings.  The draft guidance states that in order not to undermine the local planning process “it is very unlikely that the Secretary of State will consent more than 500 permanent dwellings for a single nationally significant infrastructure project.”

Where the housing is provided on the basis of functional need the maximum amount of housing that may be consented is also 500 dwellings. The draft guidance, however, states that “more than 500 dwellings may be consented for the construction phase of the project as long as these are subsequently converted so that the number of permanent dwellings after any conversion is 500 or less.  The requirement for conversion should be included within the Development Consent Order.”

The provision of temporary accommodation (such as for construction workers) is not altered by the provisions of the Housing and Planning Bill, it is classed as associated development and will normally be expected to be removed or demolished once the construction of the infrastructure project has been completed.

Where there are specific policies in the NPPF (National Planning Policy Framework) that indicate development should be restricted, then a lower number of dwellings or no housing at all is likely to be appropriate.  The draft guidance refers to areas including ecological sites, designated heritage assets, locations at risk of flooding or coastal erosion and green belt.

Affordable Housing and Starter Homes

If housing is included based on geographical proximity (not functional need) then a percentage of affordable housing is expected to be included, the percentage to be in accordance with policies in the local plan.   There should also be an element of starter homes. Both affordable and starter home provision should be secured via a section 106 agreement.

Location of housing

Where housing is being provided on the basis of geographical proximity it will need to be located:

  • on the same site as the infrastructure; or
  • next to the infrastructure; or
  • close to any part of the infrastructure (“close to” is defined as up to 1 mile away).

Where housing is being provided on the basis of functional need, it will normally need to be located close to the infrastructure project.  However, the draft guidance states that if a large amount of housing is being provided for construction workers then it may be more appropriate to site this away from the immediate vicinity of the infrastructure project but its location will need to be justified.


The draft guidance states that the housing element of an application for development consent will be likely to need examination as a discrete entity.

Section 35 Direction

Where a request is made under section 35 of the Planning Act 2008 for a direction from the Secretary of State that a project should be placed within the NSIP regime then the Secretary of State will consider whether the infrastructure is of national significance.  The draft guidance states that housing will not form part of this assessment and, therefore, will not influence whether a direction is given by the Secretary of State or not.

Details of housing to be submitted with an application for development consent

When an application for development consent is submitted which includes an element of housing then details should be submitted consistent with those that would be submitted if an application for detailed (not outline) planning permission were being sought.  In addition, a one page summary of the housing element of the application must be submitted.

Recommendation and Decision

The Examining Authority can recommend to the Secretary of State that the housing element of an application for development consent should be refused.  Equally, when the Secretary of State makes a decision as to whether or not to grant development consent he may grant consent for the infrastructure but refuse consent for some or all of the housing if it is considered that “the adverse impact of the housing outweighs the benefits of the development as a whole“.

Changes to a DCO

Finally, where changes are made to a development consent order after it has been granted, if those changes include a significant amount of housing, where there was none or very little before, then it is likely that a fresh application for development consent will be required rather than constituting a change to the existing DCO.

Progress of the Housing and Planning Bill

It is proposed that a final version of the guidance (amended as necessary) will be published once the Housing and Planning Bill has been enacted.

The Bill is at the early stages of its Parliamentary process.  Second Reading is scheduled for Monday 2 November when general principles of the Bill will be debated in the House of Commons before detailed scrutiny of the Bill takes place at the Committee stage.

Further blog posts will follow as the Bill makes its way through the Parliamentary process.



The Housing and Planning Bill – CPO

Further to our previous post on The Housing and Planning Bill, this blog focuses on Part 7 of the Bill – Compulsory Purchase etc. Some of the main points to note from this part of the Bill are:

Survey Powers

The Bill introduces a new general power of entry for survey purposed for all acquiring authorities, providing wider powers for those promoting CPOs.

Timetable for CPOs

The Bill proposes amendments to s.14 of the Land Acquisition Act 1981 and requires that the Secretary of State provide a timetable for the steps to be taken by the confirming authority to confirm an order.

