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Planning and housing written ministerial statement, December 2023  – the brief but important ‘other announcements’
This blog looks at some of the easily missed policy tweaks that were announced alongside and shortly after the NPPF revisions, within the Secretary of State for Levelling Up, Housing and Communities’ (SoS’s) 19th December written ministerial statement[1] (WMS). While they may not have made headlines, Mr Gove’s announcements identify and explain future national policy intentions to be consulted on in the coming months, with the exception of the gypsy and traveller policy amendment, which is already national policy.
For our other blogs on the reforms to national planning policy, see our resource here.

Enactment of LURA enforcement provisions

One of the SoS announcements in the speech that will have significant consequences was that he is to enact the planning enforcement “package” in the Levelling Up and Regeneration Act to “address the concerns and frustrations expressed by communities about breaches of planning control more immediately.”
My colleague Sean Farrissey will shortly publish a blog examining the enforcement provisions in the LURA for those wishing to understand the package in more detail. The most significant change is that the period for taking enforcement action is to be extended to ten years in all cases– it is currently four years for ‘operational development’ and change of use to a single dwelling. This will be particularly relevant for our clients when carrying out ‘due diligence’.

Build out consultation after final Competitions and Markets Authority report

So-called ‘use it or lose it’ provisions to monitor and speed up build out – known to us more formally as sections 111, 112 and 114 of the LURA – were referenced as part of the statement; this involves the Government consulting on measures to improve ‘build out rates’ after the Competition and Markets Authority publishes its final housebuilding market study. ‘Use it or lose it’ regulations can be made at any time, because the provisions allowing them are already in force. For a more detailed analysis of what these provisions might mean for housing delivery, see Harry Bennett’s blog.

Developer character test – not dead after all?

The Government has also announced its intention to further consider consultation responses regarding whether an applicant’s past behaviour should be considered in decision-making, either through making “irresponsible” behaviour a material consideration (option 1) or allowing local planning authorities (LPAs) to decline applications from applicants with “a bad track record” (option 2).
The Government’s response to the NPPF consultation revealed that 59% of respondents supported the proposal to consider past behaviour in planning applications[2]. However, when it came to the mechanism for achieving this, responses were more varied, with 60% being either indifferent or not selecting one of the two options set out by the government. The government said it welcomed “the range of views expressed in the consultation responses and will consider these carefully in any future policy development”.
It should not be forgotten there is a provision in s113 of the LURA, which is not yet in force, that gives power to amend the Town and Country Planning Act 1990 to afford an authority the “power to decline to determine in the case of earlier non-implementation”. It is possible this may come forward as part of the ’use it or lose it’ provisions, this year.

Further reform to the Housing Delivery Test?

In a similar tone regarding the role of past behaviour in planning, the Government has announced that it plans to give further consideration to taking planning permissions into account in the application of the Housing Delivery Test. This would sit alongside other reforms to this test, also announced in the NPPF revisions in December, and analysed here. 

Review of building regulations for water efficiency in new homes

The WMS contained a promise to “review building regulations in Spring next year to allow local planning authorities to introduce tighter water efficiency standards in new homes”, related to concerns that Cambridge lacks the water security to enable development of the scale the LPA However, the inference is that the review will have nation-wide implications.

Successful bids announced for nutrient mitigation funding

Another step taken in the Government’s package of measures intended to unlock housing delivery is the release of the allocation the Local Nutrient Mitigation Fund to successful applicant authorities, on 20 December. The fund aims to release homes being held up by nutrient neutrality issues in the UK. Alongside this, Housing and Planning Minister Lee Rowley also announced a “second round of Nutrient Support Funding with another £100k for 2023/24 the lead local authority for substantive catchments (those over 10,000 hectares in size)”.
The funding allocation was accompanied by a letter[3] from the Minister Rowley, which confirmed that the Government has no plans to attempt to pass legislation relating to nutrient neutrality before the next general election.

Gypsy and traveller definition

In response to a judgment in the Court of Appeal in the case of Smith v Secretary of State for Levelling Up, Housing and Communities & Another (2022)[4], the definition of Gypsies and Travellers to be used in national planning policy and decision-making, including the NPPF, has been changed back to the one adopted in 2012, rather than the definition adopted in 2015.
The definition currently applicable includes those who have ceased to travel permanently (the text in bold is the re-inserted text):
For the purposes of this planning policy “gypsies and travellers” means:
"Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling showpeople or circus people travelling together as such."
The Smith judgment found that to remove “or permanently” from the definition had been discriminatory, giving rise to a negative impact on those Gypsies and Travellers who had permanently ceased to travel due to old age or illness, but who lived or wanted to live in a caravan. This discrimination was inextricably linked to their ethnic identity”. The SoS had not demonstrated to the judges that the discrimination was justified.
It is also stated in the WMS that the Government intends to review this area of policy and case law in 2024.

