England planning news, August 2021


England planning news, August 2021

19 Aug 2021



Headline news


Communities Secretary outlines future for planning reforms at LGA annual conference

At a speech made during the Local Government Association’s annual conference, the Secretary of State, Rt Hon Robert Jenrick MP (SoS), set out the Government’s intention to carry forward many of the proposed planning reforms put forward in its 2020 Planning White Paper.
The reforms, described in the SoS’s speech as “sensible and pragmatic”, seek to introduce simpler and faster procedures for determining development proposals, with a renewed focus on plan-making and design quality. Greater digitisation of planning and development data has also been badged as an opportunity to make the system more open and accessible, to both communities and SME builders and entrepreneurs.
I don’t think we need to rip up the planning system and start again. I think we need to improve the planning system and I hope we can work together across the party political divide to ensure that a system that is sometimes slow and bureaucratic with poor outcomes and a low level of public trust can be improved for everyone’s benefit.
Given the increasing opposition from many Tory backbenchers, it was interesting to note this change in tone from the Minister on planning reform, which had originally been presented as a fundamental rethink and opportunity to create “a whole new planning system for England”.
With the Planning Bill not expected to be published until Autumn 2021, the detail regarding many elements of the reforms remain unknown. The Minister did confirm that the system will continue to be plan-led and that plans must be kept up to date. While little was said on the new approach to housing needs assessment, the Minister confirmed it will be down to local planning authorities to determine how to meet local housing need, with some assurance that communities will be given a greater voice from “the very start of the planning process”.
“Our reforms will provide greater certainty over what development is permitted - and where - through clear land allocations in local plans. They will also say where they don’t want to see houses built and what we as communities want to protect including precious green spaces, the green belt, national parks, areas of outstanding national beauty and SSSIs.”
The SoS also sought to clarify that decision making will be “council led”, perhaps indicating that elected members will continue to determine significant applications.
It seems that there has been some development of the new infrastructure levy, which looks set to replace CIL and “complex and opaque” S106 planning obligations. While the Planning White Paper stated this would be set nationally, the SoS has confirmed this will be “locally set, locally levied, [and with] greater flexibility for you as councils to determine how they are spent”.
The Government is also continuing to look at ways to improve the speed of build-out rates, “something that drives a great deal of public mistrust and frustration with the current planning system”, indicating that a potential “use it or lose it” power is possibly still on the agenda. Matthew Spry considered two possible policy strands to introduce such powers in a recent blog: Use it or lose it: the taxing problem of undelivered homes.

MHCLG, Local Government Association annual conference 2021: Secretary of State's speech



Quote of the month

The reformed planning system will continue to protect the places of environmental and cultural value which matter to us. In line with the ambitions in our 25 Year Environment Plan, we want the reformed system to play a proactive role in promoting environmental recovery and long-term sustainability.
Christopher Pincher, Written Answer  Property Development: Buckinghamshire


Amendments to the NPPF confirmed, alongside launch of the National Model Design Code and the ‘Office for Place’

