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Planning matters

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Long-anticipated plan-making reforms were launched by Government in the early hours of 25 July, for public consultation (running for 12 weeks until the 18th October). The consultation sets out its ‘direction of travel’ and how the Government proposes to re-shape the system in light of the legislative changes in the Levelling Up and Regeneration Bill (LURB). It also comes hot on the heels of a somewhat negative report from the LUCH Select Committee which criticised various aspects of the planning reform proposals[1]. The central vision for reformed plan-making is for simpler plans, prepared quickly, updated frequently and reflective of local needs. The Government envisages a phased roll out, with the new local plans system commencing in November 2024 and sticking to the timescale it announced in December 2022[2], even though the parliamentary timetable is running some months behind schedule. Much of the announcement relates to recent consultations on the Environmental Outcome Reports; Infrastructure Levy; LURB reforms to national planning policy[3] (Dec 22) and the May 2022 Policy Statement on LURB[4].   What is being Consulted on? The consultation covers the following proposals:            Making the role and content of plans clearer: A clearer set of expectations for what a local plan must contain.   National development management policies will be re-consulted on but remain key to focussing local plan content to local issues only.                 Speeding up the process for preparing a plan: A timeframe of 30 months (two and half years) to prepare and put in place (adopt) a plan.   Three new Gateway assessments to provide live assessments and support and reduce time spent at examination.   A requirement for planning authorities to start updating their plans every five years.                   Ensuring local communities are engaged: Additional to the existing two periods of public consultation, a new requirement for planning authorities to “notify” and “invite” early participation on matters that might shape the direction of the plan, to ensure that communities and other key stakeholders are able to participate much earlier in the process.                 Dealing with complexity: The proposals aim in sum to add clarity about what is expected at every stage of the plan making process and to reduce repetition through the development management policies.                 Making the most of digital technology: In keeping with the ongoing commitment to digital transformation, digital technology is highlighted as a way to speed up the production of plans and consultation and make the process simpler and more accessible.             Are changes needed? In short, yes, these proposals arrive with plan making at a particularly low ebb. The hiatus that began in 2020 with the publication of the Planning for the Future White Paper[5] continues; the rate at which local plans were submitted or adopted last year fell to its lowest level since the NPPF was introduced (see charts below). Scores of Local Plans have been put on hold, particularly following the December 2022 Ministerial Statement[6]. Coverage of ‘up-to-date’ Local Plans is low and declining. Recent Lichfields analysis (on behalf of the LPDF) shows that, in July 2023, just a third (33%) of Local Plans were ‘up to date’ and less than five years old[7]. The consultation itself acknowledges “few [local authorities] are at an advanced stage of preparing a new one”. Under prevailing trends, we estimate it will fall to just 22% by the end of 2025 under the current situation. A plan-led approach to house building relies on sites being allocated in local plans. Currently, the aggregate annual housing requirement figure (so-called targets) across all adopted local plans in England is circa 224,000[8], well short of the Government’s 300,000 ambition, but remarkably similar to the number of homes built each year[9]. Instead of rising to meet this figure, recent trends have started to show a fall in the number of planning permissions granted for residential development. The Government has set a 30-month timeframe for preparing and adopting a local plan or minerals and waste plan . In practice, taking into account six months for examination and one month to adopt – this becomes 23-months. A new local plan timetable (to replace Local Development Schemes) formalises the path to an adopted local plan. Helpfully for local authorities, a scoping period before the “clock starts” could provide some wriggle room to what is a challenging timeline. The consultation includes proposals for a set of revised tests of soundness; gateway assessments during plan-making; examinations; community engagement and monitoring. There is also a recognition of the growing importance of supplementary plans, setting out their appropriateness (e.g. bringing in a design code), rather than sometimes being used to adapt local plans. Community land auctions are also discussed with the process for pilot authorities set out, including the potential financial benefits to the Council from these auctions - we will be revisiting this area in further research. Revisions to the test for soundness are intended to reduce the amount of evidence required to develop a plan and defend it at examination, but still ensure high quality plans are delivered. This would be done through (a) increasing the standardisation of key evidence and data, (b) freezing data or evidence at particular points of plan making, (c) streamlining new style plans to focus on local issues, and (d) support on building the evidence base through new formalised gateway assessments. Three formal Gateway Assessments at the beginning, middle and end of the process for preparing a plan, are proposed to support plan preparation and help identify issues in local plan evidence bases before examination. Additionally, a timetable of plan development will be introduced to be updated every six months and publicly available. There is also a ‘light touch annual return’ monitoring process, as a minimal version of an annual monitoring report. A six-month target for examinations of local plans is set out; however, acknowledging that this could impede on thoroughness in the most complex of examinations, this is advisory and not set out in regulations. The changes proposed also aim to increase community engagement opportunities without slowing down plan making through using more digital opportunities, greater monitoring (through the gateway assessments and timelines) and a more standardised approach to consultations (defining the role more closely for the two mandatory consultation windows). A key theme of the changes envisaged to help quicken plan-making is reform through digitalisation (a task with which Lichfields is providing assistance to DLUHC), but this runs alongside a more fundamental overhaul of key elements and processes involved in plan making.   