Guidance gives clarity to developers seeking to include housing in nationally significant infrastructure projects, says expert

Housing law expert Matthew Fox of Pinsent Masons, the law firm behind Out-Law.com, said the guidance issued by the Department for Communities and Local Government (DCLG) provides a degree of flexibility to developers on the content to include in their applications. The draft guidance the DCLG had consulted on was more prescriptive, but has been amended to reflect industry responses, he said.

"The finalisation of this guidance means applications for development consent orders with an element of housing can come forward, and that the applicant will know the context in which they can bring them forward," Fox said.

The newly issued guidance (13-page / 362KB PDF) provides detail to developers in England on the steps they need to take to obtain a development consent order from the government to build housing as part of nationally significant infrastructure projects, which can include new harbours, roads, railways, power stations and electricity transmission lines, for example.

The ability to including housing within such projects was provided for in the Housing and Planning Act of 2016.

Under those reforms, developers are able to include housing within their nationally significant infrastructure project plans either where there is a functional need for the housing in terms of the construction or operation of a project, or where the housing is not functionally linked to the infrastructure project but is in geographical proximity to the project.

In its draft guidance previously consulted on, the DCLG said that the housing element of applications for nationally significant infrastructure projects would need to contain the same level of detail as if an application for full planning permission was being made. However, the DCLG has watered down that requirement in its final guidance.

"It is for applicants to decide what should be included in their draft development consent order, but many matters relating to housing are likely to be points of detail that are better suited to being requirements for subsequent agreement with the relevant local authority," the DCLG said. "The development consent order must, however, provide sufficient detail and clarity on what is being consented so that the secretary of state can properly assess the impacts of the housing development when taking a decision on whether to grant development consent."

Fox said that the change in emphasis would likely be welcomed by developers. All the DCLG guidance now specifies is that existing statutory requirements that oblige developers to provide certain information alongside their applications will also apply to the housing element of proposals.

These existing requirements are set out in the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (as amended)  and refer to the need for applications to include any "plans, drawing or sections necessary to describe the proposals for which development consent is sought", including "details of design, external appearance, and the preferred layout of buildings or structures, drainage, surface water management, means of vehicular and pedestrian access, any car parking to be provided, and means of landscaping" as part of their application.

According to the guidance, the government would be "highly unlikely" to sanction housing developments within nationally significant infrastructure projects where "more than 500 permanent dwellings" would be built.

The guidance also specified that housing must be located within one mile of "any part of the infrastructure (excluding any associated development) for which development consent is being sought" if developers wish to rely on the geographic proximity basis for that development. Fox said it would be interesting to see how those provisions are considered in practice, both in applications, and in the acceptance and determination of them by the Planning Inspectorate and the secretary of state.