News
England planning news, April 2022
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Planning reform and changes: recent announcements and reports
Infrastructure provision and housing mix and design remain central to planning-related debates in Parliament, as Government ministers hint more frequently that an announcement on changes to the planning system is around the corner – perhaps in advance of the Queen’s speech on 10 May.
The Government has published responses to the House of Lords Built Environment Committee report on Meeting Housing Demand and to the House of Commons Levelling Up Housing and Communities (LUHC) Committee sixth report on Supporting Our High Streets After COVID-19 (‘the High Streets report’).
Both responses have provided updates on planning reform and changes to the existing system. Below, we provide an overview of the Government’s response to Meeting Housing Demand, together with excerpts from the response to the High Streets report and related news, including from oral contributions in Parliament. Lichfields summary of the Meeting Housing Demand Report, published in January, is here.
Housing delivery and mix
- The Government is currently considering how to ensure the planning system continues to provide for a diverse range of housing needs, including older peoples housing, through the upcoming changes to the planning system (see also the story on older people’s housing below).
- The Government has rejected the recommendation of pilot schemes to facilitate residential development on land around railway stations close to major cities, including releasing some Green Belt or agricultural land with Green Belt land potentially offset through land swaps.
- Responding to the Committee’s view that the Government should consider options to update the calculation of housing targets as soon as possible, because the 35% uplift in housing targets in the 20 largest urban areas has affected the delivery of local plans and risks backlash from local communities, the Government said: “As with all policies we will monitor the impact of the new standard method, particularly as the impact of changes to the way we live and work and levelling up become clear”.
- The Committee found that even with increased development through SMEs, build to rent, self-commissioned homes and local authorities, building will likely still fall short of the 300,000 target. The Government quoted various funds and a desire to diversify the market as the way that this will be addressed.
- In an earlier debate on planning permission and housing need in Wealden, the Housing Minister said: “For as long as local authorities fail to demonstrate a five-year housing land supply, they will be more at risk of appeals and speculative planning applications being successful. That said, we are reviewing the planning system, including the role of the five-year housing land supply policy, and considering its alignment with and support of the levelling-up agenda”. There was no indication that the housing delivery test would be altered or rescinded.
Plan-making
- Simplifying the content of local plans and standardising the process for producing them is still considered important by the Government, which is considering how to do this as part of the upcoming changes to the planning system, including how best to support local planning authorities.
- Neighbourhood planning will be retained in the “new system”.
- In the response to the High Streets report, the Government reiterated the importance getting up-to-date Local Plans in place by December 2023.
Build out rates
- There is confirmation that the Government is still exploring further options to support prompt and faster build-out of sites, which are intended to support diversification by providing small builders with more speed and certainty in the planning process. In the debate on planning permission and housing need in Wealden, the Housing Minister had said of build out rates “That is an area in which I am taking a personal interest”. Albeit he also added “it is for local authorities and developers to work closely together at a local level to overcome the barriers”.
Resourcing
- Options to increase planning fees are being explored “We have also committed to developing a comprehensive resources and skills strategy for the planning sector to support the implementation of our changes to the planning system”.[1]
- Acknowledging that there are some local planning authorities with particularly complex challenges that need additional external support to address their skills and resourcing issues “the skills strategy which we have committed to will support the implementation of changes at the local level”.
- Work with the design code pathfinders is intended to help the Government understand the level of support local authorities will need to produce local design codes (see below).
Design, digitisation and community engagement
- 21 local authorities and 4 neighbourhood planning groups have been awarded a share of £3 million as part of the Design Code Pathfinder Programme. The programme is intended to empower communities to have their say on the development of new homes, buildings and amenities, such as shops and workspace, in their area and help restore people’s pride in the places they live. Local councils and neighbourhood planning groups throughout England will benefit from the work of the pathfinders through the sharing of lessons learnt and good practice. The design codes will be used as examples that communities across the country can draw on to produce their own, with support from the Office for Place. This is in addition to grants made to the 14 authorities in the design code pilot.
