Growth and Infrastructure Bill

Memorandum submitted by Home Builders Federation (GIB 69)


The HBF is the voice of the homebuilding industry in England and Wales. Our members deliver around 80% of new homes built each year. We represent member interests on a national and regional level to create the best possible climate in which they can deliver the homes this country needs. HBF members range from household multinational names to smaller local businesses, and include RSLs,  suppliers and companies who provide professional services to the home building industry.

HBF has some of the country's foremost experts on housing and planning policy and is a regular consultee on new legislation.

The Growth and Infrastructure Bill

The major long-term constraint on house-building over the last two decades has been the lack of land with viable and deliverable planning permission.

While the general economic climate and current restrictions on credit have been a major factor in the housing market since late 2007, there can be no doubt that our historic undersupply of homes – over some 20 years at least - is a result of a planning system that has not been applied positively and properly for some time – this was the conclusion of the Barker Review of housing supply back in 2004.

A survey by the Killian Pretty Review in 2008 found that only 3 out of 64 planning applications went ahead without difficulties, while over half encountered "substantial problems". According to the National Audit Office, planning laws create the highest regulatory costs of any type of regulation.

To solve the nation’s housing crisis it is vital that legislation produces a streamlined pro-growth planning system so that more land suitable and viable for development is brought forward through the development plan process and that local authorities across the country grant planning permission for more homes.

While we have not advocated further change to planning policy following the adoption of the final version of the National Planning Policy Framework in March, there is a need for further improvements to the planning process. The Home Builders Federation therefore welcomes the Growth and Infrastructure Bill as a positive step in improving the operation of the planning system in delivering the NPPF and believes that the legislation proposed can successfully complement localism and the National Planning Policy Framework.

Our views on particular Clauses of the Growth and Infrastructure Bill are as follows:

Clause 1

The HBF is supportive of the provisions laid out in Clause 1.

While we work hard with local authorities across the country and appreciate the pressures on resources they are experiencing, we welcome the option of, in extremis, enabling home builders to apply to the Secretary of State where a local authority has a record of very poor performance.

We support the concept of localism and the localist principles behind the National Planning Policy Framework. An integral part of localism however, must be that where local authorities have been given more power they also have more responsibility to use these powers to meet the objectives of the planning system and the NPPF.

It seems likely that this part of the legislation will only affect a small number of local authorities directly, but its importance is that it will act as a powerful incentive for others to plan positively for sustainable development in their area.

Local authorities will want to be in a position where they still have control over decisions that affect their electorate rather than having to explain why local decisions are being taken by the planning inspectorate. With knowledge that a developer may have another route to pursue where they fail to take these decisions, a local authority is more likely to come to progress planning applications in a positive way so that developments that would otherwise be stalled through no fault of their own can be brought forward.

Clause 2

We support the proposal to allow the Secretary of State to reclaim costs of appeal proceedings against unreasonable behaviour by any party to an appeal. While we do not generally support the idea of paying for appeals we would be happy to move towards an appeal process similar to that of the courts where the "loser pays". We do not believe that appeals are made in a frivolous manner and this further step would be a welcome focus for both local authorities and appellants alike. We do have some concern that the Planning Inspectorate will have a role as judge and jury in this process.

Clause 4

The cost of producing a planning application has never been easy or cheap but more than ever the process is huge drain on financial resources and time. We support the proposal to ensure that all information required by local planning authorities is reasonable in relation to the application in question. It is critical that information required by planning authorities is proportionate and material to the determination of the planning application since this burden on resource falls entirely on the applicant, often creating unnecessary cost and delay. It is, therefore, sensible that there is a limit of ‘reasonableness’.

It has become especially frustrating for developers and homebuilders because much of the information that is requested by local authorities is not necessary in order to make an informed planning decision. The situation is made even worse by the fact many requests become repetitive, asking for the same information on numerous occasions over the course of a planning application. Local authorities often make such requests due to a lack of knowledge and so in error make requests that slow down development. It is also the case that repetitive claims can be made to deliberately stall development.

A specific example of the problems that can arise is that wildlife surveys can only be undertaken at particular times of the year. A project can be delayed by many months if a wildlife survey is requested by the local authority on multiple occasions, even though a wildlife survey was submitted with the planning application, but because there is a condition on the planning consent requiring further information, a developer cannot submit the previous year’s survey; a company then has to undertake a new, up-to-date one.