Conclusion

This blog has explored some of the future policies that the government intends to revise or take forward as part of its Long-Term Plan for Housing, alongside the NPPF, subject to consultation.
Most of these were given a light touch mention in the SoS’s WMS and associated speech, but most will have significant implications where they apply.

 

[1] https://questions-statements.parliament.uk/written-statements/detail/2023-12-19/hcws161

[2] See question 30 and 31 https://www.gov.uk/government/consultations/levelling-up-and-regeneration-bill-reforms-to-national-planning-policy/outcome/government-response-to-the-levelling-up-and-regeneration-bill-reforms-to-national-planning-policy-consultation#chapter-5--a-planning-system-for-communities

[3] Letter from Minister for housing, planning and building safety on nutrient neutrality, December 2023

[4] Smith v Secretary of State for Levelling Up, Housing and Communities & Anor (2022) 

 

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Khan you do it like that? Or Cam you do it like this? Gove’s targeted housebuilding armament

Update 22 December 2023 - The Government has published the terms of reference and objectives for the panel of expert advisers who are to consider any changes to the London Plan which might facilitate housing delivery in London. This states that the Panel's report must be delivered by 15 January 2024.

Back in July 2023, when delivering his speech entitled the ‘Long-Term Plan for Housing’, Michael Gove said, in relation to housing under-delivery in London:
I also will not hesitate to act in the national interest when politicians fail.” […] “I reserve the right to step in to reshape the London Plan if necessary and consider every tool in our armoury – including development corporations.”
Five months later, the Secretary of State released a Written Ministerial Statement entitled 'The Next Stage in Our Long-Term Plan for Housing Update', which alongside other publications and announcements (such as the contents of the revised National Planning Policy Framework, December 2023, as you may have heard by now), contains some more information on some ‘tools in the armoury’ that are being used, not only in London, but elsewhere too, in a hope to deliver much needed housing.
This blog explores two targeted steps for two cities, from the Long-Term Plan for Housing Update:

    1. Ordering a review of the London Plan to examine factors that could be causing housing under-delivery in the capital, and threatening intervention if the necessary actions are not taken.

    2. Establishing a Development Corporation in Cambridge to help realise plans for ‘Cambridge 2040’, alongside a revised building regulation to allow local planning authorities to introduce tighter water efficiency standards in new homes, to ensure “an approach towards water that reflects the nature of Cambridge’s geography.”

Independent Review of the London Plan

In a letter to Sadiq Khan, published during Michael Gove’s address to the Royal Institute of British Architects on the 19 December (but issued to the Mayor on 18 December), the Secretary of State announced the appointment of an expert panel to conduct a review of the London Plan to consider “aspects of [it] which could be preventing thousands of homes being brought forward, with a particular focus on brownfield sites”.
The panel comprises Christopher Katkowski KC, Cllr James Jamieson, Paul Monaghan and Wei Yang. Lichfields is pleased to have been appointed to support the Panel, working alongside DLUHC officials.
The Secretary of State's letter includes as a response to the recommendations of the Mayor's London Housing Delivery Taskforce, prepared after Mr Gove first suggested possible intervention in the first ‘Long-Term Plan for Housing’ speech in July 2023[1]. In that speech, the Secretary of State also announced his ambitions for ‘Docklands 2.0’ as a 3,500-home eastern extension to the city, citing development corporations and the power to reshape the London plan as ‘tools in the armoury’ to make this happen.
In the letter on the 19 December, Mr Gove re-states the threat of intervention, saying, in one line:
If you cannot do what is needed to deliver the homes that London needs, I will.”
This back and forth over housing delivery has been described by London newspapers - the London Evening Standard and CITY.AM - as a political “row” between the Mayor and the Secretary of State on the undersupply of housing in London. However, it is common ground between the Mayor and the SoS that the pace of housing delivery in the capital needs to increase.
The long awaited 2022 HDT results reveal that over half of the London planning authorities (18 of 35 [2]) will now be subject to the policy consequences set out in the December 2023 revised NPPF. Nearly three quarters (13) of the 18 failing the HDT have underdelivered by at least 25% of their requirement. They will therefore be subject to the application of the presumption in favour of sustainable development, the inclusion of the 20% buffer on 5YHLS (except for those authorities with an up-to-date local plan) and the preparation of an action plan. For a more detailed explanation of the housing delivery test’s new policy consequences, see Harry Bennett’s blog.
The focus of the independent review will be to explore the relationship between the policies of the London Plan and the pace at which new homes are being brought forward and developed on brownfield land.

