Planning matters

This blog looks at some of the easily missed policy tweaks that were announced alongside and shortly after the NPPF revisions, within the Secretary of State for Levelling Up, Housing and Communities’ (SoS’s) 19^th December written ministerial statement[1] (WMS). While they may not have made headlines, Mr Gove’s announcements identify and explain future national policy intentions to be consulted on in the coming months, with the exception of the gypsy and traveller policy amendment, which is already national policy.

For our other blogs on the reforms to national planning policy, see our resource here.

One of the SoS announcements in the speech that will have significant consequences was that he is to enact the planning enforcement “package” in the Levelling Up and Regeneration Act to “address the concerns and frustrations expressed by communities about breaches of planning control more immediately.”

My colleague Sean Farrissey will shortly publish a blog examining the enforcement provisions in the LURA for those wishing to understand the package in more detail. The most significant change is that the period for taking enforcement action is to be extended to ten years in all cases– it is currently four years for ‘operational development’ and change of use to a single dwelling. This will be particularly relevant for our clients when carrying out ‘due diligence’.

So-called ‘use it or lose it’ provisions to monitor and speed up build out – known to us more formally as sections 111, 112 and 114 of the LURA – were referenced as part of the statement; this involves the Government consulting on measures to improve ‘build out rates’ after the Competition and Markets Authority publishes its final housebuilding market study. ‘Use it or lose it’ regulations can be made at any time, because the provisions allowing them are already in force. For a more detailed analysis of what these provisions might mean for housing delivery, see Harry Bennett’s blog.

The Government has also announced its intention to further consider consultation responses regarding whether an applicant’s past behaviour should be considered in decision-making, either through making “irresponsible” behaviour a material consideration (option 1) or allowing local planning authorities (LPAs) to decline applications from applicants with “a bad track record” (option 2).

The Government’s response to the NPPF consultation revealed that 59% of respondents supported the proposal to consider past behaviour in planning applications[2]. However, when it came to the mechanism for achieving this, responses were more varied, with 60% being either indifferent or not selecting one of the two options set out by the government. The government said it welcomed “the range of views expressed in the consultation responses and will consider these carefully in any future policy development”.

It should not be forgotten there is a provision in s113 of the LURA, which is not yet in force, that gives power to amend the Town and Country Planning Act 1990 to afford an authority the “power to decline to determine in the case of earlier non-implementation”. It is possible this may come forward as part of the ’use it or lose it’ provisions, this year.

In a similar tone regarding the role of past behaviour in planning, the Government has announced that it plans to give further consideration to taking planning permissions into account in the application of the Housing Delivery Test. This would sit alongside other reforms to this test, also announced in the NPPF revisions in December, and analysed here. 

The WMS contained a promise to “review building regulations in Spring next year to allow local planning authorities to introduce tighter water efficiency standards in new homes”, related to concerns that Cambridge lacks the water security to enable development of the scale the LPA However, the inference is that the review will have nation-wide implications.

Another step taken in the Government’s package of measures intended to unlock housing delivery is the release of the allocation the Local Nutrient Mitigation Fund to successful applicant authorities, on 20 December. The fund aims to release homes being held up by nutrient neutrality issues in the UK. Alongside this, Housing and Planning Minister Lee Rowley also announced a “second round of Nutrient Support Funding with another £100k for 2023/24 the lead local authority for substantive catchments (those over 10,000 hectares in size)”.

The funding allocation was accompanied by a letter[3] from the Minister Rowley, which confirmed that the Government has no plans to attempt to pass legislation relating to nutrient neutrality before the next general election.

In response to a judgment in the Court of Appeal in the case of Smith v Secretary of State for Levelling Up, Housing and Communities & Another (2022)[4], the definition of Gypsies and Travellers to be used in national planning policy and decision-making, including the NPPF, has been changed back to the one adopted in 2012, rather than the definition adopted in 2015.

The definition currently applicable includes those who have ceased to travel permanently (the text in bold is the re-inserted text):

For the purposes of this planning policy “gypsies and travellers” means:

The Smith judgment found that to remove “or permanently” from the definition had been discriminatory, giving rise to a “negative impact on those Gypsies and Travellers who had permanently ceased to travel due to old age or illness, but who lived or wanted to live in a caravan. This discrimination was inextricably linked to their ethnic identity”. The SoS had not demonstrated to the judges that the discrimination was justified.

It is also stated in the WMS that the Government intends to review this area of policy and case law in 2024.

This blog has explored some of the future policies that the government intends to revise or take forward as part of its Long-Term Plan for Housing, alongside the NPPF, subject to consultation.

Most of these were given a light touch mention in the SoS’s WMS and associated speech, but most will have significant implications where they apply.