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Housing and Planning Act 2016: Commencement…the story so far

Housing and Planning Act 2016: Commencement…the story so far

Jennie Baker 24 May 2016

UPDATE: The first of the Regulations relating to the new Act have now been made and came into force on 26 May. The Housing and Planning Act 2016 (Commencement No. 1) Regulations 2016 have brought into force s145(5) of the Act; this section inserts a new s21A into the Planning and Compulsory Purchase Act 2004, after s21, giving the Secretary of State the power to issue a temporary direction pending the possible use of other local plan-making intervention powers. See below for more details.

Which planning-related sections of the Housing and Planning Act 2016 (‘the Act’) commenced on enactment?
In addition to the general provisions in Part 9, and according to s216 of the Act, the following sections commenced on 12 May, 2016 – but note all the sections listed below require secondary legislation:

Designation of neighbourhood plans and timetable in relation to neighbourhood plans and orders

Section 139 allows regulations requiring a local planning authority (LPA) to designate all of the area (instead of perhaps only some) applied for, if the application meets prescribed criteria or has not been determined within a prescribed period. Section 140 enables regulations setting time limits for an LPA to decide whether to hold a referendum for a proposal for a neighbourhood plan or order.

Planning in Greater London
Section 149 amends current legislation, such that secondary legislation can enable London’s Mayor, with reference to a Local Plan or the London Plan, to i) direct a London borough to consult the Mayor on particular types of development before granting planning permission and ii) direct the circumstances when he is to be the LPA.

Register of particular kinds of land

Section 151 enables regulations requiring LPAs to keep a register of particular kinds of land, and is intended to be used for brownfield registers and self-build registers in the first instance.

Planning permission for a building granted by development order

Section 152(1), enables a development order that grants planning permission for a building to require the approval of the LPA or Secretary of State (SoS) for the building operations, or matters related to the building operations or use. This amendment to s60 of the Town and Country Planning Act 1990 will facilitate the proposed office to residential rebuild permitted development right. Other sub-sections have not commenced.

Setting of fees

Section 157 allows regulations made for setting different planning application fees for different LPAs to be agreed by the affirmative procedure – i.e. not debated and voted on as was previously the case.

Pilots for the processing of planning applications in England

Sections 161-164 regarding pilot schemes to test introducing competition in the processing (but not determination) of applications ‘to do with planning’. Regulations will set out the details of the pilots, and require the approval of both Houses.

Review of minimum energy performance requirements

Section 165 amends the Building Act 1984 to require the Secretary of State to carry out a review of any minimum energy performance requirements approved by the Secretary of State under building regulations in relation to dwellings in England.

Urban Development Areas and Urban Development Corporations

Sections 166-168 amend the consultation requirements and procedure for the designation of Urban Development Areas and Urban Development Corporations in England (ss169-170 related to new towns have not yet commenced).
Which planning-related sections commenced on 26 May?
Section 145(5) of the Act, which inserted new section 21A into the Planning and Compulsory Purchase Act 2004.  This enables the Secretary of State to direct a local planning authority not to take any step in connection with the adoption of a development plan document pending possible use of other intervention powers.

The existing local plan intervention powers provided by s21 of the PCPA 2004 are seldom used, but the new s21A powers were used immediately: on the same day, the Secretary of State directed Birmingham City Council ‘not to take any step in connection with the adoption of the Birmingham Development Plan 2031’ (an official copy of the letter is not yet available).  Another blog discusses the first use of this new measure.
Which sections will commence next?
According to s216 of the Act, other sections may be commenced, by regulations, at any time (with the exception of those commencing two months after enactment, e.g. those described below).
Which planning-related sections will commence on 13 July 2016?
The first three sub-sections related to permission in principle (PIP) s150(1-3), and s153 which inserts PIPs into the list of applications that may be submitted to the SoS (where an LPA is designated into special measures). PIP (s150) is a new route for obtaining planning permission for housing-led development. PIPs may be granted for ‘housing-led’ development of land in England; a consequent application for technical details consent has then to be determined in accordance with the permission in principle. The result would be the grant of full planning permission. Section 150(4) which will insert  a requirement that regulations altering the standards periods of time that PIPs remain in effect must approved by Houses, has not commenced, nor has Schedule 12 which sets out consequential amendments to other legislation arising from new PIPs legislation.
Regulations under which planning-related sections require a draft to be laid before and approved by a resolution of each House of Parliament?
  • Starter homes regulations under section 2, 3(6), 4 or 5 (see s214 of the Act)
  • Planning freedoms regulations under section 154(1) (see s214 of the Act)
  • Pilot schemes for the processing of planning applications by alternative providers regulations under s161 that make provision of the kind referred to in s161(3), (5), (6) or (12)(b), s163 or s164 (see s214 of the Act)
  • Regulations altering the standard time period that permissions in principle will be in effect for, before expiring[1] (an amendment to Section 333 to the Town and Country Planning Act 1990, to be inserted by s150 of the Act)
  • Regulations imposing restrictions or conditions on the enforceability of planning obligations relating to affordable housing, or prescribed descriptions of affordable housing (regulations under s106ZB, to be inserted by s159 of the Act)
  • A statutory instrument designating an Urban Development Corporation or Urban Development Area (amendments to the Local Government, Planning and Land Act 1980, inserted by ss166 and 167 of the Act (replace current similar wording, and allows certain hybrid instruments to proceed as if they were not hybrid – i.e. via the affirmative procedure))
  • Regulations relating to the designation of New Towns (an amendment to the New Towns Act 1981 inserted by s169)
  • Regulations directing a local authority to take steps to dispose of its interest in land (an amendment to s98 of the Local Government, Planning and Land Act 1980 to be inserted by s209 of the Act)
Further blogs in this series cover starter homesPermission in Principle, and other planning provisions in the Act; regulations on commencement are also covered.

[1] A PIP granted by a development order ceases to have effect five years after it come into effect, or such longer or shorter period directed by the LPA, and a PIP granted by a LPA ceases to have effect three years after it comes into effect, according to s59A(7)(a) and s59A(8)(a) of the Town and Country Planning Act 1990, once inserted by s150 of the Act.