Housing and Planning Act 2016

As most readers are no doubt aware, the Housing and Planning Act 2016 was passed on 12 May. Many of the Act’s provisions will not come into force until the making of a commencement order, and we can no doubt look forward to a series of these commencement orders dribbling out over the coming months, and even years.

I am concentrating here solely on Part 6 of the Act, where most of the planning provisions are to be found (sections 139 to 171), but two important provisions relating to planning permission for the provision of starter homes and the duty to grant planning permission for self-build and custom housebuilding are to be found in sections 5 and 10 respectively (although both of these sections must await an appropriate commencement order before they are brought into force, with the relevant subordinate legislation). I am going to confine myself for the time being to those provisions in Part 6 that took immediate effect on 12 May, and I will also mention some other sections that will come into force on 12 July.

Sections 139 to 142 deal with neighbourhood planning. Sections 139 and 140 are now in force. These simply make minor procedural changes to the neighbourhood planning process, and I wonder whether they might in fact be overtaken by the further provisions that are now promised in the new Bill which the government intends to introduce in the current parliamentary session.

Section 149, also now in force, gives additional powers to the Mayor of London over called-in planning applications. I suspect that this section was intended to give Boris even greater freedom to override the wishes of London Boroughs, but the election of Sadiq Khan may effectively have taken the sting out of this section.

Section 150 is the section that will introduce ‘permission in principle’ for the development of land, in the form of new sections 58A and 59A inserted in the 1990 Act, and it will make consequential amendments to section 70 of that Act. The importance of these provisions would justify a separate article, and so I won’t attempt to summarise them here. Sub-sections (1) to (3) will come into force on 12 July, but sub-sections (4) and (5) will have to await a commencement order. Subsection (4) will provide that no regulations may be made under section 59A(9) unless a draft of the instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament; and sub-section (5) will bring Schedule 12 of the 2016 Act into force. This will make additional minor and consequential amendments to the 1990 Act.

Section 151, which came into force on the passing of the Act, is a supreme paradigm of obfuscatory parliamentary drafting. If I had been paying attention as the Bill went through parliament or had read any of the issued briefing material, I might not be quite so clueless as to its meaning and effect, but all I can say without ferreting around to find the relevant explanation is that under this section the Secretary of State may make regulations requiring a local planning authority in England to prepare, maintain and publish a register of land within (or partly within) the authority’s area which is of a prescribed description, or which satisfies prescribed criteria. (Clear so far?) The regulations may make provision permitting the local planning authority to enter in the register land within (or partly within) the authority’s area which is of a prescribed description or satisfies prescribed criteria, but which is not required by the regulations to be entered in the register. (Are you paying attention at the back?) The regulations may require or authorise a local planning authority to carry out consultation and other procedures in relation to entries in the register, specify descriptions of land that are not to be entered in the register, confer a discretion on a local planning authority, in prescribed circumstances, not to enter in the register land of a prescribed description that the authority would otherwise be required to enter in it, require a local planning authority exercising the discretion referred to above to explain why they have done so, specify information to be included in the register, and make provision about revising the register. There’s more, but I won’t go on. It doesn’t get any better. (And no, I really don’t have any idea what this about.)

Section 152(1) also came into force with the passing of the Act on 12 May. It gives the Secretary of State power to make further provisions in the GPDO regarding operational development that is permitted by the Order. This is the power the Secretary of State needs in order to facilitate the proposed introduction of a permitted development right (in Part 3, Class O) for the demolition and reconstruction of offices. The purpose of the section is to allow the Secretary of State to prescribe additional matters requiring prior approval in this connection. As I pointed out in an earlier blog post, such additional requirements need not necessarily be confined to Class O, and it is possible that the GPDO could be amended to require the prior approval of additional matters where other operational development is permitted by various Parts and Classes in the Second Schedule.

Section 153 comes into force on 12 July. It amends the details of section 62A of the 1990 Act, which enables applicants for planning permission to apply direct to the Secretary of State in cases where the LPA has been made to sit on the Secretary of State’s ‘naughty step’, because of their allegedly poor performance in processing planning applications.

