Planning matters

If you work in the renewable energy or planning sector, last week’s announcements will not have gone unmissed. On Tuesday 5th September, Michael Gove, the Secretary of State for Levelling Up, Housing and Communities, published a Written Ministerial Statement on onshore wind development. An Updated National Planning Policy Framework (‘NPPF’) was also published. In previous blogs, I have discussed the role of wind energy, its current policy framework and the Government’s appetite for change. As someone who is keen to become more climate aware, I provide thoughts on the policy changes; changes that can best be described as tinkering around the edges. What are the minor policy changes? In his Written Ministerial Statement, Michael Gove commented that the Government has consulted on a number of proposed changes relating to onshore wind. The Government continue to believe that decisions on onshore wind “are best by local representatives who know their areas”. They also recognise that policy needs to strike the right balance “to ensure that local authorities can respond more flexibly to suitable opportunities for onshore wind energy, contributing to electricity bill savings and increasing our energy security”. The changes include: Amending the planning tests for proposed onshore wind developments “to make it clear that suitable locations can be identified in a number of ways”. Adjusting policy so that local authorities “can more flexibly address the planning impacts of onshore wind projects as identified by local communities” (on which they intend to publish further guidance). In addition to this, the Government is “clear that local areas that support hosting onshore wind should directly benefit” and they have consulted on proposals for improved rewards and benefits, such as potential energy bill discounts. So how do these changes play out in the Updated NPPF? The Government has set out positive and good intentions with the above changes and certainly when we read the Statement, we awaited the Updated NPPF with bated breath. So how has the NPPF been updated and what will it actually mean for the planning process? The NPPF (July 2021) set a clear policy framework for onshore wind. Paragraph 158 b) stated that “when determining planning applications for renewable and low carbon development, local planning authorities should… approve the application if the impacts are (or can be made) acceptable” except for the exemptions in Footnote 54; a proposed wind energy development involving one or more turbines. These should not be considered acceptable unless it is an area identified as suitable for wind energy development in a development plan and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been fully addressed and the proposal has their backing. This is a negatively worded policy position which has put a near block on development. The Updated NPPF now reads (it is a game of spot the difference): In respect of new renewable and low carbon development, Paragraph 158 remains the same. A new Footnote (Footnote 53a) reads: “Wind energy development involving one or more turbines can also be permitted through Local Development Orders, Neighbourhood Development Orders and Community Right to Build Orders. In the case of Local Development Orders, it should be demonstrated that the planning impacts identified by the affected local community have been appropriately addressed and the proposal has community support.” Footnote 54 reads: “Except for applications for the repowering and life-extension of existing wind turbines, a planning application for wind energy development involving one or more turbines should not be considered acceptable unless it is in an area identified as suitable for wind energy development in the development plan or a supplementary planning document; and, following consultation, it can be demonstrated that the planning impacts identified by the affected local community have been appropriately addressed and the proposal has community support”. The NPPF also provides a new bullet point to Paragraph 158 (c). This states that “in the case of applications for the repowering and life-extension of existing renewable sites, give significant weight to the benefits of utilising an established site, and approve the proposal if its impacts are or can be made acceptable”. [Lichfields emphasis] A real change or just ‘hot air’? Those people involved in the renewable energy and planning sector will have responded to the consultation on planning reforms at the start of this year (as did we) and were hopeful that national policy would be updated to positively plan for all forms of renewable energy as well as understand and reference the commercial backdrop to bringing forwards development. Instead, the Updated NPPF retains the negatively worded policy. It includes ‘tinkered wording’ set in the context that wind energy developments should not be considered acceptable. An unfair hurdle. We discuss our thoughts below. Looking at things holistically the changes are underwhelming when compared to the grand promise of last year. There is a real missed opportunity. Could the Government have waited and provided one wholescale update to national policy to reflect the importance of all forms of development, including housing, employment and renewable energy? They should come hand in hand. It would appear that a quick decision has been made with little understanding of the bigger planning picture. Does this rule out any more changes in the short or long term? If we were to turn back the clock 10 months, people in the renewable energy sector were getting excited. The Government had released its growth strategy and recognised that it needed to address barrier to wind development by reducing the “unnecessary burdens to speed up the delivery of much needed infrastructure”. We have previously commented on what this might look like in previous blogs; everything from considering wind developments in the context of prevailing planning designations and a set of locational requirements (both geographically and in relation to grid connections), to what a material planning ‘hook’ might look like to achieve local community support. Instead, however the changes are minimal and, in our view, make no real difference in reality. The negative wording remains, and this means that new wind farms will not be considered solely on their planning merits. Turning our attention to the revised NPPF wording, the new Footnote 53a states that wind energy can now be permitted through Local Development Orders (‘LDO’), Neighbourhood Development Orders (‘NDO’) and Community Right to Build Orders (‘CRBO’). These all grant permission for a specific type of development in local areas and a CRBO is a form of NDO which can be created by a local community organisation. The key message here is that they are all