Will these changes make the difference needed? In sum, the Government seeks a more streamlined, standardised approach to plan making with clear timelines and reporting against milestones and outcomes to keep things on track. Supporting this objective is the aim of reducing the scope of local plans, as discussed, including by introducing national development management policies, as previously announced. While the stages that a planning authority has to go through will be set out in regulations (Reg 18 and 19 to be replaced with new stages), the requirement to achieve it in 30 months will only be in policy and guidance, not the regulations. Lichfields’ assessment of local plan completion timelines found that some local authorities have managed to complete local plans from ‘Issues and Options’ to formal Reg 22 submission within the 30 month time period set out, notably Broxbourne, Maidstone, Crawley and Northumberland. However, given most local authorities have taken far, far longer (the consultation acknowledges seven years on average), the new 30-month timeline will be a significant challenge, particularly in locations where decisions on how to meet development needs results in difficult political decisions. Our forecast of local plan coverage by 2025 shows areas with the highest coverage of constrained land (protected by policies listed Footnote 7[10] of the Framework) will be more likely to have a local plan that is ten or more years old (see Chart below). Slow plan making and attempts to speed it up are not new. The Planning Advisory Group (PAG) was set up in 1964 and made recommendations to simplify the process of producing plans and increase the speed at which they were prepared. In 2003, Lichfields carried out a review for Government on the implementation of PPG3 and found that only 13% of local plans and 35% of structure plans had been adopted to implement the then new ‘brownfield-first’ planning policy[11]. In 2015, the Local Plans Expert Group was set a similar task to PAG[12]. In November 2017, Government launched a process of intervention in 15 local authorities[13] and the then Secretary of State said that “my patience has run out”[14]. That intervention – which did not result in any LPAs having their plans taken over by Government – followed a previous deadline set by Brandon Lewis in 2015. Powers of intervention were complemented by the housing delivery test – ostensibly focused on incentivising home building, but whose “stick” of a tilted balance towards sustainable development was designed to encourage local authorities to make local plans and thus shape where development happens (arguably the policy has proved relatively toothless[15]). This sorry tale does not mean that we should not try to speed up plan making. If we are to have a plan-led system, the ambition of full local plan coverage across the country and for authorities to produce them more quickly is obviously right. The vision set out in the proposed changes – for a simpler, positively shaped, up to date plan led system - is one to be applauded. The proposals set out including national development management policies, setting out gateway assessments to identify blockages early, digitalisation and the aim to simplify some of the shared challenges across authorities holds significant promise, if executed correctly.  In this regard, ongoing questions remain. A much tighter timeline for plan making has been suggested but is not regulated for; it remains to be seen whether more authorities meet these timeframes. Bluntly, for authorities facing the most politically difficult decisions, the proposals do not, in of themselves, make these decisions any easier or examination automatically much quicker. The focus on improving the mechanics of local plan making while important, does not directly address the reality of preparing a local plan that both meets local housing needs and is met with local support in areas where historically there has been conflict between these two objectives. Perhaps most glaringly absent are proposals around the ‘flexible alignment test’ that is expected to replace the duty to cooperate and address the challenge of what happens when authorities have higher local housing need than they are able to meet within their boundaries and thus need to work with their neighbours. This policy will be key in setting a strategic planning approach. This will be crucial to planning for and subsequently building enough homes, especially in urban areas, notwithstanding the Secretary of State’s long term plan for housing centred on a brownfield-led agenda. Interestingly, the ‘top down’ approach that the Government is anticipating for Cambridge (not without some local backlash) and in London, is seemingly poised to be delivered through development corporations, and might signal that Government is looking to deal with the challenge in different ways, outside of the plan-led system. Perhaps this is an acknowledgement that, while the proposed reforms might improve the process of plan making, meeting the challenge of providing sufficient the right homes in the right places requires an escalated solution.   [1] The LUHC Select Committee Report, available here[2] As explained in the December 2022 Consultation Paper here[3] LURB reforms to national planning policy, available here[4] LURB Policy Statement, available here[5] The White Paper can be found here[6] See blog analysis here[7] Whether a Local Plan policy is ‘up-to-date’ is a matter of fact and judgement as per the 2014 Bloor Homes High Court judgment ([2014] EWHC 754 (Admin)) which defined the question at para 45. However, for the purposes of the analysis, the five-year period is a relevant metric because of the statutory requirement to review a plan every five years and the provisions of NPPF para 74 which state that the relevant housing requirement figure for five-year housing land supply purposes switches from the Local Plan housing requirement to the Standard Method Local Housing Need figure once the strategic policies are more than five years old (unless reviewed and found not to need updating). For the purposes of the analysis, Local Plans are defined as Development Plan Documents with strategic policies.[8] Source: Lichfields’ Local Plan monitoring[9] Which has seen average annual net additions for the past three years at 229,000.[10] Habitats sites, Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets and areas at risk of flooding or coastal change[11] As reported in this blog reviewing what happened with PPG3[12] The LPEG Report is available here[13] See ministerial statement here[14] His speech is here[15] Lichfields analysis found that not only was the housing delivery test toothless in delivering more housing in all but one authority, the recent amendments have watered down the ‘stick’ of the tilted even further.  