- Traditional forms of engagement will be supported by digitisation in changes proposed to the planning system. £3.25 million from the Proptech Engagement Fund has been awarded to 28 projects across England to support the introduction of new digital tools that will seek to make the planning system more open, engaging and accessible.
Housing tenure and standards
- Support for, and an agreement to continue to engage with industry on Build to Rent - “this important area of the housebuilding sector”; the Built Environment Committee had welcomed its expansion where it contributes towards a net addition to housing supply.
- Disagreement with the Committee’s conclusion that “In the long term, funding for home ownership schemes do not provide good value for money, which would be better spent on increasing housing supply”.
- Maintaining commitment to the Right to Buy, which the Committee said should be reformed to help councils replenish their social housing stock.
- The responses to the 2020 accessibility standards in building regulations consultation are still being considered.
Infrastructure levy
The Government re-stated in the response to Meeting Housing Demand that the proposed new infrastructure levy model is intended to:
- reduce complexity and uncertainty and enhance the transparency of developer contributions.
- deliver at least as much, if not more, value and onsite affordable housing as is currently collected.
- be based on final sales values, so that more land value uplift could be captured.
- better support the timely delivery of infrastructure; accordingly local authorities would be allowed to borrow against Infrastructure Levy revenues so that they could forward fund such infrastructure.
- be collected and spent locally.
- be non-negotiable “reducing the delays and uncertainty that section 106 planning obligations can be subject to”.
“With greater certainty around costs, and the ability to factor expenditure into the price paid for land, this should mean that affordable housing and infrastructure delivery is improved”.
Permitted development and town centres
- The Government said that permitted development rights are kept under review and will continue to be, in its response to Meeting Housing Demand. The Government aims to publish a response to the LUHC Select Committee inquiry report into permitted development rights “in due course".
- In the High Streets report, the LUHC Committee said it was not persuaded that the Government has sufficient evidence to justify extending permitted development rights to change of use from Use Class E to residential, without any pilots. The Government responded “We accept that this permitted development right has potential to deliver significant change. It is our view that the structural changes in our town centres require effective action to bring about change”. The Government referred to the “recently amended national policy in respect of Article 4 directions to ensure that they are targeted and well-evidenced so that there is a clear justification for their introduction and must only apply to the smallest geographical area possible to accomplish their objective”.
- At the end of February, the Housing Minister wrote to seven inner London Boroughs requesting they reconsider the introduction of Article 4 Directions removing Class E to residential permitted development rights that would cover the majority of London’s Central Activities Zone (CAZ). See Lichfields’ London Planning News for more on this.
- The Government does not expect the proposed changes to flexible working legislation to have a significant impact on the high street overall.
- The Government says it recognises “the important link between parking provision and the vitality of our high streets and town centres, especially in towns outside of London where transport infrastructure does not allow citizens to use public transport”. The Government says it wants to increase green infrastructure, active travel, parking and accessibility.
Review of funding allocation mechanisms
The LUHC Committee criticised funding competitions and said that funding for active travel should be fairly allocated and ringfenced. In its response to the High Streets report the Governments says it recognises that funding competitions have their shortcomings, and they will carefully consider this recommendation in deciding active travel funding allocations, working with Active Travel England (see also the story below on Active Travel England).
Related to this, and in response to its approach to criticism that allocating funding to local government generally is too complex, short-term, and fragmented, the Government said it will set out a plan for streamlining the funding landscape later this year:
“This review will be guided by the following principles:
- reducing the unnecessary proliferation of individual funding pots with varied delivery approaches;
- streamlining bidding, and supporting greater alignment between revenue and capital sources;
- ensuring places have robust ongoing monitoring and evaluation plans for the impact and delivery of investments and spending; and
- tailoring investment and delivery to the local institutional landscape of each nation of the UK”.
