England planning news, October 2021

During September, a cabinet reshuffle and renamed department led to a change of focus - and application of brakes for planning reform.

Amongst the recent changes to the Cabinet, Robert Jenrick MP has been removed from his position as Secretary of State for Housing, Communities and Local Government. Leading the newly renamed Department for Levelling Up, Housing and Communities is new Secretary of State, Rt Hon Michael Gove MP (SoS).

The Prime Minister confirmed:

Mr Gove previously served as Secretary of State for Education in David Cameron’s 2010 Government, ran against Theresa May in the 2016 Conservative leadership election, and also spent two years as Secretary of State for Environment, Food, and Rural Affairs, playing an important role in the development of the Environment Bill.

Christopher Pincher MP has retained his position as Housing Minister and Eddie Hughes MP remains Parliamentary Under Secretary of State, while Neil O’Brien MP has been appointed Parliamentary under Secretary or ‘Levelling Up Minister’. Kemi Badenoch MP is Minister of State in addition to her role as Minister of Equalities.

Former Bank of England Chief Economist Andy Haldane will head the Levelling Up Taskforce, as a permanent secretary in the Cabinet Office, on secondment from the Royal Society of Arts, Manufacturing and Commerce (RSA) for 6 months.

Within his first week of taking office, several newspapers had already reported that the new SoS had put planning reform on hold. More recently, Mr Gove confirmed in an interview hosted by Policy Exchange that this is indeed the case.

The Housing Secretary’s first speech in his new position, to the Tory Party conference, made little reference to either planning reforms or the new Planning Bill, a draft of which had previously been expected over the coming weeks. The Minister instead attempted to set out what levelling up would mean for his department, signalling this would mean investment in regeneration projects, with a focus on neglected brownfield sites, with plans to allowing “communities to take back control of their future”.

The Prime Minister didn’t mention planning reform either, but made reference to crowd pleasing objectives that would “solve the national productivity puzzle”: ‘fixing the broken housing market’, housebuilding, 95% mortgages, “housing in the right place at an affordable price”, the importance of broadband and infrastructure, but without announcing new policy or legislation.

The Prime Minister also said that the Conservatives would re-wild parts of the country, “consecrate a total of 30 per cent to nature” and plant tens of millions of trees. Where the term ‘planning reform’ might have been used ‘levelling up’ was inserted.

But the new Housing Secretary was asked about planning reform by Sebastian Payne in the Policy Exchange interview and he said:

He then talked about the remediation and assembly of large brownfield sites before adding:

Mr Gove acknowledged that more homes of every type of tenure are needed and that the Government should have a role in providing them, notably via Homes England. He considered regional imbalances in where rent is proportionately higher than mortgage payments to be a reason for encouraging home ownership outside of the south east:

So there was a levelling up angle to his example.

The SoS also added that developers “are clear that the incentives in the system don’t allow them to build where they would like to build and don’t necessarily incentivise them to build homes that are beautiful and environmentally resilient”.

During an earlier speech at this month’s Conservative Party conference, co-chair of the Party, Oliver Dowden MP, argued that the Government has listened to local communities’ reactions and were seeking to take a look at planning reform. Referring directly to the recent defeat in Chesham and Amersham, Mr Dowden blamed opposition parties for “shamelessly” stoking fears on proposed changes to the planning system would lead to “ugly” development.

These positions very much fit with the rhetoric in the Prime Minister’s speech to the Tory party conference (see below), sweeping away any final doubts that planning reform measures or even changes to the existing system will only happen if supported by backbench MPs - particularly those representing south east constituencies.

Over the last 18 months in particular there have been criticisms from a range of MPs, notably the former PM Theresa May MP and Bob Seeley MP for the Isle of Wight, who have warned of the impact White Paper proposals (and permitted development rights that create dwellings) may have across many traditional Tory areas in the south east.

This is likely to mean a move away from some of the more controversial aspects of the White Paper, potentially including top-down housing targets, as well as proposals that would reduce powers for committees to refuse development on sites designated for ‘growth’ and ‘renewal’.

