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The Levelling-up and Regeneration Bill 2022-23
08 Jun 2022

The Levelling-up and Regeneration Bill 2022-23 (LURB)

The LURB, which received its first reading in the House of  Commons on 11 May, lacks some of the more radical changes to the Planning system proposed in the ‘Planning for the Future White Paper’ published in August 2020 (gone are the controversial plans for Growth zones), however, the LURB nonetheless introduces a vast array of significant changes to the Planning system, many of which have not caught the attention of the mainstream media, but which will have a considerable impact on the Planning regime.

The concept of ‘Street Votes’ was the focus of press attention, however the idea is yet to be developed beyond the head-line grabbing title – there are no details at all in the Bill, which is included as a ’placeholder’ to enable future legislation. The accompanying explanatory notes indicate that the current intention is to provide a system allowing residents of a street to propose development and to hold a vote on whether it should be granted permission; how a ‘street’ is to be defined, how the votes are to be organised, and whether the Council’s views as to the suitability of the scheme and/or its compliance with Local Plan policies are to be taken into account, all remain to be seen.

Other changes are fleshed out to varying degrees in the Bill, including:

Plan Making & Decision Taking

  • There is to be a greater role for central Government through the introduction of a new suite of National Development Management Policies (NDMPs) setting out generic policies which will apply across England. Local Authorities will have to have regard to these NDMPs when preparing their Local Plan.
  • The accompanying policy note explains that these NDMPs will be derived from those NPPF policies which guide decision-making, with consequent streamlining of the NPPF to focus on plan-making.
  • Decision-taking - Decisions will need to be determined in accordance with the development plan and the NDMPs, placing the NDMPs on a higher footing than the current NPPF policies which are ‘just’ material considerations; and where there is a conflict between local policies and the NDMPs, the nationally set policies will take precedence.
  • A higher bar is also set for ‘material considerations’ - only where they ‘strongly indicate’ that decisions should be taken contrary to the Development Plan and NDMPs will they be able to influence decisions away from the policy position.
  • Whilst the NDMPs will increase certainty and consistency across England, and will reduce the content within Local Plans (as they are to be prohibited from repeating the NDMP policies), there is concern that one size does not always fit all, and it could be seen as a power-grab by central government and a move away from localism.
  • The Government’s policy paper proposes to drop the requirement for Local Planning Authorities to show a 5 year housing land supply, provided that their Development Plan has been adopted within the last 5 years – limiting the scope for speculative schemes that take advantage of the current tilted balance that applies where housing policies are to given less weight  in areas where a housing land supply shortfall exists.
  • The Duty to co-operate will fall away, albeit that there will be additional (non-mandatory) mechanisms allowing local authorities to voluntarily join forces to produce Joint Spatial Development Strategies and Joint Local Plans.
  • Neighbourhood Priority Statements are a new concept, billed as a simpler and more accessible way for communities to set out their priorities and preferences for their area, which must be taken into account by the Authority when preparing their Local Plan.  We are told that this is to incentivise neighbours to consider the potential for development. Neighbourhood Plans remain and communities looking to control the amount of their development in their area through a Neighbourhood Plan may be disappointed however, as the Bill provides that Neighbourhood Plans must not result in the development plan for the wider area proposing less housing that it would otherwise have done.

Enforcement

  • A more punitive approach to unauthorised development is apparent. One major change which appears to have gone largely unreported is that the current immunity periods for operational development (building, engineering mining and other operations) and changes of use to a single dwellinghouse, are to be extended from 4 years to 10 years, expanding the scope for enforcement action to be taken against unauthorised development in England.
  • Other changes include a new power to issue Enforcement Warning Notices which will allow a window of time within which a planning application can be invited for unauthorised development in England where it would have a reasonable prospect of being acceptable in planning terms; a failure to apply could be followed up with formal enforcement action. Whilst welcome, this is a discretionary power which may see limited use, and in reality is the formalisation of an approach local authorities already take to unauthorised development.
  • Appeals against enforcement notices seeking permission for unauthorised works (under Ground (a)) are to be further restricted where a prior related application has been made.
  • The existing power of the Secretary of State to dismiss an appeal where the appellant is causing undue delay to the appeal process is extended to apply to Enforcement and Certificate of Lawfulness appeals.
  • Increased fines will be available for failure to comply with a condition attached to a planning permission or a s215 notice (tidy-up notice).
  • Commencement Notices - A new obligation to serve notice prior to the commencement of development is intended to improve transparency for the public in understanding when and how development will come forward; whilst the details to be included in the notice are not specified, the explanatory notes indicate they may include proposed delivery rates and phasing, as well as the expected completion date, which information is to be included in the publicly available planning register. A failure to serve notice can result in a fine if the required information is not provided when called for by the local authority.
  • The existing power for Local Authorities to serve Completion Notices requiring development, in England, that has commenced, but remains unfinished, requiring completion within a specified timescales (at least 12 months), is extended so that Secretary of State involvement is no longer required and the notice can be served before the expiry of the permission; the permission falls away for any work remaining outstanding after the specified date; a new appeal process is introduced, though there is limited detail as to the mechanics. The existing powers relating to Completion Notices are little-used and given that the new proposals will still not secure the actual completion of development, it seems unlikely that that position will alter significantly.

