12th December 2023
Long awaited reforms to the planning system arrived in October as the Levelling Up and Regeneration Act 2023 came into law.
But with the mammoth act reliant on a series of secondary legislation yet to follow, there are plenty of gaps to fill before the legal jigsaw is complete. Here’s what you need to know about six notable planning changes expected to come down the planning pipeline:
National development management policies (NDMPs)
These new policies, which will sit separately to the National Planning Policy Framework (NPPF), are to be focused on specific areas of planning and will sit above Local Plans in terms of relevance. This means that if an application creates a conflict between the NDMP and the Local Plan, the former will be prioritised.
Whilst we don’t yet know what areas will be covered by the policies, the positive take from their planned introduction is that it will enforce more compliance as it is another level of policy to adhere to. The main drawback, however, is that it could result in more red tape – something the government has repeatedly claimed they wish to cut.
The removal of the areas covered in NDMPs from Local Plans will, however, make the latter leaner and more dynamic, focusing instead on the houses being built and where they would be located.
Further efforts to strengthen the power of Local Plans is set to come through LURA with a change in wording to ensure that Development Plans should be followed unless there is any other material consideration that “strongly” indicates otherwise. Once this comes into force, it will be interesting to see how it is interpreted by the courts when a challenge to a decision inevitably arises.
Speeding up Local Plan delivery
The current state of Local Plans is far from positive, with only around 40% of Local Planning Authorities (LPAs) having one in place that is up-to-date and only a single plan currently under examination in the entire country.
To remedy this, LURA is set to bring in measures to help remove blockages in the process, including the suggestion that new Local Plans would be required to be produced in 30 months and the removal of the duty to cooperate with neighbouring authorities in favour of cooperating with key stakeholders.
On the face of it, these measures could be considered positive as it will help speed the process up, but given Local Plans are required to be reviewed every five years, it could potentially mean more work – especially if there is an influx of councils seeking an examination in public by the Planning Inspectorate.
Refusing to determine applications from developers with poor track records
LPAs are set to be empowered under LURA to determine applications from developers with a track record of ‘unreasonably slow’ delivery or where they have not implemented sites once permission had been granted.
Under the plans, LPAs would also be able to serve notice and request information if they have concerns over the delivery of the developer’s other sites. Developers will need to respond to the notice within 21 days with evidence to explain the situation, with those producing misleading information potentially subject to criminal charges.
Whilst these powers being thrust into the hands of LPAs by the government might appear impressive, the aim of punishing developers is controversial and questions remain around whether there is need for such measures. Recent research commissioned by the Land Promoters and Developers Federation (LPDF) and the Home Builders Federation (HBF) has suggested in a given year, after five years only 3-5% of homes granted permission will lapse or stall.
Changes to enforcement immunity period
Presently, those in breach of planning control in respect of building operations and unauthorised change of use of a building to a dwelling are immune from enforcement after four years, but under LURA this has now been extended to ten years in England.
With the longer enforcement period making it much more difficult to secure immunity, those in breach will need to explore the options open to them – such as securing planning permission or taking advantage of Permitted Development Rights. Those seeking to rely on the four-year rule to apply for a certificate of lawfulness should do so as soon as possible as it not known when the regulations for this change will come into force.
Enforcement warning notices
Already a process in Wales, LURA is set to introduce the power for LPAs in England to encourage those believed to be in breach of planning control to apply for permission where it is believed there is a reasonable prospect it could be granted.
This will provide an opportunity for negotiation and discussion between the LPA and the party in breach before any enforcement notices need to be served. It will be interesting to see how high the take-up with LPAs is as it will help encourage a more collaborative approach.
Importantly, the issuing of a notice also stops the clock on the enforcement immunity period mentioned in the previous section.
New infrastructure levy
One of the most discussed new features being introduced by LURA is the plan to introduce a new levy. This will be separate to the Community Infrastructure Levy (CIL) and Section 106 payments, which will continue to apply to sites permitted before the new levy is introduced.
The levy will be charged on the value of property when it is sold and applied above a minimum threshold, with rates set as a percentage of gross development value rather than based on floorspace, making it more like a traditional tax and allow for greater use of land value capture.
Unlike under CIL, affordable housing is included in the list of infrastructure to be funded under the new levy. Prior to the LURA coming into force 18 leading housing sector organisations including the Housing Federation, Shelter, Crisis and the GLA highlighted the levy could negatively impact the creation of new affordable housing. In response to this the Government has said that the role of the levy will be slow via a pilot scheme so they can put the lessons learned into practice and make changes to the levy if needed.
Lorraine Neve, Senior Associate in the Thrings Planning and Environment team, said: “The LURA is potentially one of the biggest changes to the planning regime since the NPPF was introduced in 2012 and whilst the overall framework for the legislation is now in place, there are plenty of pieces of the jigsaw still to come forward.
“We don’t yet know how much of the LURA will come into force or when, not least with a General Election on the horizon next year and the potential for a new government to make changes to the provisions or scrap them altogether. For those areas it is a waiting game, but developers and landowners will need to be aware of the impacts now to prepare for the changes ahead and ensure a smooth transition in any development transactions.”
Thrings’ Planning and Environment lawyers have extensive experience in navigating complex local and national planning policy and legislation and has successfully supported commercial and residential applications through the approval and appeal processes. To find out more and for advice on your development proposals, including how to address enforcement notices, please do get in touch.