DEVASSIST: New rules to require councils to notify the government before refusing major housing schemes

New legislation enabling the housing secretary to require councils to notify him before refusing major housing applications is expected to come into force later this month.

The change will apply to planning proposals involving 150 homes or more, giving the secretary of state the opportunity to intervene before a refusal is issued.

Government move aimed at speeding up housing delivery

The measure follows an announcement by the government in November outlining plans to accelerate the delivery of new housing.

Under the proposals, local planning authorities will need to inform the secretary of state if they intend to reject planning applications for developments of 150 homes or more.

At the time, housing secretary Steve Reed said the new powers would allow the government to take a more proactive role in addressing housing shortages.

“Given the scale of the housing crisis, and the imperative of building the homes we need, I want to use these powers in a more focused and active way. I will require local authorities to notify me where they intend to refuse an application for 150 homes or more – providing me with the opportunity to decide whether to take it over,” the housing secretary, Steve Reed, said in a statement at the time.

Reed also said that “this will be enforced through a new consultation direction and a change to legislation, and supported by a revised call-in and recovery policy”.

Legislative changes

To implement the policy, the government has introduced a statutory instrument that amends existing planning legislation.

Under the existing 2015 regulations, article 18(5) outlines circumstances where local planning authorities must consult specified individuals or organisations before granting planning permission.

Article 18(4) also allows the secretary of state to direct planning authorities to consult particular bodies in specified cases. These are known as consultation directions.

According to the explanatory memorandum accompanying the new order, the amendments ensure that consultation requirements can apply when authorities are considering whether to refuse planning permission, not only when granting it.

The memorandum states that the government has “announced its intention to extend the current consultation direction and require local planning authorities to notify the secretary of state where they intend to refuse an application for 150 homes or more”. It also notes that such directions are a “well-established part of the planning system”.

“The [government] has identified that the amendments to the 2015 order made by this order are necessary to ensure that the requirement to consult the secretary of state in those cases is given proper effect,” the memorandum states.

Planning sector reaction

Nicola Gooch, a planning partner at law firm Birketts, commented on the proposed change in a post on LinkedIn.

“Whilst this sounds fairly innocuous, this is the power that enables the current requirement [for local planning authorities] to notify the secretary of state of major applications they intend to grant as departures from the local plan – in case they merit a call in.

“As such, this change is paving the way for a change in that requirement to allow the secretary of state to require advance notification of planned refusals of planning applications.”

Additional planning powers also coming into force

Separately, further provisions from the Levelling-up and Regeneration Act 2023 are also being brought into force through another statutory instrument.

According to explanatory notes, these provisions expand the planning powers available to development corporations. In particular, they allow certain development corporations to take on responsibilities normally held by local planning authorities.

The legislation states that it “updates the planning powers available to centrally and locally-led development corporations, so that they can become local planning authorities for the purposes of local plan-making, overseeing neighbourhood planning and development management. This is to bring them in line with the mayoral development corporation model.”

Section 174 enables the secretary of state to designate an urban development corporation as the planning authority responsible for plan-making and neighbourhood planning in its area.

Section 175 inserts a new provision into the New Towns Act 1981, allowing similar powers to be granted to new town development corporations.

The legislation also includes financial provisions governing borrowing limits for these organisations from HM Treasury.

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