LGA response to MHCLG’s technical consultation on implementing measures to improve Build Out transparency

• It is positive that the Government is taking steps to address slow or ‘no’ build out of sites with planning permission. Improving transparency in this area is a positive step for communities, and will help to build trust in the planning system. However, the Government must fully consider the implications of these new measures on the capacity and resourcing of local planning authority (LPA) teams, which are already under significant pressure.
• Councils are broadly supportive of the steps Government is taking to help speed up and streamline the planning system, and accelerate housing delivery. In particular, measures that encourage the return of small and medium-size builders and developers who are vital to diversifying supply and meeting local housing needs.
• We have long raised the issue of slow build out rates and called on local authorities to be given greater powers to ensure prompt build out of sites with planning permission. Local authorities deliver permissions, developers deliver homes. Unless there is a fundamental shift in local authorities’ abilities or expectation to deliver homes, they should not be subject to punitive measures which undermine the plan-led system including the 5-year housing land supply test and the Housing Delivery Test. The LGA has proposed “use it or lose it” reforms, including raising the threshold for considering pre-commencement conditions to have been discharged. We also urge the Government to work with the sector to redefine what is meant by “start” on site to ensure it results in meaningful efforts to commence construction.
• While the mechanisms proposed in the consultation - such as build out statements, commencement notices, and development progress reports – will enhance transparency around build out rates, they also introduce additional burdens on LPAs. It is essential that all of these requirements are proportionate and do not divert already limited resources away from core planning functions. At the same time, the information provided by developers must be sufficiently detailed to enable LPAs to exercise the proposed power to decline to determine applications where appropriate.
• The proposed reporting mechanisms will likely impact multiple planning functions – including validation, development management, enforcement, monitoring and potentially even plan-making. Without additional funding, training and support, there is a risk that LPAs may struggle to implement the proposed changes effectively, undermining the ambition behind the well-intentioned reforms.
• There is a significant opportunity to harness digital tools and AI to support the implementation of these transparency measures. These tools have the potential to transform public services, including the planning system, in turn having a positive impact on communities. Councils have already been exploring the use of AI across a range of services and business functions, to help improve public services, drive inclusive economic growth and enhance residents’ lives across the country. Government should explore with councils what tools would be most effective, ensuring that vital support is provided for practitioners on digital and AI skills, so that much needed capacity can be freed up in planning departments.
• The Government should commit to a formal review of the new measures after an initial implementation period – this should include assessing the effectiveness of the measures in terms of build out transparency; the extent to which new powers to decline determining planning applications are being used; as well as the benefits of extending the measures to other forms of residential development.
• Local planning authorities should have discretion to apply the measures to smaller developments where appropriate, particularly in areas where housing delivery is dominated by schemes below the proposed 50-dwelling threshold.
• The LGA has long called for councils to be able to charge developers full council tax (at Band D) for each unbuilt home from the point the planning permission expires to incentivise developers to build out to agreed timescales. Therefore, we welcome the Government’s intention to introduce a 'Delayed Homes Penalty' for those schemes 'which falls materially behind pre-agreed build out schedules'. Please see our response to MHCLG’s Planning Reform Working Paper on 'Speeding Up Build Out'.

Question 1: Do you agree that the build out reporting measures should apply to developments which involve the building of new dwellings (including mixed use development)?

Yes, we agree that build out reporting measures should apply to developments involving the construction of new dwellings, including those within mixed-use developments.

Question 2: Are there any other types of residential development that the build out measures should apply to? If yes, please give your reasons.

Whilst there may be merit in considering the inclusion of other types of residential development - such as student accommodation or specialist housing - we consider that the scope of the new build out measures should remain limited at this initial stage.

Focusing on developments involving new dwellings, including those within mixed-use development, will allow for a more manageable and targeted implementation for both LPAs and developers. It will also provide an opportunity to assess the effectiveness of the measures, understand any operational challenges, and gather robust data before considering broader application in the future.

The Government should commit to a formal review of the new measures after an initial implementation period – this should include assessing the effectiveness of the measures in terms of build out transparency; the extent to which new powers to decline determining planning applications are being used; as well as the implications of extending the measures to other forms of residential development and adjusting the dwelling threshold.

Question 3: Do you agree with the proposed threshold of 50 dwellings for the build out measures to apply to?

We agree in principle that a threshold of 50 dwellings is a reasonable and proportionate starting point for the initial implementation of new build out measures. 

However, feedback from many councils suggests that in many parts of the country, the vast majority of planning applications in their areas fall below the proposed 50-unit threshold. 

That means, that the proposed measures will have limited impact on improving transparency on build out in those areas, as they cannot be applied, and will mean that in turn those councils will not have the option to use the new powers to decline determining planning applications. 

