The White Paper

Local Plans

a.     The ‘sustainable development’ test

Under the proposals, plans will be submitted for examination alongside a formal consultation period. Inspectors can make changes to plans if they think these are required to pass the statutory test.

One practical issue will be situations where an Inspector concludes that the plan as submitted requires more ‘deliverable’ land to be allocated in order to meet the binding housing requirement. Where would that extra land come from?

First, the new sites will need to be identified and put before the Inspector. This could be by the LPA providing to the Inspector all the ‘omission’ sites that were submitted to them in response to the “calls for” suggestion process, providing a ‘long list’ of alternatives, which could be supplemented via the examination, and the LPA then advising the Inspector of their preferred sites.

Second, if these extra sites (which could be Renewal or Growth designations) were then to be included in the plan by the Inspector, there would – presumably - be a process by which the impacts were assessed in terms of Strategic Environmental Assessment (or future equivalent) and the parameters/agreed in cooperation with the LPA. This could be achieved through a requirement for objectors to have their omission sites tested through the examination in the same way as allocations. But those ‘omission sites’ if included would presumably also need to be consulted upon, as otherwise the principles of community engagement espoused by the White Paper would be frustrated.

This is not an insurmountable problem: perhaps those with omission sites could be required to carry out their own consultation and environmental assessment and submit the results to the Inspector. But it is worth noting that during that nine month examination window, there would need to be a framework for potentially two iterations of the plan (as submitted, and then as amended by the Inspector) to be tested.

[1] A 42 months period is allowed for transitional arrangements in some cases.

‘Top Down’ Housing Requirements

In 2009, Caroline Spelman MP - then Shadow Secretary of State for Communities & Local Government wrote to local authorities advising that a Conservative Government would abolish “national and regional building targets”[2]. The then shadow Housing Minister, Grant Shapps MP said “We don't believe in a top-down approach that is Stalinist in nature”. In his first abortive attempt to cancel Regional Strategies[3], Eric Pickles MP described them as “Soviet tractor style top-down planning targets”.

Indeed, the consultation itself says: “we have democratised and localised the planning process by abolishing the topdown regional strategies and unelected regional planning bodies, and empowered communities to prepare a plan for their area”.

In light of this, one of the more eyebrow-raising changes advocated in the White Paper is Proposal 4: for the Government to introduce a standard method for setting – at a national level - a “binding” housing requirement figure for each local planning authority. This is distinct from the current (and shortly to be updated) Standard Method for local housing need. The latter is ‘policy-off’ (a figure for local housing need [LHN] against which plan makers currently balance constraints in their area to set a local target in their plan) whereas the former would be the ‘policy on’ figure[4] that has already taken account of land constraints, for which a local plan must provide. By taking into account the constraints on housing land in an area, it also removes the need for the duty to cooperate to address unmet need.

“The extent of land constraints in an area to ensure that the requirement figure takes into account the practical limitations that some areas might face, including the presence of designated areas of environmental and heritage value, the Green Belt and flood risk. For example, areas in National Parks are highly desirable and housing supply has not kept up with demand; however, the whole purpose of National Parks would be undermined by multiple large scale housing developments so a standard method should factor this in;”

• This sounds logical, but there are practical issues to grapple with. Precisely how will the constraints be factored in? Are they an absolute constraint (the way the National Park balance is described would suggest not) and what will be the evidential basis for balancing need vs the constraint in each area? A number of LPAs have extremely limited non-Green Belt land (Sevenoaks and Tandridge are 90+% Green Belt, for example). Under the current plan making system, they balance need against the relative value of individual parcels of Green Belt land, consider sustainable patterns of development, and use planning judgement to decide whether or not they can meet that need (para 2.26 of the document says current Green Belt policy would remain, e.g. exceptional circumstances for LPAs to release Green Belt). But the responsibility for setting the housing numbers that would demand Green Belt release would now pass to the Government.

“The opportunities to better use existing brownfield land for housing, including through greater densification. The requirement figure will expect these opportunities to have been utilised fully before land constraints are taken into account;”

• The recent new London Plan (NLP) tells us how difficult it is to make robust estimates of the capacity of brownfield land and densification: there may be a physical capacity to accommodate housing, or – for example – to knock down large houses in suburbs and build apartments, but quantifying the realistic contribution they might make over a plan period is difficult. The NLP Inspectors described the Mayor’s estimates as “insufficiently accurate to give a true picture of the likely available capacity. As such, it does not provide a reliable input to the overall targets”[5]. Brownfield registers and SHLAAs can provide information, but great care will be required to avoid setting unrealistic targets in tightly bound urban areas.
  
  

“The need to make an allowance for land required for other (non-residential) development;”

• The method will need some form of evidential basis on the requirement for land-hungry uses such as E-class activities like logistics. What will this be based on?
   

“Inclusion of an appropriate buffer to ensure enough land is provided to account for the drop off rate between permissions and completions as well as offering sufficient choice to the market.”

• This is a factor that is currently considered as part of the land supply exercise, rather than in setting the housing requirement. The buffer appropriate for each area will depend on the lapse rate which can vary significantly between areas, and the type of land that is allocated. Applying a 20% drop off rate might be appropriate in one area, but not in another (e.g. London, where it is much higher). Might this be better left for local plans to address?
  
  

At first blush, there are a series of practical and political questions to be answered in this undoubtedly radical proposal:

1. Is the balance of need vs constraint and other issues to be an algorithmic exercise or one that involves an exercise of planning judgment and wider spatial strategy?
2. Should it take account of planned infrastructure, economic growth objectives, or initiatives such as OxCam Arc, the Thames Gateway, Northern Powerhouse and other factors? If so, how? Does it effectively involve creating a national spatial strategy for England?
3. However formulated, how transparent should the Government be in explaining how it derives the specific numbers in each area?
4. What land use datasets should be used within the standard method, how should they be gathered, and how do we ensure they are interpreted correctly and without double handling issues via overlapping datasets?
5. How would the housing trajectories of existing land supply commitments be taken into account and who would validate their realism? How would lead-in times for the potential capacity of land to be converted into homes be reflected?
6. How often would the exercise be carried out to to generate up-to-date requirement figures? Would it or its results be consulted upon each time?
7. Under the SEA Directive, setting a binding housing requirement for a local area has been taken to comprise a plan or programme that would require strategic environmental assessment. Were this legal requirement to continue, how would the Government address this obligation each time it applies the standard method?
8. Reflecting on the multiplicity of legal challenges to Regional Strategies in the late 2000s, how will the standard method be resilient to legal challenge from local planning authorities or third parties who do not like their binding number?
9. Will a centrally imposed standard method prove resilient in the face of local political representations, for example, from constituency MPs who don’t like the result for their area? What about the politics of marginal constituencies? The current Government has a large parliamentary majority, and may well have sufficient political capital to impose ‘top down’ targets; but what happens if a future Government has more perilous parliamentary arithmetic, or the results of the standard method are to be generated in the run up to a general election?
   
   

Turning the concept into reality poses some thorny questions and the Government states it will consider further the options for doing this and welcomes proposals. The sector needs to get its thinking caps on. The White Paper does provide a fall back more akin to the current approach of letting local plans set their requirement by balancing need against constraints. That fall back would increase the prospect that some form of duty to cooperate or strategic planning was required in order to distribute unmet housing need across wider areas.

[2] The so-called “Caroline Spelman letter” is here[3] His statement is here. The attempt failed due to litigation by CALA Homes.[4] To use a terminology identified in the case of (1) Gallagher Homes Limited (2) Lioncourt Homes Limited v Solihull Metropolitan Borough Council [2014] EWHC 1283 (Admin)[5] Para 170 of the Inspectors’ Report

Whither Strategic Planning? (and what about the London Plan and GMSF?)

Many antagonists of the duty to cooperate have advocated the return of strategic planning in some form. What does the White Paper mean for that agenda?

The new standard methodology for housing requirements bypasses strategic planning to define a centrally-defined approach for every local authority area, and there is no duty to cooperate mechanism as a tool for driving distribution of those numbers between LPAs. 

The document refers to the possibility for LPAs to “agree alternative distributions of their requirement in the context of joint planning arrangements” and “it may be appropriate for Mayors of combined authorities to oversee the strategic distribution of the requirement in a way that alters the distribution”. However, it says nothing specific about Spatial Development Strategies, such as those prepared in London and (at some point) Manchester. With a 30 month timetable for plan preparation, would there be time for two tiers of statutory plan-making?