intended to involve or be brought forward at a local and community level. We have significant questions over whether this actually provides a more flexible policy position for commercially sized wind developments. As far as we are aware, there has been nothing stopping these orders coming forwards to date and if they need community support what actually changes? As we have previously suggested, what is needed is a joined up policy approach at a national and local level whereby sites are allocated, or identified for development (similar to all other forms of development) and where applications are decided on based on ‘planning merits’ and ‘planning balance’ by a local authority or Inspector. There have been changes to the need for community backing. This is now referred to as “community support”. Planning impacts now need to be “appropriately addressed” rather than “fully addressed”. This is semantics and it is unclear as to what this means, whether in reality it does change policy and how it should be interpreted. What does community support look like, does it differ in each area and for each development? Earlier this year, Lichfields responded to the Government’s consultation on ‘Developing Local Partnerships for Onshore Wind in England’ on behalf of clients. We suggest that Local Plans should contain policies to encourage the use of community contribution payments as part of developer’s engagement with communities, maybe delivered through the Community Infrastructure Levy. The idea of discounted energy rates is not, at present, a matter than can be given weight as a material consideration in the determination of planning applications. We will watch out for further guidance, a topic for a future blog maybe…? Image Credit: Karsten Wurth, Unsplash

In advance of the Royal Assent of the Levelling Up and Regeneration Bill (LURB) and publication of responses to several consultations, notably on amendments to the NPPF, the Levelling Up Secretary, Rt Hon Michael Gove MP has made a speech setting out the direction of travel for planning for housing.  The announcements have been made amongst a plethora of concurrent planning reform and tweaking of the existing system. This gives the impression of a Government still testing the water on various policy issues, in various ways, prior to preparing for an election and responding to the scrutiny of recent policy approaches. The delays to the LURB also provide opportunities to slot in potentially popular and/or pragmatic legislation. The headlines are dominated by the “Heseltinian approach” to urban regeneration, and the promotion of a significant Cambridge expansion. But planners in all sectors will be interested in development management proposals, including: new permitted development rights, funding for ‘upskilling and clearing the backlog’ and a ‘more permissive approach’ to small pockets of brownfield land.   Ten new planning proposals in the long-term housing plan There are ten news items that stand out in a plan mostly comprised of re-commitments. The amendments to the NPPF consulted on in December will be published “a little later this year” and the LURB is expected to gain Royal Assent subsequently this year. A regeneration focus is “guiding its [The Government’s] consideration of responses to the consultation”, indicating that decisions have not yet been made and will be refined in response to speeches and press releases such as those made on 24th July. Plans for Cambridge, inner-city London and central Leeds were announced “following the commitment in the Levelling Up White Paper to regenerate 20 places”. The Government plans for Cambridge to be Europe’s science capital within a new quarter, 65,000 homes at Docklands 2.0 in east London and Leeds regeneration and potential mass transit system.  Investing in "quality planning": over £24 million of additional investment (although the BBC suggests only half of this is new money not to be taken from current DLUHC budgets). A “planning super squad” will be created using £13.5 million of funding and first deployed to Cambridge. The investment will also support the eight investment zones in England. See below for more on this elements of the proposals.  A pragmatic approach to amending planning permissions is needed. Mr Gove said the Government “is clear that […] Local councils should be open and pragmatic in agreeing changes to developments where conditions mean that the original plan may no longer be viable, rather than losing the development wholesale or seeing development mothballed”. This is a very positive acknowledgement of larger schemes in particular. In the context of the LURB, this statement is possibly a nod to the proposed new amendment procedure, section 73B, and potentially Lord Lansley’s proposed clause that would provide for regulations that would set out a procedure for “drop-in applications”.  A new permitted development rights (PDRs) consultation, proposes new and amended PDRs relating to rural diversification and for the reuse and extension of urban and rural properties for housing and other uses. The consultation also covers the application of design codes and “providing more certainty over some types of development”.  A future PDRs consultation for householders to come in the Autumn.  A more permissive approach to small pockets of brownfield land is proposed. How this is to be achieved has not yet been set out, but it is intended to benefit SME builders.  Second stair cores for tall buildings. The Government has confirmed its intention to mandate second staircases in new residential buildings above 18 metres, following support for this threshold from the relevant experts. This clarity was widely expected. It is encouraging that DLUHC is to work with industry and regulators over the summer to ensure transitional arrangements to secure “the viability of projects which are already underway, avoiding delays where there are other more appropriate mitigations”.  