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Self and Custom Housebuilding - securing of via S106/conditions

Claire Coombs, modified 2 Months ago.

Self and Custom Housebuilding - securing of via S106/conditions

New Member Posts: 6 Join Date: 02/04/20 Recent Posts

Hi following the LURA changes last week, wondered what other's experience is in terms of single plot applications for self build in terms of ensuring that the first occupier has influenced the design etc? Conditions? S106? Does anyone have any examples of model clauses/ wording if so? 

Benjamin Vickers, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

New Member Post: 1 Join Date: 09/11/23 Recent Posts

Hey Claire!

Hope you are well.

I've loads of example docs. Drop me an email and I'll send them over. 

Ben.

 

Claire Coombs, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

New Member Posts: 6 Join Date: 02/04/20 Recent Posts
Thanks Ben that would be great :-)
 
 
 
 
Benjamin Vickers:

Hey Claire!

Hope you are well.

I've loads of example docs. Drop me an email and I'll send them over. 

Ben.

 

 

 

 

 

 

Andrew Chalmers, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

I'm interested to understand how authorities justify the use of conditions for self-build and how they could meet the legal tests of necessity and preciseness.   After all in the vast majority of cirucumstances it is impossible in my view to understand in planning terms how a house, in planning terms and its impacts, would differ.  Useful to see government produce some model clauses - assuming their lawyers can justify them.

And I'd have thought the amount of work to progress a S106 for a single dwelling would be excessive? 

At its most simple any single plot is highly likely in my view to fall within the definition of self-build/custom build anyway which is the way we've always seen things in my authority in the past.  I know LURA has changed things for the worst on this.  And obviously starting with the self-build register which is probably one of the least reliable and robust evidence bases ever devised as a measure of "demand" doesn't help.  Maybe the response is to actively assess the register regularly and check at least annually whether people are still realistically pursuing such opportunities.  I highly suspect too that people are duplicated on adjoining districts' registers - quite how this could be dealt with I'm not sure but at least if we know that we could attempt in an appeal situation to argue the nonsense of the register or discount "demand".  In any event one hopes that genuine planning reasons rather than the lack of self build opportunities would swing the vast majority of appeal decisions which seems to be the case.

Jonathan Pheasant, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 158 Join Date: 23/05/11 Recent Posts
Andrew Chalmers:

I'm interested to understand how authorities justify the use of conditions for self-build and how they could meet the legal tests of necessity and preciseness.   After all in the vast majority of cirucumstances it is impossible in my view to understand in planning terms how a house, in planning terms and its impacts, would differ.  Useful to see government produce some model clauses - assuming their lawyers can justify them.

And I'd have thought the amount of work to progress a S106 for a single dwelling would be excessive? 

At its most simple any single plot is highly likely in my view to fall within the definition of self-build/custom build anyway which is the way we've always seen things in my authority in the past.  I know LURA has changed things for the worst on this.  And obviously starting with the self-build register which is probably one of the least reliable and robust evidence bases ever devised as a measure of "demand" doesn't help.  Maybe the response is to actively assess the register regularly and check at least annually whether people are still realistically pursuing such opportunities.  I highly suspect too that people are duplicated on adjoining districts' registers - quite how this could be dealt with I'm not sure but at least if we know that we could attempt in an appeal situation to argue the nonsense of the register or discount "demand".  In any event one hopes that genuine planning reasons rather than the lack of self build opportunities would swing the vast majority of appeal decisions which seems to be the case.

 

Hi Andrew. If I'm honest I do not know what the new requirments/defintions are, or the requirements for a S106. Can you point me in a direction to try to understand what is new?

In terms of your other comments, I agree. On our SBCB application form we ask whether the appluicant has applied to any othe local authoriy. Many have. That's becasue we are a city with surrounding districts and applicants generally have a wider search area for a plot. One applicant had applied to 16 (SIXTEEN) other local authorities. This means of course that there is a legal DUTY on EVERY one of those that had accepted the applicant on to their register to grant planning permission for a plot for their SOLE residence. A lot of resource there.

Another problem of course is that just becasue you grant permissions for plots doesn't mean they will be built and a further one is that even if they are built, it won't necesarily be by someone on the register. So it's quite possible that an authority could have self build dwellings delivered but meet the needs of no one on the register.

The problem with the whole thing is it is misdirecting the solution towards planning. The main problem that people have if they want to self build is getting control of land. People can and do self build by finding some land and checking with the LPA whether they would get planning permission. Granting random planning permissions on land that they don't control doesn't help people on the register to build a house.   

Is anyone monitoring how many self build homes are actually built? All of the emphasis of this is on planning permissions. That's the duty. That's what is monitored. So..permissions granted. Job Done. Is it? Have the people on the register built homes then? 

It seems odd that for housing generally the planning system is all about monitoring delivery and understanding what has been delivered. But this is not so with self build. So how do we know if the Register and the Duty, which have been in place for 8 years now, are working? 