The context for strategic planning will hopefully be outlined in the promised Devolution White Paper which the Minister – Simon Clark MP[6] – said will aim to create “more unitary councils following in the footsteps of Dorset, Buckinghamshire and Northamptonshire… to remove the complexity of governance and reduce costs to the taxpayer”. Having a smaller number of larger planning authorities – if applied to areas with administratively under-bounded towns and cities – could unblock some of the more challenging planning conflicts.

Beyond that, are strategic planning mechanisms – as they exist at the moment - compatible with the White Paper? Lots of questions and possibilities arise:

1. Both the London Plan and Greater Manchester Strategic Framework (GMSF) have taken long periods to prepare (famously so, in the case of GMSF), and some of the other joint planning arrangements have also lacked urgency and clarity. Under the new arrangements – with housing numbers already set and national sets of policies – their role is less clear.
2. It seems unlikely to be appropriate for large Combined Authorities or the London Mayor to be engaged in the kind of detailed land use designations (particularly Protect or Renewal) required by the White Paper, so that would tend to suggest more local (including some joint) plans, rather than large-scale strategic planning, at least in terms of statutory plans.
3. Does that, perhaps, mean any strategic planning exercises are likely to be voluntary/informal and thus need to be completed within the first three years of each five year local plan cycle to set the framework for their subsequent Local Plans?
4. An alternative – not in any way mentioned in the White Paper, but perhaps possible - is for Combined Authorities to prepare statutory plans that designate large-scale Growth areas – such as Green Belt releases or New Settlements - and then have individual local authorities deliver other allocations/standards.
5. It is possible Combined Authorities could assist with strategic evidence base work – for example on economic development or strategic infrastructure – and perhaps providing design codes and pattern books to avoid individual LPAs having to prepare their own.
6. If the Standard Method adjusts its housing requirements to reflect need and land constraints, and absent a duty to cooperate, what incentives are there for strategic planning authorities who can meet their own need to participate in voluntary strategic planning exercises that might result in them accepting extra development from their neighbours?
7. Would Combined Authorities or other coalitions of authorities play a role in making representations to the Government’s Standard Method each local plan cycle to assist with a more bespoke top-down distribution of housing for their area?
8. The Government has previously indicated it would prepare a strategic framework for the OxCam Arc; would that continue? Should that – and other similar approaches – be an input to the process of applying the Standard Method?
9. What will replace the duty to cooperate in order to address strategic planning for non-housing-related matters; for example, the current approach in London to dealing with strategic industrial land?

[6] His speech to the LGA Conference 2020 is available here

Maintaining a deliverable housing land supply

[7] In the PPG at ID: 61-059-20190315 and ID: 61-060-20190315

Going large – new settlements and Garden Communities

[8] The payment of fees for promoting sites into plans is not in the White Paper but was flagged by Chris Katkowski QC on HWGPNFY as one of the potential solutions discussed in Government to bridge the gap in resources. An equivalent happens under the current system, with large site promoters volunteering Planning Performance Agreements for work to be done on sites being considered by the local plan.

Protected areas – what does it mean?

The Government is clear that “valued green spaces and Green Belt will continue to be protected for future generations, with the reforms allowing for more building on brownfield land ”[9]. The White Paper reaffirms the Government’s commitment to the protection of the Green Belt (but with no change to the policy that allows release via exceptional circumstances).

The three categories of designation include land for ‘protection’. As the name suggests, areas of land designated as ‘Areas that are Protected’ would be areas in which development is restricted.

‘Areas that are Protected’

So, what does the Government define as ‘Areas that are Protected’? There is an open list rather than a definition, but as expected, they would include areas such as Green Belt, Areas of Outstanding Natural Beauty, conservation areas, Local Wildlife Sites, areas of significant flood risk and important areas of green space. Gardens may also be included, reflecting current national policy. This aligns with the Government’s intention that local plans are predictable. But equally, land can be given protected status for its particular environmental and/or cultural characteristics, which is rather broad. Beyond these characteristics these areas “would also include areas of open countryside outside of land in Growth or Renewal areas”. It is thus to be expected that – having identified the land for growth or renewal - local plans will then protect everything else, but with sub-categories.

The stated protected areas are already fully digitised or partially digitised and available on a database. We would expect that by the time the changes to the plan-led system are in force, the ‘Areas that are Protected’ on the basis of their existing status will be fully digitally mapped and thus instantly designated and recognisable to anyone. The Mayor of London’s Data Map already provides an overview of what ‘Protect’ might look like in London (notably without gardens protected). This emphasises that protected does not mean preserved:

Thus, in terms of uncertainties that the new system brings, many of the protected areas will be known fairly swiftly and whether or not land without a designation or constraint will become Growth or Renewal areas becomes a known unknown. This reflects the White Paper's suggestion that Growth and Renewal areas could be devised as just one area (i.e. everything not protected). This also highlights that very significant areas of land – including much land in urban areas - will automatically carry some form of protection.

Aside from the very notable inclusion of conservation areas (discussed below) and open countryside not designated for growth, so far the protected areas appear to be broadly consistent with paragraph 11b of the current NPPF on plan-making, in which LPAs should seek to meet their objectively assessed housing needs – amongst other uses – unless protected areas or assets of importance, defined in Footnote 6 of the NPPF, indicate this is not possible. Whilst not allocating land for protection per se, the current NPPF seeks to allocate land for development, within the confines of Footnote 6 constraints, therefore promoting patterns of development outside of these areas.

Conservation areas = protected city centres?

The inclusion of Conservation Areas in Protect is of huge significance for towns and cities and means that the central areas of many will not fall into ‘Growth’ or even ‘Renewal’ categories.

The English Conservation Area Inventory (September 2017) by Leo Hall found that at the time of research there were nearly 10,000 conservation areas in the UK. One might not dispute the appropriateness of requiring a planning application for sites within a conservation area, but this does mean that in urban areas there will be a patchwork of designations, rather than swathes of land zoned for growth or renewal, as envisaged by some. This is likely to mean that conventional planning applications will continue to be submitted in many urban areas.

Furthermore, the boundaries of Conservation Areas can currently change swiftly and easily. Digitisation means that it will be possible for the public and developers to monitor such changes, and they are likely to be consulted on them given the White Paper's onus on local engagement. Government will be able to monitor the changes too and thus would be in a position (post digitisation) to notice any sudden increases in the areas designated as such. There is no indication that the approach taken by national policy to development in Conservation Areas would change:

“Local planning authorities should look for opportunities for new development within Conservation Areas and World Heritage Sites, and within the setting of heritage assets, to enhance or better reveal their significance. Proposals that preserve those elements of the setting that make a positive contribution to the asset (or which better reveal its significance) should be treated favourably.”

Given the fundamental link to the Protect designation, should the designation of Conservation Areas be limited to the new Local Plan process?

Protected areas and footnote 6 compared

As noted above, and aside from the Conservation Area element, the scope of land which can be included within this ‘zone’ is broadly similar to the environmental designations set out in Footnote 6 of the current NPPF. Working on this basis, Lichfields has mapped Footnote 6 environmental constraints, along with Flood Zones 2 and 3 and the Green Belt nationally, to indicate how much land could be considered by Councils for allocation as ‘Areas that are Protected’.

Nationally, there is c.3.8 million hectares of land which is subject to Footnote 6 environmental constraints, along with c.1.6 million hectares of Green Belt land. Of course, there is some overlap in these figures, with some land subject to both Footnote 6 environmental constraints and designated as Green Belt. As such, roughly 5 million hectares of land could immediately be considered as ‘Areas that are Protected’ within England.

This, however, only relates to the NPPF’s current environmental and policy-based land constraints. In theory, a further c.6.6 million hectares of land – currently defined as ‘open countryside’ within many Local Plans – could also be designated as ‘Areas that are Protected’ within England.

Green Belt release to meet housing needs

Much like paragraph 11a of the NPPF, the White Paper is clear LPAs are responsible for allocating land to meet their binding housing requirement and other development needs, and highlights that LPAs will continue to “have choices about how to do so: for example through more effective use of existing residential land, greater densification, infilling and brownfield redevelopment, extensions to existing urban areas, or new settlements.” (Para 2.26). The press release also states that the “development on Green Belt land will continue to be restricted as it is now with policy remaining a decision for local authorities as they prepare their plans.”

