Planning matters

The Government is consulting on changes to planning fees (again). This builds on the changes to planning fees introduced by the previous government in December 2023 and discussed in this Insight . The headlines include:

• Proposed fee increase for householder applications to £528 (from £258) to meet cost recovery levels.
   
• Seeking views on whether a smaller increase to the householder fee (e.g. 50% increase) would be more appropriate.
   
• Seeking views on increasing fees for other application types such as prior approval and S73 applications.
   
• Introducing fees for applications with no fee at the moment such as demolition consent in a conservation area and Listed Building Consent.

It is clear from the consultation that the new Government does not consider that the fee increase introduced in December 2023 went far enough, and that the funding shortfall still experienced by many Local Planning Authorities (LPAs) needs addressing. The proposed fee increase for householder applications to £548 is a large increase that will surprise many; the justification given is that it would allow struggling LPAs to reach cost recovery levels for householder applications. While the industry response was mostly positive to the December 2023 fee increases, it remains to be seen whether the reaction will be so positive when looking at the prospect of further increases. 

The consultation is also seeking views on two models for setting fees locally:

 

No fees set nationally; all LPAs would have to set their own planning fees, within the existing fee categories and exemptions set by the Secretary of State. This would allow LPAs to set their own fee levels up to cost recovery levels.

 

Localisation of planning fees would require primary legislation to establish enabling powers, through the Planning and Infrastructure Bill.

 

The consultation is also seeking views on whether to make provision to allow upper and lower tier (or unitary) local authorities to recover costs for relevant services provided in relation to applications, and proposed applications, for development consent under the Planning Act 2008, using the power at section 54A of the Act.

 

As discussed in this blog, the Government has made it clear that planning will be at the centre of the agenda for economic growth. The consultation reflects planning’s critical role in facilitating economic growth, and underpinning public finances. A few important changes are proposed that would propel infrastructure planning to the forefront of economic policy.

 

A number of changes are being proposed to the Nationally Significant Infrastructure Projects (NSIP) process.

 

The Government is proposing changes to the NPPF to push commercial development in certain sectors and build a ‘modern economy’. The types of development included in this are:

1. Laboratories
    
2. Gigafactories
    
3. Digital Infrastructure
    
4. Freight and Logistics

The proposed changes seek to make it easier to build laboratories, gigafactories, data centres and digital infrastructure, and the facilities needed to support the wider supply chain. The proposed changes would create an expectation that suitable sites for modern economy uses are identified in local plans.

The proposed changes also aim to give more explicit recognition of the need to support proposals for new or upgraded facilities and infrastructure (including data centres and electricity network grid connections).

There is a focus on the associated infrastructure needed to support growth of ‘modern economy’ industries as well as a recognition of storage and distribution operations that allow for handling of goods.

 

Where proposed projects are within the main fields of infrastructure covered in the Planning Act 2008 (namely energy, transport, water, waste water, waste), but below the thresholds set out in the 2008 Act, the relevant Secretary of State may, on request, direct a project into the regime under section 35 of the Act. 

Also proposed is bringing larger onshore wind development back into the Nationally Significant Infrastructure Projects regime.

The proposed NPPF and associated consultation clearly identifies specific sectors which it regards as contributing the type of (often digital) infrastructure required to grow a ‘modern economy’. There is also greater emphasis on the necessary associated infrastructure such as increased grid capacity which is proposed to be considered through planning policy rather than solely a consideration at determination.

RETURN TO CONTENTS

Section 106 agreements featured a limited amount in the consultation. Where they were mentioned, they were almost exclusively in the context of the ‘golden rules’ to guide development in the green belt (see here for analysis).

However, the House of Commons session in which the NPPF consultation was launched saw numerous references to the role of Section 106[1]. Responding to a question about local Deputy Prime Minister Angela Rayner MP said:

“People often reject housing proposals because they do not see infrastructure. That is why we have the golden rules, why I have asked all the Departments to look at what we can do to ensure that infrastructure is there, and why we will support the strengthening of section 106 to ensure that developers do not try to squeeze out of what they promised as part of the development”.

