Planning matters

The focus of press releases regarding The Levelling Up and Regeneration Bill has been on street votes, consultation, plan-making, digitisation, design and provision of infrastructure. The Development Management provisions are less obvious, but just as important, and would slot in quickly and easily to the existing English planning system. Some also have an immediacy to them, as they will not require regulations, other than commencement regulations, to give them full effect. Others are changes referred to in a policy paper about the Bill and will not form part of the Bill itself.

The proposed changes to the development management system discussed in this blog are:

 

 

Section 73 of the Town and Country Planning Act 1990 (TCPA) allows applications to be made for permission to develop without complying with a condition previously imposed on a planning permission. It is commonly used to make minor material amendments to planning permissions. The Finney case, discussed in greater detail here, confirmed that section 73 cannot be used to alter a description of development. Therefore, multiple applications are often now needed where a minor material change to a scheme is proposed. To change a description of development, it is currently necessary to submit a s96A application, which should be approved if the change is non-material.

The Bill would introduce Section 73B, a new route to vary an existing, express, original planning permission when making non-substantial changes, including to the description of development. This new route would only be permitted if the local planning authority (LPA) is satisfied that the changes will not create a substantially different permission. No further detail has been provided on what would constitute “a substantially different effect”. Under Section 73B, the authority should limit its considerations to the ways in which the variation would differ in effect from the existing permission and it will not be possible to use the new provisions to extend the time for implementing a permission. Section 73B could also be utilised to make changes to permission in principle. It appears that section 73B creates a new planning permission, thus meaning either the original or changed scheme can be implemented – unlike s96A, which amends a scheme and only the amended scheme can be implemented. The provision appears to be designed for changes in the course of construction and cannot be used to amend retrospective planning permissions. Related to this purpose, s73B would allow for existing section 73 planning permissions for minor material changes to the original planning permission, to be taken into account when determining s73B applications – albeit without permitting the amendment of s73 planning permissions. This might mean that a s73B permission creates single alternative scheme to the original, incorporating the preferred previously permitted changes. Such an amendment would probably still require the s106 to be varied, unless it already incorporated such amendments. One might assume that the CIL Regulations would be amended to expressly take into account section 73B, the absence of which could lead to a few LPAs refusing to entertain applications that would result in changes to floorspace, as they do with s96A applications that would do so at present.

 

 

Clause 99 would insert a new section, 93G (Commencement Notices), into the TCPA 1990. This new section would require those carrying out certain as-yet-undefined development types to serve a commencement notice to the relevant LPA, before any development has taken place. This notice would require the expected start date of development, the details of the planning permission, the proposed delivery rate of the scheme and other relevant information (as outlined in the explanatory notes of the Bill).
The example in the explanatory notes of the Bill (see figure 1 below), suggests that the provision would most likely apply to large scale residential schemes, to prevent perceived land banking by developers.

 

A new power would be given to LPAs, to serve a completion notice on a planning permission for development which has commenced, but which in the LPA’s opinion will not be completed within a reasonable period. A completion notice could be served no earlier than 12 months after the date stated in a planning condition for implementing a planning permission (i.e. at least 12 months after the development commencement deadline). A completion notice would set out a time limit (“completion notice deadline”) after which the planning permission would cease to have effect for any unfinished parts of the development. The deadline for compliance with the completion notice would be no sooner than 12 months after the notice was served. There would be a process for appeals against the serving of a completion notice. Given that the time period for commencing a development cannot be altered by any existing or proposed procedures for amending permissions, the date from which a completion notice could be served would not change if a permission was amended.

The new completion notice power, under section 93H of the TCPA, would not require the Secretary of State to confirm when a completion notice can take effect in England. Under existing law, a section 94 completion notice can only take effect once it has been confirmed by the Secretary of State. Existing Section 94 of the Town and Country Planning Act 1990 (termination of planning permission by reference to time limit: completion notices), would only continue to apply in Wales.

The Bill, its explanatory notes and its associated policy paper do not state that completion notices could only be served on certain types of development, whereas commencement notices would be limited in their coverage. However, the change in legislation is linked to lobbying for “use it or lose it” measures and the Housing Minister made clear that the provisions are intended to be used together, during a Parliamentary debate [1]:

The continued push for use it or lose it provisions comes despite land banking claims being routinely debunked – see this blog by Matthew Spry.

Perhaps completion notices are applicable to all development to mask this provision being aimed at land promoters and larger housebuilders?

