Guidance on the expansion of the NSIP regime published

This article was produced by Nabarro LLP, which joined CMS on 1 May 2017.

Summary and implications

Guidance on the expansion of the NSIP regime published Guidance has been published by the government which sheds light on new provisions that came into force on 6 April 2017 and which allow housing associated with nationally significant infrastructure projects to be included in development consent orders.

Background

The Planning Act 2008 (the "2008 Act") introduced a system of unified development consent for nationally significant infrastructure projects ("NSIPs") in an attempt to simplify and speed up the process of obtaining planning consent in the context of a major infrastructure project. What constitutes an NSIP is set out in the 2008 Act and amounts to large scale developments which include, amongst others, the construction of new roads, railways, airports, power stations and electricity transmission lines.

Where the Secretary of State decides to grant consent, this is done through a development consent order ("DCO"). A DCO combines the grant of planning permission with a range of other separate consents such as listed building consent and can include the right to compulsorily purchase land.

The previous regime did not allow for the consent of any housing under the 2008 Act, with the exception of temporary accommodation during the construction phase. However, new provisions brought about by the Housing and Planning Act 2016 came into force on 6 April which allow development consents for NSIPs to include a housing element. The Department for Communities and Local Government published its 'Guidance on Nationally Significant Infrastructure and Housing' (the "Guidance") last month.

Summary of the Guidance

"Related housing development"

The recent changes amend the 2008 Act by widening the types of development for which a DCO can be granted to include "related housing development". The effect of this is to allow development consent for housing which is related to any category of NSIP but only in two circumstances:

• where there is a functional need for the housing in terms of the construction or operation of a project; or
• where the housing is in geographical proximity to the project.

An application for development consent with related housing development may include other developments associated with that housing, such as local infrastructure, provided that it is integral and proportionate to the housing proposed. However, it remains the position that projects which only comprise housing are still not allowed under the new regime.

Amount of housing permitted

The Guidance states that the maximum amount of housing for which a DCO will be granted should be limited to 500 dwellings (although the Guidance suggests that this cap may have flexibility in some circumstances, particularly where the housing is based on a functional need for it).

Conversely, the Guidance suggests that, in locations where there are specific policies in the National Planning Policy Framework that seek to restrict development, it is likely that the number of dwellings permitted will be significantly lower, or no housing will be allowed at all. Such areas include land designated as Green Belt, Areas of Outstanding Natural Beauty, designated heritage sites and locations at risk of flooding or coastal erosion.

Affordable housing

Where housing is granted consent on the basis of geographical proximity, the Guidance makes it clear that any housing consented should include a percentage of affordable housing in accordance with any policies set out in the area's local plan.

Location of housing

Where housing is being provided on the basis of a functional need, there is an expectation that the housing should be in close proximity to the infrastructure project concerned (although the Guidance provides some detail about situations where housing in local towns may be more appropriate). If housing is being provided on the basis of geographical proximity, developers must show that it is on the same site as, or is next to or close to, a part of the project. "Close to" is to be interpreted as up to one mile away from any part of the infrastructure for which development consent is being sought.

The application process

The application process under the expanded regime is to remain the same, however, the housing element of the application will be carefully examined in its own right. The extensive pre-application consultation will continue to be an important element of the DCO application with the Guidance making it clear that full engagement with local authorities and local communities on any NSIPs that will involve housing is essential.

In particular, developers should provide a simple one page summary of the housing element of their application. This should include the basis for the housing and the amount of housing proposed.

The Examining Authority will undertake an examination of the housing element of the application to ensure that the housing falls within the specific circumstances allowed by the regime and that the housing proposed is acceptable in planning terms. The Examining Authority must consider:

• the basis for the housing (functional need or geographical proximity);
• the amount of housing proposed; and
• the location.

There will be no change to the way in which the Examining Authority reports to the Secretary of State, nor the process for taking decisions by the Secretary of State. It will, however, be open to the Secretary of State to grant development consent for the infrastructure, but refuse consent for some or all of the housing, if the Secretary of State considers that the adverse impact of the housing outweighs the benefits of the development as a whole.

Conclusion

The addition of related housing to the NSIP regime could be of great benefit to infrastructure and housing developers. The new provisions have the potential to allow developers to take advantage of the streamlined DCO application process with decisions made by the Secretary of State instead of at local level. Developers can avoid having to make a separate planning application for housing and will have the potential to use compulsory acquisition powers to obtain housing development sites that might not otherwise have been available.

However, the housing element of the DCO remains reliant on the infrastructure project. It therefore remains to be seen how the new regime will work in practice. However, the Guidance provides useful clarity to developers of major infrastructure projects who are considering a housing element as part of their application for development consent.

If you have any queries about NSIPs, DCOs, or how the new legislation may affect you, please do not hesitate to contact us.