Tuesday, 24 May 2016

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.


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