INTRODUCTION
Just one day after the Queen’s Speech on 10 May 2022 when we and other legal commentators were quite critical about the lack of detail announced on planning reforms in the Queen’s Speech, the Government the very next day on 11 May 2022 surprised us all and decided to introduce to Parliament the Levelling-Up and Regeneration Bill (the Bill). It is therefore proving to be a very busy week for us planning lawyers!
A website link to the Bill is as follows:
https://bills.parliament.uk/bills/3155
As highlighted in the Queen’s Speech, the Government has decided to incorporate into the Bill a much watered-down version of planning reform than that previously proposed in the 2021 Queen’s Speech when a separate Planning Bill was being proposed. However, that being said there are still some significant reforms to the planning system which are contained in the Bill. But please don’t expect all the details to be in the Bill as the Government has stated that many of these reforms are still subject to further technical consultation or secondary legislation to be published, so there is still a lot more detail remaining to come on how these reforms will actually be implemented.
Below we summarise the key planning reforms proposed in the Bill and provide our comments on these reforms.
PLANNING REFORMS IN THE BILL
Locally-produced plans
- The Bill will introduce the following measures to improve the preparation of and strengthen the role of locally-produced plans in the planning system:
– Local plans will be given more weight when making decisions on applications, so that there must be strong reasons to override the plan. The same weight will be given to other parts of the development plan, including minerals and waste plans prepared by minerals and waste planning authorities, neighbourhood plans prepared by local communities, and spatial development strategies produced to address important planning issues at a more strategic scale.
– To help make the content of plans faster to produce and easier to navigate, policies on issues that apply in most areas (such as general heritage protection) will be set out nationally. These will be contained in a suite of National Development Management Policies, which will have the same weight as plans so that they are taken fully into account in decisions.
– The ‘duty to cooperate’ will be repealed and replaced with a more flexible alignment test set out in national policy.
– New Local Plan Commissioners may be deployed to support or ultimately take over plan-making if local planning authorities fail to meet their statutory duties.
– Local planning authorities will have a new power to prepare ‘supplementary plans’, where policies for specific sites or groups of sites need to be prepared quickly, or to set out design standards, which will replace the ‘supplementary planning documents’ which councils produce currently.
– The Bill will enable groups of authorities to collaborate to produce a voluntary spatial development strategy, where they wish to provide strategic planning policies for issues that cut across their areas.
Delivery of infrastructure including a new National Infrastructure Levy
- The Bill will replace the current system of developer contributions with what it refers to as “a simple, mandatory, and locally determined” National Infrastructure Levy (the Levy). The Government is committed to the Levy securing at least as much affordable housing as developer contributions do now.
- The new Levy will be charged on the value of property when it is sold and applied above a minimum threshold. Levy rates and minimum thresholds will be set and collected locally, and local authorities will be able to set different rates within their area. The rates will be set as a percentage of gross development value.
- Much of the detail of different elements of the new Infrastructure Levy will be set in the future by the Government in regulations, following consultation. Specifically, the Government says it will:
– Introduce a new ‘right to require’ to remove the role of negotiation in determining levels of onsite affordable housing.
– Consider how the Levy should be applied to registered provider-led schemes.
– Require developers to deliver infrastructure integral to the operation and physical design of a site – such as an internal play area or flood risk mitigation. Planning conditions and narrowly targeted section 106 agreements will be used to make sure this type of infrastructure is delivered.
– Detail the retained role for section 106 agreements to support delivery of the largest sites. In these instances, infrastructure will be able to be provided in-kind and negotiated, but with the guarantee that the value of what is agreed will be no less than will be paid through the Levy.
– Retain the neighbourhood share and administrative portion as currently occurs under the Community Infrastructure Levy.
– Introduce the Levy through a ‘test and learn’ approach. This means it will be rolled out nationally over several years, allowing for careful monitoring and evaluation, in order to design the most effective system possible.
– Sites permitted before the introduction of the new Levy will continue to be subject to their CIL and section 106 requirements.
- In addition, the Bill requires local authorities to prepare infrastructure delivery strategies. These will set out a strategy for delivering local infrastructure and spending Levy proceeds.
Design, heritage protection and environmental assessment
- The Bill will require every local planning authority to produce a design code for its area. These codes will have full weight in making decisions on development, either through forming part of local plans or being prepared as a supplementary plan.
- The Bill will strengthen the role the planning system plays in protecting the historic environment. The Bill will give important categories of designated heritage assets, including scheduled monuments, registered parks and gardens, World Heritage Sites, and registered battlefields, the same statutory protection in the planning system as listed buildings and conservation areas. The Bill will also put Historic Environment Records on a statutory basis, placing a new duty on local authorities to maintain one for their area.
- The enforcement powers available to protect listed buildings will be enhanced by introducing temporary stop notices, strengthening the power to issue Urgent Works Notices by extending them to apply to occupied listed buildings, making the costs of carrying out works a local land charge to aid cost recovery by local planning authorities, and removing the compensation liability in relation to Building Preservation Notices.
- The Bill will improve the process used to assess the potential environmental effects of relevant plans and major projects, through a requirement to prepare ‘Environmental Outcome Reports’. These will replace the existing systems of Strategic Environmental Assessment (including Sustainability Appraisals) and Environmental Impact Assessment.
