Canada: Why Does It Matter If My Site Is In A Designated Protected Area?

Last Updated: November 18 2016
Article by Gemma Courtenay

Most Read Contributor in Canada, October 2018

If the affordable housing element of your development includes shared ownership and your development site is in a Designated Protected Area (DPA) then the registered provider (RP) granting the shared ownership leases will, if the properties form part of their grant-funded programme, have to include certain clauses in the shared ownership leases, which seek to ensure the preservation of the properties for shared ownership indefinitely.

As the DPA status of a site can impact on viability for an RP, developers, as well RPs should be alert to the DPA status of a site so that the implications can be considered early and, if necessary, an application for waiver can be submitted in good time.

Below, we consider some frequently asked questions in relation to DPAs:

  1. Why were DPAs introduced? Under a shared ownership lease, the shared owner will acquire a 'share' of the property and pay rent on the rest, which remains in the ownership of the RP landlord. The shared ownership lease entitles the shared owner to purchase additional shares in the property (known as staircasing), until it owns 100% and it has 'staircased out'. Once the shared owner has staircased out it can dispose of the property freely, out of the affordable housing sector, on the open market. In some areas, shared ownership leases that are staircased out and then sold on the open market are difficult to replace. To alleviate this, DPAs were created by the government in 2009, when the Housing (Shared Ownership Leases) (Exclusion from Leasehold Reform Act 1967) (England) Regulations 2009 (SI 2009/2097) (the Regulations) and the Housing (Right to Enfranchisement (Designated Protected Areas) (England) Order 2009 (Statutory Instrument 2009/2098) (the Order ) were enacted and measures were put in place to ensure that, in certain areas, shared ownership properties are retained as such and made available for local people unable to afford to buy at full market price.
  2. How do I know if my development site is in a DPA? The Order designates certain areas as DPAs. These are the areas also currently designated as being exempt from the Right to Acquire. Some of these are defined by entire Parish or local authority areas and others are designated by specific maps. Where they are designated by maps, the maps are available from the Homes and Communities Agency (HCA). Typically, although not exclusively, DPAs are in rural areas. The Secretary of State can amend the Order to remove/designate further areas. The overriding criterion is whether the area is one in which shared ownership homes would be hard to replace. The Regulations and the Order apply to England only.
  3. What does it mean if my development site is in a DPA? The HCA's Capital Funding Guide requires that if a development site is in a DPA, the RP granting the shared ownership lease must, if it is grant-funded, include one of the two DPA fundamental clauses, either:

    1. to restrict staircasing to a maximum of 80%; or
    2. if the lease allows staircasing to exceed 80%, an obligation for the leaseholder  to sell their share back to their RP landlord (or a nominee, which must also be an RP) at market value when they wish to sell the property (to enable the RP to resell the property on shared ownership terms to another local person in housing need).

    It is a matter for the RP to decide which of the two fundamental clauses is included in relation to a specific site, although, it should be borne in mind that if the right to staircase is restricted, the number of mortgage products available to prospective purchasers may be more limited, and there may also be an impact on saleability for those purchasers who aspire eventually to own 'the whole' of their home.

    It is also worth noting that the HCA states that it will positively consider applications for grant to fund the repurchase of shared ownership properties by the RP where the RP has exhausted all other funding routes, but the original lease must contain certain specified information to ensure that any such repurchase grant is not to be recoverable by the HCA. It is important to bear this in mind when dealing with the initial shared ownership sales.

  4. Do the rules relating to DPAs apply to flats as well as houses? Yes, although the Regulations only apply to houses, it is the HCA's policy that it will apply the requirements for retention in the legislation to grant funded shared ownership schemes for both flats and houses developed in DPAs.
  5. Can the DPA conditions of grant be waived? As the availability of shared ownership stock is no longer such an issue in some of the areas designated as DPAs under the Order (such as planned urban extensions, new towns and many suburban sites where levels of existing or proposed development indicate that shared ownership homes would not be hard to replace), in certain circumstances, on application by the local authority, the HCA is able to waive the particular conditions of grant relating to the DPA status of a site. Where a waiver is granted, the RP can grant shared ownership leases without the requirement to include one of the two DPA lease restrictions detailed above however, all other conditions of grant remain. As the HCA will not consider applications received directly, if a developer or RP considers their proposed development does not require protection, they should approach the local authority in the first instance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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