As covid-19 bites, the impact on five-year housing supply and on local authorities’ ability to meet their housing targets is likely to be severe, unless there is support from government, warn Jacqueline Backhaus and Jasmine Ratta.
In these uncertain times one thing is clear: the consequences of covid-19 will be wide-ranging and not all of them will be foreseeable. So far the government has acted swiftly and continues to introduce measures to mitigate impacts. However, one area of real concern which requires careful consideration is the position with five-year housing land supply.
Although perhaps not at the top of the government’s agenda, the fact that local planning authorities (LPAs) are likely to face being unable to demonstrate a five-year land supply of deliverable sites is a considerable concern. Any gap in supply means real households being denied real homes.
Jacqueline Backhaus
Although some construction sites have remained open with others now re-opening, construction activity will be demonstrably slower due to social distancing measures being implemented on site together with supply chain issues.
Although we are seeing LPA planning decision-making taking place virtually, with many authorities holding virtual committee meetings, the submission and handling of new applications will inevitably slow down as site visits, valuations, site appraisals and technical assessments cannot be undertaken during the lockdown. And even though the Planning Inspectorate is trialling virtual site visits, inquiries and hearings there will also inevitably be a backlog growing in the system.
A further key contributing factor is the potential expiry of unimplemented planning permissions, an issue which the Scottish government dealt with in early April. An automatic extension will apply in Scotland to any planning permission which expires on any date between 7 April (being the date this legislation was brought into force) and 7 October 2020. Any relevant planning permissions will then be capable of implementation until 7 April 2021.
This was also a strategy adopted by the then Labour government in England after the 2008 recession and is arguably an approach which should be urgently re-introduced.
Jasmine Ratta
A similar time-limited extension in England and Wales to unimplemented planning permissions could prove essential in guaranteeing the delivery of new homes already accounted for in the five-year supply.
In addition to ensuring the steady flow of much needed development, it would also significantly reduce costs for developers in terms of preparing and submitting new planning applications or indeed, where planning applications are still being considered by LPAs, for appealing against non-determinations. It would also reduce the work for LPAs in having to reconsider applications that have already been scrutinised and considered appropriate.
Extend life of planning permissions
An alternative possible approach would be the re-introduction of section 73 (of the Town & Country Planning Act 1990) to extend the lifetime of planning permissions. This was a mechanism in place until 24 August 2005.
Such a relaxation of planning legislation would provide flexibility but would still require an application process involving cost and time. There is therefore a strong argument for a blanket extension as it provides a more effective approach with the added benefit of reducing the bureaucratic burden on LPAs.
A relaxation on the enforcement of planning conditions that restrict construction activities on sites would also be welcomed. As sites get back up and running, there may be a requirement for shift patterns and extended hours to catch up on lost time. The construction industry needs flexibility to operate and not face potential enforcement action.
Covid-19 has also already impacted the local plan process, a key component for establishing housing land supply. Local plan examinations cannot currently take place as announced by the Planning Inspectorate on 24 March 2020. There is no date listed for their resumption.
This will exacerbate the long-term impact on the five year supply and the ability of LPAs to allocate sites for development where they have not yet been able to demonstrate a five year housing supply. It also means that applications in the system that do not necessarily accord with policy will be determined with a presumption in favour of sustainable development if an LPA cannot demonstrate a five-year supply resulting in development being permitted in locations where it is perhaps not ideal.
The government should introduce provisions promptly to address these issues to avoid unnecessarily worsening the housing crisis. Whatever approach is taken, the uncertainty around these matters needs to be addressed to enable the development industry, LPAs and other stakeholders to implement strategies to ensure the best possible outcome in this pandemic.
Jacqueline Backhaus is a partner and Jasmine Ratta a solicitor at law firm Trowers & Hamlins.
