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UK Housing and Development Consent Orders

My post of 16 October summarised the main planning proposals in the Housing and Planning Bill as introduced in the House of Commons on 13 October 2015.  On 28 October the Government published a briefing note entitled “Nationally Significant Infrastructure Projects and Housing”. This post reviews the contents of that briefing note.

Clause 107 of the Housing and Planning Bill proposes amendments to section 115 of the Planning Act 2008 thereby enabling applications for development consent to include “related housing development”.  The power for the Secretary of State to grant development consent for projects including housing will not apply to any project in Wales, only those in England.

I noted in my earlier blog post that guidance would be produced by the Department for Communities and Local Government.  The briefing note published earlier this week includes the draft guidance.

The draft guidance re-states the position that projects which only comprise housing will not be granted development consent.  Housing will only be consented if there is a functional need or it is in geographical proximity to the nationally significant infrastructure project which is the subject of an application for development consent in England.

Maximum amount of housing that may be consented

Where housing is being included in the application as a result of geographical proximity then the maximum amount of housing that may be consented is 500 dwellings.  The draft guidance states that in order not to undermine the local planning process “it is very unlikely that the Secretary of State will consent more than 500 permanent dwellings for a single nationally significant infrastructure project.”

Where the housing is provided on the basis of functional need the maximum amount of housing that may be consented is also 500 dwellings. The draft guidance, however, states that “more than 500 dwellings may be consented for the construction phase of the project as long as these are subsequently converted so that the number of permanent dwellings after any conversion is 500 or less.  The requirement for conversion should be included within the Development Consent Order.”

The provision of temporary accommodation (such as for construction workers) is not altered by the provisions of the Housing and Planning Bill, it is classed as associated development and will normally be expected to be removed or demolished once the construction of the infrastructure project has been completed.

Where there are specific policies in the NPPF (National Planning Policy Framework) that indicate development should be restricted, then a lower number of dwellings or no housing at all is likely to be appropriate.  The draft guidance refers to areas including ecological sites, designated heritage assets, locations at risk of flooding or coastal erosion and green belt.

Affordable Housing and Starter Homes

If housing is included based on geographical proximity (not functional need) then a percentage of affordable housing is expected to be included, the percentage to be in accordance with policies in the local plan.   There should also be an element of starter homes. Both affordable and starter home provision should be secured via a section 106 agreement.

Location of housing

Where housing is being provided on the basis of geographical proximity it will need to be located:

  • on the same site as the infrastructure; or

  • next to the infrastructure; or

  • close to any part of the infrastructure (“close to” is defined as up to 1 mile away).

Where housing is being provided on the basis of functional need, it will normally need to be located close to the infrastructure project.  However, the draft guidance states that if a large amount of housing is being provided for construction workers then it may be more appropriate to site this away from the immediate vicinity of the infrastructure project but its location will need to be justified.


The draft guidance states that the housing element of an application for development consent will be likely to need examination as a discrete entity.

Section 35 Direction

Where a request is made under section 35 of the Planning Act 2008 for a direction from the Secretary of State that a project should be placed within the NSIP regime then the Secretary of State will consider whether the infrastructure is of national significance.  The draft guidance states that housing will not form part of this assessment and, therefore, will not influence whether a direction is given by the Secretary of State or not.

Details of housing to be submitted with an application for development consent

When an application for development consent is submitted which includes an element of housing then details should be submitted consistent with those that would be submitted if an application for detailed (not outline) planning permission were being sought.  In addition, a one page summary of the housing element of the application must be submitted.

Recommendation and Decision

The Examining Authority can recommend to the Secretary of State that the housing element of an application for development consent should be refused.  Equally, when the Secretary of State makes a decision as to whether or not to grant development consent he may grant consent for the infrastructure but refuse consent for some or all of the housing if it is considered that “the adverse impact of the housing outweighs the benefits of the development as a whole“.

Changes to a DCO

Finally, where changes are made to a development consent order after it has been granted, if those changes include a significant amount of housing, where there was none or very little before, then it is likely that a fresh application for development consent will be required rather than constituting a change to the existing DCO.

Progress of the Housing and Planning Bill

It is proposed that a final version of the guidance (amended as necessary) will be published once the Housing and Planning Bill has been enacted.

The Bill is at the early stages of its Parliamentary process.  Second Reading is scheduled for Monday 2 November when general principles of the Bill will be debated in the House of Commons before detailed scrutiny of the Bill takes place at the Committee stage.

© Copyright 2019 Squire Patton Boggs (US) LLP


About this Author

Julia Dixon Attorney Squire Patton Boggs Leeds
Senior Associate

Julia Dixon is a senior associate in the planning and consents team. She has extensive experience in providing advice to developers, occupiers and investors in respect of contentious and non-contentious planning and highway matters in a number of sectors including retail, sport and leisure, housing, education and health.

Julia has considerable inquiry experience and a significant energy practice. She has advised on overhead electricity lines, wayleave hearings, tree lopping hearings and applications for underground gas storage proposals. Julia...