Housing planning news, June 2018
01 Jun 2018
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Changes to statutory consultation on planning applications for ‘higher risk residential buildings’ recommended post-Grenfell
The Independent Review of Building Regulations and Fire Safety following the Grenfell Tower tragedy, led by Dame Judith Hackitt, published its final report on 17 May.
According to the Government, the purpose of the review ‘was to make recommendations that will ensure:
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a sufficiently robust regulatory system for the future;
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residents feel that the buildings they live in are safe and remain so’
The primary focus of the new regulatory framework set out in the Report is stated as being higher risk residential buildings (HRRB), defined as ‘multi-occupancy higher risk residential buildings that are 10 storeys or more in height’.
A role for planning (planning permission is considered one of three ‘Gateway Points’, or key stages in the life of the building) is amongst the numerous recommendations which include:
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regulation at the design and occupation stages;
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giving residents a voice;
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a more effective testing regime with clearer labelling and product traceability; and
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a digital record for new HRRBs from initial design intent through to construction - and including any changes that occur throughout occupation.
The creation of a Joint Competent Authority is recommended too; this would be a combined regulatory oversight body for HRRBs and would be comprised of the Health and Safety Executive, Local Authority Building Standards and fire and rescue authorities. Accordingly, the report states that the JCA, if created, should be a statutory consultee on planning applications that include an HRRB. It is recommended that the process should also apply where planning permission for another building in the near vicinity is sought (where such a building might impact on fire service access to an HRRB).
These recommendations respond to the Review’s observation that:
‘[…] where a planning application is made for a HRRB there is no statutory requirement for the local planning authority (LPA) to consult the fire and rescue authorities, before determining the application. This may increase the risk that planning permission will be given for new HRRBs where fire service access (in the event of a fire) has not been properly assessed.’
This is considered one of a number of structural and cultural weaknesses in the current system.
The report advises:
‘Whilst the recommendations in each chapter are crucial, in isolation they will fail to achieve the systemic change sought. The framework operates as a mutually reinforcing package and requires the implementation of its interdependent components in order for this to be achieved.’
While a ban on combustible material in cladding systems is not recommended, her final report has stopped short of calling for such a measure; Housing Secretary James Brokenshire did however announce in the House of Commons on the day of the report’s publication that the Government will consult on banning the use of combustible materials in cladding systems on high-rise residential buildings.
MHCLG, ‘Radical reform’ of building regulatory system needed, finds Dame Judith Hackitt MHCLG, Independent Review of Building Regulations and Fire Safety: Hackitt reviewHouse of Commons Hansard, Building Regulations and Fire Safety debate, 17 May 2018
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Quote of the month |
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‘[…] the hon. Member for Mitcham and Morden gave us an iconoclastic blast at the prevailing consensus around Green Belt, which I will certainly reflect on.’
MP for Mitcham and Morden, Siobhain McDonagh, and Housing and Planning Minister, Dominic Raab, in reply during a ‘Housing and Homes’ debate in the House of Commons on 15 May 2018House of Commons Hansard, Housing and Homes debate, 15 May 2018 |
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Town and Country Planning Permission in Principle Order 2017
Applications for permission in principle (PiP) for minor residential developments (of between 2 and 9 homes) may be submitted to LPAs from today, 1 June 2018, when the Town and Country Planning (Permission in Principle) (Amendment) Order 2017 comes into force.
The amendment Order provides the necessary procedures for implementing the Housing and Planning Act 2016’s provision for making an application for PiP, for sites where between 2 and 9 new houses are proposed. The site does not need to comprise previously developed land, either in whole or in part.
Applications for PiP cannot be made for major, habitats regulations, householder, or Schedule 1 environmental impact assessment (EIA) developments. PiP can be granted for Schedule 2 EIA development, providing that a screening opinion that the proposal is not EIA development has been adopted or made.
Once a PiP has been granted on application, a technical details consent (TDC) relating to the proposed development has to be sought within three years, after which the PiP expires.
As yet, there is no PiP application form, nor a form for applying for a non-material amendment to a PIP (the link in the Order’s Explanatory Note is to a page that does not appear to be maintained). Perhaps more surprisingly, there is not yet an application form for a TDC, notwithstanding that one may already apply for TDC in respect of a site in Part 2 of a council’s brownfield land register.
Further details can be found in our blog discussing what is known so far about PiP on application, and in our Guide to PiP.
The Town and Country Planning (Permission in Principle) Order 2017The Town and Country Planning (Permission in Principle) (Amendment) Order 2017Lichfields Planning Matters: Take a chance on me: what we know about permission in principle on applicationLichfields Planning Matters: Brownfield land registers and ‘permission in principle': Lichfields’ essential guide
Regulations made for pre-commencement conditions
On 3 May, two statutory instruments were made by the Government in relation to s14 (‘Restrictions on power to impose planning conditions’) of the Neighbourhood Planning Act 2017.
Commencement regulations provide that s14(1) and (3) will come into force on 1 October 2018, bringing into force parts of s100ZA of the Act, which specifies that planning permission for the development of land may not be granted subject to a pre-commencement condition without the written agreement of the applicant.
