A foot on the housing ladder for NSIPs

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This article considers the introduction in today’s Housing and Planning Bill of scope for relatively modest elements of “related housing development” to be brought forward as part of existing categories of nationally significant infrastructure projects under the Planning Act 2008 consenting process.

The Housing and Planning Bill

The national lack of new homes is very much a burning political issue of the day. For some time, Government and development industry thoughts have been turning to whether the Government’s fast-track, one-stop-shop consenting process under the Planning Act 2008, could or should be used for housing applications. The process was originally designed for nationally significant infrastructure projects (NSIPs) in the transport, water, energy and waste sectors.

Today, the Government laid the Housing and Planning Bill before Parliament. Housing is still not an NSIP in its own right but has its foot firmly in the door: an as yet undisclosed number of dwellings (likely to be quite modest, i.e. hundreds not thousands) can be included where there is a functional link with the main infrastructure project or at least a close geographical link.

Housing historically kept out

To date, legislation and guidance relating to NSIPs has made it absolutely clear that not even a single permanent dwelling could form part of the NSIP, or even be consented as development associated with it. In keeping with the Localism agenda, guidance has stated that “the Government’s view is that determining planning applications for housing is a primary responsibility of local planning authorities who should be responsible for ensuring an adequate supply of housing in their area”.

A (slight) change of tack

However, a slight change of tack occurred in the Government’s July 2015 “Productivity Plan” which  said that it would legislate to allow major infrastructure projects “with an element of housing” to apply through the NSIP regime. The industry has been waiting eagerly to learn more about how much “an element” meant.

The Bill that was laid before Parliament today provides the legal basis for housing to be included in NSIP applications but numbers are to follow in guidance:

  • The Planning Act 2008 is amended to give the Secretary of State the power to grant development consent for “related housing development” when determining an application for an NSIP.
  • This is one or more homes on the same site as the NSIP or its associated development, or next to it or close to it.
  • The provision only applies in England; all dwellings in Wales therefore remain a matter for the local planning authority.
  • When determining an application which includes “related housing development”, the Secretary of State must take into account any matters set out in guidance published by him.

The explanatory notes to the Bill explain that the guidance in question is to be published by the Department for Communities and Local Government. It will set out the amount of housing that can be consented in this way. It is rumoured that it may indicate that housing of more than 500 dwellings will not be acceptable.

The explanatory note sets out that housing functionally linked to the NSIP would be allowed, e.g. for workers during the construction and operation phases of a project. Interestingly, it will also allow the Secretary of State to grant consent for housing “where there is no functional link but there is a close geographical link between the housing and infrastructure project”. It is understood that two miles had been considered but this attracted criticism, which could mean that principles rather than thresholds could be applied, making every decision one for the Secretary of State.

How will elements of housing fit into the NSIP regime?

Much vaunted as a consenting system that delivers, with 43 development consent orders made for major infrastructure since 2008 (and all applications bar one ultimately approved other than those withdrawn), the NSIP regime provides certainty in timescales and, indeed, outcome once an application has been made. It also allows the option of including compulsory acquisition powers vested in the scheme promoter along with a bundle of other necessary consents.

However, much of the certainty of outcome has been down to the Government’s national policy statements (NPSs) which contain bespoke support for the types of infrastructure consented to date. There is a statutory presumption in favour of schemes which are NPS compliant when it comes to decision time. However, there are unlikely to be NPSs relating to housing. The proposed guidance on “related housing development” has statutory force but it is not an NPS and does not benefit from the same presumption.

Promoters will therefore need to be well advised on how to mesh together the well-established policy case for the primary NSIP, firmly based upon the relevant NPS, and a policy case for up to 500 dwellings from local and national policy actually designed for a consenting route under the Town and Country Planning Act. The proposed guidance will hopefully act as a bridge between the two systems.

Reliance on the standard policy matrix is needed in any case for specific categories of business and commercial schemes which have been able to opt into the NSIP regime since the Growth and Infrastructure Act 2013 (office, R&D, industrial, storage, exhibitions, sport, leisure and tourism), provided that the Secretary of State is satisfied that the schemes are of substantial size and national significance. Whilst there is scope for including hundreds of homes on former temporary construction compounds used over many years on long pipeline or tunnel schemes for example, it is really the business and commercial schemes for whom the Bill’s injection of a significant housing element could greatly boost viability.

Housing getting its foot on the NSIP ladder – a first or last step?

The limited scope of the Bill means that this is not a panacea for the housing crisis – yet. It remains to be seen whether this is the first or last step for housing getting its foot on the NSIP ladder.

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