Section 157, already in force from 12 May, allows for the fees regulations made under section 303 of the 1990 Act to be varied so that different application fees may be charged in some areas compared with others. Without the addition of sub-section (8A) to section 303, any such local variations might lead to the regulations being treated as a hybrid instrument for the purposes of the standing orders of the House of Commons or of the House of Lords. Section 157 simply provides that any such statutory instrument is to be dealt with in parliament as if it were not a hybrid instrument.

Section 161, another section that came into force on 12 May, is one of the more controversial provisions in the Act. It enables regulations to be made by the Secretary of State to bring about the privatisation of development management services. At this stage it is proposed that where this occurs it will only be on a temporary basis as a pilot scheme in particular areas to test the practicality and desirability of competition in the processing (but not determining) of applications to do with planning. This is undoubtedly the thin end of a very thick wedge. The idea is that in specified LPA areas the applicant may, if they so choose, have their application processed, not by the authority but by a designated person. Sections 162 to 164 contain supplementary provisions.

I have already commented on the outsourcing of development management services by some authorities. The danger is that if great care is not taken, the delegation of the processing function may go too far, so that the application is, in effect, unlawfully pre-determined. I have previously drawn attention to a case in Dorset some years ago where a housing authority fell into this trap in relation to the processing of homelessness applications, resulting in the authority’s determination of the application being quashed by the court because its outsourced provider had in effect presented the authority with a cut-and-dried case, leaving the authority with no real discretion in the matter.

Finally sections 166 to 168 (also now in force) amend the procedure for the designation of urban development areas and the establishment of urban development corporations.

I will explore section 150 (‘permission in principle’) in a later post, but I shall postpone consideration of other provisions in Part 6 of the Act until the relevant commencement orders are made in due course.

© MARTIN H GOODALL

Yet another Planning Bill in the Queen’s Speech

It seems that a Bill that makes further changes to planning legislation is now an annual event. This year it is to be a “Neighbourhood Planning and Infrastructure Bill”

The very brief mention of the Bill in the Queen’s Speech has been supplemented by a briefing note from the government that doesn’t really give us much more to go on, although there is enough there to show that the contents won’t be exactly what it says on the tin. They seem to be a fairly miscellaneous rag-bag of further planning changes, and yet more changes to CPO procedures.

The meaningless guff about the purpose and alleged benefits of the Bill is best ignored. The headline provisions of the Bill relate to further amendments to the Neighbourhood Planning process which, it is claimed, will further strengthen neighbourhood planning and give “even more power” to local people. [Excuse my cynical snigger as I type this.] The new legislation, they say, would also strengthen neighbourhood planning by making the local government duty to support groups more transparent and by improving the process for reviewing and updating plans.

A more interesting proposal concerns the imposition of conditions on planning permissions. The intention is to ensure that pre-commencement planning conditions are only imposed where they are absolutely necessary. The government recognises that excessive pre-commencement planning conditions can slow down or stop the construction of homes after they have been given planning permission. The Bill will tackle the over-use, and in some cases, misuse of certain planning conditions, with the aim of ensuring that development, including new housing, can get underway without unnecessary delay. This deserves at least one small ragged cheer. LPAs have ignored ministerial advice on the appropriateness of planning conditions for far too long. Legislation is certainly needed to enforce this discipline on the planners.

In this Bill the government will also embark on yet another attempt to make the compulsory purchase order process clearer, fairer and faster. This will include reform of the context within which compensation is negotiated – often a very significant and complex part of finalising a compulsory purchase deal. The proposals are intended to consolidate and clarify over 100 years of conflicting statute and case law. The government hopes to establish a clear, new statutory framework for agreeing compensation, based on the fundamental principle that compensation should be based on the market value of the land in the absence of the scheme underlying the compulsory purchase (a long-established principle that is well understood by professionals practising in this field).

The opportunity will also be taken in this Bill to establish the independent National Infrastructure Commission on a statutory basis. Chronic under-funding of public infrastructure by successive governments has been a national disgrace for a generation. Unfortunately, past performance, coupled with the present government’s insane insistence on hair-shirt austerity does not engender any confidence in their willingness or ability to deliver the public infrastructure the country really needs, despite the fine words with which they have trumpeted the provisions of this part of the Bill.