On the face of it, the Government’s brownfield-first approach is not too dissimilar to the current NPPF, which requires ‘exceptional circumstances’ to amend Green Belt boundaries (Para 136), along with a set of criteria at paragraph 137 which should be satisfied prior to establishing exceptional circumstances, including (inter alia) the optimisation of brownfield land and densities, and discussions with neighbouring authorities (e.g. a sequential approach of sorts).

However, the Government’s proposed approach does not distinguish between fundamental environmental and landscape constraints – which would prevent development appropriately being allocated – and local policy-based constraints, which can be reviewed through the Local Plan process. As noted above, Conservation Areas can be reviewed very swiftly and outside of the local plan process. For some LPAs across England, there are cogent reasons for reviewing Green Belt boundaries to allocate housing and employment sites, such as the acuteness of these needs. However, the real mechanism that will drive the direction of Green Belt release (or not) will be how far Green Belt is treated as a constraint within the Standard Method to ‘dampen’ the level of housing need that such areas are expected to meet in the ‘binding’ housing requirement; we explore that issue in our section on the ‘Top Down’ Housing Requirements.

No change in approach, not no development

Although not explicit, the White Paper does not say development within ‘Areas that are Protected’ will be precluded, stating that sites within this area “would justify more stringent development controls to ensure sustainability”. Indeed, it goes on to state that “development proposals would come forward as now through planning applications being made to the local authority… and [would be] judged against policies set out in the National Planning Policy Framework”, unless they are subject to permitted development rights or development orders.

As a part of identifying and mapping ‘protected’ areas, LPAs would also be required to signpost the relevant development restrictions defined in the NPPF (Para 2.8). In the context of sites within the Green Belt, development proposals would continue to be judged against the ‘very special circumstances’ set out in paragraphs 145 and 146 of the current NPPF. Similarly, development proposals on sites in areas at risk of flooding, which have not been identified as areas for ‘Growth’ or ‘Renewal’, would be subject to the exception test required by paragraphs 159-161 (or equivalent). Development in Conservation Areas would be required to respond to the relevant policies in paragraphs 184 to 202. Regard would also need to be had to the local plan and other material considerations: there is no suggestion in the White Paper that legislation would be amended to change this.

Finally, while we have speculated about how much land might be designated ‘protected’, the White Paper infers that local planning authorities will determine which sites are to be protected; pro-Growth local authorities might review the quality of their existing designations to see if removing some land from designations is justified, before protecting what’s left.

[9] https://www.gov.uk/government/news/launch-of-planning-for-the-future-consultation-to-reform-the-planning-system

Designing for the future

Whilst the Government has yet to publish its response to the Building Better, Building Beautiful Commission’s (BBBBC's) final report (due this Autumn), the White Paper clearly builds on the Commission’s work and proposes to bring forward a number of its key recommendations. It states: “We want to ensure that we have a system in place that enables the creation of beautiful places that will stand the test of time, protects and enhances our precious environment.”

Central to this is a proposed ‘fast-track’ approval process for ‘beautiful’ well-designed developments. Demonstrating that new development will be high quality and accord with local and national guidance will be a prerequisite for detailed approvals, where a Permission in Principle or presumption in favour has been established within the newly proposed ‘Growth’ or ‘Renewal’

As with many other areas of the White Paper, the Government’s recommendations on design are intended to provide greater certainty for the industry, bringing decision making up-stream in an attempt to remove discretion at the application stage. Good design and local engagement are also intended to support the Government’s aims of reducing local opposition and helping to forge a more pro-development environment.

Our first take on how the Government’s proposals might work in practice is set out below.

Fast-track approvals where proposals meet local design requirements

Outline planning permission or Permission in Principle (PiP) granted by Plans - in the Growth and Renewal areas respectively - will be key to incentivising developers to bring forward development that is of a high standard and contributes positively to its surrounding area. Design will be a central consideration for all new development proposals, though the detailed requirements will differ from site to site, as will eligibility for the new fast-track approval.

Outline planning permissions granted via the local plan will be masterplan-led and subject to a condition that a masterplan and design codes are brought forward prior to detailed plans.

Where a Renewal area is designated and a PiP established, development proposals which comply with local design codes should be approved. To support this, the White Paper suggests that where possible, LPAs should produce design codes, guidance or potentially more developed masterplans to provide certainty over what is expected in areas designated for development. Design codes can either be produced in tandem with the new-style local plans or can be drafted separately at a later stage.

Areas designated as ‘protect’ will not benefit from the fast track process. We already know that conservation areas and Green Belt will be given status as Protected land, and it is worth considering that there are around 10,000 of the former across the country, according to research undertaken by Leo Hall [10]. There may be similar restrictions limiting development within a given vicinity of listed buildings and other heritage assets, thus designating it ‘Protect’ or the scope of the existing legislation relating to setting may be considered sufficient – the latter seems to be the preferred approach. As such, the fast-track route may be more limited, particularly in urban areas, than it first seems.

A new national and local framework for appraising beauty and design

The recently introduced National Design Guide will continue to set the broad principles for what is deemed to be good design. This will soon be accompanied by a National Model Design Code, and a revamped Manual for Streets. It seems that where local guidance or design codes are absent, proposals will be judged against the principles and standards set out in these national documents, and also where a Presumption in Favour is provided in national policy for areas earmarked for Renewal.

This begs the question as to how appropriate these documents will be for local decision-making; the principles set out in the National Design Guide are relatively high-level – we anticipate the National Model Design Code being more standards-based and rigid. Given these are only intended to serve as guidance, should they be interpreted with a degree of flexibility and not be treated in the same way as legislation? Perhaps the Government will introduce a statutory requirement for authorities to have regard to them.

It seems difficult to reconcile this copy-and-paste approach with the government’s agenda for ‘locally popular’ and contextual design, though the White Paper states that these nationally produced templates could be modified by LDOs so as to reflect local context and opinion. The Government also intends to continue to support local design codes being produced by neighbourhood planning groups.

As is common with applications for outline permission, developers and land promoters could continue to be able to produce design codes. Where more general principles are established in a Plan, developer-led codes and plans could help support the allocation of larger greenfield sites, particularly in more contentious areas. There may also be a case for bringing developer-led codes forward in collaboration with other parties, particularly on adjoining sites. This would also reflects a core Government objective that the reforms should enable more SMEs enter the market, and the expectation that LPAs allocate sites for self and custom-build.

What will local design codes and guidance include?

A new National Model Design Code is due to be published this Autumn; this will set out further detail over the requirements and potential content for codes. The Government is clear that codes should set out clearly what is expected from developers, providing detail over parameters such as the proportions of streets, hierarchy of public spaces and the “placement of street trees”.

It will be down to LPAs as to how much detail is provided in local design codes. This will largely depend on the timeframe expected for particular sites to come forward and will also be guided by any local constraints or contextual matters identified during the reformed plan-making process and the Government’s calculation of the housing requirement

At a minimum, codes will likely establish building heights, density and volume; though they could potentially go as far as determining what materials are appropriate and set out detailed requirements for certain elements such as parking and street design.

Codes could be drawn up in advance of the local plan provided it has an evidence base, but would be fairly toothless, aside from informing a potential site allocation, until a local plan is adopted.

In theory, a design code could include rules which mitigate for potential conflicts of use such as noise and pollution, however, it would be difficult to consider every possible friction. The recent permitted development rights introduced for upward extensions and knock-down and rebuild have a tightly controlled prior-approval process, with the latter of these including up to 13 clauses that applicants and authorities will need to consider. It seems likely that a fast-track will depend on more than just conformity with the design code, though hopefully the requirements for digital planning will force authorities to map out local restrictions in order to streamline any additional controls. The prior approval process for these new permitted development rights, which require assessment against the NPPF, are likely to be considered by MHCLG as an interesting test-bed for the design elements of reform.

Where development comes forward in line with the local plan it seems likely that Heritage Impact Assessments alongside, Landscape, Townscape and Visual Impact Assessments will continue to play an important role in determining certain design restrictions, though these types of analysis may now be done at a more strategic level and at the plan making stage, as well as continuing to be important tools where planning permission is still required.