A new concept of applications for Minor Variations to Planning Permissions is to be introduced enabling changes to the description of development as well as the conditions (which recent caselaw has established is not possible current under s73 TCPA 1990) albeit that the development may not be substantially different to the existing permission, and it remains the case that time limits for commencement and seeking reserved matters approval cannot be extend under this provision.

New powers relating to the modification and discharge of s106 obligations are to be provided for but there is no detail on what is envisaged in this regard.

A new Infrastructure Levy (IL) is to replace the current Community Infrastructure Levy (CIL, which not all Local Authorities have adopted) as well as s106 obligations, as the primary means to collect funding from development sites to contribute towards infrastructure requirements.

  • The CIL Regulations were poorly drafted, have undergone a number of revisions, and remain incredibly complex to understand and apply; there is very little detail on the IL so far, but the explanatory note indicates that it will be assessed on the basis of the gross development value at the point of sale, rather than the floorspace permitted.
  • The IL rates will be set at a local level, the objective being to secure a least an equal level of obligations, including affordable housing, as is secured currently; strategic plans must identify the infrastructure that the IL is to fund.
  • The objective is to ensure that the costs incurred in supporting development in an area can be funded by owners and developers in a way that does not make the development of the area economically unviable.
  • Section 106 Agreements will still remain as a mechanism to secure on-site requirements (such as open space, and presumably also affordable housing where a specific number, mix and tenure is required) and will also be needed where larger sites are to deliver infrastructure (rather than just making financial contributions towards it).

Heritage

  • A new statutory obligation to prepare and maintain a Historic Environment Record (HER) detailing Listed Buildings, Conservation Areas, Scheduled Monuments, registered parks & gardens, wrecks and Word Heritage Sites plus other sites which the authority considers to be of historic, architectural, archaeological or artistic interest is to be introduced. Provision is made for regulations to direct how the information should be stored and made available and for fees to be charged for advice in connection with the HER and documents obtained from it. The NPPF already encourages Local Authorities to maintain a HER, but the number and quality is variable and it is not clear how Authorities will find the resources to comply with his new statutory obligation to compile and maintain a HER given how stretched they are presently.
  • In decision making which affects a designated heritage asset or its setting, in England, there will be a new statutory duty to have special regard to the desirability of preserving or enhancing the asset or its setting – this extends the existing duty in relation to Listed Buildings and Conservation Areas to all designated heritage assets and extends the duty to include the enhancement of the asset or its setting rather than simply its preservation.
  • A change which aligns the process with that already in place in Wales will extend the Local Authorities ability to carry out urgent works to a Listed Building where it is in residential use provided that the works would not unreasonably interfere with that use.

Environmental Outcomes Reports (EORs) are to replace the current requirement for Environmental Impact Assessments (EIA).

  • Monitoring requirements will allow local communities and stakeholders to see where a plan or project is meeting these outcomes and any steps that will be taken to mitigate harm, aiming to prioritise the environment in planning decisions and improve outcomes for the natural environment.
  • The detail is to follow, and the Regulations will be subject to consultation, but the Policy paper bills this change as enabling the Government to take back control from Brussels by allowing them to set clear and tangible environmental outcomes against which a plan or project is assessed.
  • EOR Regulations are only to be made if the Secretary of State is satisfied that making the Regulations will not result in a reduction in the overall level of environmental protection.

Design is seen as a key pillar of levelling up in terms of restoring a sense of pride in place. Area wide design codes are to be required at local authority level either as part of Local Plan or Supplementary plan, consequently, they will carry full weight in decision making. Such codes will therefore need to be sufficiently broad to encompass the diverse range of local character within their areas.

This summary is by no means exhaustive, there are many other provisions within the Bill; much is contingent on the Regulations which will follow, fleshing out the detail of how these concepts will work in practice, and it is likely that at least some of them will fall by the way-side.

Whether the provisions have the levelling up effect that are intended is perhaps questionable, but the changes to the Planning system are considerable, with one notable impact being to further separate the systems operating in England and Wales.

To find out more about the Levelling-up and Regeneration Bill, please contact Suzanne Tucker via email on suzanne.tucker@fbcmb.co.uk or on 01743 266294.

Meet Suzanne Tucker