Timeframe for exercising CPO powers

These Clauses extend the current time periods required for taking possession, whether by general vesting declaration or by notice to treat, to 3 months from the requisite notice. This also gives both processes the same timeframe for taking possession, which is not the case at present.

The Clauses also provide clarification on the changes/extension of the 3 month time period in certain circumstances, including but not limited to when new interests are discovered after the requisite notices have been served and also the ability for landowners to serve counter notices if the acquiring authority does not take possession on the date specified in the notice.

Advance Payments

Substantial changes to the advance payment system are proposed, including:

  • Greater clarity in S.52(2) of the Land Compensation Act 1973 of the information to be included in a request for an advance payment;
  • For the acquiring authority to request further information (if required) within 28 days of the advance payment request being submitted;
  • Allows the acquiring authority to make an advance payment once the CPO has been authorised and a request for an advance payment has been submitted.

The time frame for making the payment is within 2 months of: the request being made; or the receipt of further information; or on the day notice to treat is given; or when the acquiring authority makes the general vesting declaration – whichever if the later.  Should the acquiring authority fail to make the advance payment in accordance with this time frame, interest will become payable.

Material Detriment

The intention of the Bill is to provide a common approach to material detriment, whether the land is being acquired by general vesting declaration or notice to treat, to allow the acquiring authority to enter and take possession of the land they are authorised to take before dispute on the material detriment has been determined by the Upper Tribunal.

Overriding Covenants

The Bill proposes to extend the existing powers to override easements and restrictive covenants to acquiring authorities who do not currently have such powers.


It is clear that, once the Bill is enacted, there will be some wholesale changes to the CPO process. We will have to see how these changes will work in practice.


The Housing and Planning Bill

The Housing and Planning Bill was presented to Parliament for its first reading earlier this week (13th October 2015).  A date for the second reading, when the general principles of the Bill will be debated, has not yet been timetabled.

The Bill is divided into 8 Parts:

1. New Homes in England

2. Rogue Landlords and letting agents in England

3. Recovering abandoned premises in England

4. Social Housing in England

5. Housing, Estate Agents and Rentcharges: Other changes

6. Planning in England

7. Compulsory Purchase etc.

8. General

This blog focuses on key elements of Part 6, Planning in England (Bill clauses 92-110 (inclusive)).

Neighbourhood Planning

The clauses in the Bill propose amendments to the Town and Country Planning Act 1990 (“the 1990 Act”) to speed up the designation of neighbourhood areas and to give the Secretary of State powers to intervene in the preparation of neighbourhood plans.   In terms of the Secretary of State’s intervention powers, clause 94 (which inserts a new section 13B into the 1990 Act) would enable the Secretary of State to:

“…direct the local planning authority to act in a way that is not in accordance with what was recommended by the [neighbourhood plan] examiner…”.

This power would be exercisable if there were to be new evidence (in whole or part) or a new fact or “a different view taken by the Secretary of State as to a particular fact”. If this action was taken it could lead to an examination on the issue.

Local Planning

The Secretary of State’s powers are reinforced within the area of Local Plan examination as well. Powers are proposed which would enable the Secretary of State to give notice to the person appointed to carry out the examination whereby the Secretary of State could, amongst other matters:

direct the person not to take any step, or any further step, in connection with the examination of the development plan document, or of a specified part of it, until a specified time or until the direction is withdrawn”.

A new section 27 is proposed to be substituted for the existing section 27 of the Planning and Compulsory Purchase Act 2004 regarding the Secretary of State’s default powers.  The section will apply, as it does at present, if the Secretary of State considers that the LPA are:

failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document.”

In that situation the Secretary of State currently has the power to prepare or revise the document (at the LPA’s expense) and to hold an independent examination. The proposed new section retains existing powers but expands on them so that the Secretary of State will be able to give directions to the LPA in relation to the preparation or revision of the document ultimately leading to the holding of an independent examination.