On a separate, but related, note, the Government wants to simplify the process for gaining consent for routine maintenance and repairs work on listed buildings and is supportive of works which would reduce their carbon footprint and bring them into new uses.

Community engagement and participative design

Crucially, design codes will only be given weight where it can be demonstrated that local communities have been properly engaged in their production. The Government states that those drawing up codes should consider ‘empirical evidence of what is popular and characteristic in the local area’. Should design codes be tested at examination to enable them to have the full weight of the local plan?

It’s not clear whether the Government will make further requirements in this regard; an LPA’s consultation shouldn’t necessarily be limited to architectural styles and form of development, the process could also consider a range of other place-based factors, from the provision of parks and green spaces to community facilities and the quality of public space.

It is expected that opportunities are taken to explore new digital methods of public engagement; these have proven to be successful during the lockdown period and have often had the advantage of enabling a broader section of local communities to have their voice heard, whilst also providing opportunities for the benefits of development to be shown in more innovative and engaging ways.

Permitted development – the return of the pattern book

The reforms include a proposal to introduce additional permitted development rights which would enable “popular and replicable forms of development to be approved easily and quickly, helping to support ‘gentle intensification’”.

These permitted development rights would be available subject to compliance with design codes.

In Renewal areas these might include ‘pattern books’ that control building types and the parameters of the development. Compliance with a pattern book would lead to planning permission being granted by a local development order or a neighbourhood development order. There have been suggestions in the media that this would include prescribing certain materials, but the White Paper is not explicit about this. The Government does envisage that popular designs might include those built using modern methods of construction.

Resourcing design

Previous research by the BBBBC[11] and the National Audit Office[12] has shown that many LPAs lack staff with skills in design and heritage. Given the potential for different judgements to be made on certain design considerations, there is a high risk of introducing additional uncertainty into the system, particularly where planners may not have a deeper or more specialist understanding of design.

The Government has said it would introduce a new body that will support authorities in implementing its proposed design requirements; the body would also serve a monitoring role and ‘challenge’ the sector to build better places. The Paper has not settled on how this organisation will function, though it suggests that this could either be achieved through the introduction of a new arms-length body (is the Government intending to re-establish a version of CABE?), create a new centre of expertise within Homes England, or by reinforcing the ‘existing network of architecture and design centres’, whether this implies the professional bodies such the RTPI and RIBA, or wider interest/pressure groups is not clear.

It also suggests that each authority should employ a chief officer for design and place-making - another recommendation put forward by the BBBBC (and linked to the RTPI's campaign for a statutory Chief Planning Officer who reports directly to the Chief Executive, at every LPA, but this does not appear to be quite the same thing). The suggestion will be welcomed by many; with greater weight to be afforded to design and new responsibilities for producing specialist guidance, this could go some way to ensuring there is consistency over decision making, whilst also potentially supporting with the training and upskilling of planner colleagues and Committee Members. A smaller number of larger authorities or shared service approaches may help. 

To show that it intends to lead by example, the Government also proposes that Homes England should attach greater value on the design quality of the schemes it supports. This will be explored in the forthcoming Spending Review.

Potential timeframes and further considerations

Evidently the Government sees (locally-popular) design as integral to its wider vision, and helping legitimise the additional growth that will be required under the new standard method.

The term beauty may be seen as a little slippery by some and potentially open to misapplication. Whilst refusals should only be made where proposals are not in compliance with codes, will there now be arguments regarding non-compliance with one small aspect of the code and how non-compliance is measured? Hopefully not, and Codes would be treated in similar way to local plan policies, where a degree of flexibility is built in so long as proposals accord with the code as a whole, though this may depend on the significance of a particular design detail or the wording of the prior approval.

The Government wishes to speed up and simply the plan making planning process, so there is a clear challenge in also attempting to codify each and every land allocation upfront. The catch-all that land not allocated ‘Growth’ or 'Renewal' will fall into Protect (subject to planning applications), might lessen the burden, but this approach must be approved by an Inspector (see our section on plan-making)

Given the scale of change outlined in the White Paper, it will take some time for these proposals to take full effect and for LPAs to adopt design guidance and codes under the new regime. In theory, work could start when the National Design Code is published, but given the proposed statutory requirement for empirical evidence and other unknown statutory requirements, LPAs are likely to be concerned that a pro-active approach may lead to abortive work. If codes are delivered through similar mechanisms as current Supplementary Planning Documents, the status of a locally produced design codes would only be established where supported by policies in a new style Local Plan.

As such, new-style design codes would likely follow the adoption of the first wave of local plans, which won’t be in place until 2023/24 at the earliest, and given the requirements for local engagement and digitisation, these could take much longer. It is currently unclear whether the design codes and pattern books would need to examined by an Inspector or the Government’s new design body (some testing and validation is surely important given they will have the effect of granting planning permission).

In the meantime, the National Design Guide remains a material consideration, as - soon - will the National Model Design Code.

Working alongside LPAs may create opportunities for developers and house builders to benefit, particularly where they have supported the delivery of codes and earned a reputation for delivering high quality schemes. Of course, housing design and layout only forms one part of the puzzle: some areas may place greater value on improving access to nature, providing community services or improving local heritage assets. This is where high quality consultation, particularly through digital or Smarter Engagement, can strengthen proposals; demonstrating that local communities have been involved will be key.

Another positive is that many of the proposals could be realised using existing planning tools; design codes, LDOs and masterplans that have been around for some time. However, the Government will need to understand why these have not been more widely adopted, or as in many cases, haven’t always delivered their intended outcomes.

In this environment it is likely that pre-app discussions and PPAs will play a more central role in bringing forward development, particularly for more complex sites where masterplans may be produced to supplement local codes; LPAs will need to ensure that pre-application advice services are up to scratch and adequately address any additional uncertainties that the reforms introduce. The regulation of pre-application fees may or may not help this; the eye-wateringly high pre-application fees are more likely to go up than down.

[10] A new inventory of English Conservation Areas, Leo Hall, September 2017[11] Building Better, Building Beautiful, Living with Beauty[12] National Audit Office, Planning for new homes

Development Management – planning, not administrating

The White Paper is quick to identify the failings of the current development management system: too discretionary, the risk of costly overturned decisions. In seeking to return to first principles, the Government is striving to achieve a more predictable form of planning regulation, with the best interests of both developers and local communities in mind.

It sets out a range of proposed changes to the present development management system, aimed fundamentally at improving the transparency, certainty and thus speed of decision-making processes. But not before the Prime Minister’s description of the current system nods towards the success of the NPPF:

“Designed and built in 1947 it has, like any building of that age, been patched up here and there over the decades. Extensions have been added on, knocked down and rebuilt according to the whims of whoever’s name is on the deeds at the time. Eight years ago a new landlord stripped most of the asbestos from the roof”.

In this context, one can consider the NPPF and the current PPG as a critical step towards the system now being proposed. Yes, there has been a time lag and plenty of 'patch and mend' on the way, but the effect of both these documents demonstrates that big change has impacts on the ground.

To many residents, familiar with receiving a letter in the post or spotting a site notice on a lamppost as their first point of involvement in the planning process, the Government proposes a fundamental modernisation of the way in which the public engages in development decisions. Through increased digitisation and more succinct, visual and coded applications, communities should find it much easier and more accessible to get involved (discussed more in our section on digitisation).

On top of this, the planning process itself is to be simplified, including Local Plans (see our local plans section). With much of the debate on the amount of housing stripped out, there is an expectation that plans will have a greater focus on location, plus design quality at a local level. This could include, for example, specific requirements in terms of height limits, scale or density. However, the days of looking through a 500-page suite of text seeking out – and then trying to interpret the meaning of - a specific development management policy should hopefully be over…

This would ensure greater clarity for those looking to bring forward development, and would work hand-in-hand with a streamlined development management process.