The Future of Freight
In its response to the High Streets report, the Government says “Future of Freight”, a long-term cross-modal strategic plan co-developed with the freight and logistics sector, will be published in “early 2022”: “The plan will help deliver an efficient, resilient and environmentally sustainable freight system and will speak to the role of the planning system and the provision of zero carbon energy infrastructure for freight across the whole freight system”.
Timing of new planning policy and legislation
The DLUHC Permanent Secretary has confirmed that planning reform or changes to the existing system will be brought forward in a Levelling Up and Regeneration Bill, which will not include all the proposals in the August 2020 White Paper. Jeremy Pocklington was giving evidence to the Levelling Up, Housing and Communities Commons Select Committee.
Details on what is to be included in the Levelling Up and Regeneration Bill and other planning related announcements are likely to be made in the Queen’s Speech on 10 May, or before.
Baroness Bloomfield concluded the 25 March 2022 on Housing for Older People debate (see below) by saying “More detail will of course be announced in due course, and I am aware that a planning White Paper is due to come out shortly”.
This is perhaps a further consultation associated with announcements that might be made in the Queen’s speech. Lichfields has not come across other references to an imminent White Paper or consultation, with the exception of the active consultation with local authorities on the design of the infrastructure levy as referred to by the Housing Minister in the debate on General Practice and Large Housing Developments (see below).
In the response to the High Streets report the Government said that it will provide further details on its reforms to compulsory purchase shortly.
In separate but related news on changes to planning-related procedures, five organisations including Lawyers in Local Government and the Association of Democratic Services Officers have prepared a model motion for Councils to use to lobby the Government to make virtual meetings possible.
Her Majesty’s Government’s response to the House of Lords Built Environment Committee report on Meeting Housing Demand
Her Majesty’s Government’s response to the Levelling Up, Housing and Communities Select Committee’s sixth report on Supporting Our High Streets After COVID-19
UK Parliament Hansard, Planning Permission and Housing Need: Wealden
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Quote of the month |
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My Lords, our Built Environment Committee report made it clear that, if the number of new homes is to be increased, improvements are needed in several areas of public policy, especially planning. More than half of all authorities have no local plans, with Slough the latest to drop its plan because of uncertainty. Will the Government do everything possible—there are examples in the report—to ensure that the defect is remedied and that we have homes of all tenures for everybody to live in?
Baroness Neville-Rolfe, Chair of the Built Environment Committee during a House of Lords debate on the Government’s housebuilding target, 30 March 2022 |
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Further Natural England advice leads to more housing and leisure decision delays
Natural England advice setting out requirements relating to Habitats Regulation Assessment of protected sites can have the effect of preventing certain planning decisions being made. Protected sites include Special Areas of Conservation, Special Protection Areas and Ramsar sites.
While the issuing of such advice is not new, advice has been issued to 74 local planning authorities at the same time, 42 of which had not received Natural England advice on this matter in the past.
Written Ministerial Statement
This follows a written ministerial statement from the Environment Secretary on 16 March 2022:
"Many of our most internationally important water bodies are designated as protected sites under the Conservation of Habitats and Species Regulations 2017. Under the Habitats Regulations, competent authorities, such as local planning authorities and the Environment Agency, must assess the environmental impact of planning applications or local plans. As a result of these regulations and European case law, Natural England has advised that in areas where protected sites are in ‘unfavourable condition’ due to nutrient pollution, Local Planning Authorities can only approve a project if they are certain it will have no negative effect on the protected site.
"Following further work to understand the sources of site deterioration, Natural England has today issued updated advice and support to the 32 Local Planning Authorities currently affected by nutrient pollution, as well as 42 new LPAs. So far this approach has too often been complex, time-consuming and costly to apply, and government is clear that action is needed to make sure that we both deliver the homes communities need and address pollution at source."
The statement goes on to explain that Natural England has devised “a ‘nutrient calculator’ to enable development to take place in a sustainable way” and that £100,000 grants are available to each affected catchment “to support cross-Local Authority work to meet Natural England requirements and enable development to continue”.
