2023: Planning for the unexpected

The likely shape of planning policy reform has at last been outlined by the secretary of state for levelling up, Michael Gove, in his written ministerial statement dated 6 December 2022 and a 22 December consultation document.  The main policy changes (to be consulted on until 3 March and then potentially reflected in an updated National Planning Policy Framework in the spring) include: An amended method for calculating local housing need, which will be an “advisory starting point”, and a watered-down “soundness” test for local plans which have not reached pre-submission consultation stage within three months of the revised NPPF. Therefore, local authorities will be able to justify more easily local plans which propose lower housebuilding numbers. An end to the obligation on local authorities to maintain a rolling five-year supply of land for housing where their plans are up to date. Currently, there is a “tilted balance” in favour of development when a local authority has not maintained a five-year housing land supply, even if its plan is up to date. That presumption will no longer apply. The removal of the requirement for some authorities to add a 20% buffer to what they need to plan for. Authorities that are well-advanced in preparing a local plan will have a two-year period to revise their plan against the proposed changes and to get it adopted – and while they are doing this they will only need to maintain a housing land supply of four rather than five years. Measures to ensure timely building out of developments for which there is planning permission. Authorities will be able to refuse planning applications from developers that have built slowly in the past and will not be penalised under the housing delivery test where poor performance is down to developers not building out developments for which they have permission. Measures to make the character of the developer material in decision-making. According to Gove: “I have heard and seen examples of how the planning system is undermined by irresponsible developers and landowners who persistently ignore planning rules and fail to deliver their legal commitments to the community. I therefore propose to consult on the best way of addressing this issue, including looking at a similar approach to tackling the slow build-out of permissions, where we will give local authorities the power to stop developers getting permissions.” Further measures to prioritise the use of brownfield land. The government is looking to support development on small sites, particularly with respect to affordable housing. There will also be “further protection in national policy for our important agricultural land for food production, making it harder for developers to build on it”. A new tourist accommodation registration scheme. There will also be a review of the Use Classes Order “so that it enables places such as Devon, Cornwall and the Lake District to control changes of use to short-term lets if they wish”. A further round of changes to the NPPF will then be consulted on later in the year, as well as more detailed policy options and proposals for a suite of National Development Management Policies. What next for the Levelling-up and Regeneration Bill? Many of the proposals were the result of a rebellion by Tory MPs, who threatened to vote down the Levelling-up and Regeneration Bill. The divisions within the government on housebuilding are plain to see. In the light of the uneasy peace now brokered within the party, the Bill will continue its progress through parliament and will soon move to the House of Lords. Amendments being added at the House of Commons report stage by the government include: Measures requiring developers to report annually to councils on their progress and giving local planning authorities the power to block planning proposals from builders that have failed to deliver on the same land. Detailed provisions to give effect to the “street votes” concept, giving “residents a new tool to propose additional development on their street”, such as extensions to homes. There will be independent examination and a referendum. The piloting of “community land auctions”, “testing a new way of capturing value from land when it is allocated for development in the local plan to provide vital infrastructure, including schools, roads, GP surgeries, and the affordable housing that communities need”. Allowing the secretary of state in due course to consolidate existing planning, development and compulsory purchase legislation. The introduction of a “new legal duty on water companies in England to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels” and a “new Nutrient Mitigation Scheme established by Natural England, helping wildlife and boosting access to nature by investing in projects like new and expanded wetlands and woodlands. This will allow local planning authorities to grant planning permission for new developments in areas with nutrient pollution issues, providing for the development of sustainable new homes and ensuring building can go ahead.” Much of this will not be straightforward to formulate in a way which is workable, and parts of the existing Bill will be reliant on secondary legislation before their provisions are fit for purpose, most particularly in relation to the infrastructure levy which is largely intended to replace the existing community infrastructure levy but with a much wider scope, encompassing the delivery of affordable housing for all but the largest of development projects. Other developments The progress of other legislation relevant to the operation of the planning system is perhaps less certain – for instance, the Retained EU Law (Revocation and Reform) Bill, which has in its sights (unrealistically some may think) the repeal, and replacement where appropriate, of all EU-derived laws by the end of 2023, as well as the equally controversial Bill of Rights Bill, which would repeal and replace the Human Rights Act 1998. Various provisions of the Environment Act 2021 are still to be brought into force, including the requirement for developments to deliver at least 10% biodiversity net gain, which is scheduled to have legal effect from November 2023. While the Levelling-up and Regeneration Bill includes measures to speed up the development approval process for nationally significant infrastructure projects, we await various updated national policy statements – for instance, critically, in relation to energy. The political winds have swirled around issues such as fracking (briefly on the table again, now off), on-shore wind (previously discouraged, now potentially a more positive regime, but yet to be fleshed out), solar (briefly vetoed) and even coal – Michael Gove’s December 2022 decision to grant planning permission for a coal mine in Cumbria may well head for the courts. In the coming year, the Supreme Court is due to hear R (on the application of Finch) v Surrey County Council [2022] EWCA Civ 187; [2022] EGLR 18 as to the extent to which environmental impact assessment should include assessment of “downstream” impacts arising from the use of the products of the proposed development – in that case the use as fuel of oil derived from a proposed crude oil extraction project. This year is going to be a difficult one for planners and planning lawyers. Never has our world been so politicised, and local authorities are expected to make plans and take decisions not just in the face of these continual changes – many of which lead to public objection and controversy – but in the face of economic pressures and continuing strain on the public sector through lack of resources, making progress often painfully slow. Finally, to stir the pot further, there are some particular issues to keep an eye out for, not least the “embodied carbon” debate, which will be informed in due course by a decision by Michael Gove following his calling-in of Marks & Spencer’s proposed demolition and rebuild of its Oxford Street store in London, and the uncertain ramifications of Tower Hamlets Council’s strategic planning committee to refuse planning permission for the proposed Chinese Embassy on the old Royal Mint Court site opposite the Tower of London.  I suspect there will be as much happening in 2023 that is unplanned as planned. Simon Ricketts is a partner at Town Legal LLP Photo © Syaibatul Hamdi/Pixabay