Utilising the local plan

Depending upon the Growth, Renewal, or Protect classification within the Local Plan, the roots for obtaining planning permission, or a form of consent that allows development to start, would diverge along the following lines:

• Growth: This designation, which may include sub-areas (notably for self-build), would effectively grant outline planning permission for the prescribed uses, subject to certain parameters and design codes. A condition of the outline planning permission would require a masterplan and site-specific code to be in place before the detailed design comes forward. Thereafter, a form of reserved matters application or Local/Neighbourhood Development Order will be necessary to achieve full planning permission. Unless you are dealing with an extremely large proposal, which might be advanced as a Nationally Strategic Infrastructure Project (NSIP) via Development Consent Order (DCO), proposals will presumably need to linked to the same design codes and in line with any bespoke policy statements.
• Renewal: In these areas, which could also include sub-areas, an automatic consenting route, such as a permission in principle,based upon pre-specified forms of development, design codes and prior approval requirements or, exceptionally, a planning application. All such applications would be supported by a new statutory presumption in favour of development - albeit LPAs could choose to protect residential gardens in renewal areas.
• Protect: A more traditional planning application will be required, assessed against the local plan and the development management policies in the NPPF.

The secondary phases of consent in the Growth and Renewal areas are referred to as the ‘fast track for beauty’ (see our section on design).

Overall, the establishment of the principal of development at an early stage is a step-change, but only because it is so often revisited even where there is a site allocation. The bigger step-change is the grant of outline planning permission in growth areas, as opposed to the permission in principle or presumption in favour in Renewal areas and the permission in principle status already available now.

Decision-making

The Government ‘proposes’ “the delegation of detailed planning decisions to planning officers where the principle of development has been established, as detailed matters for consideration should be principally a matter for professional planning judgment”. It does not say where this would be set out in law, and there is no indication at this stage that there will be national scheme of delegation, but it must have been considered.

The removal of considering the principle of development and, for example, whether there is a sufficient 5YHLS, will free up officer time to consider the design of the scheme. And if an officer considers that a housing scheme does not comply with the relevant design code, the application can be refused without balancing this against the presence or not of a 5YHLS, or sufficient employment land for an application for commercial space. Plan-making is the ultimate focus.

This links to the observation in the consultation that the talents and passions of public-sector planners are not being fairly used and “often feel over-worked and under-appreciated, trapped between the urgent need for more homes, an insufficiently competitive market and a policy framework which makes it almost impossible for them to insist upon beautiful and sustainable new homes and places”.

So, the new system will either mean a lesser role for traditional LPA planning committees or those Committees will scrutinise the detailed elements of a scheme even more deeply, the principle not being for consideration. Where local design guides are not available, reference should be made to national guides.

Together with the more simple approach to consultation, decision-making should be faster and more certain. Indeed, the new rule-based system would be bolstered by clear incentives on the LPA to determine applications within the statutory time limits. Minds would also be focused by the suggestion of an automatically refunded planning fee and/or automatic grant of planning permission (particularly for social infrastructure) where this is not achieved. Assuming all goes well, and the new system finds you rapidly on the verge of obtaining planning permission, the current horse-trading around developer contributions should also be a thing of the past. A proposed new Infrastructure Levy (not to be confused with the present CIL regime) will standardise contributions and affordable housing provision, and is intended to end the months of negotiation of Section 106 agreements and discussions around and viability – we explore the new levy in our section here.

If, despite all of this certainty and speed, one finds oneself with the refusal of planning permission, there will remain a right to appeal. Somewhat inevitably, however, the Government sees this as a far less likely prospect and remains committed to ensuring the appeals process is faster, more digitally responsive and flexible. Where applications are refused but then allowed on appeal (around a third are overturned), there is even the prospect of a rebate on the planning application fee. In finely balanced cases, local planning authorities may thus err on the side of approval – unless refusal would make a political statement.

Applications outside of the plan

Given that LPAs will have to plan for their entire housing requirement, windfalls will be limited to those sites that seek a greater scale of development than planned for or fall within Protect areas. How will these applications be assessed where it is recognised that a different allocated site has no prospect of coming forward? Or a planning application for an alternative or mixed use of a housing site is approved? The White Paper anticipates this and notes the importance of everyone having confidence that the plan will be the basis of decisions, but provides no precise detail on how legislating for an emphasis on a plan-led approach will assist.

It will be interesting to see how the presumption in favour of the plan works, and the extent to which the specific standards set in the plan simply become the planning fall back position with developers exploring applications for development that exceeds plan limitations on the basis they provide greater benefits that outweigh any additional harm.

Consultation and digitisation

Much has been made of the reference to planning notices attached to lamp posts being symbolic of an out of date notification system. The consultation doesn’t say the existing system of notifications will disappear, but rather it will no longer have to be relied up as the only way of learning about development.

In a plan-led system, ensuring that communities know about the development plan is of critical importance, and this is discussed in our digitisation section. The Government says it will consider the most effective way to inform interested parties about the various detailed design stages. At the core of the proposals is the desire to reduce the influence of the professional objector.

And with regards to the digitisation of processes, “the validation of applications should be integrated with the submission of the application”, so that the right information is provided at the start of the process. The upgrading of software and improved digitisation generally is also intended to mitigate the negative impact that a case officer leaving a local authority can have on their casework, although arguably this is more about lack of resourcing than transparency of data.

Standardising development management policies

The Government wants to centralise the drafting of those development management policies that can be repetitive across different local plans and between national and local policy.

The NPPF would become the main place to look for specific development management standards. The local plan “would be restricted to clear and necessary site or area-specific requirements, including broad height limits, scale and/or density limits for land included in Growth areas and Renewal areas, established through the accompanying text”.

Some core standards may leave scope for discussion. For example “adequate natural light” is a new prior approval matter for some permitted development rights for change of use to residential and there is already discussion about what it means.

Permitted development related applications to look to local design codes

Permitted development will be retained and expanded “so that it enables popular and replicable forms of development to be approved easily and quickly, helping to support ‘gentle intensification’ of our towns and cities”. In Renewal areas, this would involve assessing a scheme against a pattern book, within a Local/Neighbourhood Development order that sets out form-based building types and parameters.

The Government acknowledges that this new approach would build on the complex prior approval system and would require some testing. Accordingly, the new permitted development rights to demolish and rebuild and to add storeys will be required to take design codes into account.

The system of standards could be along the lines of, for example, the New South Wales (NSW), Australia, system of ‘exempt and complying development’, which provides development standards for a vast range of development, including advertisements, that are either the equivalent of permitted development, or require prior approval. That system is parameter rather than design-focused, but scratching the surface, the proposed national standards alongside LDO/NDO system would be too, provided that popular local design features or materials can be captured in law.

In NSW, a private sector professional or ‘accredited certifier’ can provide a complying development certificate for works that fall within certain standards. The use of the private sector for determination of applications within set parameters appears to be suggested as part of the review of heritage consents, which could be a pilot for other areas of planning:

“We want to explore whether there are new and better ways of securing consent for routine works, to enable local planning authorities to concentrate on conserving and enhancing the most important historic buildings. This includes exploring whether suitably experienced architectural specialists can have earned autonomy from routine listed building consents”.

The NSW exempt and complying development standards also provide a potential model for national machine-readable standards, and the Government are no doubt aware of these standards and similar elsewhere, having considered planning systems across the world as part of writing their reforms.

What about advertisements and development that materially alters appearance?

The document does not indicate what the procedure would be for small scale development in Growth and Renewal areas or whether the advertisement consent regime will be altered.

It is not known whether the relevant policies would be included in national policy or guides, or whether, they would be solely in local design codes. The latter is more logical and would suggest that express planning permission would be required for these works in Growth and Renewal areas, or extensions of permitted development rights and permitted development rights with prior approval.

As noted above, some of these works might benefit from an expansion of permitted development (e.g. shopfronts and ATMs).

Enforcement

Stronger enforcement powers are proposed, including higher fines, which might support increased enforcement activity.

Fees and resourcing

Fees will still be set nationally and pre-application fees will be regulated. This is good news given the vast range of pre-application fees and varying qualities of advice and output.

In Chris Katkowski QC’s explanation of the proposals on HWGPNFY, he indicated that a fee might also be required from those promoting a site through the plan process where outline planning permission or permission in principle would be granted if the site were allocated. Such an approach is already seen with Planning Performance Agreements in place for local plan promotions. 

The Planning Inspectorate is intended to become “more self-financing through new charging mechanisms and be subject to new performance targets to improve their performance”.