At an event hosted by the Policy Exchange, the SoS introduced a range of amendments to the National Planning Policy Framework (NPPF), a finalised version of the National Model Design Code (NMDC), and also introduced a new advisory body to support councils and communities in taking a more design-led approach to planning.
The revisions to the NPPF cover several issues, including amendments to policies on sustainability, flood risk, and biodiversity; Article 4 Directions; protection of the historic environment; and minor changes which remove now out-of-date references within the Framework. A full summary of the revisions can be found within this recent blog on the changes.
Greater focus on design-quality and thirty-year vision for new settlements in the NPPF
The main focus has been on the changes to design policy within the NPPF and the new expectation that councils introduce local design codes and guidance. Commenting on the changes Jenrick said:
“We're making beauty central to the planning system in a way it simply never has been. Through changes to the national planning policy framework and the new national model design code, with communities taking the lead. It will be mandatory that every area in the country has a code and every council helps their local neighbourhoods, their parishes, their villages, their local people, create theirs as well.
The key changes on designed include:
  • making beauty and place-making a strategic objective of the NPPF;
  • setting an expectation that local authorities produce local design codes and guides, setting out design principles that development should reflect;
  • giving greater weight to well-designed schemes that accord with local codes and guidance;
  • refusing schemes which are poor-quality;
  • asking for new streets to be tree-lined; and
  • improve biodiversity and access to nature through design.
In addition to this, the paragraph 22 of the NPPF on plan-making has been amended so as to require local planning authorities to look further ahead when planning for larger scale development, such as new settlements and urban extensions, with the NPPF now requiring strategic policies to look at least 30 years into the future “to take into account the likely timescale for delivery”.  Following concerns from some local planning authorities as to how the new requirement may affect emerging local plans, the Secretary of State wrote to Sarah Richards, Chief Executive of the Planning Inspectorate, to provide the following guidance.
"I have asked my officials to prepare a planning practice guidance update on the way local authorities should reflect the recent NPPF paragraph 22 changes in their local plans to ensure that plan preparation can continue at pace whilst also ensuring that the Government’s objectives are delivered. [...] I would also welcome further engagement with my officials at the appropriate time, to ensure Inspectors reflect this new policy in a pragmatic and proportionate way".
Publication of the National Model Design Code
In order to support this renewed focus on design, the Government has published its final version of the NMDC. Commenting on the new guidance, the SoS said:
“The aim is to establish what is provably popular with local communities, and to embed those standards into the planning system via local design codes to ensure consistent beautiful development. This isn’t about prescribing a style or another, it isn’t about saying all homes must be traditional, or indeed modern, but enabling local communities to say what they want, and ensuring that they codesign what is built on their doorsteps”.
The NMDC will provide detailed guidance on the production of design codes, guides and policies to promote successful design. It expands on the ten characteristics of good design set out in the National Design Guide, which reflects the government’s priorities and provides a common overarching framework for design. The guidance sets out a comprehensive list of principles that councils should consider when formulating their own codes, with more detailed overview of the relevant parameters to consider included within Part 2 accompanying guidance.
As stated in the NPPF, the NMDC will also be relevant to developers wishing to bring forward their own codes to support development proposals and the allocations of sites.
The Office for Place
The SoS also took the opportunity to launch the new Office for Place, forming a part of the Ministry of Housing, Communities and Local Government. The Office will be advised by a board of experts working across the planning and development industry, supporting government and councils drive up design standards now.
During his Policy Exchange Speech, Mr Jenrick commented:
“Supporting local authorities and communities in formulating plans which encourage attractive and popular places. Draw on Britain’s world-class expertise in design, to help local councils and communities develop user friendly, easy to understand, digitally accessible, and effective design codes for their communities, requiring beauty by default within the planning system to drive up standards. The Office for Place will improve our understanding of peoples preferences about places, what makes them popular or not, and how this relates to public health, to well-being, sustainability and the public good”.
The Office for Place will be chaired by Nicholas Boys-Smith, former chair of the Building Better, Building Beautiful Commission. It is currently supporting 14 local authorities in piloting the first batch of design codes. It is also seeking expressions of interest from up to ten additional planning authorities and designated neighbourhood planning groups for the second phase of its pilot scheme.

MHCLG, Vision for building beautiful places set out at landmark design eventMHCG, Office for PlaceMHCLG, National Planning Policy Framework

