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.

 

Maintaining a five-year land supply (‘5YHLS’) – a test of whether there will be enough homes to meet housing requirements over the next five years – has long been a major planning consideration under the NPPF.

A lack of 5YHLS engages the titled balance of ‘Paragraph 11(d)’ of the NPPF (2021) and renders the policies affecting housing provision to be ‘out-of-date’. This can and has resulted in developments being approved that might otherwise not have been; helping address housing shortfalls.

On the one hand, it’s a relatively good forward-looking indicator that identifies when there is likely to be a shortfall in the supply of homes (albeit, as we found in London, there is likely some ‘optimism bias’ baked into LPAs and by extension developers forecasts[1]).

On the other hand, it has been a major flash point for some local authorities and local residents who see speculative developments coming forward where a lack of 5YHLS is found, leading some to feel run roughshod by the planning system.

Taking a step back, the reason for allowing development on unallocated land is generally a lack of timeliness in plan making to provide an adequate supply of plan-led housing sites (a subject recently covered in a blog by my colleague, Rachel Clements[2]). A lack of plan-making leads to a lack of allocations, leading to a lack of planning permissions and thus lack of development, which eventually results in a shortfall of supply, and thus speculative development comes forward. While it may be a flash point for some, this is exactly how the planning system is currently designed to work.

In the Government’s Planning White Paper (2020), it was mooted that the requirement for LPAs to demonstrate a 5YHLS might be scrapped as part of wider changes to the planning system (presumably to curb speculative development). We pondered the impacts of this back in our previous summary (see Section 4). However, it looks like 5YHLS has some life left in it yet.

 

Amendment to the 5YHLS requirement has been suggested in the Government’s ‘Policy Paper’ that sits alongside the ‘Levelling up and Regeneration’ bill. It states:

Under this proposed future system, demonstrating 5YHLS would exist not only as a stick but also a sort of carrot. Adopt a plan, keep it up-to-date, and avoid 5YHLS. But those local planning authorities (‘LPAs’) who fail do so will face the consequences. This proposed change shifts the balance between plan-led and so called speculative development; leaning far more to ensuring the number and location of new homes is delivered through plan-making (a trend throughout the new proposals). However, to work, the plan-making process needs to be more effective.

The proposed reforms to 5YHLS are therefore reliant on a number of other proposed changes that aim to streamline the plan-making process. This includes the expectation that plans will be produced in 30 months and must be ‘updated’ every five-years (as per the Policy Paper – see also Tom Davies blog for more detail[3]). I think ‘updated’ is a key word here as it suggests a more thorough process than simply a ‘review’; signalling that any housing shortfalls will be addressed through more regular local plan updates.

However, there will still be challenges and there are some key unknowns at this stage:

 

• Without an annually updated forward-looking measure of supply, we really are reliant on plan-making and monitoring to identify and address shortfalls. The proposed changes to plan-making should speed up the process, but they may not solve some LPAs inherent development challenges that restrict supply (e.g. Green Belt) or local political pressures (e.g. on-site optimisation and development densification);
   
• One key omission from the Policy Paper is the Housing Delivery Test (‘HDT’). Will it be retained or scrapped? If retained, then it is likely to take years for undersupply to feed through to a policy response to boost supply;
  
  
• With a much greater emphasis on development being in accordance with the ‘development plan’; how will the new 5YHLS test be worded in such a way as to enable developer-led application proposals on unallocated sites to make up shortfalls where plan making has failed?; and
   
• Five years is a long time. Lots can happen and not happen in that period. With the lead-in times associated for development (particularly larger scale housing schemes) there could be gaps where schemes are needed now but have to wait for the next round of plan-making to come forward.

There are some other notable changes to the wider planning system that will have an impact of 5YHLS. The proposed new commencement notices, for as-yet-undefined types of development, would require details of developers’ expected delivery rates over the development phases (as shown in the ‘Example’ notice in the Explanatory Notes[4]); replicating to some degree the current requirements to provide ‘clear evidence’ when demonstrating a site is ‘deliverable’.

There may also be less incentive for developers to ‘big up’ their sites’ delivery rates on these forms. This is in part as a result of proposed amendments to ‘completion notices’ (where permission for unbuilt aspects may be lost) but also because by removing the 5YHLS test there is nothing to be gained by submitting over-optimistic rates.

