BNG and Self Build - Public forum - Planning Advisory Service (PAS)

I think1A2 is a 'belt and braces' clause simply emphasising the inherent meaning of 1A1 by stating the obvious opposite case

'Building a house for yourself (does not mean buying a house someone else has built)'

Agree with Richard - the second clause (A2) But it does not include the building of a house on a plot acquired from a person who builds the house wholly or mainly to plans or specifications decided or offered by that person.

This rules out simply purchasing in the normal way a house off-plan built by a developer  - clearly where the buyer has no involvement in changes/design/spec etc which is the logic behind custom/self-build.

I note that the Act also requires occupation by the individuals carrying out the build or built for them by a builder.  I'm not sure the Act addresses exactly how long this first occupation requirement needs to be...which is a potential loophole.

And of course registers are completely flawed anyway as eligible people can register on as many as they like but may have no financial ability to progress either.  So are far from robust measures of demand.  And I consider many sign up because they think they will get cheap council land. 

Hello,

I've been lurking around for some time but this is my first post here! 

This subject interests me as I have seen a couple of examples of multiple adjacent plots being sold off as "self-build plots" with outline planning. Do these require BNG or is this another way to get out of it?

Thanks,

Steve

Hi Steve, 

small-scale self build are exempt. They might be genuine but call me cynical, but anecdotally there seems to have been a rise in self build applns. Coincidence?

No such thing as a coincidence when loopholes are concerned!

However, I'm questioning the point at which exemption from BNG is applied - if outline permission for >9 dwellings is granted, then the plots are sold on to individuals, should a BNG calc be done for the OPP, the individual plot developers, or neither? I understand that OPP doesn't invoke the environmental stuff.

Thanks,

Steve

Just quick bumping up of this topic. 

The MHCLG-funded right to build task force is holding a masterclass on "Biodiversity Net Gain - CSB homes in the planning process" on 9 January.  https://www.eventbrite.co.uk/e/biodiversity-net-gain-csb-homes-in-the-planning-process-tickets-1112632175789

Attendence for LPA officers (gov.uk email) is funded by MHCLG and you can contact taskforce@righttobuild.org.uk to request a FREE promo code.

Class will look at how the BNG self build exception worksand mechanisms and triggers to use to ensure delivery.  Well-informed speakers with case studies...

Hi everyone. I've just been reading this thread with interest. I believe in my authority the DM validation have experienced a rise in residential applications claiming to to be some form of custom or self build (CSB) since the BNG regs kicked in. Coincidentally I also monitor resi approvals for CSB status and write the AMR section - we are just coming to grips with the LURA implications of unment demand (that Kulwinder above alluded to). In terms of the BNG exemption 'loophole' issue, we are currently reviewing our DM validation procedures to ensure that schemes claiming at outline or full stage to be CSB, must have CSB contained within the development description; and the imposition of one or more 'standard' CSB conditions in the event of approval. We have dicussed the issue of whether a UU [or Council 'standard' UU] should be required for even minor resi approvals, but the imposition of this as a requirement looks unlikely atm. On Steve's point about outlines, we have dicussed how this may generate 'custom' (as opposed to 'self') build schemes at the outline stage where a private developer makes plots available to others to 'self finish' to varying degrees. The view is that the combination of devt description and conditions must have the effect that subsequent reserved matters would have to be truly for CSB, else the requirement for BNG particulars would kick in again in the normal way! I am also aware of discussion generally about the issue of whether LPAs should expect submission of baseline BNG metrics even for applications claiming at outline, to be CSB just in case. It is very much a learning curve for myself as a monitoring officer, and my authority more generally. I shall be attending the RTBTF training in January too. Hope this helps.

Worth noting a recent appeal APP/N4205/W/24/3343705 where the inspector had reservations about whether a UU would actually secure self build for two reasons.  The first being that at appeal the council is not the decision maker and the second because the UU referred to the definition of self build in regulations and not the Self-build Housebuilding Act.  So if you do use a UU route better make sure it holds water.  Better sticking with description maybe?

Also the inspector seemed to accept evidence of demand other that the register.  Clearly this illustrates the limited robustness of registers - potential duplication and inability or intention of those on the regsiter to actually proceed being self-evident flaws but we are stuck with this.  But clearly if applicants can simply produce other "demand" figures than the system is clearly broken.

Small sites with permission clearly have the potential to be self-build or custom build - it is a pity government doesn't accept this.  And the fact that a "self builder" can immediately market a house they have built or commissioned with no restrictions demonstrates that the system could fail to to satisfy housing "need".

Good news however about the appeal cited above was that while the inspector clearly gave considerable weight to self build, it was a clear Green Belt dismissal.  This confirms that self build should not be used as a means to secure housing in unsustainable locations and so the weighing of self build against other planning matters remains critical.

Thanks Kulwinder for the 3 year occupancy confirmation, I'd missed that and other information.  I agree that ambiguities in the earlier implementation of self build did not help and while I'm far from convinced simplistic tick-box registers prove much at at we do have more clarity through subsequent legislation.