Government reviews approaches to considering flood risk in new developments

During this autumn the Government is to consult on “how to protect frequently flooded communities”, with reference to planning and to how flood protection funding is allocated.
Within a press release about the Flood and Coastal Erosion Investment Plan, the Government said it will also bring in tighter guidance for planning authorities as part of a package of actions.
This news came alongside the publication of a “Review of policy for development in areas at flood risk” by DEFRA, MHCLG and the Environment Agency.
The review concluded:
“[…] there are robust measures in place to protect people and property from flooding which all local planning authorities are expected to follow. […] However, the review also found that there are opportunities to strengthen current policy, guidance and its implementation”.
The review outlines next steps, including:
  • A significantly revised and updated flood risk Planning Practice Guidance will be published later this year;
  • The government will clarify, standardise and simplify the language and terminology relating to the sequential and exception tests in both national planning policy and guidance;
  • the government will take steps to improve visibility of the Call-in requirements (i.e. to the Secretary of State) and increase accountability for decision makers; and
  • the Government will update planning practice guidance to address circumstances in which development proposals are subsequently revised following prior agreement with the Environment Agency on flood risk matters.
The review also looks at assessing flood risk within a new planning system. The Government will consider what mechanisms and policy may be needed to ensure wider flood risk issues are considered during decision making, which could be via the Direction, or potentially as part of the revised Framework.
The review found that “almost a quarter of non-compliance issues raised were related to drainage not having been installed as approved”. Accordingly, the Government wants to “strengthen the existing planning enforcement regime to support the new planning system. This could include raising fee thresholds for a breach of planning condition, increasing the time local authorities have to prepare a case against a breach of planning, and strengthening the policy around intentional unauthorised development”.
The review also concluded that LPAs need to undertake onsite compliance checks for new residential developments in at risk areas and to explore providing relevant training and guidance to compliance officers to help them do this; the need to resource this is acknowledged in the review.
the Government has committed to developing a comprehensive resources and skills strategy for the planning sector to support the implementation of our "Planning White Paper” reforms […] part of achieving this will include supporting the modernisation of the planning process, so that routine tasks are automated and decision making is improved by better access to the data and digital services local authorities need but are often unable to take advantage of”.
Its press release also said:
On planning, a recent review of decisions by Defra, the Ministry of Housing, Communities and Local Government (MHCLG) and the Environment Agency found over 97 per cent of planning decisions for residential properties were made in line with Environment Agency (EA) advice in the year 2019/20. However, 866 homes were granted planning permission contrary to EA advice.
New guidance for local planning authorities, designed to drive up compliance with planning rules, will reaffirm that they must refer planning decisions to Ministers when the Environment Agency is sustaining an objection on flood risk. Under the plans, the Government will also consider how planning decisions in areas at risk from surface water flooding could be subject to the equivalent rules in future”.

DEFRA, Environment Agency and MHCLG, More than 1,000 flood schemes to benefit from record investmentDEFRA, Environment Agency and MHCLG, Review of policy for development in areas at flood risk

Class E clean up: further amendments to permitted development rights now in force

The Town and Country Planning (General Permitted Development etc.) (England) (Amendment) (No. 2) Order 2021 (Amendment No. 2 Order 2021) (GPDO) came into force on 1st August 2021, introducing a wide range of changes.
The primary purpose of the amendments is to amend the GPDO to reflect last year’s changes to the Use Classes Order - which introduced greater flexibility (as well as protections) for certain town centres uses - primarily by tying up loose ends and anomalies created by the new class E. These amendments are explained in Sean Farrissey’s blog Change coming to your High Street (and beyond) – more new PD rights for 2021.
The Lichfields Guide to the Use Classes Order has been updated to reflect the amendments. The Guide also now includes the sub-categories of the use classes, because these are being used in descriptions of development, planning conditions and policy more frequently than in the past.
The amendments to the GPDO also include new fire safety impact prior approval requirements for permitted development for Commercial, Business and Service to residential (Class MA of Part 3), and to add storeys to residential and commercial buildings (Classes A and AA of Part 20).
Reference is also made to the changes to GPDO within the Government’s Build Back Better High Streets strategy, which sets out how high streets and town centres can adapt and thrive after the COVID-19 pandemic. The strategy also confirms that the Government is to consider over the summer, making some of temporary permitted development rights introduced during the pandemic permanent. For more information on the future of our high streets, Lichfields recent Insight ‘Moving on up?’ reveals evidence of innovation, optimism and ambition in the town centre sector across the north-east of England.