Clause 4 should greatly reduce the burden on developers and homebuilders and cut down on wasted time and resources in the planning system, a major step forward. Rather than damaging the quality of planning decisions, this part of the legislation will only affect local authorities which are making unreasonable or ill-considered request for information;

Clause 5

Over the last few years home builders and local planning authorities across the country have worked together to ensure that developments are made viable. Current estimates are nevertheless that there remain 75,000 plots with planning permission which are currently not economically viable. In order to kick-start construction of desperately-needed homes alongside the creation of local jobs and economic growth it is therefore vital that the burdens preventing development are lifted wherever possible.

Before the economic crisis of 2007/8, many sites had onerous s106 agreements placed on them which are now no longer possible to meet in the current economic climate. It is sensible that the Bill addresses this and allows developers to apply to local authorities to modify s106 affordable housing requirements.

It is important to recognise that where development cannot currently go ahead, no affordable housing will be built and thus renegotiation of s106 to ensure economic viability will mean more affordable homes can be built than would otherwise be the case.

This clause is not particularly radical in its scope but nonetheless remains necessary. Good local authorities already renegotiate affordable housing commitments, so this is another part of the Bill aimed most immediately at the minority of local authorities which refuse to renegotiate and therefore stop developments coming forward. For the future it will, however, create a backstop or reserve power that encourages pragmatic discussion of viability issues related to affordable housing provision. This is a valid consideration given that some 50% of financial contributions under Section 106 agreements are for affordable housing.

Section 106 agreements were originally put in place to mitigate the effects of development, in other words what a homebuilder must do so there are not negative effects on the existing community and so that the new community will be able to thrive. Affordable homes do not fall under this umbrella, they are a negotiated benefit of development and many sites have become unviable with the cross-subsidisation of affordable homes often the root cause of stalled development.

There are also limits to what a local authority can designate as necessary mitigation before development can take place. If a local authority was to revise previous obligations that are properly designated as necessary with developers there would be a tacit admission that these local authority requirements were beyond what was needed to mitigate the proposed development. Seen in this light, because affordable housing lies outside the mitigation regime, adjustment to the amount of affordable housing is all that is left in order to make a development viable where viability is an issue.

It’s important to note that Clause 5 is not being put in place to give developers and homebuilders greater profit margins - they must prove that their site is unviable if required to cross subsidise the previously required amount of affordable housing and the viability assessment will be independently examined by the Planning Inspectorate. It is clear that this is another part of the Bill which is centred round removing obstacles to growth and increasing flexibility in the planning process to ensure delivery of sites through the planning system. It will not affect those authorities who are already acting in a positive way towards housing delivery.

Other conditions on a planning consent can be reassessed and taken to the Secretary of State and section 106 agreements should be treated exactly the same. The fact that section 106 is a legal agreement and therefore subject to different rules is an anomaly in the system and the clause is definitely pushing policy the right way.

Clause 6

HBF is supportive of Clause 6 of the Bill, the policy will accelerate the process of bringing local authority land in to use. More land is desperately needed to be released for development and clause six will deliver local authority land for that purpose, but crucially much more efficiently than previously.

Clauses 12/13/14

We fully support the Bill’s measures to place the current Town and Village Green legislation inside the planning system. We feel strongly that this is the right place for discussions surrounding the future of sites and will enable local communities to plan positively – and with certainty - for the future of their areas.

We are not against the principle of designating Town and Village greens. Unfortunately the current legislation is open to misuse and can add significant costs and delay to both home builders and local authorities pursuing legitimate development plans. For example, in Marsh Gibbon an application to designate an area of land as a village green delayed the work of Hastoe Housing Association by two years, yet those that made the application never attended any public consultations to discuss the use of the land.

This legislation will prevent vexatious applications to designate land as town and village greens but also guarantees the rights of local people to protect land they truly use and cherish. It is, therefore, not surprising that our desire to see town and village green registrations properly pursued through the statutory planning system is shared by the Local Government Association, the National Housing Federation and other organisations.

A joint submission from those supporting these clauses is being presented.

December 2012

Prepared 10th December 2012