The Housing & Planning Bill: ASH submission to the House of Commons Public Bill Committee

INTRODUCTION

Despite what we had previously read about the Housing and Planning Bill by commentators in the press and housing industry, it is far worse than we expected. Part 4, Social housing in England, seems designed to bring about the end of social housing in this country, particularly in London, at which the Bill is very deliberately targeted. Combined with the intrusive measures it proposes for monitoring social housing tenants, the Bill is an enormously dangerous piece of legislation whose significance and consequences, we fear, are being lost in the widespread reactions to our latest intervention in Syria. To call it a Housing Bill really doesn’t do justice to what are far-reaching plans for the social engineering of social housing tenants. This aspect of the Bill appears to be under-appreciated, and certainly under-publicised, and we feel it needs far clearer debate and far wider dissemination.

The Bill itself is an extremely poor piece of legislation. Many of the key definitions of its terms, such as ‘high income’ with regard to the social housing tenants whose rents will be increased, and ‘high value’ with regard to the homes councils will be forced to sell, are left to the discretion of the Secretary of State for Communities and Local Government, and crucial details of its implementation have been deferred to secondary legislation.

Perhaps the section of the Bill that most concerns us is Part 6, Planning in England, and in particular the section on Permission in principle and local registers of land. A number of planners have expressed their belief that these changes will mean the effective end of planning and its replacement by an automatically triggered zonal system completely insensitive to the social dimensions of urban planning. In our own capacity as campaigners against the demolition of housing estates, we are horrified at the potential passing of legislation that will allow the re-designation of such estates as ‘brownfield land’ – a term used in planning to describe former industrial or commercial land that has been contaminated by waste and requires cleaning up. This is so deeply buried in the labyrinthine legalese of Part 6 of the Bill that it has passed largely without comment. However, it is on this legislation that the Adonis Report was based and its plans for demolishing and redeveloping London’s housing estates. It is also the platform on which the Tory candidate for London Mayor is running in the forthcoming election. There is still far too little awareness in the public realm of what this will mean for the communities who live on the 3,500 housing estates in London.

This submission addresses six aspects of the Housing and Planning Bill:

1. State subsidies for unaffordable Starter Homes

2. Extension of Right to Buy to housing association homes

3. Obligation of local authorities to sell ‘high value’ housing

4. Enforcement of Pay to Stay for ‘high income’ tenants

5. Planning permission in principle for ‘brownfield land’

6. Phasing out of secure tenancies and their succession

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PART 1

NEW HOMES IN ENGLAND 

CHAPTER 1

STARTER HOMES

2          FIVE-YEAR PLAN. The new duty to build starter homes effectively replaces the provision, in Section 106 of the Town and Country Planning Act of 1990, for building affordable housing quota for homes for social rent. However, despite offering a discount to first-time buyers of at least 20% off market value, the cap on starter homes of £450,000 in London and £250,000 across the rest of England and Wales places them far beyond the means of most people. The average price of a home in London is currently over half a million pounds. Given which, what incentive is there for property developers to build homes for less than this amount? And since the Secretary of State may amend the definitions of both first-time buyer and the price cap, both within and outside of London, far from allowing first-time buyers onto the property ladder, the state is effectively subsidising private investment in property, which may then be sold after five years at its full market value. This is an additional incentive for private investors to further speculate in London and UK housing, not a plan to reduce London’s so-called housing ‘crisis’.

3          CENTRALISATION AND PRIVATISATION. The Secretary of State’s power to change the structure of planning, not only by taking power over planning away from local authorities but by defining what an English planning authority is, represents the concentration of planning powers in one office, without ever defining what the limits of that office are beyond the discretion of its bearer. In principle, and therefore in intention and practice, this will mean the centralisation of all planning in the hands of the Secretary of State, who will then be free to delegate such powers to private contractors.

4          PAYMENTS IN LIEU. Even within this provision for starter homes, the Bill provides a get-out clause triggered by a payment in lieu to a designated planning authority by the property developer, much as is done now with affordable housing quotas under Section 106. Legal requirement is being skirted by financial clout. This is not so much one law for the rich and one for the poor, as laws for the poor and none for the rich.

5          CORRUPTION. The monitoring of local planning authorities by the Secretary of State is an attack on their autonomy and independence, and in direct contradiction of the Conservative Party’s philosophy of decentralisation, for which the Bill substitutes a centralised, authoritarian, punitive and discretionary governance open to corruption, bureaucracy and financial incentives from private interests.

