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14/03/2016

Opportunity knocks

Words:

Housing as part of the nationally significant infrastructure regime – what are the opportunities and challenges? asks 
Martha Grekos

Martha GrekosOne feature of the Housing and Planning Bill is to allow Nationally Strategic Infrastructure Project (NSIP) developers to deliver a small amount of housing as part of a Development Consent Order (DCO), as the 2008 Planning Act only allows for temporary accommodation in these circumstances. Clause 107 of the bill proposes a limit of 500 homes functionally or closely linked geographically to an application for an NSIP.

Will this really help with the delivery of housing that England so desperately needs? What are the opportunities and challenges?

On one hand, it can be argued that the DCO regime provides a clear process, parameters and time scales for everyone involved and can deliver, potentially, an earlier decision than when compared to a planning application followed by appeal. This is of course if there has been no judicial review to the DCO. Nonetheless, it can tackle cross-boundary issues (where development crosses two local authority boundaries – or more) and the NSIP developer can fund the project, thereby relieving hard-pressed local authority budgets. Also, road and rail transport NSIPs, for instance, which might not have met business case requirements for DfT funding, may now do so if a scheme for 500 dwellings was jointly promoted with a housing developer. Using the NSIP process not only adds to the certainty of a successful consent, but also provides compulsory acquisition powers and other consents that might unlock developments. It’s a ‘one-stop shop’.

“England’s shortfall in annual housing supply is unlikely to abate until radical steps are taken”

However, the restrictions via clause 107 in the bill are unlikely to bring significant large-scale housing forward. Homes also need to be built in the right locations. The overall quantum may be in the national interest but where the new housing is, the location itself may not be in the national interest. The NSIP regime is designed for infrastructure deemed of national significance. One question is whether housing would stand up to scrutiny as an issue of national need as opposed to local or regional need. Also, how will the housing elements of an NSIP application be assessed? There could be a conflict on the one hand between the National Planning Policy Framework and local development plan policies which may be relevant and on the other hand with the procedures under the Planning Act 2008 and the National Planning Statements.

There would also have to be a consideration of what happens when there is no plan or a draft plan in place, as the NSIP application would in effect be overriding local decision-making when no housing site allocations were designated. It may be attractive to some that the NSIP regime is outside the local plan process, but others would see this as running counter to localism and as a centralised top-down process. Local planning authorities have no formal status in the determination of such applications and receive no fees or funding for their participation. And NSIP developers, for example, are not housing developers. They may form partnership arrangements with traditional house builders to deliver both elements, which would be a welcome way to unlock house building. But such partnerships take a while to come together and also if there is a delay with submission of the DCO or indeed it is judicially reviewed, this not only hampers the infrastructure project coming forward but also prevents the housing element being implemented.

The DCO system is quite different to applications made under the Town and Country Planning Act. It is robust and requires detailed property and planning expertise from day one. The process can be costly so there are risks involved in pursuing such applications.
There are indeed opportunities and challenges with allowing even a limit of 500 homes functionally or closely linked geographically to an application for an NSIP. One thing for sure is that it is unlikely to lead to quicker and more house building, as England’s shortfall in annual housing supply is unlikely to abate until radical steps are taken to meet the scale of demand. 

Martha Grekos is a partner and London head of planning and infrastructure at Irwin Mitchell LLP

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