749: Housing can now be included in DCOs

Today’s entry marks the bringing in of housing to the Planning Act 2008 regime.

Today is the beginning of a new tax year and is also one of the two ‘common commencement days’ when many new regulations and parts of acts come into force (the other is six months later).

One of these is the provision in the Housing and Planning Act 2016 that allows ‘an element of housing’ in an application for development consent under the Planning Act 2008. The commencement order can be found here.

This is a significant day, because when the Planning Act 2008 first came into force and for many years afterwards, it was supposedly sacrosanct that local authorities should be the ones to give consent for all housing. Nessun dorma! was the cry, when it came to nationally significant infrastructure projects.

However, bit by bit that principle has been eroded as the Government has come up with more and more new ways to speed up the delivery of housing as alternatives to conventional planning applications, and finally this bastion of houselessness has fallen too.

There is guidance on what housing can be included and how to go about including it, but in summary, what you can do is as follows.

Two types of housing can be included in an application for development consent under the Planning Act 2008, which therefore includes not only nationally significant infrastructure projects but business and commercial projects too.

First, the housing could be functionally linked with the infrastructure or business or commercial project in question, e.g. workers’ or caretaker’s accommodation, but that’s hardly going to set the world alight. The more significant type is the second one: any housing whatsoever can be included as long as it is near enough to the project in question, and ‘near enough’ is currently defined as ‘within a mile’. That means the houses don’t need to be within sight or sound of the project in question.

The total amount of housing that can be included is currently 500 houses, which seems a lot but for some large projects might not be enough to be worth doing, so in a way it is simultaneously too large and too small (perhaps meaning it is about right). Both the ‘within a mile’ and 500 limit are only in the guidance rather than the act, and so theoretically could be changed (in either direction) quite easily.

The main benefit to housebuilders of using a DCO is probably the availability of direct compulsory acquisition powers and the consequent paying of the market value of the land in the ‘no scheme world’. There are also the usual benefits of certainty of timing, the combination of multiple consents, and the disadvantage of earlier, and in many circumstances greater, cost.

What I found interesting about the transitional provisions at regulation 7 of the commencement regulations (yes, commencement regulations can be interesting), was that the ability to include housing does not apply to live applications for development consent or live applications to make amendments to development consents. Fair enough , but this opens up the idea that existing DCOs could have housing added to them by means of an application for a material amendment. Having trouble with the viability of your DCO project? Add some houses to it!

Will this get used? The extension to business or commercial projects is hardly an encouraging precedent with no applications yet made over three years after it was introduced, but maybe this will be different. I see the main issue as wariness and lack of experience of the DCO regime amongst housing developers and their advisers, but the infrastructure planning community is here to help…