The Housing Gap - An Intimidating Problem?

Posted by Edward McMullen on
The gap between housing supply and demand is a perennial issue for Councils.  In March 2018 housing returned to the top of many agendas following a major overhaul of the National Planning Policy. Those new planning reforms urged Councils to take on greater responsibility and accountability for delivering on housing commitments.

By maximising the use of land, maintaining strong protections for the environment, improving design and making planning more transparent Councils were challenged to meet the housing needs of their communities and particularly to deliver affordable homes. 

At the macro level there have since been a number of bold initiatives - including the Chancellor's lifting of the Housing Revenue Account cap to allow local authorities to borrow more against their assets to fund development. Consider also aspirations from the ‘Building Better, Building Beautiful’ Commission to develop a vision and practical measures to help new developments meet both needs and community expectations.

However, it is down on the ground where Councils may also encounter ongoing skirmishes – and sometimes these are not restricted to matters of competing policies and budgets.  Sensitive communication and engagement can achieve much but a toolbox of options may also be needed.

A well-respected online purveyor of legal knowhow, Practical Law (one of the Thompson Reuters titles), has recently considered* the interesting situation of third party interference when a Council is addressing the seemingly Herculean task of the housing gap.  Activism is strong among tech-savvy generations and examples abound of demonstrators' actions causing significant cost and programme (time) repercussions to development projects.  This places the Council in an invidious position of having to consider tactics to best deliver housing even in the face of local opposition.

Narrowing the question down further, who is responsible – for example - for the health and safety of contractors and employees subjected to intimidation whilst working on local authority-owned sites?  There is, unsurprisingly, no single answer.

Lawyers often look first for a contract – to see what post-tender risk allocation the parties agreed.  There could be express or implied terms in the contract assuring the contractor team of safe and unimpeded access to site.  Denial of such could result in a contractor's claim for extensions of time and additional cost. In severe cases, could the actions of third parties amount an 'act of frustration' allowing the main contractor to cut and run from its contractual obligations?

Councils may sometimes be in the position of landlord where, under the Housing Act, grounds for repossession may exist if a tenant's conduct is causing or likely to cause nuisance or annoyance to the landlord in connection with the exercise of the landlord's housing management functions.  Would this make the Council best placed to manage that risk vis-à-vis the contractor team?

Across all layers and relationships the Construction (Design and Management) Regulations (2015/51) should be familiar to many. The CDM Regulations are just one aspect the Health & Safety Executive would look at in the event of a serious incident occurring on site.  Some roles and responsibilities under the CDM Regulations may be non-delegable but all must be reassessed as circumstances change over the lifecycle of the project – particularly where that change was unexpected at the outset. 

A common thread between these scenarios – whether the formal resolution of a legal dispute or an informal accommodation and settlement - is the need to keep good records, including date, time, location and personnel involved.  Doing so will demonstrate the extent to which abuse and intimidation have occurred and (with appropriate documentation) the impact of the behaviour on the parties concerned.

In addressing the housing gap it will not be possible to please all of the people all of the time; but by doing the simple things properly you may preserve time and resources for the challenges ahead.

(*Practical Law's consideration can be found here for those subscribed to the online service.)

About the Author

Photograph of Edward McMullen

Edward specialises in construction and engineering transactions – advising on risk and procurement issues at the non-contentious, front end of projects.

Edward McMullen
Email Edward
023 8085 7069

View profile