Finally, the government intends in this Bill to press ahead with their controversial and dangerous proposal to enable the privatisation of the Land Registry (which handles the official registration of all landholdings in this country, and the official records of all transactions affecting land and buildings, including people’s own homes). The risks to property owners and to people buying or selling their home will be huge if this proposal goes ahead. This is one proposal in the Bill which I hope will be seen off by a combination of expert opinion and back-bench opposition. The government has already been forced into a series of U-turns in response to increasingly assertive back-bench opinion, compounded by their comparatively modest working majority in the Commons, and it is to be hoped that this is one more daft idea that will bite the dust. Aux barricades, citoyens!

© MARTIN H GOODALL

Class Q – Sustainability of location

Notwithstanding the clearly stated ministerial policy on this issue in the online Planning Practice Guidance, as revised in March 2015, there are still some LPAs that seek to resist permitted development under Class Q on the basis of ‘sustainability of location’. I am grateful to my correspondent William Ashley for drawing my attention to an example of this in a recent appeal in Sawbridgeworth (E. Herts DC), decided on 12 May 2016 [3140675].

There was no dispute in this case that the qualifying criteria of Class Q had been satisfied, and the LPA raised no concerns in relation to noise, contamination, flood risk, design or the transport or highways impacts of the proposal. The appeal therefore turned solely on whether or not the location or siting of the building made it otherwise impractical or undesirable for residential use.

The LPA submitted that the online PPG, as guidance, contravenes the NPPF (particularly paragraph 55) and that the unsustainable location could not be mitigated. The LPA claimed that their view was supported by (undisclosed) legal advice stating that its interpretation of the GPDO was correct as a matter of law, and they relied on paragraph W.10(b) of Part 3 that LPAs must have regard to the NPPF, so far as relevant to the subject matter of the prior approval, as if the application were a planning application. However, the Inspector rejected this narrow approach. The PPG (as updated in March 2015) is clear that Class Q does not apply a test in relation to sustainability of location, given the inherent rural location of agricultural buildings.

His view was that Class Q needs to be seen as part of a wider and more positive approach in considering appropriate opportunities, such as the re-use of rural buildings, to meet housing need in rural areas. This is reflected in paragraph 109 of the PPG as follows. “That an agricultural building is in a location where the local planning authority would not normally grant planning permission for a new dwelling is not a sufficient reason for refusing prior approval.”

On this basis, the Inspector found that the amended PPG on permitted development rights for the change of use of agricultural buildings, in a specific and defined way, complements the growth agenda advocated in the NPPF rather than necessarily introducing an in-built tension. He was not therefore persuaded that, in applying paragraph W.10(b) with regard to the NPPF, the provisions of paragraphs 108 and 109 of the PPG should be regarded as erroneous and that they should consequently be discounted.

In this particular case the appeal site was readily accessible, services could be made available and it was not truly isolated from other households. The Inspector was also satisfied that there were no agricultural operations or activities taking place nearby that might harm the living conditions of future occupiers. Accordingly, he considered that the location and siting were neither undesirable nor impractical, and so the provisions of Class Q(a) and (b) would be satisfied.

It occurs to me to wonder whether East Herts were deliberately looking for a fight in a case that they might possibly take on to the High Court. They have just under six weeks left now in which to apply for permission to proceed in the High Court. It all depends what counsel advises, if they are minded to take that course, although I would be surprised if such a challenge were to succeed, particularly bearing in mind the Inspector’s finding that this location was not in fact unsustainable in any event.

© MARTIN H GOODALL

Reduced affordable housing contributions upheld

In November 2014 the government published a written ministerial statement on affordable housing. The government’s online Planning Practice Guidance was subsequently amended to reflect this revised policy.

