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Planning matters

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Biodiversity Metric for Scotland’s Planning System
With mandatory biodiversity net gain (BNG) requirements coming into force in England earlier this year and Wales’ new requirement for development to deliver a net benefit for biodiversity, Scotland is not alone in placing greater priority on biodiversity. The Scottish government is currently reflecting on its system to secure biodiversity enhancements through the introduction of a biodiversity metric.

Securing positive effects for biodiversity” is one of Scotland’s national outcomes. The Scottish Biodiversity Strategy states that by 2045, Scotland will have restored and regenerated biodiversity across its land, freshwater and seas. To ensure that new development helps to meet these aims, National Planning Framework 4 (NPF4) Policy 3b requires all major development (including national and EIA development) to include “significant biodiversity enhancements”. However, Scotland does not yet have an agreed standard approach to measuring biodiversity gains.

As Lichfields’ February 2024 ‘Scotland Planning News’ sets out, the Scottish Government published draft biodiversity guidance in November 2023 for the application of biodiversity policies in NPF4. Following this, and the introduction of a statutory biodiversity metric in England earlier this year, the Scottish Government has commissioned NatureScot to develop a biodiversity metric for use in the Scottish planning system. The metric is intended to support delivery of NPF4 Policy 3b by applying a consistent approach to measuring biodiversity and thus enabling the delivery of appropriate biodiversity enhancement in Scotland.

NatureScot’s work focuses on adapting England’s statutory metric to better reflect Scotland’s different legislative, policy and environmental context. Work on the metric is anticipated to be completed within 12 months, with final outputs expected to be:

  • A Scottish biodiversity planning metric tool
  • User guide to support the metric
  • Recommendations on requirements to maintain and update the metric
NatureScot is currently consulting on key issues identified in adapting England’s metric for the Scottish planning system. The initial issues for review include the following:

  1. Principles and rules underpinning the metric’s approach
  2. Habitat classification system
  3. Irreplaceable habitats
  4. Habitat distinctiveness
  5. Habitat condition
  6. Strategic significance
  7. Technical difficulty risk factor
  8. Temporal risk factor
  9. Spatial risk factor

For each of the above, NatureScot is seeking views on agreement with the issue(s) identified, any additional issues to consider, ideas or solutions for addressing issues identified, and comments on the phased approach set out for development of the metric. Responses are due by Friday 10 May.

Lichfields’ experience with BNG
Lichfields has been assisting clients in Scotland to understand what biodiversity enhancements might mean for their developments and with various aspects of BNG in England for several years. Whilst mandatory requirements for developments in England to achieve 10% BNG are relatively new [1], the principle of delivering BNG has been established in some Local Authorities for a number of years.
We regularly work with ecologists to advise clients on options for the delivery of BNG, as well as coordinating strategies to deliver combined BNG requirements for several sites. We also worked with Local Authorities to prepare suitably worded planning conditions and legal agreements to secure delivery of local BNG targets, prior to the introduction of mandatory requirements and the BNG condition.

Lichfields’ thoughts on the Scottish proposals
A key difference in the Scottish BNG system is its emphasis on biodiversity enhancement through development, rather than a requirement to achieve a specific % net gain as in the English system. England’s approach requires at least 10% BNG, whereas Scotland’s policy led approach is less rigid, with a policy requirement for biodiversity enhancements to be considered within the overall planning balance. As such, Scotland’s metric needs to be “suitable for informing professional judgement and evidence based decision-making when consenting development”.

A standard Scottish BNG metric will ensure consistency in the approach to measuring existing biodiversity values and the biodiversity enhancements required by NPF4 policy 3b. However, with no definition of ‘significant biodiversity enhancements’, the application of the policy will remain somewhat subjective and reliant on professional judgement of planning officers and/or Councillors.

It is also unclear at this stage whether the Scottish BNG metric will be a mandatory requirement for all major (including national and EIA) developments, or whether there will be any exemptions to the requirement as with the English system, and we will be keeping a close eye on how the metric and approach to biodiversity in the Scottish planning system evolves.

How can we help?
BNG was a hot topic south of the border prior to the requirements becoming mandatory and Lichfields produced a series of thought pieces and helpful resources on BNG in England as part of that debate. While the approach is different in Scotland these might be of interest, and can be found here.

If you have any queries regarding the English or Scottish BNG systems, or would like any advice on navigating your way through BNG, please get in touch.

There are many other significant changes to the Scottish planning system that are either in force, imminent or under consideration. For the latest position, please read the Lichfields Scotland Planning News. 