A related provision, in terms of the desire to monitor land control and build out rates, would “improve transparency about the ownership and control of land” according to the Bill’s policy paper. The clause permits the Land Registry or equivalent “to collect information on the ownership of land, of relevant rights concerning land and others with the ability to control or influence (directly or indirectly) over the owner of a relevant interests or rights relating to land” – i.e. to centrally record the options taken on land.

 

Clause 83 of the Bill relates to the role of the development plan and national policy in England.

Currently, the Planning and Compulsory Purchase Act 2004 (PCPA) allows determinations to diverge from the development plan where material considerations indicate that this is justified. S38(6) of the PCPA would be amended so that determinations would be made in accordance with the development plan and national development management policies unless material considerations strongly indicate otherwise.

These changes are covered in more detail here, but from a development management viewpoint the addition of the word ‘strongly’, would result in greater weight being given to the development plan than is currently the case, while also immediately placing national development management policies above other national policy. Given these proposed changes, a review of the NPPF is also expected to follow. As with other development management proposals, this change would not come into force in Wales.

 

Alongside the publication of the Bill, the Government has committed to increasing planning fees for major applications by 35% and minor applications by 25%. However, they have made clear that an increase in fees must coincide with a better planning service for applicants. These proposed changes will first be subject to a consultation.

 

Chapter five of the Bill refers to the changes for Enforcement of Planning Controls. This the introduction of several private members Bills relating to enforcement (see Lichfields Planning News, October 2021).

Of particular note, LPAs would have ten years to take enforcement action against unauthorised development for building, engineering, mining or other operations in England. This would be development in, on, over or under land up to ten years after the date on which the works were substantially completed. The time period for enforcement action will remain four years in Wales. The time period for the duration of temporary stop notices has also been increased in England to 56 days, from 28 days previously. This would remain 28 days in Wales.

English LPAs would have the power to issue enforcement warning notices. These notices could be issued where a breach in planning control has occurred, but the LPA judges that there is a reasonable prospect of planning permission being granted for the development if a planning application was submitted. If the application is not received within the specified period, the LPA could take further enforcement action.

There would also be an extension of the circumstances in which the ability to lodge a ground (a) appeal against an enforcement notice issued in England is removed so that there is only one opportunity to obtain planning permission retrospectively after unauthorised development has taken place. In Section 174 (2) of the Town and Country Planning Act 1990, a ground (a) appeal is submitted on the grounds that that planning permission should be granted for what is alleged in the enforcement notice (or that the condition or limitation referred to in the enforcement notice should be removed). New subsection (2AC) of the Bill explains the different circumstances in which a related application ceases to be under consideration. Subsection (2B) clarifies the day on which the application ceases to be under consideration for the purposes of calculating the two year period in which an enforcement notice must be issued if a ground (a) appeal is to be prohibited.

Furthermore, the Secretary of State would have new power to dismiss an appeal in relation to an enforcement notice or an application for a lawful development certificate in England if the appellant is deemed to be causing undue delay to the appeal process. The appeal could be dismissed unless the appellant takes the action specified in the notice within the outlined period.

The penalty for noncompliance with a breach of condition has also been increased to an unlimited fine, as has noncompliance with a section 215 completion notice (which are rarely issued at present, and different to the proposed s93H completion notices, see above). It also increases the maximum daily fine in England to the greater of either one tenth of a level 4 fine (currently £2,500) or £5,000.

The Secretary of State would have a new power, via regulations, to provide relief from enforcement of planning conditions against a developer or individual, for non-compliance with specified planning conditions or limitations, for a specified period. This would allow greater flexibility in the enforcement regime. Instead of issuing specific persuasive but non-binding guidance regarding taking enforcement action, for example as the Government did regarding delivery hours conditions etc. during the height of the Coronavirus pandemic, the Government would be able to rely on these new laws.

 

With regard to heritage, the Bill would insert a new section ‘duty of regard to certain heritage assets in granting planning permission or permission in principle’ into the TCPA 1990. New section 58B (1) would specify that a local planning authority or the Secretary of State must have special regard to preserving or enhancing a heritage asset or its setting when considering planning applications in England.

“Heritage assets”, would include Scheduled Monuments, Protected Wreck Sites, Registered Parks and Gardens, Registered Battlefields or World Heritage Sites, so that they would have parity with listed buildings and conservation areas in law, as well as the existing policy parity.