We therefore recommend that local planning authorities have discretion to apply the measures to smaller developments where appropriate, particularly in areas where housing delivery is dominated by schemes below the 50-dwelling threshold.   

Question 4: Do you think a higher threshold should be set for development progress reports and the power to decline to determine applications? If so what should this threshold be?

No, we do not consider that a higher dwelling threshold should be set for development progress reports and the power to decline to determine applications.

The thresholds should be consistent for all the proposed transparency and accountability build out measures and the power to decline to determine applications. 

As outlined in answer to Question 3, local planning authorities should also have discretion to apply the measures to smaller developments where appropriate, particularly in areas where housing delivery is dominated by schemes below the 50-dwelling threshold.

Question 5: Do you agree that this information should be covered in the build out statements?

Question 6: Do you have any further comments on the build out statement?

Our response below covers Question 5 and 6.

We agree that build out statements should be submitted at the planning application stage and that they have the potential to improve transparency and support monitoring of housing delivery. However, we have several concerns about the scope, implementation, and implications of the proposed requirements.

While the mechanisms proposed in the consultation - such as build out statements, commencement notices, and development progress reports - seek to enhance transparency around build out, they also introduce additional burdens on LPAs. It is essential that all of these requirements are proportionate and do not divert already limited resources away from core planning functions. At the same time, the information provided by developers must be sufficiently detailed to enable LPAs to exercise the proposed power to decline to determine applications where appropriate.

Some councils have noted that the proposed information requirements for the build out statements is duplicative – for example some section 106 agreements require commencement dates to be included. This would require cross-checking between documents to ensure consistency. This will be particularly important in case where a council later relies on this information to use the power to decline to determine a further application by the same applicant.  

Councils anticipated that the requirement for build out statements would support the monitoring functions of the planning department – though again it was highlighted that councils have varying levels of resources for this function. 

We also have concerns that applicants may include overly broad or speculative lists of risks or issues that could affect build out, in an effort to pre-empt future scrutiny. This could undermine the purpose of the statements. We recommend that the Government consider how LPAs can respond to such submissions in a proportionate way—potentially through the use of national guidance to standardise expectations.

Further, discussions between the developer, local planning authority and statutory consultees as part of the application process may result in changes to detail captured on the initial build-out statement. Clarity would be welcomed on whether the build-out statement would require amendments to reflect these changes in order for the application to be determined.

Finally, it is unclear whether build out statements should be treated as material planning considerations in determining applications. The consultation references a forthcoming consultation on National Development Management Policies (NDMPs) that will address this point. Until that consultation is published, it is difficult to fully assess the role and weight of build out statements in the planning process. We urge the Government to bring forward the NDMP consultation as a matter of priority, so that the planning sector can consider the full suite of proposed changes in the round.

Question 7: Do you agree that this information should be covered in commencement notices?

We welcomed the introduction of commencement notices through the Levelling Up and Regeneration Act 2023 as a positive step toward addressing long-standing challenges around the build out of schemes post-permission. However, we have several concerns regarding the practical implementation of the proposals set out in the consultation.

Firstly, the consultation does not clearly specify when commencement notices should be submitted - either how soon after planning permission is granted, or how soon before work commences. We urge the Government to provide clear guidance on the timing requirements for submission.

The consultation also references potential fines for non-compliance (which the Levelling Up and Regeneration Act says should not exceed level 3 on the standard scale - that is, up to a maximum of £1,000), but does not specify where any revenue from fines would be directed. This should be clarified. We recommend that any fines should be proportionate to the size of development, to ensure they act as a meaningful deterrent without disproportionately affecting SME developers. However, this must be accompanied by clear rules on submission deadlines to avoid unintended consequences for delivery, in particular for SME developers.

It is also considered impractical for both developers and councils to require an exact date of commencement. A more flexible approach – such as specifying a commencement window (e.g. within a set number of working days) – would be a more pragmatic and realistic approach. This is particularly important given the resourcing challenges faced by many council enforcement teams, who already struggle to monitor day-to-day breaches of planning control. Further complications arise when other parties, for example, highways authorities, are involved in enabling a site to be formally 'commenced.' These dependencies should be acknowledged in the design of the commencement notice process.

We also urge the Government to clarify key definitions, such as what constitutes 'substantially completed.'  - for example, does this refer to a percentage of units completed, and if so, what is the threshold? Clear and consistent definitions will be essential for effective implementation and enforcement.

Councils have also raised concerns about how applicants would be expected to provide dates for reserved matters approval. 

Question 8: Do you agree with setting a 2 month period after the reporting period ends to submit the development progress reports?

Question 9: Which option for the reporting period for development progress reports do you agree with?

Question 10: We recognise the information in development progress reports may be useful for LPAs to calculate 5 year land supply (5YLS), are there any impacts with the reporting periods proposed and the interaction with 5YLS?