‘So Far As Possible’ – will the Housing Delivery Test lose its teeth?
As my colleague Jennie Baker’s recent blog set out, the publication of the NPPF ‘prospectus’ and LURB reforms were gratefully received by those in the profession still refreshing webpages during Christmas week. It is the culmination of a rollercoaster ride of ambitions and changes broadly referred to as ‘planning reform’ beginning in 2017 with the introduction of the Housing Delivery Test and continuing with the 2020 Housing White Papers. More recently, it should be seen in the context of the Villiers amendments and subsequent backbench manoeuvring over the late Autumn of 2022. For those still getting up to speed with the pre-Christmas publications: This consultation seeks views on [DLUHC’s] proposed approach to updating the National Planning Policy Framework. [DLUHC] are also seeking views on our proposed approach to preparing National Development Management Policies, how [they] might develop policy to support levelling up, and how national planning policy is currently accessed by users. Published alongside a set of questions for consultation, there was also an indicative markup of the NPPF setting out the suggested changes. The section on the Housing Delivery Test has been amongst the most contentious – and the key focus of pre-publication intra party politicking. The guiding amendment appears in the Examining Plans section; the proposed change from seeking to meet an area’s objectively assessed need “as a minimum” to, “as far as possible”. Three key caveats are introduced which reduce the pressure on local authorities to meet what is now even more clearly an “advisory starting point” to calculating their housing requirement. These amendments combine to reduce the number of areas which ‘fail the test’ or where the ‘tilted balance’ in favour of sustainable development is applied.   1.  Where there is clear evidence of past ‘over-delivery’. Over delivery here is set out in terms of the number of homes permitted by a local planning authority compared to the housing requirement in the existing plan, not necessarily the most up to date analysis of local housing need. Local planning authorities that grant sufficient deliverable permissions are no longer subject to ‘the presumption in favour of sustainable development’. In this case, the consultation sets deliverable as 115% of a Plan’s housing requirement or local housing need (there is some debate about whether this or a different fixed measure would suffice in this case). Instead, if insufficient homes are built in these areas, authorities are obliged to produce an action plan identifying the cause of under delivery and the actions required to increase it. This is concerning, as it aligns LPA’s delivery targets to issuing planning permissions rather than new homes being built.   2.  Meeting the needs would require building at densities significantly out of character with the existing area. Much has been made about what the slightly nebulous term ‘significantly out of character’ will mean, and some of this will be set out in subsequent design codes, but the principle is that delivering sufficient homes to meet local housing need is secondary to maintaining the character of an area, as defined by the density of its housing. This is clearly a significant pivot from the 2017 origin of the standard method aimed at holding authorities to account that might otherwise ‘duck potentially difficult decisions’. The interpretation in law of what defines significantly out of character will also be hotly contested and might take time to clarify, delaying further much needed progress in local plan coverage.   3.  Neighbourhood plans are now protected for five years rather than 2, and no longer are confined to areas delivering ‘sufficient homes’. Less of a caveat, but an important change for some areas, is the bolstering of neighbourhood plans. The proposed change would mean that in areas where local planning authorities’ strategic policies are out of date, the presumption in favour of sustainable development will not apply if there is a neighbourhood plan (more on this in our upcoming blog on the 5 year housing land supply position). There are significant concerns that these measures, taken together with the other proposed changes to the NPPF, fundamentally weaken the ability to hold local plans and planning authorities to account over a consistently assessed evaluation of housing need. Instead, the NPPF amendments introduce a set of caveats that set LPAs a requirement to deliver sufficient homes only ‘so far as possible’. This change in emphasis reflects the political reality of passing key legislation in the context of strong ‘backbencher’ objections. However, this comes at a cost, if they pass it will significantly reduce the number of homes being delivered and will form a brake on the momentum towards a political consensus that increasing housing supply should be a national priority. The Housing Delivery Test is imperfect, and our research has in the past shown where it has lacked the necessary ‘bite’ to make a difference in much of the country; the concern is that the most recent proposed changes will make it even more toothless at significant cost.