Intervention in London – Mr Gove is critical of the Mayor of London’s record on housing, but said that he would work with the Mayor (whoever that might be?). However, his final tone indicated what would happen if collaboration broke down: “We are planning to intervene [in London], using all the arms of government, to assemble land, provide infrastructure, set design principles, masterplan over many square miles and bring in the most ambitious players in the private sector, to transform landscapes which are ripe for renewal. Our ambition in London is a Docklands 2.0 – an eastward extension along the Thames of the original Heseltine vision. […] Making sure we unlock all the potential of London’s urban centre – while also preserving the precious low-rise and richly green character of its suburbs. […] Which is why I reserve the right to step in to reshape the London Plan if necessary and consider every tool in our armoury – including development corporations”. Cambridge as a land value capture pilot? The Government notes the significant infrastructure requirements of the proposed new quarter in Cambridge - an initiative which some politicians in Greater Cambridge are resisting - and also the increase in land values that will arise from permissions for the new quarter being granted. The Government also notes the existing viability guidance on existing use value plus a premium and says: “The government intends to explore recommendations about what a reasonable premium to agricultural landowners should be. Building on this approach, the government intends that a consultation will be undertaken to inform the policy on a reasonable premium for landowners above existing use value, to support the development of plans for the new quarter. To the extent that infrastructure and affordable housing need justifies this position, the government anticipates that policy will be set to capture land value uplift above the premium. This will enable landowners to receive fair compensation for their land while minimising the public sector investment required to bring the development forward”.    Capacity and capability improvements The “Long-term plan for housing” announcements also included the launch of the new Capacity and Capability Programme for planning, designed to train and upskill existing planners, as well as creating new pathways into the profession at a graduate level. The application process began on 24th July and the intention is to allocate funds during October 2023. A planning super-squad At the core of the announcement is a Capacity and Capability programme, supported by a pot of £24 million to “scale up local planning capacity” through the Planning Skills Delivery Fund, and an additional £13.5 million to stand up a new “super-squad” of experts to unblock major housing and infrastructure developments. This team, once assembled, will first be placed in Cambridge to deliver the government’s ambitious housing and industry plans here. After this, the “super squad” will move to England’s eight Investment Zones announced so far, with the aim of delivering on their core objectives. Clearing the application backlog with a £24m Planning Skills Delivery Fund The Planning Skills Delivery Fund (PSDF) will provide £24 million over two years to local authorities to help clear the backlog of planning applications and support them with the implementation of the proposed reforms in the Levelling Up and Regeneration Bill. In short, local authorities can apply for funding of up to £100,000 per local authority, to support them in either clearing the backlog or filling skills gaps - with priority given to applications to clear the backlog. Local authorities seeking backlog funding must set out the causes, nature and scale of their backlog and identify ways in which it can be cleared, as well as demonstrating how receipt of the funding would reach the root cause of the problem. This acknowledgement that “money is not enough” follows from the fees consultation and further strengthens our understanding the government’s view on this matter. Local authorities that are applying for skills funding must demonstrate areas in which they are lacking resource and put forward a case for how the introduction of a specialist resource in their department would deliver on a set of identified objectives. Finally, the guidance states “the intention of the year one application process is to focus on projects and change that could be delivered within 6 months” and that that Secretary of State retains the right to withdraw the funding. The funding is not to be used to support a local authorities’ role in the determination of Nationally Significant Infrastructure Projects (NSIPs). Financial support with the determination of NSIPs will be provided through the second round of the Innovation and Capacity Fund [launched on the 25th July] to “support and enhance the ability of local authorities to engage in the Development Consent Order process for NSIPs”.  The envisaged timeline for round one of the funding is that the after applications close on 11 September they will be assessed during September and the successful authorities announced in October 2023. Upskilling Measures There is a recommitment to support for the RTPI’s planning bursary for 50 post-graduate students, the LGA’s Planning Graduate Programme, designed initially for 30 people and a two-year extension of funding to the Planning Advisory Service (PAS), to include a skills audit within local authorities to identify skills gaps and opportunities for future development. DLUHC says PAS needs to allow for the continuation up-skilling within Local Authorities, as well as providing “targeted technical training, to address both the current skills gaps and to build readiness for change that will be required to meet the needs of the future planning system”. Application fees These funding and upskilling programmes, along with the draft fees regulations having been laid in Parliament, are an indication that while we still await a formal response to the Government’s consultation on increasing application fees in the interest of better performance, the ‘increasing fees’ element of planning reform imminent. Indeed, the Government confirmed they will be “Increasing the amount developers pay in planning fees, following our recent consultation, to ensure all planning departments are better resourced.” Sean Farrissey’s blog provides useful insight into the implications of that consultation and the draft fee regulations, in particular exploring how a simple cash boost may not be enough to get to the root of many problems that are embedded in the system.     Concluding remarks - A long-term vision? The emphasis on long-term vision within the latest announcements relates to there being limited immediate change proposed. As always, it is tempting to judge policy announcements as much by what is absent than what is present: the focus is indeed on the medium to long-term, with an eye to to discrediting Labour’s approach to planning reform at the next local elections in May 2024 and general election due by January 2025. In simple terms, the Conservative government is reiterating its commitment to beauty, backed with infrastructure and delivering homes through density, presumably with the intention of positioning the opposition as opposed to these principles. We must wait a little longer to learn how the responses to the NPPF consultation and indeed the LURB itself progresses, to see how policy will match the vision. The more immediate improvements to planning skills and resourcing are good news. Department for Levelling Up Housing and Communities, Long-term plan for housing  Department for Levelling Up Housing and Communities, Long-term plan for housing: Secretary of State's speech