07 August, 2020
In its ambition to build high-quality, sustainable homes and communities, the government has published the Housing White Paper, 'Planning for the Future'. This consultation document consists of a package of proposals for reform of the planning system in England only with a view to streamlining and modernising the planning process, improving outcomes on design and sustainability, reforming developer contributions and ensuring that more land is available for development, where needed.
Amongst the proposals, of interest, is the scrapping of the policy that requires private developers to build a certain amount of social homes in every new development - 'Section 106 agreements' - one of the main sources of affordable homes. According to data published by the National Housing Federation, member housing associations built around 39,000 affordable homes, which is more than two-thirds of the total. 54% of these were delivered through Section 106 agreements. The proposed 'replacement' of introducing affordable homes elements within an 'Infrastructure Levy payment regime needs further detail - whilst a change to the system is needed to speed up the process generally and ensure consistency, before implementing change we need to ensure that the affordable housing requirement is not 'lost' and that we are still able to deliver affordable homes… The government's Housing White Paper relate to England only and is open for consultation and will run for 12 weeks from 6 August 2020. A brief overview of the proposals are as follows:
The 'Local Plan' is to contain just a core set of standards and requirements for development rather than general policies for development. It will identify site and area-specific requirements alongside locally produced design codes. Plans will be significantly shorter in length (expect a reduction in size of at least two thirds) and will focus on identifying land in three areas:
Local Councils are to re-invent the way with which they engage with communities as they consult on Local Plans. Reform will democratise the planning process by putting a new emphasis on engagement at the plan-making stage.
Local Plans will be subject to a single statutory "sustainable development" test, which would mean replacing the existing tests of soundness, updating requirements for assessments and abolishing the Duty to Cooperate, all of which that add disproportionate delay to the plan-making process.
Local Authorities and the Planning Inspectorate will be required through legislation to meet a statutory timetable (of no more than 30 months in total) for key stages of the process, with sanctions for those who do not comply. Decision-making should be faster and more certain, within firm deadlines, making greater use of data and digital technology. The well-established time limits of eight or 13 weeks for determining an application from validation to decision should be a firm deadline - not an aspiration which can be got around through extensions of time as routinely happens now.
Whilst this apparent speeding up and democratising of the process is a step in the right direction it does not assist in ensuring consistency - we see various views on affordable housing from various local authorities already and this process will only heighten the divide. Some local authority areas have minimal levels of affordable housing and so democratising in specific areas would not always achieve the goal of increasing provision of affordable homes if this is not desired generally by current residents, despite the national need for such. In addition, with regard to protected areas there is no mention of 'Designated Protected Areas' and how these will fit in (together with Homes England's views). This is an area that is screaming out for reform given the designations in the main no longer reflect the areas.
Also, where will affordable housing obligations lie? We see an ever increased use of planning conditions and affordable housing statements already to cover this rather than within a Section 106 Agreement, although, considerations of onward purchase flexibility, tenure mix and charging capability are all elements that still need to be considered and will not be eliminated by the proposal.
Supporting local planning authorities to use digital tools, making it easier for people to understand what is being proposed and its likely impact on them through visualisations and other digital technology. People would then be able to register their views into the system through social networks and via their phones. The proposal will also standardise and make information such as planning decisions and developer contributions open and digitally accessible.
This transparency would make the process more accessible generally, although despite the 'agile working' boom the proposals will need to consider that of those seeking to access the system are not all as digitally literate.
Ensuring the National Planning Policy Framework targets those areas where a reformed planning system effectively addresses climate change mitigation and adaptation and facilitate environmental improvements.
This is an element being considered more and more in the development of new homes considering long-term sustainability in addition to more environmentally friendly materials and methods of construction. As an ever evolving area we would suggest that the focus should not restrict potential growth of this field.
The Community Infrastructure Levy and the current system of planning obligations under Section 106 is to be replaced by a nationally set, value-based flat rate charge ('the Infrastructure Levy') - with a single rate or varied rates to be set. It is envisaged that the new levy will allow local planning authorities to secure more on-site housing provision and sweep away months of negotiation of Section 106 agreements and the need to consider site viability.
Local authorities will be given greater powers to determine how developer contributions are to be used by extending the scope of the levy to cover affordable housing provision to allow them to drive up the provision of affordable homes. The proposal seeks to ensure that the affordable housing provision supported through developer contributions is kept at least at current levels, and that it is still delivered on-site to ensure that new development continues to support mixed communities. Local authorities will have the flexibility to use this funding to support both existing as well as new communities.
The scope of the Infrastructure Levy will be extended, and exemptions removed from it to capture changes of use through permitted development rights, so that additional homes delivered through this route bring with them support for new infrastructure.
As with most things, the devil will be in the detail with this proposal - such as who will be in control of the funding? What is the criteria for accessing the funding? Given that more local authorities are developing themselves what impact would this have on Registered Providers? At present within most Section 106 Agreements there is a requirement upon developers to build affordable homes alongside their other properties for sale, often setting a requirement to build before the private properties can be occupied. If this is taken away what incentive is there for developers to build affordable homes as quickly as they are needed? - particularly those LSVT housing providers striving to replace their Right to Buy / Right to Acquire / Voluntary Right to Buy stock with more social and affordable housing.
A new nationally determined, binding housing requirement that local planning authorities would have to deliver through their Local Plans. This is to focus on areas where affordability pressure is highest to prevent land supply being a barrier to enough homes being built. The reform is consistent with this government's aspirations of creating a housing market that can deliver 300,000 homes annually and one million homes over this Parliament - although of course not all such homes would be within town and city centres. The focus on such areas comes not long after John Lewis' recent announcement to perhaps regenerate a number of their stores into affordable homes - will we see a shift back to city centres for long-term sustainable housing that is affordable?
The reform will also seek to speed up construction (where development has been permitted), by making it clear in the National Planning Policy Framework that the masterplans should seek to include a variety of development types from different builders, which will prompt more phases to come forward together.
For more detailed information about the proposals, please refer to the White Paper August 2020: 'Planning for the Future'
Whilst the reforms proposed are ambitious and certainly will 'shake-up' the system there are wider considerations and we have highlighted those which initially spring to mind above. If you have any comments on the paper please do have your say before 11:45pm on 29 October 2020 and if you need our assistance formulating a response please do get in touch.
For more information contact Jennifer Hankinson in our Housing & Regeneration department at Jennifer Hankinson or on 01254222417 or Andrea James at email@example.com or on 01772220206. Alternatively send any question through to Forbes Solicitors via our online Contact Form.