November 2, 2012
First, a government letter asked councils to look favourably on requests to change planning obligations. Then a consultation paper raised the possibility of allowing developers to seek to amend pre-April 2010 obligations.
Now the Growth and Infrastructure Bill proposes to allow requests to change affordable housing requirements (AHRs) in all obligations.
The bill paves the way for requests to modify, replace, remove or discharge any requirement in a planning obligation relating to affordable housing provision. Where such a request is made, the local authority must modify, replace, remove or discharge the AHR if its requirements would mean that the development would not be "economically viable".
This approach begs several questions. Why the focus on affordable housing, rather than also on obligations that might hinder commercial and other development? Other obligations also impose costs. Surely it would be better to review all obligations in the round? Also, these powers only apply if an AHR covers direct provision of housing, which probably excludes obligations proposing financial contributions in lieu of on-site provision. This may encourage councils to seek cash contributions rather than direct provision. How will the bill affect AHRs set in planning conditions? Councils may find control by condition more attractive in future.
The obligation to discharge an AHR that renders a development economically unviable will lead to endless viability arguments, but there are further issues. What if the development is unviable because it is poorly designed? What if the development is unacceptable in planning terms without affordable housing?
Appeal provisions in the bill give the secretary of state powers to modify, replace or remove an AHR, although not to discharge it. If the secretary of state allows such an appeal, any modification will cease to have effect if the development is not completed within three years. If a replacement AHR is needed, the development cannot be completed until the developer and the authority have agreed one. But why does this time limit apply only to secretary of state decisions, and not to local ones?
Hopefully, parliamentary debates and amendments to the bill will clarify the government's position on these issues. They also need to clarify one other point. To justify this amount of attention, there must be powerful evidence that, but for onerous planning obligations, the economy would soon be booming. It would be good to hear and test that evidence.
In reality, the clause elsewhere in the bill limiting councils' ability to ask for information to support an application unless it is reasonable in scale and kind and is needed to determine the application probably reaches much further. It will change the culture in a way that tinkering with one element of planning obligations will never do.
This article was published in Planning Magazine, 2 November 2012