 

 

 

 

 

 

 

 

Andrew Chalmers, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

In terms of use of conditions I was questioning really whether in principle setting a requirement in a condition meets the 6 legal tests required under legislation and covered in NPPF/G Use of planning conditions - GOV.UK (www.gov.uk).  This is linked to my primary concern that a house is a house (and planning doesn't really care who built it, not indeed largely who occupies it).  A self or custom built house can still be sold on - just like any conventional development.

Interested to hear your comments about demand and its duplication.  I wonder if as part of local plan preparation there could be scope to convince an inspector that for example your "demand" is not robust and should be discounted in some way.

You are entirely correct demand is entirely numeric.  You could meet all the demand on the register but if this is for other people (than those specifically signed up) then are you getting anywhere.

I think the annual return to DLUCH includes completions - we have tended to include all single plots - they are effectively custom build almost certainly.

Under the new LUR Act worth a look at the Levelling-up and Regeneration (legislation.gov.uk) explanatory statement for  (legislation.gov.uk) for s123 (page 122) this restricts the counting of permissions and also carries over unsatisfied "demand" from the year period...if that even exists.  Not sure if this is enacted - I know it gives the SoS powers to specify in regulations what permissions count.

And agree the issue is not that there are always little plots of land for sale - but rather more that because of the wider planning policy context they will never be suitable for housing anyway.  And registers in my mind gave very much the suggestion that people would get council land cheap if they just sign up.  And for many people finance is never going to be an option.  I have no problem with those who can in the correct locations but there are simply no resources in many authorities to progress small schemes and if it is about housing numbers better to grant a big permission to a volume housebuilder than rely on lots of small sites that may never happen.

  

 

Jonathan Pheasant, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 158 Join Date: 23/05/11 Recent Posts

Thanks Andrew

From having a skim (not got a lot of time to examine forensically) it looks like the statement doesn't entoirely tie wit the Act. It seems to say that the Act brings in a requirmeent that you can only count permissions that are specifically for self build. But the Act says :

(5A)Regulations may make provision specifying descriptions of planning permissions or permissions in principle that are, or are not, to be treated as development permission for the carrying out of self-build and custom housebuilding for the purposes of this section.”;

I've not seen such regulations (have I missed them?). The Act doesn;t bring in a requiremnt that permissions must be specifically for self build. It bruings in an ability for Regulations to say when permissions do or do not count. 

Until then I think we stay with the existing regas whicn require permissions for development plots which COULD (my emphasis) be self built. 

I think this might get messy as I know some authorities grant PPs such that develolpers must market a site/plots as self/custom build for a period of time after which if there's no take up, then can build tehen as normal market homes. But if the PP SPECIFICALLY requires self build they will not be able to do that. 

There might be the issue of blighting land by granting PP for self build which is not delivered and thus blighting delivery of normal housing.

I agree with your initial comment/view that for planning a house is  ahouse. It's C3. It's a use of land. Is a house appropriate on that land/site of not? That really should not change dependant on wo builds the house and that is the fiundamental problem with this. It'snot a plannign issue, Its a control of land issue. 

I did note in reading some of the explanation in the statement that it describes the Register as being people who want to acquire land to build a house. Interesting as that was not they way it eas protrayed in its infancy. It was portrayed as people who wanted a self build house. There was not any discussion around acquiring land and that was part of the problem. People saw this thing inappropriately termed as 'right to build' and that they could put their name on a register. I had several converasations with people in the early days who told me that the Council was obliged under Right to Build to provide them with some land with planning permission. This is the confusion it has given rise to. When I told them there's no obligation for the Council to give anone land the response was 'what's the point then'!!

We don;t have any eligiability criteria for our register. The last person I added said their budget is £80k to acquire land, pay fees (planning/legal/design etc) and physically build a house. So now we are obliged to also grant a permission. 

 

 

 

 

Claire Coombs, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

New Member Posts: 6 Join Date: 02/04/20 Recent Posts

Thanks for the replies. S123 of the LURA came into effect on the 31 January through the Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024 and changed the definition of self build.

Jonathan you are right that the Act lays the provisions for further regulations to specify what can and can't be counted as SACB and these havent been brought into effect yet. The PPG hasn't been amended yet either. 

We have seen a recent appeal decision for 2 dwellings (net 1) where an Inspector stated that they could not give much weight to the benefits of SACB because there is 'no mechanism in place to ensure that the properties would be occupied by the appellant and their family, rather than being sold on or rented out. As such, there is uncertainty as to whether the properties would meet the requirements for self-build and custom housing. I have given limited weight to the suggestion that the houses would be self-build, but even if they were, this would not be sufficient to outweigh the harms I have identified'.

So my question is what mechanisms are other authorities using if the applicant is either describing the proposal as SACB or is ticking the relevant box on the application form, especially on very small schemes which would not normally trigger other S106 obligations. Plus given the changes to the definition, should LPA's be tightening up on application descriptions etc. 

Jonathan Pheasant, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 158 Join Date: 23/05/11 Recent Posts
Claire Coombs:

Thanks for the replies. S123 of the LURA came into effect on the 31 January through the Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024 and changed the definition of self build.

