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

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.