Rayner also said the Government will:

Back in October 2023, the Labour party committed to upskilling local authorities on Section 106 negotiations through an expert, central Take Back Control Unit[2]. As well as this, they pledged to

It appears from Rayner’s comments in the Commons that this is a commitment that the SoS plans to uphold. It could also signal the Government’s commitment to the s106 developer contribution model, at least in the short term.

It is anticipated that measures to strengthen Section 106 will come forward in the Planning and Infrastructure Bill.

 

Chapter 10 of the consultation seeks views on whether to remove or amend local plan intervention policy criteria set out in the 2017 Housing White Paper, which the Secretary of State must currently read alongside the Planning and Compulsory Purchase Act 2004 if considering local plan intervention. This section of the consultation does not propose to amend legislation.

 

The Government highlights that within the Planning and Compulsory Purchase Act 2004, tests already exist to justify local plan intervention. Therefore, the document says, removing them would not equate to removing the criteria for local plan intervention. Instead, it would have the effect of restoring the intervention criteria process back what it was prior to the introduction of the 2017 White Paper.

 

If amending the policy criteria, it is proposed that a range of new policy criteria would apply in addition to the provisions of the PCPA. It is proposed that decisions on intervention should have regard to:

1. Local development needs;
    
2. Sub regional, regional, and national development needs; or,
    
3. Plan progress.

These tests would sit alongside other material considerations to which the Secretary of State could have regard, with weight applied in accordance with their planning judgment.

If these amendments were brought in, local authorities would be given the opportunity to set out any exceptional circumstances in relation to intervention action.

 

As well as making it easier for the SoS to intervene in local plans, we have also seen an indication from the government of a change to the PINS local plan examination process, towards a system that is less accepting of plans submitted which are deficient across two key Ministerial letters.

As it stands, following a letter[3] in 2015 from then-SoS Greg Clarke MP to the chief executive of PINS, the planning inspectorate are encouraged be “pragmatic” in how they work with councils towards achieving a sound Local Plan. However, in a letter[4] sent by Matthew Pennycook to PINS today (31^st July), it would appear the extent of pragmatism has been limited. In the letter, the minister says:

This was reflected in a letter[5] sent by the SoS to leaders of local councils on 30 July (the contents of which were replicated in a letter from Matthew Pennycook to housing industry stakeholders on the same day), which said:

The letters say there will be a focus on progressing local plans with a higher likelihood of being found sound without the need for delay. The focus of PINS, according to the Government, should be on processing plans that are capable of being found sound. For authorities with deficient plans and who have delayed once by 6 months, they will have to revisit their plan and re-submit once identified issues have been resolved.

 

Since its introduction in the 2021 NPPF, the industry has been struggling to apply a concept so nebulous and ambiguous as beauty to the acceptability of development proposals in the planning system.

The changes to the NPPF that are set out for consultation seek to rewind this with the more easily defined and analysed attribution of ‘well-designed’. A high bar for the design quality of new buildings and places that are to be delivered is retained, but reversion to the use of the term well-designed can be interpreted with greater objectivity in the context of the National Design Guide and gives greater certainty to those designing and delivering development. It also reflects the fact that there is more to high quality design than subjective aesthetic considerations. 

The section on the effective use of land, provides explicit confirmation that development on brownfield land should be regarded as acceptable in principle (for homes and other identified needs).

Helpfully for those seeking to optimise the delivery of homes in existing urban areas, character assessment, design guides and codes no longer need to be limited by paragraph 129 (introduced in December 2023) which deterred significant average density increases leading to a built form that would be wholly out of character. The test will revert to there being strong reasons for uplifts in density being inappropriate.

The removal of the very specific, and curious, guidance on the acceptability of mansard roofs is also proposed in favour of more general guidance on the acceptability of roof level extensions, including mansards.

 

Many of these changes that have not grabbed the initial headlines will have considerable implications for planning and the development industry more widely and we will engage closely with the consultation going forward.