Jonathan you are right that the Act lays the provisions for further regulations to specify what can and can't be counted as SACB and these havent been brought into effect yet. The PPG hasn't been amended yet either. 

We have seen a recent appeal decision for 2 dwellings (net 1) where an Inspector stated that they could not give much weight to the benefits of SACB because there is 'no mechanism in place to ensure that the properties would be occupied by the appellant and their family, rather than being sold on or rented out. As such, there is uncertainty as to whether the properties would meet the requirements for self-build and custom housing. I have given limited weight to the suggestion that the houses would be self-build, but even if they were, this would not be sufficient to outweigh the harms I have identified'.

So my question is what mechanisms are other authorities using if the applicant is either describing the proposal as SACB or is ticking the relevant box on the application form, especially on very small schemes which would not normally trigger other S106 obligations. Plus given the changes to the definition, should LPA's be tightening up on application descriptions etc. 

 

Hi Claire

On the appeal, was the application for self build then? And was refused by the LPA? I recall back when the SBCB Regs first came in around 2016. The 'duty' is that you must grant suitable serviced development plots which COULD (My emphasis) provide Self Build or Custom Build Homes. Te word 'could' in Regulatons which require spomething is unhelpful. The time period for compliance is that these permissions must be granted within three years of the end of each base period. Although there is no specific penalty or punishment for non-compliance

I recall back around 2016 (the first year) an authority refused an application for housing in the countryside, outside a settlement framework. It went to appeal and it either was for, or included self build plots. The Inspector allowed the appeal becase the LPA had not granted enough permissions in it's duty. I believe this was the only reason that that the appeal was allowed. Effectively, housing was not appropriate on that site in the development plan. But becase the application included 'self build' plots and the LPA had not granted eough permissions, the Inspector allowed the appeal. But..the LPA had THREE YEARS to grant plots in its duty. I'm pretty sure from recollection this was in the first year. So the duty had not been failed. And more relevant to your question. The Inspector allowed self build, so I don't know how it was resrtricted to self build only. It's a mess. Eight years after the Regs came in it's still completely unclear. 

To my mind, if a site/location is inappropriate for housing, it is inappropriate for housing. The harm will be the same no matter who builds the house. 

 

 

 

 

 

 

Mary Elkington, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

New Member Posts: 23 Join Date: 14/11/14 Recent Posts

The self build legislation is a legal requirement, and the driver for that legislation is to open a market for housbuilding that is essentially missing in England.  This is related to USE of Land so legal boffs tell me (informally) this is relevant for policy decions etc.(ie more than just a 'house is a house').  And PINS recognises that.

I would suggest that you don't need a 106 - you need a Unilateral Undertaking (for which there are no legal tests).  If an applicant isn't willing to submit a UU that they will be building and occupying following construction in line with the defintion of self build, then you can't really count it.  PINS seems to be holding that line - no UU, unlikely to get self build weight in the planning balance.

There are many examples of self build conditions including several permissions written by PINS with self build condition attached.

The guideance note  Securing custom and self build using obligations and conditions at righttobuild.org.uk might be of use as it covers some conditions and the s106 issues for "percent plots".

Claire Coombs, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

New Member Posts: 6 Join Date: 02/04/20 Recent Posts

Thank you Mary thats very helpful.

If anyone out there has any example UU's that have been submitted by applicants/ appellants or conditions imposed by PINS, I'd be ever so grateful to see those!

 

 

Andrew Chalmers, modified 2 Months ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

It would be interesting to see what restrictions or indeed what legal justification is used for conditions or UU.  It is still difficult to understand in planning terms as these are used to make acceptable a development that would be unacceptable.  And I know we have LURA.  

Has anyone tried doing anything to for example restrict first occupation post construction to the self-builder/custom builder.  I have never seen anything on this.

Also there is the fundamental question of how much role does an individual have to have in the development to make it "self or custom built".  Is it as simple as the builder is building for someone...?   

Andrew Chalmers, modified 1 Month ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

Thanks Paul, interesting to see.  And obviously national policy clearly supports self/custom build and in principle it will provide another housing market and means to meet people's needs/aspirations. Whether registers accurately measure demand, aspiration or need is not entirely clear, I suspect elements of all and when you take into account chronic double counting in some areas I remain unconvinced about using them directly as a measure.  

  

Claire Coombs, modified 1 Month ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

New Member Posts: 6 Join Date: 02/04/20 Recent Posts

Interesting post S123 LURA decision here:

Reference: APP/Y3940/W/23/3317252 (planninginspectorate.gov.uk)

Andrew Chalmers, modified 1 Month ago.

RE: Self and Custom Housebuilding - securing of via S106/conditions

Advocate Posts: 169 Join Date: 20/10/11 Recent Posts

Many thanks - useful clear decision and one in the light of the LURA.  Of course no one every questions the validity of "demand" on the registers.  To my mind the fact that the register is turned into numbers only means you could actually be satisfying no-one on your register even if you grant loads of plots - but have met requirements.  Still that is what the system is!