The Bill would also amend section 16 of the Listed Buildings Act to require consideration of preservation or enhancement, instead of solely preservation, when determining listed building consent applications.

Another proposal is to amend the Listed Building Act so that a temporary stop notice could be issued on work to a listed building for up to 56 days while also making it an offence for breaching this notice.

The proposed ‘removal of compensation for building preservation notice’ is expected to have significant impact. LPAs can serve a Building Preservation Notice (BPN) on the owner and/or occupier of a building, which is not currently listed, but is considered to be of special architectural or historic interest and is at risk of being demolished or changed, which would affect this status. Currently, under section 29 of the Listed Buildings and Conservation 1990 Act, a person who has an interest in a building which has been served a BPN can make a claim to the LPA for compensation for any loss or damage as a result of the BPN. The Bill would amend the Listed Building Act and remove this right.

 

As discussed in greater detail in this blog, the Bill proposes a new power to instigate “high street rental auctions” of selected vacant commercial properties in town centres and on high streets which have been vacant for more than one year.

The Bill also sets out when a town centre may be designated. The Bill defines “high street use” too – essentially uses that the Government is looking to protect or considers desirable, with no reference to use class. This is not directly relevant to development management, but it is interesting to see the uses that the Government would like to actively encourage on High Streets.

The Bill would also make permanent, subject to some changes, the measures that facilitate pavement licensing which were first brought in as the high street reacted to COVID which are outlined here. 

 

Ahead of the publication of the Levelling up and Regeneration Bill (‘LURB’), Prime Minister, Boris Johnson made clear that addressing challenges high streets have been facing was a key focus, proclaiming:

“We are putting that right by placing power back in the hands of local leaders and the community so our towns can be rejuvenated, levelling up opportunity and restoring neighbourhood pride. (Boris Johnson, 7 May 2022)

Town centre regeneration is seen as central to ‘levelling up’ and to the Bill. Indeed improving ‘people’s satisfaction with their town centre’ is one of four overarching objectives listed in the Explanatory Notes:

“To deliver a new suite of powers for local authorities to regenerate their towns through high street rental auctions and reforms to compulsory purchase to support delivery of the Government’s levelling up mission that ‘by 2030, pride in place, such as people’s satisfaction with their town centre and engagement in local culture and community, will have risen in every area of the UK, with the gap between top performing and other areas closing.”

Against all this launch fanfare, how does the detail match up? Here are further details of my top eight takeaways in the Bill that are designed to help high streets and town centres.

1. New powers to re-let vacant shops: Intended to overcome issues with vacancies, a Local Authority (‘LA’) may designate a street in its area as a ‘high street’ or ‘town centre’ if it considers that the street is important to the local economy because of a concentration of high-street uses or premises on the street/ in the area. Once designated LAs can begin a process of compulsory re-letting, if the unit has been vacant for a year, or more than 366 days in last 2 years. A local benefit condition must also be satisfied (for example, if deemed beneficial to the local economy, society or environment).
    
   In practice, how much impact this could have is questionable. If there is no demand for the unit it is difficult to see that they would be filled. Commentators including the British Property Federation have been quick to assert that property owners do not generally want their premises to remain empty, anyway. They also highlight that the measures do nothing to overcome other financial barriers including business rates and occupational costs which make it unviable for many small and independent businesses to trade from town-centre premises[i].
    
   On the other hand– there may be community, cultural and charitable organisations that it could work for, even if only the threat of such intervention causes landlords to act first. If the Government can address other issues – including business rates and potentially the online sales tax – it would make vacant units more attractive.
    
2. Streamlining and modernising Compulsory Purchase Orders (CPO): The LURB grants power to local authorities to use CPO for regeneration purposes. This clause amends section 226 to make it clear that, for the purposes of the power, improvement includes regeneration. This recognises the role of compulsory purchase as a catalyst for regeneration in town centres and high streets which are seeing persistent long-term empty properties, and where there are complex and fragmented land ownership patterns. In terms of ‘CPO reform’ - these are minor but welcomed changes.
    