Mr Gove and Mr Rowley both said - in their respective 19 December written and oral statements to Parliament - that “opportunities for urban brownfield regeneration [in London] go begging” as a result of under-delivery. However, the Mayor has identified a significant number of housing starts and the GLA argues[3], based on the findings of the Housing Delivery Task Force’s August report, that a general lack of 2021-26 Affordable Homes Programme funding available to London, coupled with a lack of certainty around funding beyond 2026, means affordable housing developers lack the certainty they need to bring forward complex schemes, including estate regeneration[4].
On the topic of grant funding and affordable housing, he SoS suggested in his RIBA speech that affordable housing policy for residential developments in the London Plan is a barrier to delivery due to viability. The perceived impact of high affordable housing targets is not a new concern, and one held by a number of those in the development industry.

 

Development Corporation to be set up in Cambridge

No independent review of housing or economic development delivery is proposed for Cambridge. Instead, the Government is following up on an announcement earlier in the year on its ambitious housing and industry plans for ‘Cambridge 2040’, in a bid to make the city the Science capital of Europe.
Back in July, this involved the establishment of a ‘Cambridge Delivery Group’ to help realise this vision. It was also announced that the Delivery Group would be supported by a “super-squad of planners” to realise this ambition[5].
These plans have now been taken further, as Mr Gove’s Written Ministerial Statement confirmed the Government’s intentions to establish a new development corporation for Cambridge. The WMS continues (armament imagery strong still):
“[We will arm this development corporation] with the right leadership and full range of powers necessary to marshal this huge project over the next two decades, regardless of the shifting sands of Westminster.”
In response to Mr Gove’s announcement, the leaders of Cambridge City Council, South Cambridgeshire District Council, Cambridgeshire County Council, and the Combined Authority Mayor of Cambridgeshire and Peterborough released a joint statement[6] the same day. In it, the council leaders express concerns around the prospects of the Secretary of State’s plans to deliver sustainable growth. They said:
“We note in the latest announcement that the number of new homes put forward by Rt Hon Michael Gove MP has come down from 250,000 to 150,000, but this is still substantially more than the over 50,000 homes we have identified as needed in the emerging Greater Cambridge Local Plan (to 2040) – a number which will already be incredibly challenging to bring forward. We are ambitious for high quality sustainable, green growth but can’t stress enough how vital it is that Government supports us to tackle the issues that will otherwise act as roadblocks to sustainable growth.”
The Secretary of State previously visited Cambridge in Summer 2023, after his July speech, to discuss the Government’s plans for Cambridge 2040.

 

Conclusion

The Secretary of State’s Written Ministerial Statement and related speech on 19 December, which announced the London Plan’s independent review and the proposed Cambridge development corporation, among many other England-wide interventions and policy changes indicate the Government is prepared to explore different tools in different locations in the interest of housing delivery. Lichfields will continue to monitor closely how the Government’s local interventions play out, with a particular interest in the success of such wholly different approaches taken in these two very different cities.

 

[1] See our Think Tank Blog The Government’s long-term plan for housing – what’s new?

[2] Including the London Legacy Development Corporation and the Old Oak and Park Royal Development Corporation - HDT technical note says “for the local planning authorities whose boundaries overlap with a development corporation, for the periods that the local planning authority’s delivery is based on the London Plan or the Current Borough Plan, the net homes delivered in the development corporation are removed from the net additional dwellings statistics based on the data provided to the department by the Greater London Authority.”

[3]https://assets.publishing.service.gov.uk/media/65816753fc07f300128d4429/18122023_SoS_DLUHC_to_Mayor_of_London_-_housebuilding_in_London.pdf

[4] The recommendations of the Task Force, and government responses to these recommendations,  can be found here https://assets.publishing.service.gov.uk/media/65816753fc07f300128d4429/18122023_SoS_DLUHC_to_Mayor_of_London_-_housebuilding_in_London.pdf

[5] https://www.gov.uk/government/speeches/long-term-plan-for-housing-secretary-of-states-speech

[6] https://www.cambridge.gov.uk/news/2023/12/19/joint-statement-from-local-leaders-and-the-combined-authority-mayor-on-cambridge-2040-announcement

 

 

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