The Planning White Paper published this month proposes a major overhaul of the planning regime in England, yet includes just one reference to the development consent regime. This is despite the fact that the introduction of that regime in 2008 was, in my view, one of the most successful changes made to the English planning system for decades.
The White Paper suggests that one of the ways in which full planning permission could be obtained for very large sites within Growth Areas under the new system is through a development consent order pursuant to the Planning Act 2008 (though technically a development consent order (DCO) cannot grant planning permission, and instead actually disapplies the need for planning permission). The example given in the White Paper of the type of scheme that could use this route is a new town. Despite the absence of details, the idea of allowing a housing scheme to be consented through the development consent regime has caused great excitement within the industry.
The development consent regime was developed to create a fast track, streamlined route to obtaining consent for nationally significant infrastructure projects (NSIPs). The main benefits include: greater certainty over timescales; the ability to wrap in other consents including compulsory acquisition powers; the principle of development being established up front (for schemes falling within the scope of a National Policy Statement (NPS)); elevating the decision-making to the national level (particularly helpful for locally unpopular but nationally needed schemes); and better quality decisions that are far less likely to be quashed by the court.
Given the major housing shortage in England and the government’s 2017 pledge to fix our broken housing market, it seems obvious that housing should be the type of project that should benefit from this regime. However, not only does housing not fall within the definition of an NSIP but the 2008 Act expressly prohibits the grant of consent for associated development comprising “the construction or extension of one or more dwellings”. Consistent with the government’s emerging localism agenda when the Planning Act 2008 came into force, it was considered that local authorities were better placed to decide on matters such as housing need and that decisions on the siting of housing should therefore only be taken at the local level.
This approach, however, overlooked the fact that major infrastructure schemes require lots of construction workers, not all of whom will live locally and thus must be found temporary local accommodation, often in areas that would suffer severe impacts were they to be temporarily flooded by workers. To address this, some developers have sought to include temporary accommodation as part of their development consent schemes. In R (on the application of Innovia Cellophane Ltd) v Infrastructure Planning Commission (2011), in which Herbert Smith Freehills acted for the interested party, the Court held that the dwellings exclusion in the 2008 Act did not preclude granting consent for temporary accommodation.
That was clearly the right decision, both as a matter of law and principle. Yet temporary accommodation is just that, temporary, meaning that at the end of the project it must be removed. In areas suffering from significant housing shortages, there may be merits in allowing more permanent housing to be granted through the development consent regime, allowing a legacy benefit for the affected communities.
The government finally saw sense in 2016 when it brought forward the Housing and Planning Act which allowed housing that is “related” to a NSIP to be authorised by a development consent order. Yet there are strict rules in place for what related means in this context by reference, for example, to the size and location of the proposed housing, which has significantly constrained its use.
This month’s White Paper seems to be proposing that major housing sites could be treated as NSIPs in their own right, which would represent a major step forward for the consenting of housing in England. If implemented (and it would require new legislation) this could pave the way for major new housing sites to come forward without being held back by local politics, under-resourced councils and difficulty in securing separate compulsory acquisition and other required powers.
The government should ensure that clear guidance is provided (potentially through a new Housing NPS) to applicants on how to assess their proposals at the application stage to minimise duplication or gaps and ensure consistency with the analysis undertaken at the local plan stage. In due course the government will also need to publish details of the applicable thresholds (eg will this be defined by reference to minimum housing numbers?) and whether this will be a voluntary “opt in” process by virtue of a section 35 direction under the 2008 Act or compulsory (meaning it would be a criminal offence to fail to obtain development consent).
I applaud the government in making this proposal, which in my view is long overdue, and eagerly look forward to the publication of more details in due course.
Charlotte is Of Counsel within the planning team at Herbert Smith Freehills. She has extensive experience of the development consent regime and in particular for the last 12 years she has advised EDF on obtaining development consent for its new nuclear power stations at Hinkley Point C and now Sizewell C. She is also experienced in advising on major housing schemes, such as a proposed 10,000 home settlement near Stansted Airport and a 2,000 home scheme in the Green Belt in Surrey.
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