3. Pavement licensing changes: Intended to support “vibrant high streets, pavement licensing red-tape will be permanently scrapped, freeing up businesses to serve food al fresco and attract diners all year round”. There is no doubt that a positive outcome of Covid-19 has been how we use outside space in our town and city centres in a much more imaginative way. The LURB makes provision for a temporary streamlined route to pavement licensing across England. The purpose of these provisions is to make permanent the regime for pavement licences with certain amendments set out. This is a helpful nuts and bolts measure to enliven high streets and support hospitality businesses. See also James Fryatt’s previous blog from when the changes were initially introduced – look out also for his forthcoming blog where the implications are discussed in more detail.
    
4. Locally led development corporations: New provisions allow the Secretary of State, upon request from a local authority or authorities, to designate an urban development area and create an urban development corporation for which a local authority rather than central government is responsible. Development corporations are potentially powerful structures that can drive forward regeneration. They can bring about transformative change that could be used as a tool to help bring forward regeneration of town centres. The Government has recognised that retaining local control, whether in terms of designation or operation could be the key to greater engagement amongst LAs in assessing the potential benefits for their areas.
    
5. Changes to how planning permissions can be amended: Importantly this will include the ability to amend descriptions of development and conditions. The new wording refers to allowing amendments when not ‘substantially different’. The changes positively remove the current situation where developers need to do multiple applications to amend an application (i.e. s73 to vary condition and s96a to amend description). This should be welcomed by all and particularly those involved in implementing town centre schemes (and all the development sector given recent uncertainty following the Finney decision). Given schemes are amended often multiple times, this will assist the process and should be very well received.
    
6. Increased role of Supplementary Plans: Supplementary Plans (‘SP’) are potential helpful tool to prepare planning policy documents focused on town centre regeneration strategies. Importantly they will have the full weight of the development plan, when previously they haven’t. In terms of the subject matters that a supplementary plan can address when prepared by a local planning authority. These echo those for local plans but are limited geographically to matters relating to a specific site or two or more nearby sites; other than in the case of design matters, which may cover a wider area.
   
   According to the Explanatory note this will allow supplementary plans to address site-specific needs or opportunities which require a new planning framework to be prepared quickly (like a new town centre regeneration opportunity), and to act as a vehicle for setting out authority-wide or other design codes. If these new style plans can be prepared quickly and have the enhanced weight of the development plan they could become a powerful tool, giving developers greater certainty on key design before embarking on major schemes.
    
7. Amendments to completion notices: The amendments would require unfinished development to be completed in a reasonable period. It specifies planning permission for incomplete parts of the development will cease, unless completed in certain time. The LURB will remove the requirement of the Secretary of State to confirm completion notice. The effect of streamlining the process may see greater use of completion notices by LAs for example where development on key sites has stalled. Importantly the powers still can’t make developers complete final elements of scheme. Whilst mainly focused on addressing perceptions of ‘land banking’ in residential schemes, they can be used in town centre schemes if a LA is inclined to do so. In the past take up has been limited because they don’t help complete the development, rather they take away the benefit of planning permission. It does not appear that the proposed changes would address the reason they tend to be ineffective.
    
8. New national policy and decision making mechanism– New national development management policy is to be prepared. In addition, because of planned amendments to s38(6) of the Planning and Compulsory Purchase Act, the national development management policy will have the same weight as development plan. If there is conflict between national and local policy – national policy prevails. It remains to be seen what new policies might be in new national development management policy of relevance to town centres. Also what implications might arise for implementing town centre policies – if nationally policy overrides more restrictive local policies-could there be friction with impact thresholds or frontage policies?
   
   There is no doubt that most agree that there is too much duplication of policy produced at different levels of government and this will streamline things and be welcomed by the majority of those who use the planning system. What we can expect though is a burgeoning of national policy, and its more frequent review. In 2012 the Government heralded the stripping away top-down regional and national policy, but this Bill will only see it much increase again, even if the digital presentation means it will remain light years ahead of the pre-2012 position.

Overall, the changes proposed in the LURB range from welcomed updates to legislation that will support town centre transformation in terms of CPOs and UDCs; as well as fine tuning of other development management changes. The powers to tackle empty shops in the Bill is being heralded by Government, but slightly sceptically received by the industry.

The measures in the LURB are all small pieces of the jigsaw, they will only deliver real change and improvements if supported by other significant measures.

It is notable that alongside the changes the Government importantly will also be overhauling the business rates system as part of the Non-Domestic Rating Bill. It has also announced providing £1.7bn of temporary business rates relief in 2022-23 for up to 400,000 retail, hospitality and leisure properties to support the high street.

In combination, this should be welcomed by those work in retail and town centre development; and users of high streets across the country.