[1] 12 February 2024 for major developments, 2 April 2024 for ‘small developments’


New English enforcement provisions – more time – greater penalties  
New planning enforcement measures and changes to some existing measures, which would collectively give Local Planning Authorities (LPAs) in England enhanced enforcement powers and the possibility of imposing greater fines for non-compliance with planning control, are coming into force soon. Many of the enforcement provisions in the Levelling Up and Regeneration Act 2023 (LURA) will come into force on 25th April 2024. 
I outline below the new enforcement provisions likely to be of most interest to Lichfields clients, the two of most relevance being:
  • the proposed change to enforcement time limits, which will be relevant when carrying out due diligence on potential site purchases, and
  • the potential relief on enforcement of certain conditions in certain instances.

Time limits for enforcement extended to 10 years for all types of breach

Section 115 of the LURA is to amend the Town and Country Planning Act 1990 (TCPA) so that, in future, all breaches of planning control would only be exempt from enforcement action after ten years, subject to transitional arrangements (see below). The time limit for enforcement action to be taken for a breach of planning control in England will now be ten years beginning on the date the operations were substantially completed. This is substantially longer than the previous time limit of four years.
Section 171B of the TCPA (time limits) will be changed so that, in subsection (1), “four years” will be replaced with “ten years”, so that the time limit will be “ten years beginning with the date on which the operations were substantially completed, and in the case of a breach of planning control in Wales, four years beginning with the date on which the operations were substantially completed”.

Transitional provisions

There are transitional arrangements, relating to when the certain breaches took place or unlawful works were substantially completed.
Section 171B(1) of the TCPA currently provides that “Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed”.
If any of those operations were substantially completed on or before 24th April 2024, the four year rule would apply to those operations.
Section 171B(2) currently provides enforcement limits relating to the change of use to a single dwelling house “Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach”.
A commencement regulation[1] provides that the new time limits for enforcement do not apply where the change of use breach occurred, before the day on which that section comes into force – i.e. the breach commenced on 24th April 2024 or earlier and continued for four years or more up to the date it is eventually investigated. However, there may be difficulties in developers proving when a breach has occurred in order to determine whether or not the four year rule applies. Documentary evidence will help, such as utility bills or council tax for example, but there may be a need for those involved to provide statutory declarations to substantiate a case, for example.
While LPAs will soon have much longer to take enforcement action relating to operational development or change of use to a dwelling, it may become apparent that neighbours will need to tolerate planning breaches for longer periods of time, as under resourced LPAs will have no incentive to action enforcement within four years, for any breach. The system could allow LPAs to wait over nine years before taking enforcement action for any breach. This could encourage applicants to breach planning control, although the possibility of paying greater fines for non-compliance (discussed further below) may cause potential offenders to think again.
Having a long time period for enforcement to be carried out before a development becomes lawful will also create informal opportunities to test the impacts and even benefits of a use. Demonstrating the expediency of taking enforcement action after say, eight years, where no complaint has arisen or there have been no significant detrimental impacts may be difficult.

Duration of temporary stop notices extended in England

Section 116 of the LURA has been amended so that, from 25th April, English local planning authorities can issue temporary stop notices that have effect for up to 56 days, while the maximum duration would remain 28 days in Wales.
The changes do not apply where a temporary stop notice has already been issued and not withdrawn before the day on which that section comes into force.

New: Enforcement warning notices

Section 117 of the LURA will allow an ‘Enforcement Warning Notice’ (EWN) to be issued. From 25th April, an EWN could be used where an officer considers that a breach of planning control can be resolved and a retrospective planning application would regularise the breach in planning control.
New Section 172ZA would enable LPAs in England to issue an EWN asking the individual to submit a retrospective planning application within a specified period.
The EWN must state the matters that appear to constitute a breach of planning control and state that, unless a planning application is made within the specified period, further enforcement action may be taken. The EWN would be served on the owner or occupier of the land to which it relates and on any other person with an interest in the land.

Restriction on appeals against enforcement notices

Section 118 introduces restrictions on appealing against enforcement notices on the ground that planning permission ought to be granted or that a condition or limitation attached to a planning permission ought to be discharged.
Once commenced, there will be limited opportunity to apply for retrospective planning permission, as it will not be permitted to appeal against an enforcement notice if permission was previously refused for the relevant development within the last two years. This will offer much less opportunity to regularise planning breaches, as is currently available, as appeals can currently be made against enforcement notices even if the application for the development was previously dismissed on appeal.
The changes do not apply if an enforcement notice has already been issued and not withdrawn before the day on which that section comes into force.

Undue delays in appeals

Section 119 of the LURA will introduce provisions allowing the Secretary of State to dismiss appeals if the appellant is judged to be causing undue delay in the progression of an appeal. The Secretary of State will give the appellant notice that the appeal will be dismissed unless the appellant takes specified steps within a specified period.
The changes do not apply if an appeal against an enforcement notice has been made and not withdrawn, and an appeal against that enforcement notice has been made before the day on which that section comes into force.
The changes will also not apply in circumstances where an application has been made for a certificate of lawfulness of existing use or proposed use and an appeal has been lodged on the grounds of refusal or failure of the LPA to give a decision before the day on which that section comes into force.