I suppose fundamentally while self build could contribute to housing numbers there is little evidence certainly locally where I work that this will solve the housing crisis and perhaps the early messaging that "get on the register will get you a plot cheap from the council" was wrong.  Also the efforts to carry out the process, evaluate a UU or other legal agreement etc seem completely disproportionate for a single dwelling.  And while there is a requirement for 3 year occupancy (not checked specifically for the detail) it seems unlikely given resources in planning departments that this will ever be checked further down the line.  So could be largely meaningless - but at least you get a house and can tick the self-build box.     

So long as there are specific deliverables baked in to a UU or S106, there's no reason why monitoring that would require a huge resource on the part of an LPA. If in 3 years time after the grant of permission, the required proofs haven't arrived, the permission is invalid, end of; the onus is on the persons who are bound by the undertaking to demonstrate compliance. In my view, there's actually no reason why LPAs shouldn't be able to provide a template UU or S106, one that can be customised for site circumstances, but which ensures the requirements of legislation are met. 

SBCB is one part of the answer to the housing crisis - in sheer numerical terms, large, sustainably located developments are always going to be the main answer. But SBCB will likely be required as a partial component of all larger schemes.

That alone, however, will not be enough to satisfy the need to ensure a diversity of supply. Individual CFSB sites will rightly play a strong part in delivering that aspiration - most self-builders contemplate CFSB because they don't want to live on large, anonymous estates - and so policies that specifically and fairly acknowledge that need should be part of any future Local Plans.

Thanks all. Interesting readin (and lots more detail than I expected!).

To be fully clear - the three year occupancy is only related to the CIL Regulations self buidl exemption.  There is nothing the Self Build and Custom Housebuilding act and regulations about three year occupancy.

That said, most genuine self builders are happy to sign a UU and many won't have an issue with three years.  In addition, given the definition in the SB&CH legislation, the home will by defintion be principle residence (not holiday let etc) for the builder/first occupants - something most people will be happy to commit to in a UU.

Re the numbers increasing - 13 years self build has been in the NPPF, and 8 years since legislation, most LPAs have struggled to get to grips with this - it's great (IMO) that the BNG means LPAs will have to better monitor and acknowledge the number of self build appliations.  This will help 'calibrate' the numbers they are seeing in the register. 

Always a good shout to check out guideance and advice notes on righttobuild.org.uk - not perfect, but bust there is.  Paricularly as the NPPG is so out of date (does not reference LURA changes and much more).

Just ICYMI, there is a BNG for self build online training session scheduled for Thurs 9 January: https://www.eventbrite.co.uk/e/biodiversity-net-gain-csb-homes-in-the-planning-process-tickets-1112632175789

Its free for anyone in local gov (with a gov.uk email - funded by MHCLG).  To get the FREE promo code email Vicky at taskforce@righttobuild.org.uk

I generally support Kulwinder's views on the subject.  IMHO LA's have been truly woeful in their attitude towrds SBCH with most actively trying to prevent such development in their areas.  The LURA references to what can count and how need in any given year accumulates is a direct message to authorities who think they can simply disregard the need.  Many people want to build their own homes and authorities need to recognise this and facilitate it through policies.

On the 3 year timeframe, Mary correctly points out that there is no such requirement in SBCH.  Rather the requirement is under the CIL regulations.  I don't know the figures on a national picture, but consider that Kulwinder may be wrong in thinking 'most' authorities have CIL in place.  In my experience, only a few do.  I regularly see authorities mix up the 3-year self-build exemption under CIL with the SBCH legislation, and also the BNG legislation, now that's with us.

I don't think a self-builder should be required to own their property for 3 years.  I think it highly likely that they shall because for such people, they are designing the home of their dreams.  But circumstances change.  If you fall ill shortly after completing your home and you must sell then any 3 year rule will cause unnecessary stress.

The 3 year timeframe for CIL simply deals with money.  Government(s) want to encourage SBCH and recognise that it can contribute strongly (sorry, Andrew) to housing numbers, like it does on the continent.  Giving a CIL exemption to SBCH supports the growth of the sector, but I do recognise that some people might try and game the system for advantage.  An applicant can fill in the CIL form and claim self-build relief, but if they sell within 3 years they must pay the full amount of CIL charge - it's not even graduated, it's all or nothing.  This 3 year period acts as a deterrent to those who think they can complete the house, save on the CIL and then sell soon after completion.  The 3 year rule for CIL relief seems appropriate to me, but maybe graduating it would be fairer.

Useful exchanges going on here.

A basic question:

What weight can we give the self build biodiversity net gain exemption as evidence to define a permission as meeting self build requirements?

I might be reading the question wrong, but that sounds like the tail wagging the dog. The exemption isn't evidence; it can be applied if there is enough evidence that the application meets CSB requirements.

A basic question:

What weight can we give the self build biodiversity net gain exemption as evidence to define a permission as meeting self build requirements?