The written ministerial statement concludes by saying that legislation to further strengthen requirements to reduce nutrients at source will be brought into force.
Natural England advice letter
On the same day Natural England issued a 25 page advice letter to the affected authorities. According to a subsequent letter from the Leader of Havant Council to the Levelling Up Secretary and the Housing Minister, the letter was issued with no prior warning.
Tables setting out the affected LPAs are included within Annex C of the letter. Table 1 shows “Existing sites in unfavourable condition due to excessive nutrients which require a Habitats Regulations Assessment (HRA) and where nutrient neutrality is being deployed as mitigation”. It identifies the habitats site and catchment, the LPAs affected within that catchment, the type of nutrient to which the advice applies and provides a summary of the development types affected by the advice. The table also shows whether there is Nutrient Neutrality Methodology and Calculator produced by Natural England or LPA. However, there is a footnote stating “Nutrient neutrality calculators have been provided for all the catchments listed above, even where there is an existing nutrient neutrality calculator”. So even where nutrient neutrality calculators were in place, Natural England has made changes that are likely to make mitigation more difficult. Some of these LPAs have received new advice regarding other catchments too.
Table 2 of Annex C is a list of “Additional habitats sites in unfavourable condition due to excessive nutrients which require a Habitats Regulations Assessment (HRA) and where nutrient neutrality is a potential solution to enable development to proceed”. This table simply identifies the habitats site and catchment and the LPAs affected within that catchment and the type of nutrient to which the advice applies. These are the LPAs that have previously not been issued with advice.
The advice letter affects proposed developments for all types of overnight accommodation including new homes, student accommodation, care homes, tourism attractions and tourist accommodation and permitted development for new overnight accommodation.
Chief Planner letter
A letter from the Chief Planner to the affected LPAs said:
"For planning applications in the affected areas, this means you need to consider the possibility of adverse effects, as a result of additional nutrient loads (including from residential developments); as part of a Habitat Regulations Assessment (HRA).
"In practical terms, this means that before granting any new permissions following the receipt of the Natural England advice, you will need to be confident that the development in question does not require nutrient neutrality to be acceptable under the regulations or that nutrient neutrality is secured, as part of the proposal. […]
"I appreciate that this will have an immediate impact on planning applications and appeals in affected areas. There may be a need to reconsider the acceptability of current proposals, in light of the advice issued. […]
"We recognise that in the newly affected areas, it is unlikely for there to be mitigation solutions in-place or readily available and so the ability for development to be made acceptable will be necessarily limited in the short term. As we have seen in catchments already affected by similar advice, it may take time for applicants to secure mitigation to be able to demonstrate neutrality”.
More than a development industry matter
A Natural England blog, published on 18 March acknowledges:
“The sources of excess nutrients include sewage treatment works, septic tanks, livestock, arable farming and industrial processes. These are long-running issues spanning decades and will be complex to resolve”.
It continues:
“The best we can do in the short term is to stop the situation getting worse which is why we have developed a neutral approach to nutrients. This isn’t legalistically driven, it’s an environmental imperative that the regulatory safety net has caught. In the long term we need to work in partnership across catchments and sectors to enact Environment Act targets of reducing nutrient pollution in water by reducing phosphorus loading from treated wastewater by 80 per cent by 2037 and reducing nitrogen, phosphorous and sediment from agriculture to the water environment by 40 per cent by 2037”.
Comment
Harry Bennett’s Lichfields Planning Matters blog considers the impact of the Natural England nutrient neutrality advice on the requirement for LPAs to demonstrate a five-year housing land supply of deliverable sites, with reference to a recent appeal decision. This is the first in a series of Lichfields blogs on the matter – you can subscribe at the end of any blog page.
For an insightful discussion on the broader and legal implications of the latest Natural England advice we recommend the Clubhouse sessions convened by Simon Ricketts of Town Legal “More Natural England development bans : what to do?” and also Simon’s blogs.