The new policy proposed that:

(1) developments of no more than 10 homes (with a gross floorspace not exceeding 1,000 sq m) would be exempted from levies for affordable housing and tariff-based contributions,

(2) but in designated rural areas, National Parks and AONBs, the exemptions would apply only to developments not exceeding 5 new homes; developments of 6 to 10 homes could pay a commuted sum, either at or after completion of the development;

(3) redevelopment of a vacant building, or its demolition for redevelopment, would give rise to a credit (calculated in terms of floorspace) that could be off-set against any affordable housing contribution.

Ministers were hoping by this means to assist in preserving the commercial viability of small housing schemes.

Two LPAs, West Berks DC and Reading BC, were so concerned about the implications of this policy that they challenged it in the High Court. They feared that they (and other authorities) would have to find even more housing land to counteract the effect of this new ministerial policy in potentially depriving their areas of sites that could otherwise contribute to affordable housing.

The two councils won in the High Court in July 2015, and secured the quashing of the new policy. However, the Court of Appeal has today handed down its decision on the appeal by the Secretary of State against the quashing order ([2016] EWCA Civ 441). The Court of Appeal has allowed the Secretary of State’s appeal on all four of his grounds of appeal.

Ground 1 - Inconsistency with the statutory scheme

On the one hand, a decision-maker must not fetter their discretion, but on the other hand, a policy-maker (notably central government) is entitled to express their policy in unqualified terms. They are not required to spell out the legal fact that the application of the policy must allow for the possibility of exceptions. The question for the Court was whether the ‘offending’ ministerial statement on its face sought to countermand or frustrate the effective operation of sections 38(6) and 70(2) or whether it merely expressed the Secretary of State’s substantive planning policy in unqualified, though trenchant, terms.

The language of the ministerial statement is in mandatory terms: “… a threshold beneath which affordable housing contributions should not be sought”. However the Court of Appeal accepted that the articulation of planning policy in unqualified or absolute terms is not in principle repugnant to the proper operation of section 38(6), and so this use of language was unobjectionable.

In the Court’s judgment, the policy expressed in the ministerial statement was not to be faulted on the ground that it does not use language which indicates that it is not to be applied in a blanket fashion Its place in the statutory scheme of things is simply a material consideration for the purposes of section 38(6) of the 2004 Act and section 70(2) of the 1990 Act, and no more. It does not countermand or frustrate the effective operation of those provisions.

Ground 2 - Failure to take into account material considerations

In making planning policy, the Secretary of State is exercising power given to the Crown not by statute but by the common law. The Court accepted that the statutory planning context to some extent constrains the Secretary of State. It prohibits him from making policy which would countermand or frustrate the effective operation of section 38(6) or section 70(2). It would also prevent him from introducing into planning policy matters which were not proper planning considerations at all. Subject to that, his policy choices are for him. The planning legislation establishes a framework for the making of planning decisions; it does not lay down merits criteria for planning policy, or establish what the policy-maker should or should not regard as relevant to the exercise of policy-making.

In those circumstances the Secretary of State was not, in the Court’s judgment, obliged to go further than he did into the specifics, and in consequence was not to be faulted for a failure to have regard to relevant considerations in formulating the policy set out in the written ministerial statement.

Ground 3 - Inadequate consultation

It had been acknowledged by the Secretary of State that the real driver for the change in policy was the view that affordable housing requirements imposed a “disproportionate burden” on small sites, but the essential legal principles applying to this ground of challenge were not in dispute. The consultation document must contain sufficient information to enable an intelligent response. A consideration of whether a non-statutory consultation process such as this contravened the requirements of procedural fairness will always be fact and context sensitive. The test is whether the process has been so unfair as to be unlawful.

The Court found no unfairness in the procedure adopted by the Secretary of State. In their judgment, the present case was not one involving a failure to make plain, and to disclose, fundamental detail. On the contrary, the relevant paragraphs of the consultation document, together with its broadly based question, did not focus narrowly on strict viability issues. The question was posed in the context of broader-based impacts of the existing section 106 contribution regime upon small-scale building developments.