And given the resource heavy nature of the proposals, particularly in terms of design expertise and the need for a chief design and place-making officer: “a small proportion of the income [of the new development contributions system] should be earmarked to local planning authorities to cover their overall planning costs, including the preparation and review of Local Plans and design codes and enforcement activities”.

The shift in focus from administrating to actually planning will hopefully boost morale for development management professionals, particularly in the public sector, although the immediate task ahead of all is significant, and resources will need to be directed swiftly to support implementation by 2024. This is a challenge given Infrastructure Levy revenues - earmarked for funding planning services - will not yet be available.  

The Government is proposing a major shift in approach to developer contributions, which includes a second stab at bringing about the demise of planning obligations by s106 legal agreements. This follows a long litany of attempts to do land value capture, over many decades; an illustration of the ability of the land and planning system to generate complexities that confound otherwise simple and logical concepts. 

The current Community Infrastructure Levy (CIL) system does not require universal adoption, the pooling restriction having failed to entice England and Wales wide coverage[1] and then being repealed due to its lack of flexibility.

But lack of flexibility, otherwise known as certainty, is now the recommended way forward.

Most financial contributions – and potentially in-kind planning contributions – will be secured by a national Infrastructure Levy, with rates decided by the Government. Section 106 legal agreements (s106) will no longer be used to secure developer contributions. It is doubtful that s106 itself would be repealed without an equivalent being provided, as legal agreements are not only used to secure developer contributions; indeed their use to secure covenants is mentioned in the consultation. The Infrastructure Levy is being described as an extended levy because CIL would be retained for use by regional Mayors for strategic projects.

In future, affordable housing would be provided via the Infrastructure Levy, where currently it cannot be. The extent to which it will be prioritised within the pot remains to be seen, but this is to be decided locally, whereas at present how to spend CIL is decided locally but via the rate setting process and the extent to which that squeezes affordable housing.

The Government’s intention is to capture more uplift in land value while mitigating development and removing the potential for developer contributions to be negotiated down, to consequently speed up the planning process by removing those negotiations. The Government would also like planning contributions to be more transparent, albeit that the Infrastructure Funding Statements required by the end of this year will do that in any event.

A key criticism of CIL is that it does not allow changes in market conditions post-permission to be taken into account. The Government says the new levy “would be both more effective at capturing increases in value and would be more sensitive to economic downturns”.

The consultation says that in 2018/19, s106 contributions were worth £7bn, whereas CIL revenue in 2017/18 was less than a tenth of that, at around £450m[2]. This illustrates scale of the shift in approach envisaged.

How would the rate be calculated?

The Government will set a new Infrastructure Levy rate or rates based on values: “We will aim for the new Levy to raise more revenue than under the current system of developer contributions, and deliver at least as much – if not more – on-site affordable housing as at present”.  The rate would be charged “on the final value of a development (or to an assessment of the sales value where the development is not sold, e.g. for homes built for the rental market)”.

There would be a minimum threshold value, taking into account build costs and land costs, under which the Infrastructure Levy would not be payable. So if the Levy is based on final development value, would high quality design pay more for materials and a greater amount of Levy than a poorer quality scheme? Would buildings constructed using modern methods of construction work off the same average values as traditional builds? What would happen for otherwise similar schemes that have different abnormal or on-site infrastructure costs? 

As now, the rate would be based on the applicable rate plus indexing, on the date of planning permission being granted, it would not be due for payment until occupation. So at the point of payment the rate to be paid could reflect values from up to three years earlier if the lives of planning permissions stays the same. In Growth areas, outline planning permission will be granted by the development plan, which has a ten year life. Therefore, it seems likely that the value will fixed when the developer has an implementable permission/consent, rather than on the date the local plan was adopted and granted outline planning permission.

The collecting authority would receive the payment on occupation of the development and ‘occupation’ would presumably be defined to avoid the legal debates that has caused in the past.

The standard rate approach was rejected previously, why does the Government think it would work now?

For those who recall the independent CIL Review Group’s 2016 CIL Review that fed into the 2017 Housing White Paper, yes, this does sound like elements of the local infrastructure tariff (LIT) of the recommendations of the CIL working group that were rejected by the May Government resurfacing. The only element of the review taken forward was the removal of the pooling restriction.

The mandatory LIT proposed by the Group was to be charged on the gross area of new development with no reliefs and exemptions. Changes of use and development using permitted development rights were also recommended to pay. The Strategic Infrastructure Tariff it proposed would have been similar to the current Mayoral CIL, pooling money for a small number of identified infrastructure projects.

Small developments (e.g. residential schemes under 10 units) were to only pay the LIT and larger/strategic development would have the option to negotiate s106 obligations to better relate infrastructure delivery to development. Importantly, it was recommended that local authorities would be given flexibility to offset the LIT against s106 obligations. 

However, the Group recommended small developments (e.g. residential schemes under 10 units) would only pay the LIT and larger/strategic development would be able to negotiate s106 obligations to better relate infrastructure delivery to development.

And regarding affordable housing via s106 contributions the Group said (with apologies for the long quotation):

“We have noted elsewhere in this report that the need to negotiate an affordable housing contribution outside of CIL, using Section 106 arrangements, has in some places had a deleterious effect on affordable housing provision and that the negotiations themselves are often a key contributing factor in delaying the start of development. We have not recommended any change to the position of affordable housing being outside of the scope of the LIT - partly because we see the LIT as being available for infrastructure that is necessitated by the cumulative impacts of development over and (sic) area and partly also because the quantum raised is unlikely to be sufficient to pay for affordable housing as well as that other infrastructure. We see no alternative, therefore, to affordable housing continuing to be negotiated as part of the Section 106 arrangements. Progress towards standardisation of Section 106 agreements would, however, expedite the process, as would local agreements on a fixed rate for affordable housing. The low level nature of the LIT will also mean that it has less impact on development profitability and leave more headroom for an affordable housing contribution, although this will clearly have to take its place alongside other Section 106 requirements”.

So, while the Infrastructure Levy is not the same as the tariffs proposed by the CIL Working Group, what the Government is now proposing is closer to those 2016 recommendations than what the Government committed to in the 2017 Housing White Paper.

Including affordable housing in the Infrastructure Levy pot and repealing the ability to use s106 for planning obligations is a seismic shift from the Working Group’s position, but should be seen in the context of the group being asked to make recommendations that would not need new primary legislation.

It is not clear why the White Paper has concluded that there will sufficient money in the pot for affordable housing. Some potential reasons are:

1. The Infrastructure Levy would be set higher than the Group's “twin track system of a new low level tariff, combined with Section 106 for larger sites”.
   
   
2. Permitted development will contribute (albeit this development would otherwise requiring planning permission and will only provide additional levy if it would not otherwise have come forward).
   
   
3. The Government proposes a wholesale once-in-a-generation review and very little is off the table.
   
   

Affordable housing via levy

Under the proposals, all affordable housing would be secured via the Levy. And the Government hopes that it would be delivered on site at least to the same extent as currently.

Local authorities would still have control over tenure mix and if and how to spend the Levy on affordable housing. Delivery on-site would be achieved by, for example, an affordable housing provider purchasing a dwelling and the associated discount against market values being provided by the Levy as a benefit-in-kind, to be offset against the total Levy (but not if the offset value was greater than the Levy bill). The First Homes discount would also be deducted – or the LPA could use the Levy to buy a home at market value that would become a First Home.

To mitigate risk, the Government wants to ensure that local authorities are not compelled to buy low standard homes and to “allow local planning authorities to ‘flip’ a proportion of units back to market units which the developer can sell” if the market fails. It is not clear how the latter would work in practice.

The consultation also considers giving authorities or providers first refusal right on a given nationally set proportion of affordable housing floorspace, with the developer determining which units on a site would be offered. They wouldn’t have to be used for affordable housing; they could be sold on the open market and the profit (or loss) would go against the Levy.

An attraction of the approach to spending the level on affordable housing is that is if this is achieved via an LPA setting out funding priorities rather than legislation permitting it, it would makes it easier to change what constitutes affordable housing.

Dwelling generating permitted development must pay

It is no secret that the Government’s office to residential permitted development rights (PDR), introduced to help alleviate the housing crisis, has seen mixed reception. One of the reasons its critics took exception was the absence of planning obligations. However, the White Paper proposes that some development that does not create floorspace would be required to pay the Levy, e.g. office to residential and the new knock down and rebuild permitted development rights. The upwards extensions PDRs are already CIL-liable where new dwellings are created. 