PART 4

SOCIAL HOUSING IN ENGLAND 

CHAPTER 1

IMPLEMENTING RIGHT TO BUY ON A VOLUNTARY BASIS

Funding of discounts offered to tenants

56       RIGHT TO BUY. Grants from the Department of Communities and Local Government and Greater London Authority, paid to housing associations in compensation for the discounts offered for Right to Buy, is in effect a subsidy for private investors paid for by public money.

Monitoring compliance

58       QUANGO. That the Regulator of Social Housing is the Homes and Communities Agency, a quasi-autonomous non-governmental organisation, raises further doubts about the Bill’s privatisation of social housing. According to the National Audit Office, the Department for Communities and Local Government does not monitor what is actually built on land sold for the purpose of home building, or record how much money has been raised from the sale of such land.

Amendments to other legislation

59       PROFIT INCENTIVE. There is no provision in the Bill to indicate the number of starter homes that must be built, or for the replacement of social housing sold through Right to Buy. There is merely the incentive for private investors of a 20% discount on housing associations homes, which the Department of Communities and Local Government will then make up. Again, this means public money is subsidising private investment. But since the discounted homes can be sold at full market value in 5 years time, that money will ultimately be lost in the private market. This is the real incentive driving Conservative housing policy, a profit incentive, not the desire to offer first-time buyers homes for a supposedly affordable £450,000 in London.

CHAPTER 2

VACANT HIGH VALUE LOCAL AUTHORITY HOUSING

Payments to Secretary of State by Local Housing Authorities

62       DISCRETIONARY POWERS. The Secretary of State is being given free rein to define what ‘high value’ means with respect to housing under the freehold or leasehold of a housing association that it will be obliged to sell, according to a ‘method’ that is not presented, calculated according to a ‘formula’ that is not provided, and whose determination may be defined ‘in different ways for different areas.’ This is not law but another example of the discretionary powers of the Secretary of State this Bill seeks to introduce.

63       SPECIAL PURPOSE VEHICLE. Extending these powers to include private registered providers of social housing allows the Secretary of State to outflank local authorities setting up Special Purpose Vehicles in order to circumvent spending cuts to their budgets and central government control over their building programs.

Duty to consider selling

69       FORCED TO SELL. The duty of local housing authorities to sell ‘high value’ homes will supplement a tenant’s ‘Right to Buy’, and will in effect become what might be called ‘Forced to Sell’. Rather than relying on market forces or even the demolition and redevelopment of existing housing estates under the banner of ‘regeneration’, the Bill is exploiting London’s exaggerated property values to further transfer public housing into private hands. The duty to consider selling existing homes and the enforced payment scheme are once again subject to discretionary action by the Secretary of State. It is this legislation that the quietly tabled amendment (see below) of a five-year limit on new council tenancies has been designed to accommodate: not to reflect the social mobility of council tenants who can afford London rental rates, but to facilitate the selling of forcibly vacated social housing into private hands. That, or their demolition to make way for starter homes.

CHAPTER 4

HIGH INCOME SOCIAL TENANTS: MANDATORY RENTS

74       MEANS TESTING. Rent regulations lay the grounds for means tested access to social housing, without revealing the definition of what constitutes a ‘high income’.

75       SNOOPER’S CHARTER. The rent regulations to determine levels of income constitute a snooper’s charter into the income of social housing tenants. Household income is open to misapplication to parents in social housing whose children are forced to live with them while, for example, saving for a home. Beside its intrusive nature, it is also likely to prove extremely expensive to put in place.

76       TENANT PROFILING. The intrusion into the lives of social housing tenants for the purpose of establishing household incomes parallels that into the lives of those currently on Unemployment Benefits or Jobseekers’ Allowance. This enormous added bureaucracy will bring an added danger to those who are unable to supply the extensive information required in the manner prescribed, and thereby fall through the safety net of social housing. Moreover, by profiling tenants in this way, social housing providers will privilege high-income potential tenants when allocating vacant homes in order to raise income from rents. Again, this constitutes a privatisation of social housing, in direct contradiction to its original intended purpose. How will this legislation apply to tenants on zero hour contracts or on short-term or seasonal contracts, or with fluctuating incomes, or to people in receipt of care, or who are themselves a carer, or to households in receipt of housing benefit?

78       MARKET VALUE. The intention to increase social rents to market levels is itself open to wide variations depending on the location, size and repair of the property. Applied to households with the same income, the raising of social housing rents to ‘market value’ is a sloppy piece of legislation that will lead to enormous injustices not consistent with the ability of the household residents to meet the increased rent charges.

79       BULLY’S CHARTER. By introducing punitive measures allowing the Secretary of State to fine local housing authorities for not raising revenues through rents, this constitutes a bully’s charter, one through which local authorities are forced to do the dirty work of central government, rather than allowed to honour their duty of care to residents of their borough. Again, this constitutes a politicisation of housing policy without regard for the purpose for which homes are built and supplied.