As to the question of whether appropriate consideration was given to the consultation responses, the Court did not accept that this obligation translates into an obligation on the Minister to adopt the submissions made to him by respondents. In their judgment, the Minister was entitled to consider the whole range of responses made to him, (together with all relevant information), and to form his own conclusion independently of the views of any particular section of consultees or indeed the views of his own advisers. The relevant paragraph in the minister’s response to the consultation represented the balance struck by the Minister after weighing up the various submissions made to him.

Ground 4 - Breach of the public sector equality duty

The written ministerial statement was not accompanied by any Equality Impact Assessment. However, when this omission was pointed out, a formal Equality Statement was produced, and the Secretary of State announced that, having considered the findings of the Equality Impact Assessment, he was satisfied that the policy changes announced in the ministerial statement were compatible with the requirements of section 149 of the Equality Act 2010 and, accordingly, after reconsideration he had decided to maintain the policy changes.

In light of this retrospective impact assessment, ministers concluded that the proposed policy would not have a negative impact on discrimination, fostering good relations or advancing equality of opportunity. They recognised that this policy may impact on the delivery of affordable homes, but drew attention to the expected delivery of 170,000 new affordable homes between 2011 and 2015, and to a further £38 billion of public and private investment that will help ensure another 270,000 new affordable homes are provided between 2015 and 2020.

The Court accepted that this Statement demonstrated a consideration of the potential for adverse impacts on protected groups. The requirement to pay due regard to equality impact under section 149 is just that. It does not require a precise mathematical exercise to be carried out in relation to particular affected groups or, for example, urban areas as opposed to rural areas. The Assessment undoubtedly acknowledged the effect of the proposals upon protected groups, but sought to place that in context by reference to other policies impacting on affordable housing. As such, it complied with section 149.

The judgment of the High Court was accordingly reversed.

UODATE (20.5.16) : As I predicted in a comment posted below, the government has now updated its online PPG to restore those passages relating to affordble housing thresholds which were excised from the PPG in response to the High Court judgment in the case reported above. The Court of Appeal's judgment has enabled the government to re-insert this material without further ado, as they have now done.

I would draw attention, however, to my remarks below as to the limitations on the practical application of this ministerial policy, which will not necessarily override up-to-date and recently adopted local plan policies, bearing in mind the effect of section 38(6).

© MARTIN H GOODALL

Housing and Planning Bill

The House of Lords are currently playing ‘ping-pong’ with the Commons over amendments to Housing and Planning Bill. Those readers who are not familiar with parliamentary procedure will no doubt be utterly mystified by this apparent reference to a table tennis match, but it is the process whereby Lords’ amendments are sent back for consideration by the Commons. Many of these are government amendments that go through ‘on the nod’, but in the case of opposition amendments, the Commons will usually not accept them, and these have to go back to the Lords again for further consideration.

By convention, the Lords generally do not insist on their amendments to a Bill in face of resistance to them by the Commons, and can be expected to give way gracefully to the will of the elected House, having made their point. However, it seems that the Lords are not in a mood to roll over quite so easily in the case of the Housing and Planning Bill, and so the ‘ping-pong’ may go on a little bit longer before the offending amendments are duly withdrawn, and the Bill can then go for Royal Assent.

It seems a little unlikely that the Lords will maintain their stance on this Bill à outrance, but government business managers must be looking anxiously at the calendar, as the end of the parliamentary session rapidly approaches. If it cannot be passed before parliament rises, the Bill will not be lost, but can be carried over into the next session, which begins with the Queen’s Speech later this month. But if this happens, it will not endear the House of Lords to the government, who are already looking for a way to curb the powers of the Upper House to frustrate or delay the will of the Commons.

As I have indicated before, I will look at the actual provisions of the Bill so far as it affects planning, once it has completed its passage through parliament and has reached the statute book.

UPDATE (13.5.16): As predicted, the government stood its ground on unacceptable amendments to the Bill, and the Lords eventually had to back down on these. The Bill thus completed its parliamentary passage in the nick of time to avoid its having to be carried over into the next parliamentary session. It finally received Royal Assent yesterday and is now the Housing and Planning Act 2016. I will take a look at its planning provisions as soon as I have a bit more time.

© MARTIN H GOODALL