This data should help feed into LPAs own understanding of its supply; aiding plan-making. It should also help the Government[5] to have a better understanding of delivery rates across the country (when comparing expected and actual rates of delivery). It is presently unclear though how these notices will be tested to determine whether the rates proposed are realistic.

 

Firstly, the fact that a 5YHLS test is proposed to live on is a good thing, as its removal would be likely to cause fundamental problems to the ability of the Government to boost housing supply.

Secondly, the ‘problem’ of so-called speculative development outside a local plan process stems from a lack of adequate and timely plan-making which shows no sign of abating in some areas. Therefore, I can only see these changes to 5YHLS working if the parallel proposed changes to the plan-led planning system are achievable.

If plans do come forward quicker and whole-heartedly seek to address housing needs, then we should see developer buy-in. At present, if you miss one local plan you might be waiting well beyond five years till the next is prepared to secure an allocation and, as is often the case, those needs go unaddressed for that period. Under the new system we should see plan-making begin every two and a half years (ish); so far more regularly. We may also see more local buy-in as the prospect of application proposals outside that plan-led process diminishes and more regular local control over where development is located is exerted.

The proof will be in the pudding: can these reforms really overcome some entrenched and inherent problems with plan-making to deliver the quantum (and quality) homes we need in the locations which need them without relying so heavily on an element of so-called speculative development?

The Planning White Paper (2020) saw the Government propose major changes to the planning system, with a focus on increasing the delivery of new housing, while ensuring new development would be well-designed and accompanied with the necessary infrastructure.

Reforming the role and nature of plan-making was a key component to achieving these objectives. As a recap, the White Paper proposed that all local planning authorities (LPAs) must have up to date plans in place, while plans themselves would be shorter, simpler, and more effective. Generic development management policies would be set out in national policy, while the number of homes that LPAs should plan for would also be determined centrally. A zonal approach to planning (of sorts) was also proposed, with all land designated for growth, renewal, or protection. Local plans were to focus on setting out detailed area and site-specific requirements, making use of web-based policy maps with design codes setting out detailed design requirements for key character areas.

Almost two years later and after a huge amount of speculation as to the shape and extent of the reforms, the Levelling Up and Regeneration Bill has landed. Further changes to national policy and detailed regulations are expected to come, with an overview of these (relatively substantial) changes set out in an accompanying Further Information policy paper. While the proposals for ‘zoning’ have been abandoned, and the details of a new standard method remain to be seen, many readers will be surprised at how much of the 2020 White Paper may be set to come forward.

This blog focuses on the changes to development plans put forward by the Department for Levelling Up, Housing and Communities (DLUHC). Please see our other blogs which cover the other areas of planning reform and regeneration set out within the Bill. 

The Secretary of State will now write National Development Management Policies. The purpose of this is to reduce the size of plans by removing generic development management policies which are largely the same across England, hopefully leading to greater consistency as to how these are applied in practice.

The starting point for decision making, s38(6) of the Planning and Compulsory Purchase Act 2004 (PCPA), would be revised under the Bill, fundamentally changing the way planning decisions are made, by inserting the word “strongly”. Where determining applications for planning permission, decision makers would now have to give regard to the “development plan and any national development management policies, unless material considerations strongly indicate otherwise" (our emphasis). The potential policy and legal implications – intended or otherwise - of the introduction of “strongly indicate otherwise” will no doubt be discussed at length during the passage of the Bill. The Bill states that, where there is a conflict between a policy in the local plan with a national development management policy, primacy would be given to the national development management policy.

The changes would give greater weight to the development plan than is currently the case, while also immediately elevating the status of national development management policies above other national policy. These national development management policies, as directed by the Secretary of State, would not be a material consideration, but would have the same weight as development plan policy. It is not yet clear what matters these national policies would cover, though heritage, Green Belt, and environmental policies such as Biodiversity Net Gain seem like possible contenders. It is also unclear as to what might be “strong reasons to override the [development] plan” [1].

The Government has said it will set out a new vision for the NPPF, “detailing what a new Framework could look like, and indicating, in broad terms, the types of National Development Management Policy that could accompany it”. This might see the NPPF being broken up into two distinct sections, with one section setting out specific development management policies designated as part of the statutory development plan, and other parts setting out national policy on plan-making, which would remain a material consideration.

Despite local plans currently being the starting point for decisions, recent research from Lichfields has revealed that only 42% of LPAs outside of London had a fully up-to-date local plan to the end of March 2022. The Government expects that shorter, simpler plans will vastly increase number of LPAs with sound plans in place that are also kept up to date.

