In the meantime, sites all over the borough are being consented to locally or on appeal, as ‘Your Waverley” lacks a five-year housing land supply.
It has long been a shibboleth of the UK planning system that the applicant’s identity doesn’t matter when determining an application. What does matter is what they are proposing to do with the land in question. But this principle that permission goes with the land looks to be fundamentally revised when the Levelling Up and Regeneration Bill (LURB) becomes law.
However, commentators fear a legislative tweak allowing councils to refuse applications anywhere in their area from applicants deemed slow to build out a site will be challenging to implement, may unfairly penalise smaller developers and could deter brownfield redevelopment like Dunsfold Airfield.
The House of Lords has agreed to four key government amendments to the Levelling Up and Regeneration Bill, including one permitting local authorities to refuse permission anywhere in their area for developers who previously carried out permissions “unreasonably slowly”. It includes a clause giving (LPAs) powers to decline determining applications from applicants who have been slow to implement prior permissions or failed to do so.
These proposed powers have been extended via a government amendment to the LURB, which was tabled last month.
The original clause in the bill only applied to new applications at the site of laggardly developments. However, April’s amendment would allow ‘Your Waverley’ to refuse any applications within its jurisdiction from developers who have been slow to build.
The government has responded to complaints by LPAs that, while they are subject to stringent tests on housing delivery, they have been hamstrung by developers not building out consented schemes. There are a considerable number of such sites in the borough of Waverley. E.g. Milford Golf Course, Brockhurst, the area adjacent to the Esso Garage in Alfold, Dunsold Garden Village and more in Farnham.
Peter Ford, principal consultant at the Local Government Association’s Planning Advisory Service (PAS), said this lack of power to enforce the delivery of homes has long been a gripe for councillors.
“We’ve got no teeth, and we have to consider any application that’s put forward to us,” he said. By contrast, this change, he continues, “gives the council a stick to get the developers to do what they say they’re going to do”.
Not everyone supports the change.
Ian Fletcher, director of real estate policy at the British Property Federation (BPF), acknowledged that councils often feel that the housing in their five-year land supply pipelines is usually “outside their control” but opposed the government’s move.
The latest amendment represents a “far-reaching” extension of the proposed powers to punish recalcitrant developers, said Sara Hanrahan, a planning partner at law firm Lewis Silkin.
“Previously, it [the clause] was just saying that you could decline one [an application] if it’s on the same land, whereas now it’s anywhere by that development within the borough,” she pointed out. The government’s amendment also opens up developers to the risk of their applications being declined if they have not started work on a scheme elsewhere in the same authority, she added.
Hanrahan said that this marks a further “eating away” of the principle that a planning application falls or stands on its own merits and should be considered in isolation. “Planning has always been attached to the land, and now it’s being very much tied in with the person doing the development.”
Mike Kiely, the local authority body chair of the Planning Officers Society (POS), said he believed the government proposal was a…
“very bad idea”. “You’re breaking a fundamental part of the planning system,” he added.
Richard Blyth, head of policy, practice and research at the Royal Town Planning Institute, wondered how feasible it would be for local authorities to establish the identity of the penalised entity. “Apart from departing from 70 or more years of planning practice, there’s no way of guaranteeing that the landowner wouldn’t simply create a new company to apply for permission,” he said. He added that the planning authority would then have the “very difficult process” of checking whether the company making a new application is ultimately under the same control as the entity that the council seeks to punish for slow or no delivery.
Tim Burden, a director at planning consultancy Turley, said big developers already typically set up bespoke special-purpose vehicles for the individual sites they bring forward. The new powers look set only to be a material planning consideration, meaning they will not outweigh the importance of the development plan when weighing up whether an application should have the go-ahead, he said.
“We’ve got to go back to what planning is about,” said Burden, and that, he continued, is “the use of land rather than some sort of personality or character assessment”.
Matthew Spry, a senior director at planning consultancy Lichfields, warned that the amendment would have the “unintended consequence” of deterring developers from undertaking potentially more risky projects to regenerate brownfield sites, which the government has professed its commitment to.
He said: “If it was felt that a developer was going to be penalised for not building out a site in terms of their ability to trade in that district in the future, they might be disincentivised from pursuing sites that are more challenging or where there are existing uses”.