MHCLG, Build Back Better High Streets

Project speed: Now in force for major public service infrastructure development

Following a December 2020 consultation, the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) has now been amended to provide fast track provisions for specified types of “public service infrastructure development”.
Public service infrastructure development is a defined term in the DMPO and a sub-category of major development; essentially it is major public service development involving hospitals, schools and further education colleges, prisons, young offenders’ institutions and other criminal justice accommodation excluding development which has been screened as requiring an Environmental Impact Assessment.
The statutory consultation period for such proposals is now 18 days, rather than 21 days (a 14 day consultation period had been proposed). The target determination period for such planning applications is now ten weeks.
As proposed in the original consultation, there will be heavy monitoring of public service infrastructure development applications; the SoS is to be notified when such an application received and must be sent a copy (unless there is a validation dispute).
And unless the Secretary of State (SoS) has directed that the application is to be determined by him or determination is to be restricted, within 7 days of validation, the LPA must notify the SoS of when a decision is intended to be made.

The Town and Country Planning (Applications for public service infrastructure development notification) (England) Direction 2021The Town and Country Planning (Development Management Procedure and Section 62A Applications) (England) (Amendment) Order 2021Supporting housing delivery and public service infrastructure: government response

Biodiversity Metric 3.0 for measuring biodiversity net gain launched

Natural England has launched together with an accompanying GIS data import facility, various guides and a summary of changes from the 2.0 metric. A simplified, beta test version, of the Biodiversity Metric 3.0 specifically for use on small development sites has also been provided.
The webpage from which the tools can be downloaded explains:
Biodiversity Metric 3.0 can be used or specified by any development project, consenting body or landowner that needs to calculate biodiversity losses and gains for terrestrial and/or intertidal habitats. It will be this metric that underpins the Environment Bill’s provisions for mandatory biodiversity net gain in England, subject to any necessary adjustments for application to major infrastructure projects.
Biodiversity Metric 3.0 has been extensively tested. However, we will continue to listen to feedback and will aim to address any errors or problems identified in the materials or function before the Environment Bill’s mandatory biodiversity net gain provisions take effect for Town and Country Planning Act development (following a two year transition period, estimated to be in late 2023)”.
In addition to these tools, Natural England has launched a beta version voluntary Environmental Benefits from Nature tool, which will be evaluated over the coming year.
The Environmental Benefits from Nature tool is designed to work alongside Biodiversity metric 3.0 and provide developers, planners and other interested parties with a means of enabling wider benefits for people and nature from biodiversity net gain”.

Natural England, The Biodiversity Metric 3.0Natural England, The Environmental Benefits from Nature Tool - Beta Test Version

National Infrastructure Planning Reform Programme

The Government has commenced “a comprehensive end-to-end review of the Nationally Significant Infrastructure Planning (NSIP) process and all its interactions”.
The consultation, which started on 12 August 2021 and closes on 17 December 2021, asks nine questions which are designed to cover:
  • “what government, its arms-length bodies and other statutory bodies could do to accelerate NSIP applications
  • aspects of the examination and decision process which might be enhanced
  • impediments to physically implementing NSIP projects
  • digital improvements to the regime
  • cross-government co-ordination including government departments and arms-length bodies
  • interacts with other consenting and regulatory processes and the wider context within which infrastructure projects operate
  • potential limits in the capacity or capability of NSIP applicants, interested parties and other participants”
This follows the Housing Minister, Rt Hon Christopher Pincher MP, writing to National Infrastructure Planning Association (NIPA) regarding the NSIP reform programme and inviting their members to work with Government. The letter says that the Government hopes that by September 2023 some projects will be able to go through the NSIP process in up to half the time than at present.
Mr Pincher outlined the Government’s “roadmap to 2023”, which comprises three strands: Operational Review / Project Acceleration, National Policy Statements (NPS) and EIA/SEA reform; the latter two are already in progress.
“[…] our roadmap includes three key milestones for NSIP users:
  • Autumn 2021 - we intend to provide a clear progress update on the reform programme and successes so far.
  • Spring 2022 – we intend to formally consult on proposed measures for the NSIP regime for introduction ahead of September 2023.
  • Autumn 2022 - we want users of the regime to be clear about how it is changing, and what is required of them, in good time to meet the ambition that schemes will benefit from improvements from September 2023”.


