Seminal appeal decision provides clarification on monitoring of Custom and Self-Build Development

July 4, 2019 11:18 am Published by

On 25 June 2019 Inspector Harold Stephens allowed the appeal by Astill Planning on behalf of Lauren Land Developments Ltd against North West Leicestershire District Council’s refusal of a self-build and custom build development providing 30 plots on land off Hepworth Road, Woodville.

At first glance the decision may not appear particularly out of the ordinary. However, the importance of this decision is that it provides clarification on the way in which local authorities are to monitor Custom and Self Build development in seeking to meet the demand on their Right to Build Register.

Its helpful to provide some background to the legislation around Right to Build to provide more context to the particular importance of this decision.

The Self-Build and Custom Housebuilding Act 2015 (as amended by the Housing and Planning Act 2016) placed a legal duty on local authorities to keep a register of individual and associations of individuals (i.e. groups) who want to acquire serviced plots of land. The Act also required local authorities to have regard to this register when carrying out its planning functions.

This was followed by the Housing and Planning Act 2016 which placed a duty on local authorities to grant sufficient development permissions to meet the demand for Custom and Self-Build housing in their administrative area arising in each ‘base period’ within three years after the end of each base period. This duty came into force on 31 October 2016.

The Planning Practice Guidance (PPG) section on Self-Build and Custom Housebuilding enshrines the legislative requirements into national policy with paragraph 023 stating that:

“Relevant authorities must give suitable development permission to enough suitable serviced plots of land to meet the demand for self-build and custom housebuilding in their area. The level of demand is established by reference to the number of entries added to an authority’s register during a base period.

The first base period begins on the day on which the register (which meets the requirements of the 2015 Act) is established and ends on 30 October 2016. Each subsequent base period of 12 months beginning immediately after the end of the previous base period. Subsequent base periods will therefore run from 31 October to 30 October each year.

At the end of each base period, relevant authorities have three years in which to permission an equivalent number of plots of land, which are suitable for self-build and custom housebuilding, as there are entries for that base period”.

By way of example, if a local authority had 100 registrations on its Right to Build Register in its first base period between 31 October 2016 and 30 October 2017, then by 31 October 2020 they would be required by the Act to have granted 100 suitable development permissions to meet the demand on its Register for base period 1.

The PPG also provides further explanation of how a local authority may demonstrate its duty with regard to the Register in carrying out its planning function at paragraph 014, where it states that “the registers that relate to an area may be a material consideration in decision taking.”

It is also of relevance to note that the Housing and Economic Needs Assessment section of the PPG recommends that in order to “obtain a robust assessment of demand for this type of housing in their area, local planning authorities…can also supplement the data from their registers with secondary data sources such as building plot search websites, ‘Need-a-Plot’ information available from the Self Build Portal and enquiries for building plots from local estate agents”.

Critically, neither the Self Build and Custom Housebuilding Act 2015, the Housing and Planning Act 2016, the PPG or the NPPF provide clarity on the way in which a ‘development permission’ should be monitored by a local authority in seeking to meet demand on their Register.

Our experience has been that local authorities across the country are making the assumption that all single dwelling permissions that they grant count towards meeting demand on the register. The problem with such an approach is that is does not provide a realistic picture of demand being met on the Register. In our experience a significant proportion of such permissions are often applied for and implemented by the applicant or landowner e.g. a householder obtains permission for a single dwelling in their garden and sells this off to a builder who then constructs the dwelling and sells it on the open market. The majority of single dwelling permissions do not become available to the market as an opportunity to provide a self build or custom housebuilding plot to help meet demand on an authority‘s Right to Build Register.

