Key planning issues from the Levelling Up and Regeneration Bill

A key promise of the Conservative Manifesto in 2019 was to ‘level-up’ Britain and reduce spatial inequalities. Two years ago, Boris Johnson said that part of the levelling up agenda in England would include the ‘most radical planning reforms since World War Two.’

The Levelling Up and Regeneration Bill, landed in Parliament last month, and Temple has reviewed it, to see how radical the proposed planning changes are and share our thoughts on the potential impacts on the industry.

‘A genuinely plan led-system’

Greater weight will be afforded to Local Plans when decisions on planning applications are made and for areas of non-compliance with policy, there must be a strong reason to override the plan. Whilst potentially creating more certainty, by removing subjectivity in the decision-making process, this more inflexible approach could potentially lead to a greater number of refusals and appeals.

Generic policy matters such as heritage, flooding and green belt will be set out under new ‘National Development Management Policies’ (NDMPs). These policies will hold the same weight as Local Plan documents but will take priority over Local Plans should there be a conflict between these documents. The intention of this measure is to shorten Local Plans and make them quicker to prepare whilst allowing local authorities to focus on location specific policies. This move centralises these policies conflicting with a key objective of the levelling up agenda, to increase local decision making.

The same level of weight will be afforded by decision makers to other parts of the Development Plan, including new ‘Supplementary Plans’ (SPs) designed to replace existing Supplementary Planning Documents (SPGs). It remains to be seen from the government, what new SPs will comprise of and tensions between these and Local Plans could create complexities in policy application, in an already complicated system.

‘Street votes’ are a newly proposed concept, to enable residents to decide if planning permission should be allowed for extensions and redevelopment of householder properties. It will be interesting to see if the idea survives the Commons and how it would work, as the local planning authority would presumably retain control over decisions? Michael Gove has said that street votes will boost the supply of new homes. However, we feel that rather than addressing the housing crisis and helping individuals gain a foot on the housing ladder, this measure is more likely to add value to existing properties rather than have any profound impact on housing delivery.

‘Delivering Infrastructure’

A new non-negotiable and locally set developers ‘Infrastructure Levy’, to replace the current instruments of the Community Infrastructure Levy (CIL) (the legislation for which has been revised 10 times in as many years) and S106, is proposed. The levy will be payable on the value of the property at the point of sale, so capturing increases in value (as opposed to the CIL being applied to floorspace).

Whilst the intention of creating certainty and incentivising development in certain areas is positive, there will need to be strict rules on how the existing use value of a site will be calculated and how development costs and profits are assessed when the levy is triggered on occupation of a development. Assessing these elements could cause delays, longer than those which already occur under S106 negotiations, and planning authorities will have to spend a great deal of time getting to grips with the new regime requiring a significant amount of funding and resourcing. This is also anticipated to take years to bed-down properly.

‘Creating Beautiful places and improving environmental outcomes’

Each Local Planning Authority will need to develop a design code for its area, which will hold full weight in decision making. How this unfolds will probably depend on their experience and resources in design and the way in which they tackle their production, and whether the government’s pilot scheme on design coding proves useful. Though ultimately, coding may prove beneficial in some areas, the degree to which it proves successful overall is likely to vary and it is certain that local authorities will also require more specialised resources to produce this document.

New ‘Environmental Outcome Reports’ (EORs) are proposed to replace existing EU Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments (SEAs) to measure projects against environmental outcomes. The stated objective of the government is to deliver more for the environment. More detail on this measure is to come, however clearly defined outcomes and post development monitoring will be key to determining if planning permission has successfully met outcomes – and any penalties for not doing so would presumably need to be captured.

The government, as a signatory to the 1992 Rio de Janeiro Declaration will have to consider its existing commitments to principles associated with this document. Principle 17 of the Rio Declaration requires a commitment from countries to undertake an Environmental Impact Assessment where development would have a significant adverse impact on the environment. The bill currently makes no mention of this.

‘Regeneration’

Changes are proposed to the Compulsory Purchase Order (CPO) Powers to assist local authorities in acquiring and assembling land. One of these changes includes the ability for CPO confirmation to be subject to conditions. Whilst the ability for CPO to be conditioned will allow greater flexibility and time for local authorities to acquire and legally take control of land, it could prolong and create greater uncertainty for communities subject to CPO.

New locally led ‘Urban Development Corporations’ would report to local authorities rather than the Secretary of State. In our view, these Corporations have had mixed success in the past but if the approach manages, in effect, to empower local communities, it could lead to successful urban regeneration projects harnessing local knowledge, skills, and investment.

‘Market Reform’

New powers for the government to collect and publish data in relation to who owns and controls land and property in England are intended to create greater transparency and avoid anti-competitive behaviour from developers. This is a nod towards supporting communities in terms of ensuring a choice of homes at affordable prices.

To increase transparency, a requirement for new commencement notices, available for public scrutiny, will be applied to schemes with planning permission that are starting on site. The government hopes to address the notion of ‘land banking’ and slow build out from developers. However, there are often legitimate reasons for slow build out rates once planning permission is achieved by developers e.g., implementation of a Grampian condition requiring infrastructure provision prior to build out of homes.

It is not clear how useful this measure will be to address either transparency or notions of slow build out rates, particularly as there is an allowance for resubmitting a commencement notice if the proposed scheme start date changes.

‘Wider improvements to planning procedures’

Increased use of digitisation in the planning process is proposed, to inform plan making and so that Local Plans are accessed and understood more easily by interested parties. This is a positive move so long as the data is accessible to all, and local authorities have the relevant funding to implement and continually resource and operate such systems.

Measures, to speed up the planning process, including new powers to amend planning permissions post determination, under ‘Section 73B’, to increase flexibility which could overcome the existing situation whereby applicants have to submit multiple applications when permission needs changing.

To shorten the lengthy planning process, Planning Inspectors will also be able to change the procedure for determining an appeal, where appropriate to do so. These measures could be helpful in unblocking lengthy waitlists for planning appeals.

A mandate for developers to engage with communities prior to the submission of major development applications will ensure communities are engaged in the planning process. However, this could slow down development in some circumstances for developers and is it not clear whether there will be a requirement for when this engagement should take place, i.e. to avoid the concept of tokenistic community engagement undertaken later in the design process.

A charge for developers for statutory consultee advice, where appropriate, is proposed. This is already happening in local authorities where inhouse expertise is lacking and adds an additional cost burden to developers but could raise additional funds to resource local authorities.

Alongside the Bill

Potential increases in planning fees for both major and minor applications could benefit planning departments if the money is ringfenced. However, despite the continual increase in fees planning departments remain under pressure which begs the question of where this money goes and whether another fee increase will be enough to suitably resource planning departments.

The National Planning Policy Framework (NPPF) will be amended so that where a local plan is up to date (adopted within the last 5 years), local planning authorities will no longer need to demonstrate a five-year housing land supply. This is intended to halt speculative development potentially freeing up planning officers’ time and resources.

Concluding Thoughts

Further details are required from the government before the magnitude of these proposals can be fully grasped. None of the changes feels particularly radical but they do play to the government’s agenda – the risk is always in over-complication (such as with the 10-time revised CIL regulations). Perhaps the most significant change will be in the planning balance and the weighting of material considerations – but in all of this, we would rather see a huge change (i.e., increase) in local authority resourcing and a real opportunity for them to radicalise their ability to deliver. That never seems to happen. It is easy for consultants to say they know best, but really helping authorities would probably result in better development and a better experience for all.