Water neutrality
In addition to nutrient neutrality, there are existing requirements to be water neutral in parts of North Sussex within that fall within parts of Crawley, Arun, Chichester and Horsham LPAs. A position statement with an interim approach having been issued by Natural England in September 2021.
Strategic solutions for recreational pressure
And on 14 March 2022, Natural England issued advice to Buckinghamshire Council (Aylesbury Vale and Chiltern Districts), Central Bedfordshire Council, Dacorum Borough Council, St Albans City and District Council, and Hertfordshire County Council. The advice is in respect of concerns about recreational pressure on Ashridge Commons and Woods Site of Special Scientific Interest (SSSI) within the Chilterns Beechwoods Special Area of Conservation (SAC) and says that a strategic solution to that pressure is required.
“Natural England understand that Strategic Solutions can be a time consuming process, and will lead to a period of time where strategic-level mitigation hasn’t yet been identified. During this period we advise that HRAs will be needed, detailing how each individual site is going to avoid adverse impacts on the integrity of the Chilterns Beechwoods SAC. This is for all planning applications that result in a net increase in dwellings, within the entire 500m – 12.6km ZOI”.
The advice also refers to around 20 existing Strategic Solutions nationally and notes:
“The tests of the 2019 Habitats Regulations (EU exit amendment) are a high bar to pass for any individual planning application. In essence each application would need to prove that in itself it wouldn’t harm the SAC either alone or in combination with all other planning applications in the ZOI”.
Lichfields Planning Matters, Nutrient Neutrality – A housing supply headache
Map of the Sussex North Water Supply Zone, uploaded by Horsham Council
Calls for cross-departmental improvements to healthcare and provision of housing for older people
In a House of Lords debate on Housing for Older People, Baroness Bloomfield of Hinton Waldrist was asked about the progress the Government has made towards establishing a cross-departmental taskforce on housing for older people.
Baroness Bloomfield said the new task force will be launched soon and will encompass a range of views from across the industry, from investment to housebuilders to local authorities, and will be led by Stuart Andrew, Housing Minister at DLUHC, assisted by Gillian Keegan, Minister at the Department of Health and Social Care.
In its response to the Report the Government had explained that the taskforce would look at regional disparities in supply of appropriate and specialised housing for older people. In addition to the Housing Minister and the Care Minister it will include sector representatives, who will examine where central and local government can best intervene, considering a range of possible levers.
UK Parliament Hansard, Housing for Older People, 25 March 2022
In a debate secured by Conservative MP Andrew Selous to consider general practice capacity for large-scale housing developments, Mr Selous argued that “we know that we need to build more homes” but that frequent opposition from existing residents is in relation to healthcare provision for new residents.
The Housing Minister’s response to points made focussed on the future infrastructure levy, which he said he hoped would emerge “in a couple of weeks”.
However, many of the mostly Tory backbench MPs taking part in the debate said that this response was not enough, given that there is an existing problem, which future development is being expected to compensate for. There were also criticisms of a lack of strategic planning, including Labour MP Matthew Pennycock saying there had been a “failure of central Government to take a clear strategic role in the delivery of new large-scale communities”.
Rt Hon Theresa Villiers MP said that the issue related to a lack of doctors, rather than of premises. Aylesbury MP Rob Butler MP sought a strategic plan with novel ways of financing infrastructure “It cannot be left to a random soup of acronyms - section 106, CIL and HIF”.
Sir Gavin Williamson MP did criticise the planning contributions system and asked whether any development had been refused due to lack of healthcare provision “My guess is that the answer is probably zero, and that in itself sends a message to developers that they can get away with not having to bother with this”.
The Housing Minister explained the premise of the proposed new Infrastructure Levy, but Mr Selous reiterated that it was not only about the future:
“My final point is incredibly important. What the Minister is about to bring in must not just be future-looking. We all now have massive estates that are under-provisioned. He cannot just look to the future; he must deal with the current problem, which the existing system has allowed to get into a terrible state”.