The Bill’s Further Information policy paper confirms that local plans will need to be prepared within a 30-month timeframe and will be expected to be updated at least every five years. Given the lengthy timescale it currently takes for plans to be prepared (74 LPAs have not adopted a local plan in the ten years since the NPPF was first published in March 2012), many (including the LUHC Select Committee) questioned how achievable this timeframe was when the White Paper was originally published.

It may be more realistic than when proposed in the White Paper, because plan-makers will not need to contend with dealing with the zonal system the White Paper proposed. Furthermore, the existing Duty to Cooperate is expected be dropped (more below). In its response to the Select Committee’s report the Future of the Planning System, the Government has said it will also seek to “reduce the evidence burden”, as well as changing the “soundness tests at examination”. The detail of these additional changes is expected to be set out in regulations.

No details have yet been published on the new standard method for assessing housing need. Understanding how this will be calculated will be crucial to the success of any future changes to the plan-making process. Allocating land for housing is a fraught process, with arguments over the suitability and deliverability of sites taking a considerable amount of time during preparation and examination of plans. The issue is particularly acute in parts of the country where land is constrained by environmental protections or Green Belt policy, which has often led to stalled plans as a result of difficult local politics, which subsequently effect the delivery of new housing and development (see our recent blog for more detail).

Another major change is the Government’s intention to remove the requirement for LPAs to maintain a five-year supply of (deliverable) land for housing, providing the LPAs local plan is kept up to date. As it stands, failure to demonstrate a five year land supply (with an appropriate buffer) has led to the operation of the presumption in favour of sustainable development regardless of the local plan status of the authority, leading to many LPAs with up to date local plans also failing to demonstrate a five year land supply and the presumption applying accordingly. 

The Government appears to intend this change as a carrot to encourage LPAs (particularly long term avoiders) to get their plans up to date and adopted quickly. However, many long term avoiders of plan making are Green Belt constrained and without a change to Green Belt policy (including very special circumstances) there remains little incentive for them to adopt a local plan - even with this carrot.

As mentioned above, the Government wishes to abandon the Duty to Cooperate, the legal obligation introduced via the Localism Act 2011 that requires cooperation between LPAs. Instead, new powers are proposed that would allow for at least two LPAs to produce a joint spatial strategy. This would have a similar effect to strategic role to the London Plan, albeit across much smaller geographies.

Given that the proposed Joint Spatial Development Strategies are voluntary, some will question how many LPAs will choose to adopt this approach, particularly where this may require an LPA to take on the unmet need of its neighbours. That said, in areas with ambitions for growth, this could be an important tool, providing the necessary governance and decision making powers to make difficult choices on infrastructure and other cross-boundary issues - particularly if supported with financial incentives or other powers.

Lichfields’ own research on the future role of Spatial Development Strategies (SDS) suggests that the London Plan has played a critical role in leading growth, while helping to secure important decisions on the future direction of travel in the capital. At the same time, the Mayor has also faced accusations of over-reach, with the latest London Plan interfering in matters deemed as non-strategic. Interestingly the Bill appears to have responded to this criticism, with proposed changes to the GLA Act 1999 to make it more explicit in defining the remit of SDSs.

The Bill would also provide greater flexibility as to how local policy can be brought forward. The Bill proposes a new power for LPAs to prepare ‘Supplementary Plans’, enabling a lighter touch route for LPAs wishing to introduce policies relating to specific sites, types of development, and for adopting local design codes.

During a briefing on the Bill to the planning and development sector by DLUHC, Director of Planning, Simon Gallagher, suggested that this would remove some of the ambiguity of supplementary planning documents, which do not carry the same weight as policy (sometimes leading to confusion as to what these documents can and cannot do). This system would allow policies for specific sites or types of development to be brought forward more swiftly than at present.

Supplementary plans would go through a process of independent examination which would be undertaken via written representations, though the Bill confirms that a hearing may be appropriate in certain circumstances.

The Bill also proposes that LPAs will be required to produce area-wide design codes; these supplementary plans would allow authorities to introduce design codes that set out the “requirements with respect to design that relate to development, or development of a particular description”. In its response to the Select Committee report on Planning Reform, the Government stated these will “act as a framework for subsequent detailed design codes, prepared for specific areas or sites and led either by the local planning authority, neighbourhood planning groups or by developers as part of planning applications.”

