On Tuesday 21 March, the government issued two guidance documents relating to the Planning Act 2008 regime: guidance on including housing in an application for a nationally significant infrastructure project and guidance on the new more expensive fee regime.

Housing guidance

The housing guidance is largely the same as draft guidance that was issued when the Housing and Planning Act 2016 was the Housing and Planning Bill in Parliament in October 2015.

The main points are as follows:

Housing can be included in an application for a nationally significant infrastructure project (NSIP), including a business or commercial project, in two categories. First, the housing can be functionally linked to the NSIP, with no restriction on where it is, and second it can be near the NSIP, with no restriction on what it is. Near is defined as ‘up to 1 mile away from any part of the infrastructure (excluding any associated development)’, that last bit having been added since the draft guidance was published.

Although not a complete no-no, ‘it is very unlikely’ that the Secretary of State will consent more than 500 dwellings for a single NSIP. Having said that, the guidance is a little unclear on whether you could apply for 500 dwellings in each of the two categories (the maximum for functional housing is ‘also’ 500), or whether the total cannot exceed 500 (e.g. 100 not linked but near and 400 functionally linked). I assume the latter is intended. As it is only in guidance, the figure could be changed much more easily than if it was in legislation or policy.

Although not mentioned in the guidance direct compulsory acqusition powers will be available to the promoter of a project that includes housing, for the land that the housing will be on, and the compensation payable will be the open market value of the land in the absence of the project in question, as with any compensation. The acquisition will still have to pass the test of ‘a compelling case in the public interest’.

I have carried out a comparison with the earlier draft guidance and can supply a tracked change document on request. The main differences are:

  • a new paragraph 13 has been added saying that development associated with the housing and not just the main NSIP can be included in the application, as long as it is ‘integral’ and ‘proportionate’ to the housing;
  • paragraph 34 has been divided into two new paragraphs 35 and 36 and they give more detail about what is expected in applications: detail will usually be to be agreed by the local planning authority later via requirements (the equivalent to planning conditions), and ‘other plans’ will be expected showing things like design, external appearance, layout, drainage and car parking; and
  • paragraph 42 has been modified to say that if you don’t get your main NSIP consented you aren’t going to get the housing consented on its own. Fair enough.

Fee guidance

The new fee guidance is basically the same as the old fee guidance except with bigger numbers in it. The change to come in next month adds 50% to all existing fees, introduces fees for two inspectors, automatically increases fees in line with inflation annually, and requires the regime to be reviewed.

As before, there are worked examples for each level of inspectors (the fees are the same for four or five inspectors). The total amount payable for a six-month examination with four or five inspectors is £860,730. Ouch.