Some financial penalties for non-compliance to be increased

On 25th April 2024, the fines payable for non-compliance with a breach of condition notice or for non-compliance with a section 215 notice will be increased. If the land is in England, the fine for breaching a section 215 notice will be one-tenth of the greater of (i) £5,000 or (ii) level 4 on the standard scale of fines [2].
There will be no limit on the fine that can be imposed for disregarding a breach of condition notice. The current maximum fine is £2,500 for breach of condition notices in England. 

Changes to compensation for loss or damage caused by service of a building preservation notice

A provision that will require English LPAs to consult with Historic Buildings and Monuments Commission for England before serving a building contravention notice and removing the right to claim compensation for building preservation notices (BPN) in England comes into force on 25th July 2024. A BPN is a means for an LPA to protect a building that might have special architectural or historic interest, but that is in danger of demolition or alteration in such a way as to affect its character. It protects a building for six months, which allows Historic England to carry out an assessment of the building for listing.
As my colleague Amy Booth noted in her earlier blog, it is a significant change to heritage legislation that those with an interest in a building which has a BPN served on it in England will no longer be entitled to claim compensation from the LPA. This is because it will likely lead to more LPAs applying for these notices, as the risk of compensation claims would be removed.

Still in the wings - potential power to provide relief from enforcement of planning conditions

In due course, new powers are likely be introduced that will permit the Secretary of State to control when and how enforcement action takes place, or to provide that LPAs may not take action in given circumstances.
New Section 196E (power to provide relief from enforcement of planning conditions) was inserted into the TCPA on 26 December 2023, but requires regulations in order to have effect.
Section 196E would permit the SoS to make regulations stating that an LPA may not take, or is subject to specified restrictions in how it may take, “relevant enforcement measures” in relation to any actual or apparent failure to comply with a “relevant planning condition”.
A “relevant enforcement measure”[3] is anything which may be done by a local planning authority in England for the purposes of investigating, preventing, remedying or penalising an actual or apparent failure to comply with a relevant planning condition. This change 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.
Enforcement of non-compliance with planning conditions that relate to time limits, the ‘biodiversity gain condition’ and the condition relating to ‘development progress reports’ (not yet in force, regulations needed) could not be controlled by these new enforcement provisions.

Potential future policy – taking past behaviour into account in decision-making  

While the provisions to be introduced do not directly apply the enforcement-related provisions proposed in Private Members Bills in recent years, they do reflect the current Government’s desire to appease the concerns of backbenchers. In this vein, the current Government has had intentions and to develop further policy and legislation to discourage planning breaches, which now appear to be on hold.
When announcing the coming into force of the above-mentioned enforcement provisions, in his December 2023 Written Ministerial Statement, the SoS referenced the December 2022 Levelling-up and Regeneration Bill: reforms to national planning policy consultation:
“I consulted to explore whether an applicant’s past behaviour should be taken into account in decision making either through making irresponsible behaviour a material consideration or allowing local planning authorities to decline applications from applicants with a bad track record. Both options would require primary legislation and therefore are beyond the scope of this NPPF update. I welcome views expressed in the consultation and will consider these carefully in further policy development”.

Closing thoughts

The new enforcement measures coming forward on 25th April and the later anticipated changes, when taken together, represent a considerable shift in the way planning enforcement is administered. LPAs will now have enhanced enforcement powers to deal with planning breaches and the ability to impose greater fines on those who commit the offences.
The increase in the time limit for enforcement action to be taken for a breach of planning control in England from four years to ten years is likely to have the greatest impact on the planning system. Stretched LPAs will now have longer to carry out enforcement action which could lead them to prioritise other actions which need more immediate attention and communities having to accept breaches in planning control for longer periods of time.
Some applicants may now be willing to breach planning control, if they feel they can avoid enforcement action for a longer time period. However, the introduction of EWNs and the increase in the amount of fines that can be applied to breaches should discourage such breaches and provide LPAs with greater flexibility when assessing enforcement cases.
Overall, the strengthening of the enforcement regime should engender greater respect for the planning system. It remains to be seen whether introducing further planning enforcement provisions and/or investing in planning enforcement resources are a priority for the next Government.

[1] Regulation 5 of the Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024[2] Standard scale of fines [3] Section 196E(5) defines relevant enforcement measure, “A relevant enforcement measure includes, in particular—(a)the exercise of a power under—(i)section 171BA (power to apply for planning enforcement order);(ii)section 187B (power to apply to court for injunction);(iii)section 196A (power to enter without a warrant);(iv)section 196B (power to apply for, and enter under, warrant);(b)the issue of—(i)a planning contravention notice under section 171C,(ii)a temporary stop notice under section 171E,(iii)an enforcement notice under section 172,(iv)an enforcement warning notice under section 172ZA,(v)a stop notice under section 183, or(vi)a breach of condition notice under section 187A.