Question 11: Do you agree with the proposals for how the completion date is specified for the purposes of development progress reports?

Question 12: Do you agree with the proposals about who submits the development progress report? 

Question 13: Do you agree with the information it is proposed development progress reports will cover?

Question 14: Is there any other information you think development progress reports should cover?

Our response below covers Questions 8 to 14.

We broadly support the principle of development progress reports as a tool to improve transparency and assist local planning authorities (LPAs) in monitoring housing build-out. 

We agree that a two month window following the end of the reporting period is a reasonable timeframe for submitting development progress reports. However, the Government must clarify what happens if developers fail to submit within this period. Without clear consequences or enforcement mechanisms, the effectiveness of the reporting system may be undermined.

We strongly recommend that the reporting period aligns with the financial year rather than the calendar year.

Development progress reports could provide valuable data to support five year land supply (5YLS) calculations. However, LPAs would still need to verify the accuracy of the information provided. Delays or inconsistencies in reporting could impact the timely preparation of 5YLS statements, so the system must be robust and enforceable.

We support the proposal that for development progress reports for developments being built out by a single developer, that the person responsible for submitting the report will be the person carrying out the development during the relevant reporting period.

The proposed content of development progress reports appears proportionate, but we echo earlier concerns about the level of detail required and the confidence LPAs would need to rely on this information—especially if using it to justify using the power to decline to determine a future application. 

Question 15: Do you have any views on how a joint approach to submitting a commencement notice could be facilitated on sites where multiple developers are involved?

We expect that, if a site has multiple developers, they would work together where appropriate to submit commencement notices or development progress reports that are relevant to the part of the site / the units that they are responsible for.

Question 16: Do you agree with making provisions in the regulations that would enable a joint submission of the development progress report where multiple developers are involved?

Yes.

Q.17. Do you agree that this information should be covered in development progress reports where a joint approach is taken?

Yes.

Q.18. Do you have any views on what information other than in build out statements and development progress reports LPAs should have regard to when considering whether the carrying out of the earlier development has been unreasonably slow?

Q.19. Do you have any comments on the scope of the guidance?

Our response below covers Questions 18 and 19.

We welcome the Government’s commitment to engage further with councils on proposals to improve transparency of build out and speed up the delivery of homes. The proposed power to decline to determine applications from developers who have previously built out slowly/not built out to agreed rates may be a useful addition to the wider suite tools available to help councils. However, it is not a silver bullet, and there is concern that more issues and costs may arise from councils from its use than is proportionate.  

While we support the principle of local discretion, the lack of clear, objective criteria for determining what constitutes 'unreasonably slow' build out creates significant risk for LPAs. A lack of clear and non-contestable reasons as to when a council could use the power to decline to determine applications, risks leaving councils exposed to legal challenge and costs through an appeal process. In practice, this risk may deter LPAs from using the power at all, undermining its intended purpose.

If the Government is minded to go ahead with this proposal, it must consider how to ensure any associated appeal process is proportionate and draws on publicly available evidence only, as this is the only way in which councils would have made their determination - through build out statements and development progress reports. 

The Government should also give consideration to if, or how data is shared between councils, regarding the power to decline applications. For example, if one council has (successfully) declined to determine an application of a particular developer, should other councils be informed and be able to take this into account in decision-making in their own council area. 

Councils have also raised concerns about the overall housing delivery implications of using this power. 

Councils are doing everything they can to deliver planning permissions to not only bring forward the types of housing needed across the country, but also the numbers required through the plan-led system - in order to meet Housing Delivery Test and 5YLS requirements. These punitive tests often result in speculative and unplanned developments which often do not meet the needs of local communities, and which cannot be properly considered against local planning policies.

Declining to determine an application—particularly for a large site—is counterintuitive in the context of meeting housing delivery targets and the reintroduction of the five year housing land supply (5YLS) test. It may also be unpopular with communities who are keen to see housing delivered, even if it proceeds more slowly than hoped.

Furthermore, identifying 'problem' applicants is not straightforward. Some developers operate through multiple legal entities and company names, which will make it difficult and resource-intensive for LPAs to track delivery records. 

The investigatory burden could be significant, especially given existing resourcing challenges in LPAs. The Government’s own research says that “…dealing with planning applications and enforcement was the biggest draw on departmental resources, with this seen as diverting senior resources from other tasks”, and that 35 per cent of departments found recruiting for enforcement and compliance role difficult - with recruitment difficulties particularly acute in rural areas. 

Fundamentally, the officer time and resources to facilitate this optional power to decline to determine applications is considered significant and perhaps disproportionate. If introduced, it is considered that it would be used in perhaps only the most extreme of circumstances - although it will remain useful in a suite of tools that councils have to encourage faster and more transparent build out of sites.