Self and Custom Housebuilding - securing of via S106/conditions - Public forum - Planning Advisory Service (PAS)

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:

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? 

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:

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.