A deal has been reached between the Government and those rebel MPs who had threatened to derail the Levelling-up and Regeneration Bill. And so we have Michael Gove’s written statement to the House of Commons today 6 December 2022, in the wake of a letter written to all MPs on 5 December 2022 and a 5 December 2022 press statement. Of course, when we talk about the Bill, that is short-hand for the reform package as a whole, including most crucially the proposed amendments to the National Planning Policy Framework.
Those proposed amendments are soon to be fleshed out in the National Planning Policy Framework prospectus, “which will be put out for consultation by Christmas” (i.e. by the time that the Commons rises on 20 December 2022). It is going to be thin gruel for those of us who believe that this country has a housing crisis and that part of the solution to that crisis is to build more homes, where they are most needed.
I’ll just summarise here what the written ministerial statement covers. The letter to MPs goes into further detail.
There will be an amended method for calculating local housing need, which will be “advisory”. “It will be up to local authorities, working with their communities, to determine how many homes can actually be built, taking into account what should be protected in each area – be that our precious Green Belt or national parks, the character of an area, or heritage assets. It will also be up to them to increase the proportion of affordable housing if they wish.”
Of course it is not currently mandatory that local authorities plan for the level of local housing need arrived at via the current standard method, but there is a heavy onus on authorities to justify departures.
Paragraph 35 of the current NPPF sets out the “soundness test”, including that plans are “positively prepared”, meaning that they are “providing a strategy which, as a minimum, seeks to meet the area’s objectively assessed needs; and is informed by agreements with other authorities, so that unmet need from neighbouring areas is accommodated where it is practical to do so and is consistent with achieving sustainable development.”
Paragraph 61 of the current NPPF says this:
“To determine the minimum number of homes needed, strategic policies should be informed by a local housing need assessment, conducted using the standard method in national planning guidance – unless exceptional circumstances justify an alternative approach which also reflects current and future demographic trends and market signals. In addition to the local housing need figure, any needs that cannot be met within neighbouring areas should also be taken into account in establishing the amount of housing to be planned for.”
It is plain that those circumstances are now to be widened, in ways which are more subjective, eg relying on perceived capacity constraints based on “the character of an area” (the letter to MPs gives the example of for instance “new blocks of high-rise flats which are entirely inappropriate in a low-rise neighbourhood” and talks of the need for “gentle densities”). It will be open season for authorities and/or local campaigners to press the case for lower numbers to be adopted and/or for the required proportion of affordable housing to be set at such a financially onerous level that in practice chokes off the prospect of development. The proposed abolition of the duty to cooperate and its replacement by an “alignment” mechanism yet to be articulated just increases the plain jeopardy here. Open question: how will the Government be able to hold to its 300,000 homes a year target if significant numbers of authorities adjust their numbers downwards? Another open question: how important is mitigating the housing crisis to the Government versus fending off internal rebellions and having constituency-friendly developer-phobic policies?
Five year housing land supply requirement:
“We will end the obligation on local authorities to maintain a rolling five-year supply of land for housing where their plans are up-to-date. Therefore for authorities with a local plan, or where authorities are benefitting from transitional arrangements, the presumption in favour of sustainable development and the ‘tilted balance’ will typically not apply in relation to issues affecting land supply.
I also want to consult on dropping the requirement for a 20% buffer to be added for both plan making and decision making – which otherwise effectively means that local authorities need to identify six years of supply rather than five. In addition, I want to recognise that some areas have historically overdelivered on housing – but they are not rewarded for this. My plan will therefore allow local planning authorities to take this into account when preparing a new local plan, lowering the number of houses they need to plan for.”
“…Where authorities are well-advanced in producing a new plan, but the constraints which I have outlined mean that the amount of land to be released needs to be reassessed, I will give those places a two year period to revise their plan against the changes we propose and to get it adopted. And while they are doing this, we will also make sure that these places are less at risk from speculative development, by reducing the amount of land which they need to show is available on a rolling basis (from the current five years to four).”
“I will increase community protections afforded by a neighbourhood plan against developer appeals – increasing those protections from two years to five years…”
Ensuring timely build out:
“I already have a significant package of measures in the Bill to ensure developers build out the developments for which they already have planning. I will consult on two further measures:
i) on allowing local planning authorities to refuse planning applications from developers who have built slowly in the past; and
ii) on making sure that local authorities who permission land are not punished under the housing delivery test when it is developers who are not building.
I will also consult on our new approach to accelerating the speed at which permissions are built out, specifically on a new financial penalty.”
Character of a developer:
“I have heard and seen examples of how the planning system is undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their legal commitments to the community. I therefore propose to consult on the best way of addressing this issue, including looking at a similar approach to tackling the slow build out of permissions, where we will give local authorities the power to stop developers getting permissions.”
“I will consult to see what more we can do in national policy to support development on small sites particularly with respect to affordable housing and I will launch a review into identifying further measures that would prioritise the use of brownfield land. To help make the most of empty premises, including those above shops, I am reducing the period after which a council tax premium can be charged so that we can make the most of the space we already have. I will also provide further protection in national policy for our important agricultural land for food production, making it harder for developers to build on it.”
Tourist accommodation/short-term lets
“I intend to deliver a new tourist accommodation registration scheme as quickly as possible, working with DCMS, starting with a further short consultation on the exact design of the scheme. I will also consult on going further still and reviewing the Use Classes Order so that it enables places such as Devon, Cornwall, and the Lake District to control changes of use to short term lets if they wish.”
Simon Ricketts, 6 December 2022
Personal views, et cetera