I had not expected that we would get much more in the way of new planning legislation before the next General Election but, once again, planning reform featured in today’s Queen’s Speech, at the commencement of the final session of this parliament.
Announcing an Infrastructure Bill, Her Majesty said, “My government will introduce a Bill to bolster investment in infrastructure and reform planning law to improve economic competitiveness. The Bill will enhance the United Kingdom’s energy independence and security by opening up access to shale and geothermal sites and maximising North Sea resources. Legislation will allow for the creation of an allowable solutions scheme to enable all new homes to be built to a zero carbon standard and will guarantee long-term investment in the road network.”.
On increasing the housing supply, she said “My government will increase housing supply and home ownership by reforming the planning system, enabling new locally-led garden cities and supporting small house building firms.” and added “My ministers will continue to promote the Help to Buy and Right to Buy schemes to support home ownership.”
Government press offices have jointly published a lengthy briefing note on today’s Queen’s Speech to flesh out the bare bones of the legislative programme announced from the throne. The proposed Infrastructure Bill in particular seems to be a pot pourri of various measures that go well beyond the provision of infrastructure.
I propose to concentrate solely on those elements in the Bill that are directly relevant to planning as such. Among these elements, the Bill will simplify the process for making changes to Development Consent Orders (DCOs) for nationally significant infrastructure projects by speeding up non-material changes to a DCO, and allowing simplified processes for material changes. It will allow the Examining Authority to be appointed immediately after an application has been accepted and for the panel to comprise two inspectors, in the hope of speeding up the process and saving money.
The Bill will also allow certain types of planning conditions to be discharged upon application if a local planning authority has not notified the developer of their decision within a prescribed time period, reducing unnecessary delay and costs.
“Subject to consultation” [Pause for hollow laughter], the Bill is intended to make it possible for oil and gas companies to conduct underground exploration and extraction (by ‘fracking’) of oil and gas from shale deposits below land not owned either by them or by the owner of the land on whose land the shaft is sunk.
The Government is at pains to point out that this legislation is entirely dependent on the outcome of their current consultation exercise, but you would have to be extremely naïve to believe that the government will be persuaded to desist from pressing ahead with this legislation, irrespective of what consultees may say about it. The press release itself stresses the government’s enthusiasm for pressing on with “full and rapid implementation” of this project to deliver “at least 3-4 billion barrels of oil equivalent more than will otherwise be recovered over the next 20 years, bringing over £200 billion additional value to the UK economy. The Government accepted Wood’s recommendations in full in February 2014, and is introducing measures in this Bill to put the principle of Maximising Economic Recovery of petroleum in the UK into statute.” Not much sign there of a willingness to take on board the strong opposition that is likely to be revealed by the current consultation exercise.
There are also proposals regarding the energy efficiency of new homes. This will take the form of some slight relaxation of the commitment to implementing a zero carbon standard for new homes from 2016. A minimum energy performance standard will be set through the Building Regulations. The remainder of the zero carbon target, the government says, can be met through cost effective off-site carbon abatement measures – known as ‘allowable solutions’ - as an alternative to increased on-site energy efficiency measures or renewable energy (such as solar panels). Small sites, which are most commonly developed by small-scale house builders, will be exempt. What constitutes a “small site” for this purpose will be the subject of consultation, and will then be defined in the regulations.
The Zero Carbon Home standard will be set at Level 5 of the Code for Sustainable Homes, but the legislation will allow developers to build to Level 4 as long as they offset through the allowable solutions scheme to achieve Code 5. Energy efficiency requirements for homes are set out in the Building Regulations ( made under powers in the Building Act 1984), but there are insufficient powers in that Act to introduce off-site allowable solutions, so the Infrastructure Bill is expected to contain the necessary enabling powers for this.
Finally, there is a proposed provision that is unlikely to excite much interest among the general public, but which causes considerable concern to conveyancers and to planning lawyers. The Bill will transfer statutory responsibility for local land charges registers (currently maintained by local authorities) to the Land Registry, who will in future be responsible for dealing with local land charges searches submitted by conveyancers on behalf of homebuyers.
Local authorities have built up considerable local knowledge and expertise in the maintenance of their LLC registers and related databases, and are uniquely well placed to be able to give accurate (though not invariably infallible) answers to LLC searches, related enquiries and other queries. This local knowledge and expertise will be entirely lost if or when the LLC registers are transferred to the Land Registry. It is likely to cause considerable difficulty for purchasers and their solicitors, to homeowners and not least to local authorities themselves, especially when contemplating enforcement action, where accurate local records are essential.
This proposal seems to be part of a wider aim to commercialise and even, possibly, to privatise the Land Registry itself, which can only lead to even greater difficulties for all users of the system.
So far as increasing the housing supply is concerned, the Government is proposing In the next session to provide development finance to support smaller builders to develop new homes (through the Builders’ Finance Fund), and to deliver further homes on small sites over the course of its programme. The Government says it will also scale back the imposition of Section 106 levies on small-scale development.
The government also intends to introduce a loan fund to support “up to 10,000” new service plots for custom-build homes, as well as consulting on how to implement their previously announced “Right to Build” to give custom-builders the right to land in their local area. [If the government thinks they will achieve anything like 10,000 self-build or ‘custom-build’ housing starts by this means, they really are living in Cloud-cuckoo-land.]
The government proposes to introduce secondary legislation (a Development Order?) to allow for a locally supported garden city to be built in Ebbsfleet, backed by an Urban Development Corporation, as well as other ‘locally led’ or ‘locally supported Garden Cities. [Quite frankly, I am afraid this is simply ‘pie-in-the-sky’.] The Government says it is also rolling out two further programmes to provide infrastructure support for large-scale, ‘locally supported’ schemes.
More interestingly, from the point of view of those of us involved in day-to-day development management, the government says it will help speed up the time taken for sites granted planning permission to be built out, including reforming “unwieldy procedures and conditions” attached to existing planning permissions, whilst at the same time (they say) protecting environmental safeguards.
They also propose to make further changes to Part 3 of the Second Schedule to the GPDO to make it easier for “empty and redundant buildings” [sic] to be converted into productive use, supporting brownfield regeneration and increase the supply of new homes. The changes introduced this year and last year were certainly not confined to empty and redundant buildings, and I don’t suppose the further changes of use that the government is now proposing to allow will be either.
Meanwhile, the government will be pressing on with its “Help to Buy” scheme. They are convinced that it is not causing a housing bubble in London and the South-east, despite anecdotal evidence to the contrary. In the same way, they are determined to press on with the “Right to Buy” scheme which has caused such a devastating loss of social housing stock, and has significantly worsened the plight of homeless families by depriving them of the opportunity of being re-housed in decent housing in the public sector.
Will this be the last gasp of this government? Frankly, the outcome of the General Election on Thursday 7 May next year is completely unpredictable in light of recent electoral upsets, and I am not sure what direction, if any, will be discernible from the result of tomorrow’s Newark by-election. I still believe that if they are sufficiently ‘spooked’ by continuing unpopularity, the government might yet throw the planning system into Reverse, just as Maggie Thatcher did in 1987. Only time will tell.
© MARTIN H GOODALL
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