The Department is now expected to undertake a full review of the White Paper proposals, in consultation with backbenchers.

A formal response to the White Paper consultation is still expected, even if many of the proposals are not taken forward. In addition to the continued promotion of digital transformation and several mentions of a new infrastructure levy, the Government is still looking at build out rates, for example. Albeit, notwithstanding the apparently consensus on digital improvements, the response to the consultation on remote local authority meetings is simply expected “in due course”, with the necessary legislation being subject to Parliamentary time being available.

Four private members bills sponsored by Conservative MPs and related to planning, which are due reach second reading stage in the next three months, provide an indication of where backbenchers intend to apply pressure; two relate to enforcement, one to increasing fines where notices requiring maintenance of land are not complied with. In addition, there is a Planning (Street Plans) Bill “to make provision about the creation and operation of street-level plans for local development; and for connected purposes”, which is linked to the February 2021 Policy Exchange report Strong Suburbs.

Separate from planning, but with provisions that were alluded to by several Conservative MPs during the conference, the Environment Bill is nearing the end of its passage (see below).

Given the rebranding of the Ministry of Housing, Communities and Local Government and the appointment of ‘Levelling Up Minister’ Neil O’Brien MP, whose previous role was Levelling Up Adviser to the Cabinet Office, the department may well begin to focus on reducing spatial inequalities, and improving the economic opportunities in many of the former red-wall seats.  

Mr O’Brien’s appointment comes in the same month that the Housing, Communities and Local Government Commons Select Committee published its report “Progress on devolution in England”. That report calls for further progress on devolution via a devolution framework, across local government as whole – urban and rural, and from Council to community level. The Committee also recommends research into local tax revenue raising, such as local income tax – something which the SoS essentially dismissed in his interview with Policy Exchange.

Interestingly, Michael Gove has given his support to a new report, Trusting the People, the case for community-powered conservatism, which calls for a new model of local devolution, which would give communities greater control over public services.  Written by an influential group of Tory backbenchers, it argues for a re-boot of localism and a focus on community-led governance and initiatives.

“This means deliberately putting our public services and local assets into the hands of mutuals, social enterprises and charities which are run by local people. It means making neighbourhood planning universal and the ultimate arbiter of local development. It means putting social and environmental responsibilities into the purpose of business, not just into their CSR brochures.”    

           

But in the immediate term, from a planning perspective, levelling up appear to be about appeasing south east based MPs.

The Prime Minister’s speech to the Tory Party conference emphasised the importance of land and home ownership, adding

“there is [room] to build the homes that young families need in this country not on green fields. Not just jammed in the south east but beautiful homes on brownfield sites in places where homes make sense”.

Thus the levelling up mantra was linked to demand for homes in the South East ; his justification for “why levelling up works for the whole country” is that it “helps to take the pressure off parts of the overheating South East while simultaneously offering hope and opportunity to those areas that have felt left behind”. The South East (and specifically Buckinghamshire) being defined by:

However, Research undertaken by Lichfields (NLP) in 2014 remains relevant and shows that that there is nowhere near enough brownfield land, in any region, to meet housing needs.

The Prime Minister’s focus was on north versus south, with no reference to the need to level up within various regions of the country, including the south east, although the SoS Levelling Up Minister touched on this in interviews and articles.

Mr O’Brien has appeared in several interviews recently explaining levelling up, notably on Newsnight and in his piece for The Guardian "Levelling up isn’t about north or south, or city or town. It’s about restoring local pride".

In the latter Mr O’Brien said:

The Autumn Budget will take place on 27 October 2021.

In August 2021, Paragraph 22 of the National Planning Policy Framework, on plan-making, was amended to require local planning authorities to look further ahead when planning for larger scale development, such as new settlements and urban extensions. The NPPF now requires 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 advised the Chief Executive of the Planning Inspectorate that a planning practice guidance update was being prepared “on the way local authorities should reflect the recent NPPF paragraph 22 changes in their local plans".

On 4 October 2021, new paragraphs 083 and 084 were added to the plan-making section of planning practice guidance.