The Housing Minister said that DLUHC “strongly encourages planning authorities to consult them when new homes are being built, so that they can raise those all-important questions on the number of GPs needed”.
However, consulting with the NHS or the NHS monitoring planning applications and responding to consultations has caused some tensions in terms of which infrastructure and requirements that s106 monies should be applied to.
Judgement regarding rejection of late, unfounded requests for healthcare contributions
This Parliamentary debate came just over a week after judgment was handed down in R (HFAG Ltd) v Buckinghamshire Council, a case about the lawfulness of Buckinghamshire Council’s decision not to require s106 planning contributions requested by Buckinghamshire Healthcare NHS Trust (BHT) and NHS Buckinghamshire Clinical Commissioning Group (CCG). The site subject of the challenge is in Weston Turville, in Aylesbury; Rob Butler MP’s constituency, which adjoins Andrew Selous MP’s constituency.
The claim was brought by a residents’ group, HFAG, not by the CCG or BHT.
The judgment is focused on whether officers materially misled members; it was concluded they did not and the claim failed on all grounds. The case is of interest in the context of the above Parliamentary debate, given the late and repeated submissions of requests for contributions from the two healthcare bodies, who did not appear at the hearing and were not represented.
In October 2017, Members resolved to grant outline planning application for a mixed use sustainable urban extension, subject to the resolution of a s106 agreement for contributions including a 600sqm health centre to shell and core. In 2018, the application had not been approved and the CCG made representations seeking a financial contribution for a larger primary healthcare facility, which would also meet the needs of new populations from other developments in the area. In April 2019, having been consulted on the s106 agreement, the CCG said they had no amendments to propose, but then made further requests. This included a high level report on a potential strategic facility in November 2020.
In April 2019, BHT made representations seeking more than £5m to cover the cost of the estimated increased demand for secondary and tertiary health care arising from the new population in the Development. In August 2019, the Council advised BHT that the contributions sought did not meet the CIL tests, as they did not demonstrably arise from the Development and therefore were not necessary to make the Development acceptable in planning terms and maintained this position.
The application was to be determined on 24 February 2021 (the application had to go back to Committee for determination due to a revised transport strategy).
On 11 February 2021, BHT “made a request for a financial contribution of some £2,754,821 towards the capital costs of six “key facilities projects” in respect of which BHT “has a funding gap of £13.5m, which development contributions will be required to mitigate”.
The day before the planning committee the CCG “submitted a request for a financial contribution of £2,189,372.41 calculated on a new basis. This put forward an assessment for an additional 419.32sqm of net internal primary care floorspace “to support [the] new population”. Neither the floorspace calculation nor the financial contribution were explained or any detailed justification offered, other than that GP surgeries were already full”.
The officers reported to Committee that the information submitted was insufficient to meet the requirements of the CIL Regulations. They recommended that a decision be made in advance of more detailed information. This was because delaying a decision due to the uncertainty around the contributions must be weighed against the difficulties that would be created in terms of meeting the five year housing land supply, given that the scheme included an important component of the transport strategy for Aylesbury.
The Committee resolved to grant the application and it was approved in June 2021. BHT and the CCG complained about the way their requests and the application were handled.
The Hon. Ms Justice Lang found, among other things, that there was ample material to justify officer advice. Officers and members considered the CCG’s request but did not have to accept them. They had given regard to the BHT’s request but rationally concluded that it could not meet the CIL tests.
The judge concluded:
“I agree with the Council’s submissions that, on close examination, the Claimant’s case amounts to no more than thinly-veiled disagreements with the Council’s lawful exercise of planning judgment”.
According to Francis Taylor Building, this is the first judgment on a challenge to the exercise of a local planning authority’s planning judgement as to whether to require cash contributions from developers towards healthcare services and/or infrastructure.
