The Levelling Up and Regeneration Bill 2022
The Levelling Up and Regeneration Bill (LURB), published on 11 May 2022, contains a number of interesting proposals for the development industry and some potentially significant changes to the planning system. Below I have outlined some of the key aspects of the planning reform of which developers should be aware:
National Development Management Policies, the role of the Local Plan and the local design code
One of the major changes proposed in the LURB is the introduction of new National Development Management Policies, which will outweigh Local Plan policies in the event of a conflict. The NDMPs will be derived from the policies currently in the NPPF, where these are intended to guide decision making (such as heritage and green belt policies).
The same weight will be given to other types of plans, including neighbourhood plans prepared by local communities and spatial development strategies produced by Mayors or combined authorities.
The intention is that the scope of Local Plans will be limited to locally specific matters so they can be updated and adopted more quickly, the target being 30 months.
To incentivise this timeframe, the Government intends to remove the requirements for local planning authorities to maintain a five year supply of deliverable land for housing, where their plan has been updated within the past five years.
Every local planning authority is also required to have a design code which will act as a framework for which subsequent detailed designed codes can come forward for specific areas or sites.
Determining planning applications
Planning applications will need to be made in accordance with both the Development Plan and the NDMPs “unless material considerations strongly indicate otherwise”. This is presumably to give local communities more certainty, however there is likely to be much debate over the definition of “strongly”.
A new system of “street votes” will see proposed development put to a referendum of residents on the street to determine if the proposal should be given planning permission (assuming all other statutory requirements are met).
Planning application fees will be increased by more than a third, the aim being to better resource local planning authorities and expedite decision making. However there is no intention to formally ringfence these monies and therefore I would query whether the increase in fees will guarantee an improvement in service.
The Bill proposes the replacement of Strategic Environmental Assessment (including Sustainability Appraisals) and Environmental Impact Assessments with a new form of Environmental Outcome Report. These are intended to be clearer and simpler than the current system.
The Infrastructure Levy
The LURB introduces a locally set, mandatory levy to replace CIL (other than Mayoral CIL). The charging rate will be based on a percentage of gross development value.
Section 106 agreements will continue to be used but in a more “narrowly targeted” way, dealing with the delivery of on-site infrastructure such as play areas. There will also be scope for larger schemes to deliver in-kind infrastructure in lieu of a monetary payment.
The levy will be charged on the value of property when it is sold (rather than on the basis of increased floorspace) and applied above an as-yet undefined minimum threshold.
Locally produced “infrastructure delivery strategies” will determine where and how infrastructure spending is allocated.
The new Infrastructure Levy will be rolled out over several years to allow for careful monitoring and evaluation.
The time period in which local planning authorities can take enforcement action against unauthorised developments will be extended from 4 years to 10 years.
Councils will be given a new power to issue an enforcement warning notice where they become aware of an unauthorised development that has a reasonable prospect of being acceptable. The enforcement warning notice can invite submission of a retrospective planning application within a specified period.
The LURB reduces the scope for appeals against enforcement notices so that you cannot appeal an enforcement notice if you have also applied for retrospective consent for the same breach.
Other proposed amendments
In light of recent case law, the LURB introduces a new clause 73B into the TCPA to allow more flexibility to vary non-substantial changes to planning permissions (including the description of development). This will enable changes to planning permissions without the submission of multiple applications either under section 73 (to vary a condition) or section 96A (to amend the description).
The LURB also removes the need for Secretary of State approval of completion notices and also allow a completion notice to be served before the deadline for commencement of a planning permission has passed (so long as development has commenced).
Further reforms are designed to make it cheaper and easier for local authorities to use their compulsory purchase powers – by reducing the level of compensation they have to pay landowners.
A new power is proposed to require landlords to put units that had been vacant for over a year into “rental auctions” so that local community groups, charities and start-ups can bid on them.
Over the coming months, a number of consultations will be launched by the Government to establish how best to take these measures forward. Very large sections of the Bill depend on secondary legislation for delivery.
In broad terms, changes to planning procedures are unlikely to take place much before 2024, once the Bill has Royal Assent and associated regulations and changes to national policy are in place.
It is not ideal for the world of planning to keep changing. Previous experience of planning reform has shown there is a real risk of inertia as planning authorities and other stakeholders get to grips with the changes.
However there are undoubtedly some sensible proposals in LURB. The aim to simplify and standardise the process for local plans and digitise the system is a laudable aim, if it is properly resourced.
The proposals relating to the infrastructure levy possibly raise as many questions as provide answers, however. It has the potential to be as complex and uncertain as the current system and it is essential to ensure mechanisms to secure affordable housing are robust.
Overall, it is important that the development sector engages in what we hope will be a meaningful consultation process, so that the outcome is one that benefits all stakeholders in the planning system for many years to come.