Compulsory purchase and development corporations
- The Bill will make changes to compulsory purchase powers of local authorities to assemble sites for regeneration and make better use of brownfield land including:
– The Bill provides for the ability for compulsory purchase orders to be conditionally confirmed, allowing for an expiry period of more than three years and increasing the flexibility on the date an acquiring authority becomes the legal owner of land.
– Flexibility is also increased for the Planning Inspectorate to be able to determine the appropriate procedure for confirmation of a Compulsory Purchase Order.
– The Government intends to introduce a measure that reforms land compensation by ensuring that fair compensation is paid for the value attributable to prospective planning permission (‘hope value’).
- The Bill makes provision for a new type of locally-led Urban Development Corporation, with the objective of regenerating its area and accountable to local authorities in the area rather than the Secretary of State. It also updates the planning powers available to centrally and locally-led development corporations, so that they can become local planning authorities for the purposes of local plan making, neighbourhood planning and development management. The Bill will amend the process for establishing locally-led New Town Development Corporations.
Pavement licensing and high street rental auctions
- The Bill will make permanent existing temporary measures on pavement licensing.
- The Bill will give local authorities a new power to instigate high street rental auctions of selected vacant commercial properties in town centres and on high streets which have been vacant for more than one year.
Completion notices and new commencement notices
- The Bill will remove the requirement to seek Secretary of State confirmation before completion notices can take effect, thus giving more control to authorities to issue these notices to developers to complete their project.
- The Bill will also introduce new commencement notices which will be required when a scheme with planning permission starts on site, addressing perceptions of ‘land banking’ and slow build out by larger developers.
Planning enforcement
- The Bill will reform the planning enforcement system by:
– Extending the period for taking enforcement action to ten years in all cases
– Introducing enforcement warning notices
– Increasing fines associated with certain planning breaches
– Doubling fees for retrospective applications
– Extending the time period for temporary stop notices from 28 to 56 days
– Giving the Planning Inspectorate the power to dismiss certain appeals where the appellant causes undue delay. The scope for appeals against enforcement notices will be tightened so that there is only one opportunity to obtain planning permission retrospectively
– Enabling temporary relief to be given for enforcement action against prescribed planning conditions, where it is necessary to lift constraints on operations (e.g., for construction and delivery times)
Reforms to wider planning procedures
- The Bill includes a number of measures which will allow a transformation in the use of high-quality data and modern, digital services across the planning process, including powers to set common data standards and software requirements.
- The Bill will introduce a ‘street votes’ system into planning by allowing the for a system that permits residents of a street to propose development on their street, and determine, by means of a vote, whether that development should be given planning permission.
- The Bill will create a new power under what is to be known as new ‘section 73B of the Town and Country Planning Act 1990’ to amend existing planning permissions for minor variations to provide more flexibility to amend planning permissions after they have been granted.
- The Bill will give Planning Inspectors the power to change the procedure for determining a planning appeal if an alternative would be more suitable.
- The Bill will bring forward powers to charge developers and promoters for statutory consultee advice in certain circumstances.
Transitional provisions
- The Government has stated that it will publish further details of its plans for transition, but in broad terms changes to planning procedures will begin to take place from 2024, once the Bill has Royal Assent and associated regulations and changes to national policy are in place.
OUR COMMENTS
Clearly, we now have a lot more detail from the Government on its planning reforms set out in the Bill (certainly a lot more than what was contained in the recent Queen’s Speech) but there still remains much more detail on the implementation of these reforms to be provided in future secondary legislation (via regulations) after consultations have taken place.
We look favourably on some of the reforms the Government has proposed in the Bill, particularly those concerning digitalisation of the planning process, increased protection of heritage assets, reforms to compulsory purchase powers, and more flexibility for making minor variations to planning permissions.
Then you have the more politically controversial measures in the Bill such as the Government’s proposed ‘street votes’ system which has already been criticised in the media and one has to ask will this just simply constitute another barrier to delivering development and the provision of more housing. It all feels a bit like David Cameron’s Localism Act reforms back in 2011 all over again which were aimed at putting more power in the planning system in the hands of locals to encourage development but in practice had the opposite effect.
Any views on the reforms proposed in the Bill to the planning enforcement process will no doubt depend on which side of the fence one is sitting. Clearly, for local authorities the new powers they have been provided will be of assistance in pursuing enforcement action, however the increase in the requisite time period for immunity from enforcement action to 10 years for all development (previously 4 years for some types of development) will be of concern to any developer or landowner who is currently in breach of planning and may have to now put off seeking a certificate of lawfulness on this basis and will be exposed to potential planning enforcement action for a much longer period.
Of most concern to us is the proposed new National Infrastructure Levy. The Bill only sets out the broad framework for the Levy and most of the detail is still to be provided via regulations following a technical consultation. Basically, the Government has taken the same approach as it did to introducing the Community Infrastructure Levy. Until such time, there will remain a lot of uncertainty on the impact the new Levy will have on the use of Section 106 agreements (which despite all previous media reports about its abolition now appears will be retained by the Government albeit in a scaled back form). According to the Government the new Levy is to be introduced “through a ‘test and learn’ approach” and “will be rolled out nationally over several years, allowing for careful monitoring and evaluation, in order to design the most effective system possible”. Perhaps just a hint here that the Government doesn’t know exactly what the real impact of imposing the new Levy will be or whether it will even work in practice to achieve its golden target of delivering more affordable housing? We will of course have to wait for all the details on the new Levy to be published in future by the Government and then see whether the new Levy is actually fit for purpose or was simply a bad idea.
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
