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Testing times for England’s big cities – an extended reach for the presumption and other NPPF changes
Among a flurry of planning updates on 19 December 2023, the Secretary of State (SoS) announced the appointment of an expert panel to carry out a review of the London Plan[i].
That Panel, chaired by Christopher Katkowski KC and comprising Cllr James Jamieson, Dr Paul Monaghan and Dr Wei Yang, was tasked with assessing whether specific changes could be made to London Plan policies that could facilitate urban brownfield regeneration for housing delivery. Lichfields was pleased to be appointed by DLUHC to provide support to the Panel in preparing the report, which was duly delivered on 15th January 2024[ii].  
Today, the Panel’s findings were published alongside a suite of housing-related announcements from the Secretary of State. The Government's proposed response to the LPR recommendations extend beyond the housing problems of the ‘The Great Wen’.

 

The London Plan Review (‘LPR’)

The LPR explores housing delivery in the capital across a range of metrics, particularly in looking at change in trends since the London Plan was introduced. The starting point is an acknowledgement that there is a crisis of housing under-supply in London. The London Plan had been formulated based on an evidence base that concluded there was sufficient land to provide 52,300 homes a year between 2019/20 and 2028/29 with a strategy for ‘good growth’ that was considered by the Inspectors as “aspirational but realistic”.  This target was below the assessment of need that was undertaken in the preparation of the London Plan, which identified a need of around 66,000 homes per annum.
Based on a consideration of the evidence – including insights from both public and private sector stakeholders - the LPR recognises that there is no one cause of housing under-delivery in London: the effects of wider macro-economic conditions; fire safety; infrastructure constraints; statutory consultees; viability difficulties and planning resourcing pressures have all contributed to the under-delivery of housing against London Plan targets.
Nevertheless, the under-delivery to date is significant:
  • Four years into the London Plan’s ten-year housing target period, when measured against the cumulative target, there has been an undersupply of more than 60,000 homes;

  • To make good this backlog, the rate of delivery forthwith would need to increase from 52,300 to more than 62,300 homes a year;

  • There has been downward trend in housebuilding which, if it continues, would result in a shortfall of more than 150,000 homes – equivalent to 29% of the total target – by 2028/29;

  • There has been a reduction in the number of residential units being permitted, with GLA data showing a reduction from over 89,000 in 2018/19 to 68,000 in 2021/22 and this is now down to 40,200 in 2022/23. A shrinking flow of planning permissions will reduce the overall pipeline that can be built-out in future years.
In addition to the factors identified above, the LPR report says the Panel found persuasive evidence that the combined effect of the multiplicity of policies in the London Plan “now works to frustrate rather than facilitate the delivery of new homes on brownfield sites, not least in creating very real challenges to the viability of schemes”.
The report (paras 4.6-4.7) says:
“The London Plan weighs in at over 500 pages and contains 113 policies, all of which include several elements. The Plan contains literally hundreds of requirements, exhortations and aspirations and, depending on the circumstances of an individual application, a great many of these bear upon deciding whether to permit residential development on brownfield sites.
A proposal to build new homes on what might be thought to be a relatively straightforward case of a brownfield site which is not in or affected by any form of special protection (e.g. heritage) will have to navigate and negotiate its way through elements of at least 45 policies.”
The Panel heard from the GLA that policy goals in the Plan are being incorrectly applied mechanistically as absolute requirements: as ‘musts’ rather than ‘shoulds’[iii], a view which informed the GLA’s clarification on its Housing Design Standards LPG that its guidance “should not be applied mechanistically. The weight to attach to any departure from standards is ultimately a matter for the decision maker”[iv].
Ultimately, the Panel found that "there is so much to navigate and negotiate in the London Plan", that "wending one’s way through the application process is expensive and time-consuming". The LPR concludes:
“Without a step change, it is highly unlikely that the housing targets of the London Plan will be met within its ten-year period and, as a consequence, the current housing crisis will continue, if not worsen.”

 

The Panel’s recommendations

In light of the downward trend for housing delivery in London, the Panel was set the task of considering potential changes that could be made to the London Plan. It identified three main options. The first two were: 1) awaiting the next review of the London Plan to enable a comprehensive approach to be taken, or 2) making specific alterations to the individual policy requirements which are most often cited by commentators as inhibiting the timely delivery of new homes. Both options were discounted for reasons set out in the report, including the disbenefit of waiting for the next review of the London Plan, and the complex and inter-linking nature of reviewing individual policy requirements outwith a formal plan review process.
It settled on a singular recommendation: “the introduction of an overarching policy, which would bring together all the relevant issues in any given case of an application for residential development on a brownfield site and provide a lens through which to focus on how to resolve what will often be a myriad of competing considerations pulling in different directions.”
The wording of the presumption – expressed in similar terms to the ‘tilted balance’ in the NPPF but with some distinct elements[v]  – would apply to the grant of planning permission for proposals comprising residential development on brownfield land. It would exclude sites in the Green Belt or Metropolitan Open Land, or Strategic Industrial Locations, or where it would cause harm to the significance of a designated heritage asset which is not clearly outweighed by the public benefits.
The Panel recommended the presumption should apply in local planning authorities that had under-delivered against the cumulative total of their ten-year targets (in order to recognise and incentivise delivery), but an option was also presented should the Secretary of State conclude that it should apply across London. The recommended approach of measuring the cumulative number of net completions against the ten-year target would mean - based on current data - that the presumption would have applied to all but four London boroughs.
In line with the terms of reference, the presumption was proposed as a policy for direct insertion into the London Plan[vi] but with the complementary suggestion that its wording be introduced as a Written Ministerial Statement and/or in the Planning Practice Guidance.