UK Parliament Hansard, General Practice: Large Housing Developments, 29 March 2022
FTB Chambers, Challenge to Health Contribution Decision Dismissed, R (HFAG Ltd) v Buckinghamshire Council
A developer’s claim for judicial review in respect of the late issue of a CIL liability notice has highlighted the confusion that can arise when procedures are not followed in the order anticipated by the regulations.
The claim failed because it was brought several months after a compromise position (a bespoke payment plan) had been reached. It was when the compromise position had been agreed that the claim should have been brought, not when a later liability notice was issued following an appeal regarding a surcharge for non-payment.
The specifics of the case mean similar situations will be unusual, but it provides helpful reminders, such as:
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Liability notices should be served as soon as practicable after planning permissions are granted, including s73 planning permissions.
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Collecting authorities may serve a revised liability notice, in lieu of a liability notice in effect, at any time.
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The issue of a revised liability notice does not mean that earlier liability notices cease to exist; they cease to have effect.
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Notices should be served on a named person, not solely on a business (an Inspector’s decision, quoted in the judgment).
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Where procedures have fallen out of sync, agreeing a pragmatic a way forward will usually be the best solution, but at that point the ability to challenge procedural errors may fall away.
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Once review, appeal and/or challenge periods are over, the liability must be paid and the requirements of the CIL Regulations must be followed.
Braithwaite & Another, R (On the Application Of) v East Suffolk Council
The Government has published its ‘British Energy Security Strategy policy paper’. The paper outlines how renewable energy sources will develop and how other energy sources will contribute towards Britain’s energy portfolio. The strategy has promised to review the planning barriers to installing energy efficient measures, including in conservation areas and listed buildings. This process will be finished by the end of 2022.
Notable changes in the energy strategy include reducing the time it takes to get consent for offshore wind projects to one year, down from four. Habitats Regulations Assessments (HRAs) are to be reviewed for all projects requiring HRAs, to maintain wildlife protection while limiting the amount of work required. The Government has also committed to supporting onshore wind projects. A consultation has been announced which will look at developing local partnerships for a limited number of communities who wish to host new onshore wind infrastructure in return for benefits, including lower energy bills. The consultation will focus on how local communities, authorities and MP’s can show support for onshore wind projects. The consultation will also include an Offshore Coordination Support Scheme which will support delivery of advanced offshore wind projects.
Another consultation will focus on amending legislation to facilitate development of ground-mounted solar projects on non-designated land. A further consultation will cover rooftop solar and changing permitted development rights so that it becomes easier to utilise public sector rooftops and install solar panels on roofs. The policy paper highlights the need to update National Policy Statements so that electricity network infrastructure is supported in the planning system, providing certainty for the planning inspectorate and developers, enabling faster delivery of key infrastructure.
A review will also look at the possibility of fracking. The British Geological Society will undertake a review which will consider updates on seismicity. A pause on shale gas extraction will remain unless new evidence emerges to support fracking. All new homes will also be designed to fit smart metres from the outset in advance of the Future Homes and Building Standards by 2024.
Department for Business, Energy and Industrial Strategy, British energy security strategy
Building Safety: New Tax, proposed levy and prohibitions on development
The legislation introducing the UK wide Residential Property Developer Tax came into force on 1 April 2022. This is a new 4% tax which will apply to the largest residential property developers on the profits they make on UK residential property development. It will affect companies or groups of companies undertaking UK residential property development with annual profits in excess of £25 million and is to contribute towards the cost of removing unsafe cladding.
In related news, amendments have been made to Clause 127 the Building Safety Bill (previously Clause 131) which allow the Secretary of State to prohibit a developer from carrying out development, despite there being a planning permission in place. As a result of the amendments, the powers under Clause 127 will only be effective where a person is eligible for membership under the Building Industry Scheme (Clause 125), though is not a member of this scheme.
The Housing Minister explained in a Written Answer:
“We have tabled amendments to the Building Safety Bill to give the Secretary of State the power to stop new planning permissions being developed by major residential developers who have not committed to act responsibly to resolve the building safety crisis".
"If a qualifying developer does undertake development, this would be a breach of planning control and subject to enforcement action.
