New Self-build and Custom Housebuilding legislation now in force

New rules came into effect on 31 October 2016 which amended the Self-build and Custom Housebuilding Act 2015 and implemented Chapter 2 of the Housing and Planning Act 2016 which sets out provisions to support self-build and custom housebuilding.

This means that the second and final part of the Right to Build, placing a duty on relevant authorities to make land available to meet the demand on their self-build and custom housebuilding registers, has now come into force and the Right to Build is now fully implemented.

The legislation requires ‘relevant authorities’ to keep a register of individuals and associations of individuals who are seeking to acquire serviced plots of land in the authority’s area and to have regard to that register when carrying out their functions. Unless exempt, they also have a legal duty to grant sufficient ‘development permissions’ to meet the demand for self-build and custom housebuilding in their area.

Two pieces of enabling legislation support these provisions:

  • The Self-build and Custom Housebuilding Regulations 2016 (S.I.2016/950); and
  • Self-build and Custom Housebuilding (Time for Compliance and Fees) Regulations 2016 (S.I.2016/1027).

They extend to England and Wales but have only been commenced in England. Further details are set out in the notes below.

Government is currently updating its National Planning Practice Guidance to support this legislation and the policy at paragraphs 50 and 159 of the National Planning Policy Framework. The Custom and Self Build Toolkit will shortly also be updated to reflect these changes.

NOTES:

Housing and Planning Act 2016

Chapter 2 of the Act (self-build and custom housebuilding), which amends the Self-build and Custom Housebuilding Act 2015, was commenced by Regulation 3 and 5 of the Housing and Planning Act 2016 (Commencement No.2, Transitional Provisions and Savings) Regulations 2016.

A copy of both pieces of primary legislation can be found here:

Self-build and Custom Housebuilding Regulations 2016

These regulations update and replace (revoke) the Self-build and Custom Housebuilding (Register) Regulations 2016 (S.I.2016/105) which were commenced on 1 April 2016. The Regulations define a serviced plot, set out how registers should be managed, and detail when relevant authorities can be exempted from the duty to provide serviced plots.

Key provisions are:

  • Regulation 3 (Definition of a serviced plot of land) modifies the definition of a serviced plot in the primary legislation by confirming that a parcel of land can be considered as a serviced plot if utilities and access to the public highway are provided at some stage during the period when planning permission has been granted. This means that a permission for a multi-plot site can count toward meeting demand, even if the site is not yet serviced because the presumption is that the services will be provided within the life of the planning permission.
  • Regulation 4 (Eligibility for entry in the register) sets out who can be entered on a register. It requires registers to be divided into Part 1 and Part 2 if an authority has introduced local eligibility conditions. If such conditions are introduced, applicants which meet such conditions must be entered onto Part 1 of the register. In such circumstances the duty to provide serviced plots only applies to Part 1 (see Regulation 9 below). All other eligible applicants must be entered onto Part 2 of the register.
  • Regulation 5 (Local eligibility conditions) enables authorities to set additional eligibility criteria (a ‘local connection test’) for entry on their register. These criteria are discretionary and their scope is not set out. However, they must be publicised as part of the publicity of the register, as required by the 2015 Act. Armed services personnel and ex-service personnel (with a time limit applying to the latter) are excluded from having to comply with such criteria. Authorities can also require proof that a self/custom builder has the resources to purchase the plot and require that applicants provide proof that they meet any such criteria. There is no right of appeal if an authority decides someone does not meet the criteria, but it must give reasons if it determines that an applicant fails to meet them and therefore cannot be entered onto Part 1 of the register. This must be done in writing within 28 days of the date of such a decision.
  • Regulation 6 (Application for entry in the register) sets out what information must be provided on registers and applies to an amendment of an entry.
  • Regulation 7 (Determination of applications) sets out how authorities should determine and notify applicants of their application to enter the register. This includes a requirement to notify applicants (with reasons) if they don’t meet a local connection test under Regulation 5.
  • Regulation 8 (Content of the register) makes provision for the content of registers.
  • Regulation 9 (Effect of entry in Part 2 of the register) has the effect that authorities don’t need to make serviced plots available to persons who are entered in Part 2 of the register. This does not however mean that Part 2 of the register is irrelevant for purposes of gauging local demand for self/custom build housing because the 2015 Act requires authorities to have regard to the full register when they exercise their housing, planning, land disposal and regeneration functions.
  • Regulation 10 (Removal of entry from register) allows for the removal of entries from a register, either at the request of the registered individual or association or if an authority considers that a registered individual or association is no longer eligible. This includes circumstances where someone has acquired a suitable plot to build their own home and/or has failed to pay a fee to remain on the register. Authorities must notify someone (giving reasons) where it is decided to remove them from the register.
  • Regulation 11 (Exemption from duty in section 2A of the Act) enables authorities to apply to the Secretary of State for an exemption from the duty to provide serviced plots where demand for serviced plots is high but the supply of land for housing is constrained. Exemptions are not automatic and there is a test that local demand must be greater than 20% of the total land available to meet an authority’s future housing need. There are time limits when such applications need to be made; and a requirement for evidence to be provided. An exemption only relates to a given base period and does not remove the duty for an authority to have regard to demand on its register when carrying out their housing, planning, land disposal and regeneration functions, as provided for by the 2015 Act.

Note, there is no requirement for authorities (or applicants seeking planning permission for serviced plots) to match any permissioned land/plots to individuals on their register. It will therefore be for authorities to decide how they link demand for plots to supply. The regulations are also silent on ‘local allocation schemes’ which set out how authorities decide who can access the plots which come forward. Authorities therefore have flexibility on whether they wish to introduce such schemes.

A copy of the new Regulations and the Explanatory Memorandum can be found here:

http://www.legislation.gov.uk/uksi/2016/950/pdfs/uksi_20160950_en.pdf

http://www.legislation.gov.uk/uksi/2016/950/pdfs/uksiem_20160950_en.pdf

Self-build and Custom Housebuilding (Time for Compliance and Fees) Regulations 2016

These regulations set out details of how relevant authorities must comply with their duty to grant sufficient development permissions to meet the demand on their self-build and custom housebuilding register and enable such authorities to charge fees to cover their duties under the legislation. Authorities can only set fees on a cost recovery basis and any fees need to be proportionate.

Key provisions are:

  • Regulation 2 (Time for compliance with duty to grant planning permission) specifies three years as the period within which the required number of development permissions relating to a ‘base period’ must be granted to satisfy the duty (as set out in the Housing and Planning Act 2016).
  • Regulation 3 (Fees) enables authorities to charge fees to recover their reasonable costs of entering a person on a register, permitting a person to remain on a register, and complying with the duty to make serviced plots available for self and custom housebuilding. Fees must be refunded if an application to be entered on the register is unsuccessful. Authorities also need to publish the scale of fees charged and there is scope to charge for different categories of applicants – for example people entered on Part 1 of the register could be asked to pay a higher fee as there is duty for authorities to bring plots forward to meet the demand on this part of the register. Councils cannot charge fees for people to remain on Part 2 of the register. This means people who don’t meet a local connection test and who are only entered on Part 2 of the register only have to pay one fee to be entered on the register.

A copy of the new Regulations and the Explanatory Memorandum can be found here:

http://www.legislation.gov.uk/uksi/2016/1027/pdfs/uksi_20161027_en.pdf http://www.legislation.gov.uk/uksi/2016/1027/pdfs/uksiem_20161027_en.pdf

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