The costs of an independent examination of a development plan document which has been caused to be held as a result of the new section 27 will be recoverable by the Secretary of State from the LPA.

Planning Powers of the Mayor of London

The July 2015 Productivity Plan “Fixing the Foundations: Creating a more prosperous nation” stated that further devolution of planning powers to the Mayor of London in relation to wharves and sightlines would take place (see blog post of July 20th 2015).  Amendments proposed in this Bill pave the way for secondary legislation to be brought in to give effect to that Plan commitment.   In addition, the powers of the Mayor to “call in” applications for his own determination and for London Boroughs to consult the Mayor before granting planning permission are broadened.

Permission in principle and local registers of land

A new section 58A of the 1990 Act is to be introduced in England to bring forward “permission in principle” which, when combined with a new “technical details consent” (possibly akin to a reserved matters approval) would lead to the grant of full planning permission.

A development order would grant permission in principle to land that is allocated for development in a qualifying document (details of which documents would be qualifying documents would be set out in the order).  The notes that accompanied the Bill state that the Government intends that, initially, only land allocated in the Brownfield Register, Development Plan documents and Neighbourhood Plans would be capable of obtaining permission in principle.  The Order would also set out the type and scope of development that would be granted permission in principle.  Again, the Government states that they anticipate this will be limited to sites suitable for housing (i.e. its use) but also location and quantum of development.

Amendments will be required to the Town and Country Planning (Development Management Procedure) (England) Order 2015 to bring these changes into effect, setting out the process for applicants and LPAs to follow and the types of development that could take advantage of the new process as well as the process for an application for technical details consent.  The accompanying notes to the Bill state that it is:”..the Government’s current intention…to limit the type of development to minor housing development (the creation of fewer than 10 units).”  A consultation is proposed in relation to the application process for a technical details consent.  It is understood that it will not be possible for a permission in principle to impose conditions, any conditions must be imposed on the later technical details consent.

Brownfield Land Register

The Bill provides for the Secretary of State to make regulations to require LPAs in England to “prepare, maintain and publish” a register of land of a prescribed description or which satisfies prescribed criteria.  This is the Brownfield Land Register which was trailed in the Chancellor’s July Productivity Plan.  This change links back to the introduction of permissions in principle which, as noted above, will apply to sites within a Brownfield Land Register.

Miscellaneous amendments

PD Rights:

A proposed change to section 60 of the 1990 Act will enable development orders to require the approval of the LPA or the Secretary of State to any matters related to the building operations or use of the land following those operations.

Permissions direct to the Secretary of State:

A widening of the categories of development by which an LPA is designated for its performance is proposed.  Also regulations will set out types of applications that may not be made direct to the Secretary of State. The notes accompanying the Bill suggest that if an LPA is designated in respect of its performance in determining non-major applications, then it might be appropriate for minor applications still to be determined at a local level.

Financial benefits:

A new section 75A of the 1990 Act would require LPAs to set out in their reports to committee a list of financial benefits likely to be obtained by the authority if the proposed development were to be carried out.  The financial benefit must be recorded whether or not it is material to the LPA’s decision with regard to the planning application although its materiality, or lack of, will need to be identified.


The much trailed inclusion of housing within an application for development consent in England is now included as a proposed amendment to section 115 of the Planning Act 2008.  It does not enable pure housing projects to be able to apply for development consent, the housing must be linked to the application for the nationally significant infrastructure project (functionally or geographically). As the Bill states it must be “related housing development”. Guidance will be produced by the Department for Communities and Local Government setting out details of the amount of housing that may be granted consent via the development consent process.

Urban Development Corporations: Changes are proposed to be made to orders establishing urban development corporations in England.  New consultation requirements and parliamentary procedures are proposed.


The Planning and Housing Bill is a wide ranging Bill.  This blog only covers a small section of the amendments and new processes proposed by the Bill.  However, even reviewing this one Part of the Bill demonstrates that, when enacted, the changes brought in will be widespread.

We will be following the passage of the Bill through both Houses of Parliament and will blog further on matters as they arise.