The related pre-commencement conditions’ Regulations, made in exercise of the powers conferred by s100ZA(6), provide that the requirement for a written response by the applicant does not apply where the local planning authority (or the Secretary of State) has given notice to the applicant of the intention to grant the permission subject to pre-commencement condition(s) and the applicant does not provide a ‘substantive response’ to the notice before the expiry of a 10 working days period from when the notice was served.
The Regulations do not go as far as expected; in the Government response to the consultation, a number of respondents requested that exceptions should be made to the requirement for applicants to agree certain pre-commencement conditions, notably for matters regarding heritage, nature conservation and environmental protection. Such exemptions were originally proposed when the Neighbourhood Planning Bill was published in 2016, but had disappeared by the time of the first ‘indicative draft’ regulations in December 2016. Accordingly, no such exceptions have been made, and where complications arise and an applicant does not agree to a condition relating to such matters, the authority will refuse permission.
For more details of the potential implications of the new secondary legislation when it comes into force, our blog looks at some procedural matters that may well need to be ironed out between applicants and planning authorities.
The Neighbourhood Planning Act 2017 (Commencement No.5) Regulations 2018The Town and Country Planning (Pre-commencement Conditions) Regulations 2018MHCLG, Government response to the consultation on pre-commencement conditions regulationsLichfields Planning Matters: New procedures for pre-commencement conditions come into effect from October 2018
Government still targets end of July for revised NPPF
It was reported from the National Planning Summit held in early May that the Government still expects to publish the revised NPPF by the end of July, despite an overwhelming volume of responses to the consultation that closed on 10 May.
Chief Planner Steve Quartermain was reported as saying there had been more than 27,000 responses, although this total includes multiple submissions from campaign groups (including 5,000 duplicate responses seeking better protection for veteran trees).
Chief Secretary to the Treasury and Raynsford Report present very different pictures of planning reform
Chief Secretary to the Treasury Liz Truss spoke at the Spectator Housing Summit on 17 May in stark contrast - and taking the entirely opposite approach (by for example referring to ‘cutting through bureaucracy’) - to the newly published interim report of the Raynsford Review of planning in England and its 9 reform propositions offered (see below).
The Chief Secretary spoke of young people as ‘frustrated flat hunters’, compared UK cities to the US and then turned to planning, saying:
‘[…] restrictions on building are holding cities up. Analysis shows that opening up planning is one of the fastest things we could do to boost our country’s productivity. This is why reform is so urgent. It’s restrictions that are causing problems, but there are some out there who say that the solution is more restrictions, more control, more state interference. This is the opposite of what we need.’
She went on to refer to housing supply as the underlying issue and continued:
‘We need to open up more land to build on. That means challenging the vested interests. We need to challenge the NIMBYs, comfortable in their big houses in suburbia. The fact is that flats and houses need to be built where they are needed […] We need to liberate business planning in high-growth, free enterprise areas. I would like to see more of the development model used to build Canary Wharf – A Canary North!’
Concluding her speech, she described the planning system as ‘Byzantine’ and it needing reform, ‘to make it easier for the small firms to compete, to disrupt the market and, through fierce competition, build the houses and offices and factories that will make Britain successful’. In doing so, she made mention of how ‘in the 1930s, before planning system was introduced, there were ~265k houses built by the private sector a year – which goes to show we can do this!’.
Comment: Unfortunately, the Chief Secretary to the Treasury seems to have overlooked how the scale of private sector housebuilding in the ‘30s was achieved in large part by ribbon development that was heavily opposed at the time; the subsequent creation of the Green Belt sought to prevent it. Furthermore, the 1930s housing developments she refers to came forward with, or as a result of the construction of major new roads and underground lines - entirely incomparable to the scale of investment in infrastructure built to support new housing since.
HM Treasury, Speech by the Chief Secretary to the Treasury at the Spectator Housing Summit
Raynsford review interim report says planning system at ‘historically low ebb’
The interim report of the Raynsford Review of planning in England was published on 15 May. Although not a Government report, the review is being led by Nick Raynsford MP, with Lord Kerslake also being a task force member.
As stated in the report’s executive summary, it aims to ‘promote debate about the future of the planning system in England by setting out how the system was founded, examining its current structure, and providing an initial analysis of the evidence presented to the Review about its current performance’.
Having concluded that the planning system is ‘at a historically low ebb’, nine ‘provisional propositions’ are offered for a new system – ‘the basis for a conversation’.
The final report of the review is due to be published before the end of the year.
TCPA, ‘Planning 2020, Interim Report of the Raynsford Review of Planning in England’
Local plans should allocate older people's housing sites, say MPs
On 3 May, the All-Party Parliamentary Group (APPG) on Housing and Care for Older People published its report, ‘Rural Housing for an Ageing Population: Preserving Independence’.
The report makes a series of recommendations to local authorities, government departments and Homes England on strategic and local planning, including MHCLG not removing the current ‘obligation’ on every local authority to prepare a local plan. The Housing Secretary should also issue guidance to local planning authorities on meeting the needs of older people in rural communities, e.g. by the allocation of sites in their local plans specifically for the housing of older people, ‘across all tenures’.
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The Lichfields perspective |
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| Jennie Baker, Associate Director | ||
Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116