The proposals would bring the costs associated with delivery of this type of housing in line with the rest of the industry. It may be that there will be amendments to the existing CIL Regulations to capture this, in advance of the new Infrastructure Levy regime.

Phasing and implementation

Will there be separate chargeable developments for phases, as now? Could phases be re-negotiated post permission to ensure a smaller element comes forward in a downturn?

The Levy being due on occupation means there is an even greater incentive to implement and bag a permission.

Would existing floorspace be deducted in the way the ‘in-use’ buildings and vacant building credit do so at present?

This is not known at present.

How would site viability be taken into account?

It wouldn’t. There is therefore a question over how the rate could reflect local circumstances, including the benchmark land values used to judge what is necessary to encourage a willing landowner to make their site available for development. 

A level playing (green)field?

The new Levy will be calculated based on the final value of a development (or to an assessment of the sales value where the development is not sold). Consequently, it would appear that it would not take into account the often higher costs of delivering brownfield or other sites with larger abnormal costs. There is a risk that:

• the levy is set at a low level in order that it captures all but the most unviable developments; this potentially means sites without constraints 'under-pay'. This is one of the issues with CIL, where buffers (e.g. of 40%) are used to account for unknowns, but consequently result in quite low rates in many areas. 
  
  
• the levy is set too high such that it is not compatible with sites coming forward, particularly if there are specific market conditions surrounding the calculation of Existing Use Value and the premium necessary to encourage landowners to make their land available for development. Whilst Compulsory Purchase Order (CPO) is possible, if the levy generates a systemic problem in a local area (as opposed to one or two sites) it would require a scale of CPO activity that would not be practical. 
  
  
• a lack of viability testing might make plan makers (focused on deliverable sites to meet their housing requirement) reluctant to rely on housing yield from more challenging, less viable sites (such as those requiring costly on-site infrastructure) and focus on easier, but less sustainable options? 
   

Infrastructure to make an otherwise unacceptable development, acceptable

Out with CIL and s106 go the tests requiring that planning obligations must be: “necessary to make the development acceptable in planning terms; directly related to the development; and fairly and reasonably related in scale and kind to the development”.

The consultation is clear that the Infrastructure Levy is about land value capture, not mitigating specific developments: “In areas where land value uplift is insufficient to support significant levels of land value capture, some or all of the value generated by the development would be below the threshold, and so not subject to the levy. In higher value areas, a much greater proportion of the development value would be above the exempt amount, and subject to the levy”.

The Government says that there should be a connection between the location of new development and where the Levy is spent, but this in the context of retaining the 25% neighbourhood share and offering flexibility on spending at neighbourhood and LPA level. A development sweetener is also proposed in the form of suggesting using the Levy to reduce Council Tax.

So, how to make an otherwise unacceptable development, acceptable?

In Growth and Renewal areas the acceptability of plan-led development will have been established and presumably there will be an acceptance that the necessary infrastructure will come forward in a timescale over which the LPA has control. In addition, the deliverable test will be that “sites should not be included in the plan where there is no reasonable prospect of any infrastructure that may be needed coming forward within the plan period”. There will need to be some confidence that the levy funds are actually used at the right time to deliver the mitigation when it is needed for that specific site; to avoid a situation where the development makes a contribution but off-site infrastructure required at the time does not get delivered; this might be the role of future legal agrements.

But where the scale or nature of development is different to that envisaged in the local plan and leads to different infrastructure needs – e.g. a new roundabout where the scale of development approved by the plan would not need one, but a bigger scheme would trigger it – the Infrastructure Levy will capture the increased value of the development, but not necessarily the cost of a big ticket infrastructure item that the uplift does not pay for in full or which the LPA does not commit to provide.  LPAs will be able to borrow against future revenues in order to deliver infrastructure, but would they do so for speculative off-plan development?

The consultation does not mention in-kind contributions other than for affordable housing. Will there be a mechanism to make the development acceptable aside from the developer including the infrastructure within the planning application? As noted above, this would be a big shift from the findings of the CIL Review Group, who recommended s106 being retained to allow for bespoke arrangements, including specific mitigation linked to trigger points associated with specific quantums of development.

In these circumstances, would the application be refused? Perhaps this outcome would reflect the White Paper’s strengthening of the plan-led system, but might it prevent positive opportunities from coming forward. 

However, there are many elements of the existing CIL regime that are not mentioned in the consultation and in view of a reference to in-kind payments in the context of affordable housing, hopefully this will continue. Not only to mitigate for unplanned development, but also to allow the developer to be in control of the delivery of infrastructure that are considered to be essential.

Spending the levy and delivering the priorities of an area

The White Paper recognises “it is important that there is a strong link between where development occurs and where funding is spent” and the Government is keen to enable “more freedom could be given to local authorities over how they spend the Infrastructure Levy”. Importantly, this proposal would enable LPAs to spend receipts on their ‘policy priorities’, but only once core infrastructure obligations have been met. Beyond key infrastructure projects, the Government also alludes to the spending of receipts on “improving services or reducing council tax”. It would also be possible to use the Levy for providing planning services.

Although a critical shift away from the traditional forms of funding infrastructure, the Government’s proposals would be sequential in nature, requiring LPAs to ring fence funding for the delivery of affordable housing – if necessary – along with delivering key pieces of infrastructure, before seeking to deliver wider infrastructure and services benefits. This is broadly in-line with how LPAs currently operate, in so far as it is for the LPA to identify the right balance between competing priorities to meet local needs.

However, the abolishment of flexibility allowed for through s106 obligations is likely to leave some parties, who have historically requested s106 contributions to make acceptable the impacts of development, at the back of the queue in terms of priorities. This raises questions about whether, given the flat-rate nature and variable costs of land/building nationally, the Infrastructure Levy will raise sufficient funds for a majority of LPAs competing priorities and interests to be funded through this mechanism. This is particularly the case in more marginal market areas. 

And is the need for mitigation often highly localised too? For example, is it acceptable for a development on one side of the East Riding of Yorkshire to fund infrastructure on the other side of the Riding? The answer will be yes in some case – notably for affordable housing.

In terms of the plethora of items for which local planning authorities and external bodies seek contributions, which items on the shopping list would now be for the LPA to determine outside of the development management process? So, for example, developers will no longer need to respond to bodies making ad hoc requests - such at the NHS asking for funding for services - during the assessment process.

At the time of the CIL Review Group’s recommendations, one of the key issues with the system was that CIL was not properly funding infrastructure relating to the larger more strategic sites, as it took time for the receipts to be pooled and spent. The lifting of the pooling restrictions in September 2019 went someway to remedy this, allowing the collection of both CIL and s106 planning obligations for developments. However, the problem of LPAs actually spending CIL receipts on infrastructure persists, with some highlighting that many authorities have not spent CIL funds on delivering infrastructure, despite implementing a charging schedule. In other cases, the revenue is not available to provide the infrastructure at the time it is needed to mitigate the impact of the development.

Forward funding

As a solution, the Government’s proposals indicate that, to better support the timely delivery of infrastructure, it would allow “local authorities to borrow against Infrastructure Levy revenues so that they could forward fund infrastructure”. This Tax Increment Finance (TIF)-style approach would enable LPAs to forward-fund critical pieces of infrastructure necessary to enable to the delivery of strategic housing and employment development, and could reduce the delays associated with bringing forward developments of such a scale. However, it should be noted that, such an approach would expose LPAs to levels of financial risk, as the rate of receipt collections would be linked to the performance of the wider property market and the deliverability of a long pipeline of development. In strong market locations with a good pipeline of development this could be positive, but in areas where the market is more fragile or with lower rates of housebuilding, the security of borrowing would be lower. 

The devolution agenda and having a smaller number of larger unitary authorities - with a bigger asset base and pool of potential development - may assist this option. 

Alternatives

The alternative option of the Infrastructure Levy being set by LPAs acknowledges potential pitfalls with the Government’s preferred approach, but concludes that a local Infrastructure Levy (which would be optional, but not permit s106 agreements): “would address issues around transparency, responsiveness to local needs and consistency. However, the Government’s levers over levels of land value capture would be less strong, with decisions about levy rates being taken at the local level”.