Letter from Rt Hon Christopher Pincher MP, to the National Infrastructure Planning AssociationMHCLG, National Infrastructure Planning Reform Programme consultation

Fire safety: planning gateway one in force and consultation on the building safety levy in progress

Planning gateway one
Planning gateway one, which was introduced following the 2018 Hackitt Review of building safety, is now in force.
Article 9A of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO) came into force on 1 August 2021. It requires the submission of a fire statement with full planning applications for new high-rise residential buildings, for certain existing high-rise residential buildings referred to as “relevant buildings” and for those relating to land within the curtilage of relevant buildings (unless only a change of use is sought on that land).
The amendment Order that introduced Article 9A and planning gateway one also established the Health and Safety Executive as a statutory consultee for certain planning applications to which Article 9A applies.
A relevant building is defined as a residential building that is more than 18 metres high or more than 7 storeys above ground level (whichever is reached first) and contains more than one dwelling or contains educational accommodation (such as student accommodation or boarding accommodation for schools).
Storeys that are solely for plant are not to be taken into account when determining whether a building is or would be 18 metres high. Planning Practice Guidance explains how to measure buildings to determine whether or not Planning Gateway One applies and notes:
“It may be necessary to amend these definitions in future to align with arrangements to be made under the Building Safety Bill to deliver gateways two and three, with a view to achieving consistency across all three gateways”.
The requirements will not apply to outline planning applications or section 73 planning applications. As noted above, fire safety is now a prior approval matter for residential accommodation that is being delivered under the permitted development regime and falls within the scope of planning gateway one.
Fire statements, to be submitted on the standard form prepared by MHCLG, will be required to include the safety design principles, concepts and standards that have been applied to the development. They will provide information about all buildings within the proposed development, not solely the proposed high-rise residential building.
Consultation on the Gateway 2 or Building Safety Levy
The Government is currently consulting on and seeking evidence to inform the design of the proposed Building Safety Levy, which would be introduced by the Building Safety Bill and apply to certain building seeking building control approval – also to be known as Gateway 2 stage.
The levy is to help finance the funding that will support the cost of replacing unsafe cladding. It was announced in February alongside the Government’s funding plans for cladding remediation in England.
In the same February announcement, the Government said it would introduce a new tax “for the UK residential property development sector” in 2022, which would also help to pay for cladding remediation costs. Consultation began on the Residential Property Developer Tax in May and closed in July – see Lichfields’ May 2021 England Planning News.
The consultation page says:
“The levy will sit alongside a new tax on developers in the residential property market, which is set to raise at least £2 billion over a decade towards the costs of making buildings safer.”
The May 2021 consultation on the Residential Property Developer Tax confirmed that the current consultation on the Gateway 2 Levy, which will apply in England only, would follow and noted:
“While the policies are targeted differently, the government recognises that it is possible that in some cases developers would be in scope of the levy for specific developments, and the tax on their profits. While it will be difficult to comment before the publication of more detail on the design of the levy, the government would like to seek initial views on the prevalence and potential impact of this overlap”.
The Building Safety Bill will reach Committee Stage in the House of Commons on 9 September 2021.

Building Safety Bill



The Lichfields perspective

As in the Communities Secretary’s in his speech to the Local Government Association conference, references to planning reform increasingly include changes that are being made to the existing system - no longer distinguishing wholesale reform from tweaks. This has fuelled industry speculation that we will see more limited reforms, which have had the rough, controversial edges smoothed off - notwithstanding that we are already experiencing some seismic changes to the existing planning system.
Jennie Baker, Associate Director


Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116