After about two years of speculation in relation to planning reform, the Queen’s Speech confirmed which ideas are set to become legislation. The Speech was accompanied by a draft Levelling-up and Regeneration Bill (the “Bill”) and policy paper. Below we outline the key proposed changes impacting the planning system. The more radical zoning proposals that were previously proposed in the now-scrapped Planning Bill have been dropped, albeit that the current proposals strengthen the plan-led system.
The Levelling-up and Regeneration Bill
This replaces the standalone Planning Bill, which was previously promised. The proposed Bill seeks to improve the planning system by giving communities a louder voice and ensuring that developments are “beautiful, green and accompanied by new infrastructure and affordable housing” to support the regeneration of towns and cities where it is needed most.
The explanatory notes say that the measures have “been informed by more than 40,000 responses to the government’s 2020 ‘Planning for the Future’ White Paper and subsequent inquiry into planning reforms by the Housing, Communities and Local Government Select Committee”, and the Bill will give effect to a number of measures first proposed in the Levelling Up White Paper, which was published in February 2022.
The main elements of the Bill are:
- The approach to determining planning applications
- Two key changes are proposed to the current approach to determining planning applications:
- there will be new National Development Management Policies (“NDMP”), which will have the same primacy as the current Development Plan; and
- other material considerations would need to strongly indicate otherwise if they are to outweigh the NDMP and Development Plan.
- The scope of what can be designated a NDMP is potentially wide. It is likely that much of the content of the NPPF will shift to the NDMP.
- It is unclear how any conflict between the NDMP and the Development Plan will be resolved.
- Faster local plan process
- The Bill aims to simplify and standardise the local plan process to make it faster and with more community involvement.
- The scope of local plans will be limited to ‘locally specific’ matters, with ‘issues that apply in most areas’ to be covered by a new suite of NDMP, which will have the same weight as the Development Plan.
- The ‘duty to cooperate’ with neighbouring planning authorities is being replaced with the ability for multiple authorities to collaborate to produce a Mayoral-style spatial development strategy. Time limits will be prescribed for stages of plan preparation and there will be gateway checks on local plans before they reach the Examination space to allow planning inspectors to offer advice.
- Planning authorities can also create ‘supplementary plans’, and a new neighbourhood planning tool called a ‘neighbourhood priorities statement’ will be taken into account when preparing local plans. Supplementary plans will replace SPDs. They are intended to be capable of being produced more quickly than local plans, albeit, unlike SPDs, they still have to go through Examination.
- Environmental assessment
- Environmental Impact Assessment and Strategic Environmental Assessment will be replaced by a new ‘Environmental Outcomes Reports’ procedure, which allows the government to set clear and tangible environmental outcomes against which a plan or project is assessed. The procedure will apply to Category 1 and Category 2 consents and ‘relevant plans’.
- The new reports allow local communities and stakeholders to see where a plan or project is meeting these outcomes and any steps that will be taken to mitigate harm, aiming to prioritise the environment in planning decisions and improve outcomes for the natural environment.
- The outcomes will be set following consultation and parliamentary scrutiny, and will enable the government to reflect its environmental policies directly in the decision-making process.
- The Habitats regime is currently an outcomes-based system. A form of environmental outcomes approach has also already been used successfully in an EIA context on a small number of essential national projects.
- Thought will need to be given to what is meant by environmental outcomes, particularly in areas that are currently much more impact-focussed.
- New infrastructure levy
- A locally-set, mandatory infrastructure levy (“IL”) to capture some of the financial gain created by development.
- The IL will be used to fund the delivery of infrastructure, including affordable housing. It will replace the current section 106 regime, except for larger sites, whereby section 106 will be retained to reflect the complexity and specific circumstances
- The IL will also replace CIL (except for Mayoral CIL in London, which will be retained).
- The rates and thresholds will be set by local planning authorities. Local authorities can set differential rates, but rates will be set at a level that exceeds or maintains previous levels of affordable housing funding from developer contributions.
- Local planning authorities must prepare Infrastructure Delivery Strategies outlining how they intend on spending the new infrastructure levy.
- It remains to be seen how the levy will work in practice, particularly in terms of:
- the inevitably of much higher IL rates than current CIL rates;
- the delivery of infrastructure, including the different models that may be adopted for delivering affordable housing, and the buy-in needed from statutory undertakers for delivery of other infrastructure;
- how these will replace the binding delivery commitments currently contained in s106 agreements; and
- the scope more generally of the retained role for section 106 agreements.
- There will be a consultation setting out the detail in the coming months.
- Compulsory Purchase
- Streamlining of the Compulsory Purchase Order (CPO) system.
- Clarification of local authority powers to use CPO for regeneration purposes.
- The ability to impose conditions (e.g. availability of funding) on CPOs, providing for a two-stage confirmation process, which leads to a Fulfilment Notice when all conditions have been discharged.
- The availability of written representations and informal hearings as alternatives to public inquiries at the confirmation stage.
- Other proposed amendments
- A new power for minor variations to planning permissions for ‘non-substantial changes’, including the descriptor of the development and conditions though a new s73B to the TCPA 1990. It is hoped this will overcome some of the restrictions on amending planning permissions caused by recent case-law.
- A strengthening of the role of the ‘national model design code’ by requiring every local planning authority to have a design code for its area to ensure good design is considered at all spatial scales. The area wide codes will act as a framework for which subsequent detailed designed codes can come forward, prepared for specific areas or sites and led either by the local planning authority, planning groups or developers as part of planning applications. The design codes will have full weight in making decisions on development.
- A government duty to set levelling up missions and produce annual reports on the delivery of these.
- A new route to allow the Crown to apply directly to the Secretary of State for the determination of nationally important development and another route for urgent issues of national importance.
- New powers for local authorities to bring empty premises back into use.
- Provision for new locally-led Urban Development Corporations, with the objective of regenerating areas and accountable to centrally and locally-led development corporations, and a simpler process for establishing locally-led New Town Development Corporations, removing the cap on the number of board members and the aggregate limits to borrowing.
- Strengthening of neighbourhood planning and the digitisation of the planning system, including a ‘street votes’ system allowing residents to propose development on their street and hold a vote on whether it should be given planning permission.
- Registered parks and gardens to have the same level of protection as listed buildings and conservation areas.
- An intention to remove the requirement for authorities to maintain a rolling five-year supply of housing land if they have a local plan adopted within the last five years.
- Benefit to the public purse to be a factor in authorities’ land allocation decisions to enable the piloting of ‘Community Land Auctions’.
- Powers to require pre-application engagement with communities to be made permanent.
- The introduction of a council tax premium on second homes.
- Planning application fees to be raised by more than one third.
The Queen’s Speech also referenced infrastructure legislation, including the Product Security and Telecommunications Infrastructure Bill, the High Speed Rail (Crewe-Manchester) Bill, and a Levelling Up Bill that will set the groundwork for eight new freeports in England. The Energy Security Bill was also highlighted and is hoped to take forward some of the measures outlined in the Energy Security Strategy of April of this year in order to support the transition to net zero and increase domestic energy capacity.
The proposed reforms to the planning systems are wide ranging, albeit more limited than those initially proposed in the Planning White Paper. Much of the detail remains to be seen, particularly in relation to the proposed new infrastructure levy and how this will deviate from the current CIL regime. Political opposition and parliamentary timetables mean that we are still a way from these proposed changes becoming part of the system, with no guarantee that these will all become law. There will then need to be a comprehensive suite of secondary legislation to implement the reforms, as well as changes to national policy and guidance.