The consultation also briefly mentions the option of capitalising the cost of the Infrastructure Levy into land values so that the landowner also contributes (if they are not the developer).

In simple terms, whatever option is taken forward - including the Government's preferred option - is not simple. There is a lot of work to do to ensure it is compatible with land supply and delivering the infrastructure required to mitigate the impacts of development and make it acceptable to communities.

Most will agree that the way different users interact with the planning system is archaic and in need of an overhaul. Hopefully, the frustration of attempting to navigate policies and guidance set out across multiple documents and websites or download a Design and Access Statement that’s been divided into 12 separate PDF files will be a thing of the past.

But this is a digital revolution, not tinkering. Current user-experience aside, the Government recognises that the planning system fails to optimise the use of much of the data produced for plan-making and individual development proposals, with much of this stored in PDFs rather than machine readable formats that most other modern industries have adopted.

The Government has high hopes for change in this area and this is probably one part of the Paper that will be welcomed across the board. And while the White Paper presents this as a new area of work, it does hint at MHCLG’s digital land team, which has been in place for some time and provides regular updates on progress that are befitting of a team devoted to transparency and accessibility. The Planning Portal is also aware of the huge potential data analysis that could be undertaken from the information it holds. Furthermore, the instantaneous updates to the Planning Practice Guidance have been around since 2014.

Digital know-how and strong analytical skills will be increasingly important for planners and others working in the development sector, though changes will hopefully bring opportunities to reduce the time spent on many of the day to day administrative tasks and the replication of some data and evidence.

Promoting the digitisation elements of the White Paper has been a key element of the Government’s press releases. The Secretary of State said:

“We are moving away from notices on lampposts to an interactive and accessible map-based online system – placing planning at the fingertips of people. The planning process will be brought into the 21st century. Communities will be reconnected to a planning process that is supposed to serve them, with residents more engaged over what happens in their areas.”

It is intended that local plans will now be more visual, with policies and local restrictions set out visually on interactive maps. The Government intends to introduce new open data standards for the planning system, as well as for the land registry (in a separate consultation):

“we want to support local authorities to radically rethink how they produce their Local Plans, and profoundly re-invent the ambition, depth and breadth with which they engage with communities”.

Many LPAs manage case work using back-end legacy systems that have failed to keep pace with wider digital advances; in response, the Government proposes that the internal software used by many authorities for managing case works is updated. This will also enable officers and applicants the ability to better track the progress of applications, as well as the wider changes across a local area, whilst also creating opportunities to track the delivery across larger sites, which would go some way to help remove disputes over whether sites are deliverable and expectations over local growth.

Automating certain aspects of the system and insisting on standardised data could help address the user errors currently experienced by users of the existing system, saving considerable amounts of time and money for all parties. This is time and expense which can hopefully be put to better use – with planners able to concentrate on improving the quality of new development, effective consultation and area-based issues such as regeneration.

Digital is also expected to be the new normal for gathering evidence, and developing guidance with local communities, with authorities making better use of social media to engage with local communities and enable information on changes and new development proposals available across a range of platforms, including mobile phones. This is something the industry has been moving towards, but the COVID-19 pandemic shoved it forwards, with most now in agreement this was long-overdue. For example, Lichfields’ Smarter Engagement tool was launched in 2014.

As MHCLG’s prototype digital land webpage for policy makers says:

“And while the published information is produced using a variety of datasets, those underlying datasets aren’t available. Policy teams then have to invest time and money trying to extract the data from the information published in documents and reports – which can be like trying to remove eggs from a cake”.

In principle, once local plans have been adopted a developer should be able to look up a site on a web-based map and be shown whether it has been designated for Growth, Renewal, or is otherwise Protected. The map would also set out any other local restrictions and the detailed design requirements that are expected to be been established in locally produced design codes. The vision is that the same system would be capable of interpreting whether a scheme of given parameters complies with national development management policies and local codes. This could have potentially far reaching implications by lowering the barriers to entry for SME developers, creating a simpler, more accessible and predictable system, whilst also potentially helping to identify available sites.

With the Government wishing to frontload community engagement to the plan-making stage, improving the usability and user experience will play a crucial role in achieving this. The Government intends “a more engaging, equitable and effective system” including a new digital engagement processes that will make it much simpler for communities to give their views on new developments. It suggests that this could be achieved through providing access to live information and use of 3D visualisations to support community engagement.

Even most planners would agree that locating documents on planning registers or attempting to find a particular local plan policy is unnecessarily slow and painful. Providing easy access to the most important information in way which is accessible to non-professionals could potentially give local communities specific planning proposals, and how these accord with policies and wider strategic vision for an area. Related to this, the Government proposed that a planning statement should be no longer than 50 pages. With changes proposed for the system of developer contributions, there will certainly be opportunities to better visualise how development can benefit local communities.

Standardisation of data and codifying elements of the approval system is intended to speed and simplify the decision-making process, bringing certainty. Many aspects of planning are based on professional judgement and won’t always be able to be split into yes-no options, though the freeing up of time previously spent on administrative tasks may provide more time for concentrating aspects regarding quality, and the Government hope that this will better use planners’ skills.

The sharing of data is also intended to encourage wider innovation in the sector. The data will be accessed by software used across the public sector and also by external PropTech entrepreneurs to improve transparency, decision-making and productivity in the sector. And a minister will lead a PropTech Innovation Council “to make the most of innovative new approaches to meet public policy objectives”.

A lot of research has already gone into this work by bodies such as the Future Cities Catapult, and MHCLG’s Digital team.

For example, MHLCG digital has produced a diagram that maps out a digitised planning ecosystem. It attempts to highlight how data and standards could underpin a modernised planning system that unlocks the potential for innovation in the PropTech sector and helps satisfy users' planning and housing needs:

Source: MHCLG Digital Land Sprint Notes

Some Councils, including Hackney and Gateshead, have already been trialling new software and digital protocols over the past few years. Given the push for open-data standards, transparency and competition in this area, there will be opportunities for the private sector to build on the work of Government and various NGOs that have so far led the way.

Digital neighbourhood planning

The White Paper poses questions around whether Neighbourhood Plans can be designed to the same standard, suggesting Whitehall wants to avoid setting specific standards. On 10 August the Government announced it would double its grants to Neighbourhood Planning groups and also announced that it is providing these groups with access to additional technical expertise free of charge, such as for assessing their area’s housing needs, or developing masterplans.

Beware the digital professional objector

The Government intends to enhance existing consultation procedures with digital elements, not necessarily sweep other forms of consultation away.

Going digital is clearly a good thing, but digitisation doesn’t automatically reach a different group or even the ‘right’ groups - engaging with a new demographic will require effort.

It would be naïve and ageist to assume that i) all older people object to planning applications and ii) they can’t work a computer or smartphone. Time is the key barrier to wider engagement as well as poor digital interfaces. Many planning professionals are asked to write responses to consultation letters on behalf of friends, not because their friends can’t use a computer, but because they don’t have time to think about setting out a letter that addresses the key issues or planning matters. Digital will help, but it’s not the whole solution.

People need to be advised how to engage and why they would want to, or new procedures such as designing pattern books for permitted development will attract the usual faces who already know how to engage and have the time to do so. One only has to look at social media after the Government has issued an update to see who is signed up for email alerts.

Site notices attached to lampposts might be old fashioned but they do draw the attention of those at who walk past the site and potentially use or enjoy it. Perhaps a QR code that went straight to a planning application’s webpage or the proposed allocation might strike a good balance?

MHCLG Digital

In July 2018, the Local Digital Declaration was launched by then Local Government Minister, Rishi Sunak MP; MHCLG were working on digitising planning before this.

The MHCLG Digital Land prototype website was up and running last year and the team has shared a great deal of information about what they are working on.

At the start of 2019 the Local Plans digital project began. Earlier this year, a team was appointed by MHCLG to undertake a project: “Making it simpler to build a national timetable of local plan-making, and an index of the policies contained in local plan documents, will help the Planning Inspectorate better plan their resources for examinations and assist MHCLG in prioritising which local authorities to engage with and support throughout the plan-making process”.

This “Alpha phase” is now complete and the Beta phase is in progress. 

[13] Transparency and Competition: A call for evidence on data on land control is available here.

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