The 2021 changes to the NPPF have already sought to encourage LPAs (as well as communities and developers) to produce design codes in their areas. Codes and other supplementary guidance are currently discretionary, and the pilot design codes being brought forward with support from the Office for Place predominantly focus on specific areas within an authority, such as urban extensions, neighbourhoods undergoing significant change, and strategic regeneration sites. Area-wide codes would represent a considerable step-change.

Design codes would be based on the existing framework set out in the National Model Design Code (NMDC). This provides a template to support LPAs in producing their own codes, relating to area-wide guidance, alongside instructions for specific area/development types.

Local authorities may wish to set more detailed area-specific parameters on matters such as building heights, density and materials, though these would likely be targeted at specific character areas rather than being authority-wide (e.g. high-rise, town centre, urban neighbourhoods, industrial areas, suburban).

The changes proposed would represent a definite shift in the range of work undertaken by many LPAs, and would likely require some in-house design capacity and expertise. Previous research from Public Practice suggested that 80% of LPAs considered they did not have the in-house capacity or skills required to deliver the White Paper proposals, while the average estimated costs of preparing, consulting on and adopting a design code for an area of approximately 1ooo homes was found to be £138,636.

Where local authorities fail to produce area-wide codes, provisions in the Bill allow for the Secretary of State to intervene and direct the authority to comply with any required steps.

Neighbourhood Plans would be retained under the Bill, though amendments proposed to S38B of the PCPA provide further detail on the scope of what neighbourhood plans can include. This includes matters such as the level of affordable housing, infrastructure requirements, as well as the design and characteristics of development. The Bill would also seek to prevent neighbourhood plans from restricting housing related development, where this is proposed in a wider local development plan.

The Bill also proposes a new tool for neighbourhood planners, allowing groups to produce a ‘neighbourhood priorities statement’ (NPS). The Department has stated that this “is designed to be a more accessible, cheaper and faster way for communities to get involved in neighbourhood planning, particularly in areas that currently have low levels of take-up. NPSs will allow communities to identify key priorities and preferences for their area and may potentially act as a launchpad to preparing a full neighbourhood plan, design code or another community initiative. NPSs would also be used as a formal input to the local plan process with local authorities required to consider them”.

The most hyped element of the reform by the media was no doubt the new ‘Street Vote’ provision. This is intended to “allow residents to propose development on their street and hold a vote to determine whether it should be given planning permission”, this would allow for the intensification of existing residential areas, with proponents suggesting this would be based on locally popular design. Given its fanfare, there is surprisingly little to say on this measure yet, with the explanatory note to the Bill stating that the clause is designed as a placeholder for a more substantive clause which may follow later. An existing Streets Vote Bill had already been put before Parliament as a Private Members Bill, on the back of the Policy Exchange report Strong Suburbs; both provide an idea of what is likely to come.

While the Government is yet to publish a formal response the White Paper consultation (it is imminent), it is clear that it has listened to its own backbenchers at least. Planning will continue to be presented as a local affair, and there is now greater expectation that decisions on new development will be plan-led. However, until the scope and nature of National Development Management Policies is known, the extent to which local plans are truly local, beyond site allocations, design codes and detailed area specific polies, will not be known either.

Plans will be simpler and shorter, with the process of producing them to be expedited. The proposals would also provide additional flexibility as to how new policies are brought forward, while also granting additional strategic powers where groups of LPAs consider this expedient. These are all commendable objectives that would go some way in making the system more user-friendly.

There are a lot of moving parts, however, particularly when other reforms such as the infrastructure levy and the devolution provisions are added to the mix. Previous experience of planning reform has shown there is a real risk of inertia as LPAs and other parties get to grips with the changes. Hopefully a better funded system (through the proposed increase in planning application fees) may assuage this but, by itself, that is unlikely to be enough for LPAs to resource the suite of changes required.

Further, many will rightly question whether the changes have let some authorities off the hook, enabling them to avoid the difficult decision of allocating sufficient land to meet local needs. You will hear little on housing numbers in any recent statements from Gove, and perhaps this is part of the Government’s strategy.

In any event, the changes are probably more than a year away. The Bill will first need to make its passage through Parliament before being enacted – the Government is targeting Royal Assent by the year end or early next. Many of the provisions will also require changes to national policy and additional regulations brought forward via secondary legislation, as such there is still time for things to change considerably.