83       PAY TO STAY. Chapters 2 and 4 of the Housing and Planning Bill contain legislation that, by increasing rents in accordance with Chapter 4, so-called ‘high income’ tenants are forced out of social housing, following which, in accordance with Chapter 2, ‘high value’ social housing thereby made vacant is sold into private hands. Yet in neither chapter is the definition by which these determinations are made defined, but are instead left, once again, to the discretion of the Secretary of State.

SOCIAL CLEANSING. Under the guise of ‘deficit reduction’, in his Summer Budget the Chancellor defined ‘high income’ as £30,000 or more (£40,000 in London) for an entire household. This absurdly low threshold, which in many cases will apply to a typical household of two working adults supporting two children, represents an attack on low-paid working families, those on the minimum wage, or those claiming disability allowances. The Savills Research Team have estimated that 60.1% of the 27,108 households in London affected by the Bill’s legislation for High Income Social Tenants (Pay to Stay), will not be able to afford either market rent or to buy their homes under the Right to Buy. Since the Bill broadly seeks to legislate for the transition from renting to home ownership, the question arises how a London household whose income is above the £40,000 threshold can afford to purchase a starter home capped at £450,000, which requires a household income in excess of £70,000. It is at the gap between these two incomes, a gap occupied by much of London’s social housing residents, that the Bill is targeted. As such, far from addressing the so-called housing ‘crisis’, the Housing and Planning Bill is legislating for the social cleansing of London.

PART 6

PLANNING IN ENGLAND

Permission in principle and local registers of land

101     DISCRETIONARY PLANNING. Contrary to the Conservative government’s declared commitment to devolution and localism, the Bill’s legislation to give the Secretary of State power to intervene in and direct development plans means a key feature of local government will be removed. This de-democratising drive would take local planning authority further away from democratic control, opening it to executive centralisation with little parliamentary control, and the creation of local quangos exercising planning powers. Both executive and privatised ‘quango-planning’ tracks are extremely vulnerable to lobbying, poor design, and building housing without the provision of infrastructure. This is no longer deregulation or simplification, but amounts to the creation of discretionary planning processes. The proposals have the potential to create more layers of opaque and largely unaccountable bureaucracy and legal instability. The current version of the Bill would create several parallel and sometimes overlapping planning routes: the council route, the executive route via direct intervention from the Secretary of State, the quango route following delegation from the Secretary of State, and the new zonal, or ‘permission in principle’, route.

PERMISSION IN PRINCIPLE. A key element of the Bill is the creation of the new permission in principle provision, which provides that in principle planning permission may be granted for development of land in England. Although the provision allows planning permission to be granted in principle for land that is allocated for development in a qualifying document, secondary legislation not contained in the Bill will designate the type of document that will qualify. If land allocated in such a qualifying document satisfies the requirements of the development order, the development order will automatically grant permission in principle.

BROWNFIELD LAND. The Bill includes an obligation on local authorities to compile a register of previously developed land (usually referred to as brownfield land) in their area that is suitable for housing development. However, once again the Secretary of State can prescribe the description of such land and any criteria that the land must meet for entry on the register. This represents an abuse of the term as it is employed in planning terminology. Brownfield land is a term used to categorise former industrial or commercial land that is now disused and requires cleaning up before being redeveloped. Its provision for redevelopment does not include currently inhabited housing estates and their residents, the designation of which as brownfield land makes explicit the Bill’s intention to socially cleanse the lower-income and working poor. In this key regard, the Housing and Planning Bill is a legislative water cannon for the social cleansing of existing housing estates, which will then be redeveloped with starter homes existing residents cannot afford.

103     CONSENT PROCESS. Changes to the consent process, which together with permission in principle will grant full planning permission, mean a local planning authority will only have the ability either to grant or to refuse permission in principle. It will not have the power to impose conditions on the permission in principle, or be able to reconsider the principle of development when determining the technical details of their consent. Moreover, an application for consent on technical details may only be refused on the grounds of previously unconsidered technical matters. Placing the cart before the horse, this means the key decision-making about planning consent will need to be made before those details are available for consideration.

Planning Permission etc.

104     NANNY STATE. Changes to development rights allow for more planning applications to be made directly to the Secretary of State. The existing ability for the Secretary of State to ‘designate’ local authorities that under perform, so that a developer can then choose to make an application for development of a particular description directly to the Secretary of State, has been expanded. This means that if a local authority isn’t doing what it’s been told by central government in terms of building starter homes, private developers can by-pass them and go directly to the Secretary of State for planning permission.

