A new chapter for planning?

Hannah Quarterman rounds up the planning changes coming into effect through the newly enacted Levelling-up and Regeneration Act 2023. The need to reform the planning system has become a constant refrain, and the promise to deliver that reform has been reiterated since the publication of the Planning for the Future white paper in summer 2020. Finally, with the passing of the Levelling-up and Regeneration Act 2023, or “LURA”, the government assures us that real change has been delivered. So what does LURA do, and just how monumental are the changes? Everything and nothing LURA is certainly a significant piece of legislation. It touches on a huge range of topics. Planning-wise, there is barely a part of the system in England that the Act doesn’t impact.  However, since the Bill was first published, one of the key criticisms has been how much detail is missing and, while some areas have filled out, such as street votes, in many places the Act still only sets out a framework. Much of the detail is to follow, leaving a vacuum being filled by press releases, consultation papers and industry speculation.  The Bill has also been at the centre of some high-profile political battlegrounds, making the parts that didn’t make the final cut almost as important as those that did.  Making good decisions  One headline-grabbing change is the introduction of national development management policies. Motivated by the desire to simplify planning, these changes allow the government to set certain planning policies centrally. Criticised by some for shifting planning control away from local authorities, the government insists it is instead providing greater predictability around issues which are often largely – but not entirely – the same in local policies around the country. Listed buildings, for example, are always protected, but the details of that protection can vary, creating unpredictability for developers. However, there remains uncertainty as to the exact scope of these NDMPs, and it isn’t clear how much the government will dictate.  Concerns about the centralising of control are further fuelled by the fact that, where there is a conflict between local policies and the national equivalent, it is the NDMP which should prevail.  The role of “material considerations” in determining planning applications is also evolving. Previously, applications were required to be determined in accordance with relevant policies unless material considerations indicated otherwise. However, such considerations must now “strongly” indicate that a decision should be made other than in accordance with policy. There is no guidance about what the addition of “strongly” means, so local planning authorities will need to grapple with the nuances of this new approach.  CIL is dead, long live the IL? The existing community infrastructure levy will be replaced by an infrastructure levy (except in London – which will have both – and Wales). At this stage, it isn’t just the names which have a striking similarity. The provisions in the Act are very much a framework and, in many regards, closely reflect the CIL provisions. The real meat of the regime will be in secondary legislation, and the industry is waiting with bated breath to see the outcome of the consultation earlier this year on those details.  Some changes are fixed, though, such as those relating to affordable housing. The Act provides not only that IL can, unlike CIL, be used to fund affordable housing, but that developers can use the provision of on-site affordable housing to satisfy their IL liability, and even states that charging authorities have the power to require on-site provision. This has potentially far-reaching implications for those designing and delivering residential developments. Given that registered providers often have strong preferences around certain design features, this could pose real practical challenges.  Environmental outcomes, not impacts  The environmental impact assessment regime’s origins in European legislation meant it was always ripe for replacement, and the Act has delivered this via the introduction of environmental outcomes reports. Like the CIL/IL change, there are some notable similarities between the regime and its predecessor, such as two different categories of development which are subject to the regime, and, again, much of the detail is still to be provided, including the government’s response to early consultation. Where there are details, these include: Environmental outcomes must relate to protection of the natural environment, cultural heritage and the landscape from the effects of human activity. This is narrower than the current EIA regime, for example excluding socio-economic factors.  Environmental outcomes reports must explain the extent to which the proposed development is likely to impact on the delivery of specific environmental outcomes. Those outcomes will be specified at a later date. Clearly, their scope will be critical to the operation of the regime.  LPAs can require additional mitigation where monitoring demonstrates that the initial mitigation is inadequate.  The end of hope value As well as a raft of changes relating to the process for making compulsory purchase orders, a key change has been made regarding the compensation payable for CPOs. An acquiring authority now has the power in certain circumstances to direct that, when assessing the market value of the land acquired, land owners can no longer include hope value – the extra value attributable to the prospect of securing planning permission for redevelopment.  While many agree that landowners should not be rewarded on a speculative basis when their land is taken in the public interest, others argue that compensation no longer truly reflects market value if the law disregards a factor that the market would account for. This marks a clear departure from the long-established CPO compensation principle of equivalence. It will be interesting to see how often, and in what circumstances, authorities choose to use these powers, or whether their impact will, in practice, prove limited.  Other key measures Changing planning permissions – there is a new power to apply for a new planning permission “not substantially different” from an existing permission. This new section 73B was introduced to give greater flexibility than the existing section 73, as it allows changes to the description of development. However, in light of recent case law on the scope of section 73 (ie Armstrong v Secretary of State for Levelling-up, Housing and Communities [2023] EWHC 176 (Admin); [2023] PLSCS 21 and R (on the application of Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin); [2023] PLSCS 156), there is a risk that the benefit of section 73B will be limited in more complex cases, not least of all because of the inevitable debates over what “not substantially different” really means.  Heritage – the Act introduces a statutory duty to have special regard to the desirability of preserving or enhancing heritage assets, or their settings, when determining planning applications affecting the asset or its setting. Relevant assets include scheduled monuments, historic gardens and World Heritage Sites. The statutory duty regarding listed buildings is also amended to refer to the desire to actively enhance those assets, as opposed to simply protect them.  Street votes – these much-publicised measures provide a mechanism whereby local residents can secure an order granting planning permission for specified types of development on an identified street. However, as the process is very involved, there is some scepticism as to how useful the provisions will be.  Enforcement – the time limits for enforcing breaches of planning control in England have been simplified to be 10 years in all cases. In Wales, it remains the case that breaches relating to the carrying out of works, or changes of use to residential, can only be enforced for four years after the development is completed.  Amending planning obligations – a power is introduced for the secretary of state to make regulations to either specify conditions which must be met before a planning obligation can be varied, or stating that, in certain circumstances, planning obligations cannot be varied. It will be interesting to see what, if any, regulations come forward to give effect to this and, in particular, whether they are used to limit scope for revisiting affordable housing requirements.  What’s missing? Many will recall the commotion regarding the government’s proposal to change the rules on nutrient neutrality, to remove this issue as a barrier to the delivery of homes. That political hot potato was apparently a step too far for this piece of legislation – the proposals were rejected, and the government is considering its options.  Other highly publicised changes which failed to make the cut include provisions relating to onshore wind farms and a strengthening of the obligation on decision-makers to have regard to climate changes, as well as a bar on building residential properties on flood plains. It remains to be seen whether the government will find alternative homes for these proposals.  Where are we now?  While the Act has secured royal assent, there is still a long way to go before its far-reaching reform becomes reality. Although some elements come into force immediately or in December, the vast majority of planning reforms will only take effect when there are relevant regulations, and there are still swathes of key detail awaited, to be provided both in those regulations and in guidance.  And with the prospect of a general election looming, it remains a real possibility that the shape of reform could still shift significantly.  Hannah Quarterman is a partner and head of planning at Hogan Lovells Photo © iStock