Clause 5 - Modification or discharge of affordable housing requirements

Part of Growth and Infrastructure Bill – in a Public Bill Committee at 4:15 pm on 27 November 2012.

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Photo of Nicholas Boles Nicholas Boles The Parliamentary Under-Secretary of State for Communities and Local Government 4:15, 27 November 2012

I have enormous sympathy for the hon. Gentleman, who did a lot better job of sounding like he knew what he was talking about than I am about to.

Let me briefly respond to amendments 74 and 77 before moving on to the Government amendments in the same group. We discussed fairly fully in relation to a previous group of amendments whether a one-year period or, as the Government propose, a three-year period is a reasonable one in which to expect developers to act on the basis of a new agreement on affordable housing, and to build the development out. Although in the case of very small developments it might well be reasonable to expect movement within a year, we will obviously not be able to distinguish different time limits for different scales of development. The whole purpose of the clause—I accept that the Opposition do not share this analysis—is to get builders building as much as possible in the next few years. I believe that a year’s grace period within which to fulfil this agreement would simply be likely to lead to developers not taking advantage of this route at all, or to their having another go and causing everybody an unnecessary layer of effort and cost. On that basis, we have decided to propose a three-year time frame, and I hope I will be able to persuade the hon. Member for Edinburgh South to live with it and therefore withdraw amendments 74 and 77.

Turning to the Government amendments in the same group, amendments 37 to 39 insert default provisions regarding the time limits for making appeals. Amendment 38 inserts a default provision that an appeal must be made within six months of the relevant determination or expiry of the determination period. The six-month limit for appeals is in line with other appeal procedures and is necessary to ensure that viability evidence is up to date and relevant at the time of appeal. Amendment 39 disapplies the 28-day period for PINS decisions to allow PINS to undertake any necessary procedures. Amendments 48 and 49 ensure that appeals under section 106BB can be determined by the Planning Inspectorate on behalf of the Secretary of State from the day the clause comes into force.

Under clause 5 as currently drafted, decisions made by the Planning Inspectorate on appeals are valid for three years only, by which point a new agreement has to be reached for development of the scheme to continue. The three-year period provides an incentive for developers to get on and build, as we have just discussed. To avoid uncertainty at the end of the three-year period, amendments 43 to 45 bring in a default position so that after three years, development can continue in the absence of an agreement between the developer and the local planning authority. Here, as an incentive to the developer to take advantage of the new agreement, the default is that the affordable housing requirement revert to what it was before the first application was made under the new provision.

Amendment 43 also allows necessary modifications to be made by the Planning Inspectorate as part of the default provision when it considers an appeal. The inspectorate can make two kinds of modifications: first, those necessary to ensure that the requirement does not relate to development already commenced, as this could make it impossible to fulfil the obligation—for instance, where 95% of the development was already complete  and the agreement required 40% affordable housing on site; and secondly, those necessary or expedient to ensure the effectiveness of the default provision at the end of the three-year period. This allows the Planning Inspectorate to apply common sense in providing for changing circumstances, while maintaining the intent of the default provision, which is to return to the affordable housing provision of the original agreement.

I should make it clear that this default does not apply to local authority decisions, so if local authorities willingly reach agreement with developers to vary affordable housing obligations within a 106 agreement, that will not be subject to the three-year cut-off and the default proposed in the amendments.

Amendments 40, 41 and 42 are technical amendments that affect the operation of the clause, and confirm that the three-year decision period does not apply where the Planning Inspectorate has upheld the local planning authority’s determination. Where a developer loses an appeal to PINS, and the local authority’s position is upheld, there is no three-year limit on the decision and no default provision.