NATIONAL PLANNING POLICY. On the day the Bill reached the Committee report stage the government announced proposals to change the National Planning Policy Framework to which local authorities must have regard when identifying suitable brownfield land for redevelopment, the criteria for which the Housing and Planning Minister has said are to be specified in further regulations after the Bill is passed. These proposals mean that once the Housing and Planning Bill is law, anything the government decides is brownfield land suitable for redevelopment as housing can be designated as such, including, of course (which is what these changes are targeted at) existing housing estates and the communities they house.

PART 8

GENERAL

Secure tenancies etc: phasing out of tenancies for life

Succession to secure tenancies and related tenancies

AMENDMENTS. On the final day of the House Committee stage of the Housing and Planning Bill, the Minister of State, without producing impact assessments (though the government hasn’t done this for any part of the Bill), without providing the Committee with background information, and without consultation with the social housing sector, local authorities or social housing tenants, who will have no opportunity to make their views known, tabled two new clauses to their own Bill, Schedules 4 and 5, which together constitute about 20% of the original Bill, proposing legislation according to which a) local authorities will only grant secure tenancies for between 2 and 5 years to new social housing tenants, after which they will have to reapply, and b) children or dependants of tenants who have died that are currently living in existing secure tenancies will not automatically succeed to the tenancy but will be required to reapply to live in their own homes. With such sleights of hand is law passed in this land.

WHAT LIES BENEATH. However, as with every piece of legislation proposed in the Bill there lies another, even more dangerous one hidden beneath the surface. If the new legislation contained in Schedule 4 to phase out secure tenancies is only applied to new tenancies, leaving existing ones secure, the question arises whether tenants decanted from homes that have been demolished for estate regeneration projects will continue the terms of their secure tenancy when (or rather if) they are rehoused on the new developments, or whether their new tenancy will be subject to the same limitations of 2-5 years. If the latter, then the regeneration process will add the elimination of secure tenancies to its already long list of sins. Moreover, once those homes are made vacant after as brief a period as 2 years, they will, under Part 4, Chapter 2 of the Bill, be subject to the duty of local housing authorities to sell ‘high value’ housing, the definition of which, as we have seen, is not contained within the Bill but will lie entirely at the discretion of the Secretary of State. Terrible as it is, the phasing out of secure tenancies is only the tip of the iceberg into which social housing is being driven by the Housing and Planning Bill.

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CONCLUSION

If this Bill had been written to do what the Conservatives are presenting it as doing – freeing up existing social housing for those who need it, making provision for building more affordable housing, cutting bureaucracy on planning permission, bringing disused brownfield land forward for redevelopment, generating funds for building further developments, helping people to get on the property ladder, etc. – it would merely be a deeply misinformed piece of legislation that has taken no account of existing conditions in housing. But it isn’t that. It is, in fact, an extremely subtle, clever, and duplicitous piece of legislation that contains, concealed behind and within its presentation by the government, the measures through which social housing in this country is to be eradicated. What that means is that a group of unprincipled lawyers sat down with a group of equally unprincipled politicians and thought very carefully how they could pass legislation that in almost every respect does something very different, if not the actual opposite, of what it is claiming to do. Legislation here is being driven by political opportunism, subterfuge and lies. It is this concealed subtext that is the real threat of this Bill, and which we need to make known to the public.

Just as the Local Government Finance (Poll Tax) Bill of 1988 was designed to punish Labour Boroughs in which the cost of public services was considerably higher than in their wealthier Conservative equivalents, so the Housing and Planning Bill of 2015 is entirely political in its motives. Far from alleviating the so-called housing ‘crisis’, either through building genuinely affordable homes or increasing provision of social housing, the Bill seeks to use that crisis for both political and financial ends. On the one hand it forces Labour Boroughs in London to implement Conservative housing policy, and on the other it takes planning power away from those Labour Councils. Both these hands, the one compelling, the other taking, are wielded by what, if the Bill is passed, will be new and intrusive punitive powers of the Secretary of State, not only against the people who rely on social housing for a home, but also against the local authorities and social housing providers that currently provide them.

There is nothing – absolutely nothing – in the Bill for the provision of social housing. The chapter bearing this title should instead be titled The Elimination of Social Housing in England, introducing, as it does, the legislation by which existing social housing is to be either demolished to make way for new developments or sold into private hands. The Bill’s model of home building is driven by state subsidised incentives for private investors that will increase, rather than check, existing speculation on the London property market. Under the well-worn and tattered banner of austerity and the necessity of reducing the deficit, the Housing and Planning Bill is in reality legislation for the social cleansing of the poor and the vulnerable from London in particular, and more generally for the further dismantling of the welfare state by this Conservative government.

Architects for Social Housing