 

Proposed implementation of its recommendations

Having considered the report and its recommendations, the Secretary of State has proposed that the concept of a brownfield residential presumption in areas of housing under-delivery, as put forward by the Panel, should be considered for insertion into the NPPF as part of the paragraph 11 presumption, rather than being limited to London. That addition to the Framework will require a further consultation, which begins today and will close on the 26 March 2024.
The scope of the consultation considers two proposals which have been informed by the LPR:

  1. A change to national planning policy that would expect local planning authorities to give significant weight to the benefits of delivering as many homes as possible, and to be flexible in applying policies or guidance on the internal layout of developments especially for proposals on brownfield land. This policy would apply to all authorities and is proposed through an amendment to paragraph 129c).

  2. The application of the presumption in favour of sustainable development in respect of previously developed land only for those 20 towns and cities subject to the urban uplift, where their Housing Delivery Test score falls to 95% or below. This is proposed through an addition to footnote 8 of the Framework and the circumstances in which the Framework presumption applies.


Proposal 1

For the first proposal, the consultation document is clear in setting out that the proposed amendment “does not remove legal requirements nor the importance of other considerations relating to beauty or undermine wider considerations of character as part of the plan-making process”.
Rather, the approach proposed is intended to help guide decision-makers in the weight to be attributed to the benefits of delivering as many homes as possible. It expands on the existing approach to daylight and sunlight which is set out in the NPPF, to now encompass internal layouts. The application of this expanded approach will still be dependent on site-specific considerations and a balancing assessment by a decision-maker when assessing the extent to which proposed development on previously developed land does not comply with relevant policies or guidance.

 

Proposal 2

The approach proposed applies an expanded policy presumption for previously developed land to England’s 20 most populous towns and cities[vii], given the importance of delivering housing in these areas.
The consultation explains that, if implemented, the policy would align with the publication of the HDT 2023 results. Because these have not yet been published, it is not possible to indicate precisely where this presumption would apply. When measured against the 2022 HDT results, 18 London boroughs/Development Corporations and just four of the other 19 uplift areas would have the presumption applied. As the existing presumption already applies where an authority’s HDT result is less than 75%, in London the proposal would apply the presumption to an additional five boroughs beyond the existing HDT consequences, and in the other 19 uplift areas it would apply to three additional authorities[viii].
What is the likely consequence for the 2023 HDT results? We have reviewed the data for the anticipated HDT housing requirements for 2023[ix], and measures of the net additional homes delivered over the past three years, as an interim proxy.
The analysis in the following tables shows that the ‘housing requirement’ element of the 2023 HDT calculation will increase in most places. This is because the 35% uplift factor in the Standard Method (introduced in December 2020 and applying in the 2022 HDT to just 2021/22) will also apply to 2022/23[x]. In addition, the reduced-requirement mitigation for the effects of the pandemic in 2019/20 falls away.
Meanwhile, the housing delivery trend, measured by the GLA completions dashboard and DLUHC Table 122, indicates a significant proportion of authorities are experiencing a general downward trend in their housing delivery over the past three-year period.
When these two factors are combined, it seems inevitable that the proposed new presumption will apply to many more authorities in the 2023 HDT, but the precise extent of this will only be known when those results are published.
The consultation questions posed also give scope for potential further expansion of the presumption. Two of the main questions for consideration are 1) whether the threshold of 95% is appropriate, and 2) whether it should only apply to authorities that are already subject to the urban uplift. While the potential implications of these options will need further analysis (together with the 2023 HDT test results), it does raise the question of how equivalent policy support in other urban areas – outside of the top 20 (for example, those towns and cities in the OxCam Arc, or urban authorities within City Regions e.g. in Greater Manchester, West Yorkshire, West Midlands, Liverpool or Tyneside) – might further increase the delivery of housing on brownfield sites.

[i] Accompanied by a rather direct letter to the Mayor which included the line: “If you cannot do what is needed to deliver the homes that London needs, I will” – see here

[ii] Something which was considered news in of itself – see here

[iii] Fun fact: in the London Plan the word ‘must’ appears 161 times cf 1,540 times for the word ‘should’.

[iv] The Housing Design Standards LPG can be found here

[v] The reference to granting permission “as quickly as possible” and making clear that in applying the presumption “substantial weight is to be given to the benefits of delivering homes."

[vi] The Secretary of State has (so far unused) powers (under section 340 and 341 of the Greater London Authority Act 1999) to formally direct the Mayor and instruct changes to the London Plan.

[vii] These 20 being those to which the 35% uplift to the Standard Method applies. These 20 places are defined by their population rather than by name – see our blog here. A feature of this approach is that the presumption would apply in Manchester but not Salford; in Birmingham but not any of the Black Country; and in Newcastle, but not Gateshead.

[viii] Currently, the HDT presumption consequence only applies when housing delivery is at <75%.

[ix] For the purposes of identifying trends in lieu of the 2023 HDT results, these requirements have been calculated based on the current local plan position and has not apportioned requirements where the plan status changed through the assessment period.

[x] In those locations where the housing requirement is not set in an up-to-date adopted local plan. Sadly, this is most places.

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The Government’s long-term plan for housing – what’s new?
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.
  1. 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.

  2. 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.
     
  3. 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.
     
  4. 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.
     
  5. 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”.
     
  6. A future PDRs consultation for householders to come in the Autumn.
     
  7. 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.
     
  8. 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”.
     
  9. 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”.

  10. 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.

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