Levelling Up and Planning Reform

Last week the UK Government published its long-awaited proposals for reform of the planning system in England and Wales, in the Levelling-Up and Regeneration Bill.

Back in June 2020, radical reforms to the planning system were proposed, including introducing zoning and deemed planning permission in designated growth areas.  Despite the abandonment of these far-reaching reforms, the proposals set out in the Bill, are significant.  The main changes are as follows.

Central Government will take a much greater role in planning

This will be achieved by the introduction of a new suite of National Development Management Policies which will set out generic planning policies applicable across the country.  Local Plans will be expected to restrict themselves to purely local issues.  The expectation is that this will provide greater consistency in decision-making and help with the speedy production of up-to-date Local Plans.  This is backed by a new statutory provision to the effect that applications are to be determined in accordance with the Local Plan and National Development Management Policies and if there is a conflict between the two, national policies will prevail.

This is a significant cultural shift from the position to date under which locally-determined policies should prevail.  There is also some scepticism about the production of a whole new suite of national policies: is this a return to the days of PPGs which were swept away on the grounds that these were too unwieldy and bureaucratic?

The Bill proposes the replacement (in most cases) of s106 Agreements with a new infrastructure levy

The details will follow in draft Regulations, but the charges will be set at the local level following a local public examination.  The levy is to be charged on the value of property when it is sold and rates will be set on a percentage of gross development values rather than being based on floor space as at present.  However, s106 agreements will be retained for the “largest sites” (to be determined) and these will be “narrowly targeted”.

The time limits for the enforcement of planning breaches are to be extended

Currently breaches of planning control involving “operational development” (principally building works) and changes of use to a single dwelling house are immune from enforcement after four years (assuming no threatened enforcement action in the meantime).  This is to be changed to 10 years to put it in line with breaches of planning conditions and unlawful changes of use.  This change would introduce greater uncertainty for landowners and investors who will need to carry out enhanced due diligence on a transaction over a longer period of time than at present to check for past planning breaches or obtain suitable insurance.

Environmental Impact Assessments (“EIA“) and Strategic Environmental Assessments (“SEA“) to be replaced

EIA and SEA both figured large in the Brexit debate.  They were (with some justification) considered unduly bureaucratic, cumbersome and an unnecessary impediment to much-needed development.  Brexit it was said, would allow the UK to introduce a more proportionate regulatory framework for developers free from unnecessary burdens.  New Environmental Outcome Reports (“EORs”) are the UK Government’s response.

The devil will be in the detail – and this will only be available when draft Regulations are proposed but the broad framework will involve environmental outcomes being established by Parliament with plans and policies needing to demonstrate compliance.  It is to be noted that the Bill only requires compliance “overall” with the outcomes which will be very difficult to assess.  The Bill also includes a non-regression provision: that is to say that standards of environmental protection should not fall below those prevailing “at the time the Act is passed”.  This is a somewhat arbitrary and a less ambitious standard than to date.  It is worth noting that the UK is bound by a number of international obligations in relation to the carrying out of environmental assessment and activists will be watching very closely to make sure the UK Government’s detailed Regulations comply with those obligations.

New “enforcement warning notices”

The Bill introduces new environmental warning notices where a local planning authority identifies a planning breach which they consider could be remedied by a retrospective planning permission.  The notices would specify a time period within which an application should be made.  If no such application is made, enforcement action could then be initiated.  Unfortunately, there is no obligation on local authorities to serve such notices ahead of formal enforcement action and accordingly, a mechanism that has the potential to provide landowners and investors with a degree of certainly is likely to be of limited benefit.

The Bill sets out a framework for detailed secondary legislation on these and other (notably new compulsory purchase) powers, so to a large extent, it is difficult, in the absence of the detail, to come to a judgment about whether the proposals will improve the current system or not.  At the moment, the best we can say is that they have the potential to do so and watch this space.

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