Hello...new here, but we have been pondering the BNG and CSB thing, and yes, every indvdual dwelling is now coming in as CBS purely to avoid BNG, even barn conversions, apps involving demolition.

Maybe I'm reading this Q wrong,What weight can we give the self build biodiversity net gain exemption as evidence to define a permission as meeting self build requirements? but zero weight. The CSB evidence is needed to demonstrate BNG exemption.

The application form asks "Does your LPA require you to evidence CSB?", or words to that effect, in the BNG section. How are LPAs asking applicants to evidence this, if you are at all?

We currently aren't, but are putting it in the description (most agents dont), checking site area isnt too big (we had one where it was double the exemption size) and if approved, condition it for CSB. That also then leads on to "does it need to be specific as either SB or CB? I dont think so whilst there's a difference, the legislation doesn't differentiate? Welcome thoughts on how you would require an applicant to evidence they are CBSers? On the register? They dont need to be. SB mortgage in place?...I guess that would work for single plots, but not outlines where the plots will then be bought by individual SBers.

On the UU/S106, I am of the view its not needed for single plots. Curious why some think its necessasry and the desciption with a condition wont suffice? We do use a 106 for multi-plots though.

Interesting comments Cheryl. 

While I tend to agree that the system and costs of doing legal agreements for small plots seems over the top, others seem to think that UUs are the way forward. 

Clearly descriptions would be obvious but again what weight do they have?

Conditions - others may wish to comment, but conditions are to make a scheme acceptable.  As I've said for years, a house is a house, so it is hard to see whether a condition is legal anyway, we should not be granting permissions for houses on the grounds that they are for self build or custom build alone where they are contrary to policy. 

We are obviously all trying to tick the box ultimately to satisfy tests against a pretty unrobust register (but that is the test). 

And if you own or have acquired a site or have a permission why would you even bother being on the register. 

And the register is about overall "desire/demand/interest" not about satisfying a particular individual's need.  There is no legal requirement to actually provide permissions for a specific individual on the register, just enough permissions to meet the totals.  You could in theory have nobody on the register satisfied - because they can't take up the permissions anyway.

Ultimately we have to be satified the permissions are for self/custom build.  I'm not sure they are different in terms of tests, although stand to be corrected.  

Have a look at PINS' inspectors training manual - that and a bunch of decisions make it clear a UU/106 is most appropriate.  Extract below from Housing Chapter, subsection on Self Build and custom housebuilding.

The Description of Development is relevant, but not determinative.  Though in case of PiPs, I understand counsel's advice is if Self/custom build is in the DoD that's sufficient as any technical details can be assessed against that (though would recommend clear informative & text in report noting the relevance) and you can refuse if it looks like a sepculative build.

And some LPAs change the DoD from the application removing "self build" but hopefully with BNG shining a spotlight that practice will stop.  By now it should be clear to everyone that self build is a specific type of housing (analagous to tenure) even if it is C3.

Mary

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A question for you, Mary. If a refused application is accompanied by a UU that's considered acceptable by an LPA, do you think that the UU have to be amended in any way if the matter went to appeal? The conditionality section of most UU's refer to the LPA in question. But, of course, if an appeal has been lodged then I guess it's no longer the LPA making the decision...

On the UU issue.  We had an appeal decision in Bolton Appeal Decision APP/N4205/W/24/3343705 albeit straight Green Belt rejection in reality for a single dwelling.  The inspector was not convinced that much weight in the balance should be given to the UU's effectiveness because the decision would be made at appeal and therefore it was not the council making the decision and also because the UU referred to regulations not the main Act.  So wording of UUs probably needs to be closely examined closely too.

In reply to James - I think its laregly that before that nobody actually ticked the CSB box on the form, even if they were genuine and now that BNG applies, its made agents more aware of this (esp where CIL hanst been adopted). I am certain many are not intending to build themseves (I had one with a couple in their late 70s/80s submitting an outline, for example) but, maybe they would input into the design and therefore still qualify as CB, whilst not actually getting their hands dirty.

An applicant applying for CSB and selling it on to somebody who then designs their RM and builds it and lives in it...yes, exempt (unless legislation says it needs to be secured at OPA stage, and cant be done at RM?) Informatives are used and conditions such as "The BNG Plan must comply with XXXX"

A plot with FUL can be sold as CSB...the purchaser would need a S73 to include their input into a new design. Or they build as approved and arent BNG or CIL exempt.

BNG at RM stage...every decision has the deemed condition anyway, unless exempt, so if it turns out its not CSB, then yes, they need to discharge the BNG condition before they can lawfully start...but they will have an outline saying its exempt...hmmm? (or they dont and start and then it doesnt apply to retrospective apps anyway) Minefield.

In reply to Mary, interesting PINs say S106/UU. We are always encouraged to condition wherever possible...

Anyhow, Im still left with "How are LPAs requiring folk to evidence they are genuine CBSers...as per the question on the application form?