Bearing all of this in mind and turning back to the Woodville appeal decision, at paragraph 22 the Inspector sets out that at April 2019 there were 54 individuals on the Council’s Right to Build Register and since 31 October 2016 the Council had permitted four plots and 133 single plot dwelling permissions distributed across the district. Crucially, the Inspector finds that:

”The Council has not provided any information to suggest that there are provisions in place to ensure that any of the 133 single dwellings would be developed in a manner that accords with the legal definition of self-build and custom housebuilding in the Self-Build and Custom Housebuilding Act 2015 (as amended)”.

He goes on at paragraph 23 to set out that “this raises considerable doubts as to whether any single dwelling permissions would count towards the number of planning permissions the Council has granted for serviced plots and thus whether these consents would actually contribute towards the delivery of self-build and custom housebuilding in the district”.

The Inspectors draws the important distinction that the S106 Agreement submitted with the appeal proposals contains provisions to ensure the development would meet the definition of self-build and custom housebuilding and found that there was no evidence that similar mechanisms were in place to secure self build and custom housebuilding on the 133 single dwelling plots the Council refers to.

Mr Stephens draws the conclusion that “it would be unreasonable to include any of the single dwelling permissions within the calculation of self-build and custom housebuilding permissions granted in the district”.

At paragraph 24 the Inspector draws reference to the fact that Buildstore.co.uk was advertising nine self-build plots as available in the district at March 2019 all of which were granted consent since 31 October 2016. Only one of these however is listed as an approved self-build site in the Council’s evidence. As such he concludes that none of the remaining eight is subject to a planning condition or planning obligation requiring a self build or custom build house to be built on the site that accords with the statutory definition.

Therefore, he finds at paragraph 25 that only the four plots listed in the councils evidence comply with the definition of self build and custom housebuilding in the Self Build and Custom Housebuilding Act 2015 (as amended). As a result of which the Council has not yet granted planning permission for enough serviced plots to meet demand arising from base period 1 let alone any of the subsequent base periods (2, 3 and 4). He also found that the Council has provided no information to suggest that there are any applications pending determination for serviced plots in the District at present

At paragraph 27 the Inspector reiterates the PPG requirement that the Council has a duty to grant planning permission for enough serviced plots of land to meet demand for self-build and custom housebuilding in their areas then goes on to explain at paragraph 28 that the Council is required by Section 2A of the Self-Build and Custom Housebuilding Act 2015 (as amended) to grant planning permission for enough serviced plots of land to meet the demand for self-build and custom housebuilding which arises in each base period. As such the appeal proposal is necessary to enable the Council to meet its statutory obligations with respect to the duty under Section 2A of the Act given there is an inadequate supply of serviced plots coming forward in the district.

In the absence of primary legislation providing enough clarity regarding the way in which local authorities are to monitor the provision of suitable development permissions to meet demand on their Register, this appeal decision provides a precedent for the way in which this should be undertaken.

It places the burden of proof upon local authorities to demonstrate that there is sufficient evidence to prove that there are provisions in place to ensure that permissions they are counting towards meeting demand on their Register would be developed in a manner that accords with the legal definition of self build and custom housebuilding in the Self Build and Custom Housebuilding Act 2015 (as amended). In the absence of such proof a site would not constitute the legal definition of self-build and custom housebuilding plots and cannot therefore be counted towards meeting demand on the Register.

Contact

Andy Moger BA (Hons) MA MRTPI – Associate Director

0117 9561916            

andy.moger@tetlow-king.co.uk        

selfbuild@tetlow-king.co.uk

Tetlow King Planning are market leaders in the self build and custom housebuilding sector. We are full members of the National Custom and Self Build Association (NaCSBA) and support the Governments aims to expand this sector of the housing market. In addition to which Associate Director, Andy Moger, sits on the Right to Build Task Force panel of industry experts.

We will be at the Self-Build & Design Show West in Exeter on 7 & 8 September 2019 to answer questions and provide planning support for those seeking to make the most of the opportunity’s that self build and custom housebuilding present.

If you are considering a self build and/or custom housebuilding project or have run into difficulties with an existing planning application, then please get in touch as we would be delighted to help.