"Any planning permission that is granted for land owned by these developers would remain valid; this would enable this land to be sold to responsible developers to be developed by them instead”.
The full details are awaited of the Building Safety Levy, which is to apply to building control stage of developments for residential buildings or care homes over 18m or 7 storeys, subject to exclusions. The outcome of the consultation has not been published, but the details known so far are in an update to the Building Safety Levy factsheet, published on 5 April 2022. It says:
“The government will make a decision on the eventual levy rate, informed by the evidence received from our consultation, and balancing revenue raised with potential impacts on housing supply and developers. The levy rate will be set out in regulations and may be varied over time”.
In oral evidence to the Levelling Up, Housing and Communities Committee, Richard Goodman, Director General of Building Safety, Grenfell and Net Zero said:
“I do not think it will be any surprise to anyone that the open-endedness of that levy is related to the way in which the development sector responds to that request. I cannot speak for Ministers on timing but I think it would be unlikely that they would give a view on that before they know what the development sector will do with its voluntary solution. The Secretary of State has been clear that he will look at the law after that and has given the Department the power to be able to do so”.
Further to these announcements, 36 developers have now signed a pledge to remediate buildings over 11 metres where 'life critical fire safety' works are identified as necessary, in buildings they have played a role in developing or refurbishing in the last 30 years (in England). All of those who have entered into the pledge will be expected to sign a legally agreement reflecting the pledge.
HM Parliament, Written Answer on Property Development, 1 March 2022
Finance Act 2022, Part 2, Residential Property Developer Tax
Lichfields Planning News May 2021, Cladding remediation: Residential Property Developer Tax consultation
Building Safety Bill, HL Bill 144 (as amended on Report), 29 March 2o22
HM Government, Building Safety Levy: factsheet
DLUHC, List of developers who have signed building safety repairs pledge
Government pulls back from OxCam Arc
The Government has reduced its involvement in the OxCam Arc. A report to elected Members of South Cambridgeshire District Council has stated that central government will “not be taking the project forward centrally” and has encouraged the project be led at a local level. The implications of this for the future of the OxCam Arc are discussed in greater detail in this Lichfields Planning Matters blog. The Arc had previously been prioritised under Theresa May and a consultation was held by the Ministry of Housing, Communities and Local Government in July 2021 on the spatial framework. This consultation noted that that national planning policy status "will allow it to have significant weight in the planning system for guiding local plan production and in decision-making”. Mention of the OxCam Arc was also omitted from the Levelling Up White Paper which was published in February 2022.
Lichfields blog, 'What a deb-Arc-le: The fall of the OxCam Arc'
South Cambridgeshire District Council, Council meeting, 22 February 2022
In 2020 the Government published a cycling and walking plan for England called ‘Gear Change’ which confirmed the establishment of a new statutory consultee, ‘Active Travel England’ (ATE). Gear Change notes that ATE will act as a statutory consultee in planning to encourage new developments over a certain size to incorporate adequate walking and cycling opportunities and to provide advice on how provision can be improved. This was confirmed by Chief Planner Joanna Averley in her February 2022 newsletter. The newsletter also confirmed that this will require a change in the Development Management Procedure Order (2015). In the Chief Planner newsletter for April 2022, it was noted that the Department of Transport has now published a stakeholder survey which seeks views on the role of ATE in planning active travel infrastructure and its capacity as a statutory consultee on major applications. Late 2022 is now the target for ATE to achieve statutory consultee status.
Chief Planner newsletter - February 2022
Gear change: a bold vision for cycling and walking
Chief Planner newsletter, April 2022
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The Lichfields perspective |
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The indications are that there will be announcements very soon regarding amendments and reform to the planning system. This is most welcome, particularly given the need for change and the delays to plan-making and decision-making caused by uncertainties.
Jennie Baker, Associate Director |
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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
[1] Of relevance, Scottish planning fees were increased significantly this month, see Lichfields Scotland Planning News