The guidance explains that a 30-year vision should be included where most of the development arising from larger scale developments will be delivered well beyond the plan period and 30 years or more beyond the start of the plan period. However, additional supporting evidence is not anticipated.

Where Regulation 19 consultation was ‘imminent’ when national policy changed, the guidance says the Council may need to consider “a short supplementary statement” if the existing vision in the draft plan is not considered to meet the new national policy.

The Housing Secretary has announced further changes to the upcoming 2021 Housing Delivery Test (‘HDT’), via a 6 September 2021 Written Ministerial Statement (‘WMS’). This time, a “four-month adjustment” will be made to the 2020/21 monitoring year; deducting “122 days to account for the most disrupted period that occurred between the months of April to the end of July”.

A blog by Martin Taylor and Harry Bennett  On the wings of a dove? – the 2021 Housing Delivery Test considers the implications.

 

The government is seeking views on the draft legislation of the UK-wide Residential Property Developer Tax, ahead of its inclusion in the 2021-22 Finance Bill. The charge, which was subject to an initial consultation earlier this year, is intended to ensure that large developers make a fair contribution to help fund the government’s cladding remediation costs. This will be charged on profits from the development of residential property by a residential property developer company. This is separate from The Building Safety Levy, which will apply to developments (in England only) seeking building control approval from the Building Safety Regulator to start construction of certain buildings: the 'Gateway 2' stage of the new building safety regime.

 

The Environment Bill has completed Report stage in the House of Lords and will have its Third Reading or ‘tidying up’ stage in the House of Lords on 13 October. After this stage, the House of Commons will consider the amendments made in the House of Lords.

The clauses of particular interest to planning are as follows:

• Environmental targets for air quality water, biodiversity, resource efficiency and waste reduction and soil health and quality.
  
  
• A 'policy statement on environmental principles' explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown (in England and for reserved matters in Scotland) when making policy.
  
  
• The establishment of the Office for Environmental Protection.
  
  
• Provisions relating to water and waste, which will have particular impacts on those sectors and consequential impacts on their planning.
  
  
• Biodiversity net gain becoming a condition of planning permission and a requirement for nationally significant infrastructure projects.
  
  
• A system of purchasing biodiversity credits in order that developments can meet the biodiversity net gain objective.
  
  
• Local nature recovery strategies covering the whole of England, with boundaries to be determined by the Environment Secretary.
  
  
• Species conservation strategies and protected site strategies.
  
  
• A power for the Secretary of State for the Environment, Food and Rural Affairs to amend general duties within the Habitats Regulations.
  
  
• An enforcement power to control the felling of trees in England.
  
  
• A new requirement that the Government implements an enhanced protection standard for ancient woodland in England (narrowly added to the Bill via an amendment in the Lords and likely to be removed by the Government and a version of it potentially added back by the Lords during ping pong).

The environmental targets will be set by regulations, which will specify the standard to be achieved and the date by which it is to be achieved.

DEFRA has consulted on the draft policy statement on environmental principles “which sets out how those five internationally recognised environmental principles should be interpreted and proportionately applied” and a response is now due.

The Office for Environmental Protection (OEP) is already operating on an interim basis until its legal powers are obtained following the Royal Assent of the Bill. The OEP anticipates being fully operational from January 2022.

In terms of timescales for the introduction of a legal requirement for biodiversity net gain, a written question from Conservative MP Bim Afolami asked about “the potential merits of a pilot scheme to consider the impact of biodiversity net gain in 2022 and 2023 before its full implementation in 2024”.

The Environment Minister, Rebecca Pow MP replied with reference to current policies and discussions with the development sector saying:

“Some aspects of the biodiversity net gain policy were tested, and evaluated, as part of the biodiversity offsetting pilots which took place from 2012 to 2014. We will shortly be consulting formally on more details of biodiversity net gain’s implementation and will consider which components of the approach might benefit from pre-commencement testing as part of this”.

For an overview of biodiversity net gain in current national policy and in forthcoming legislation we recommend Simon Ricketts' blog “Ecology By Numbers: Biodiversity Net Gain In The Environment Bill”