Your reading for the weekend! – Owl
The government announced on 26 October that the bill had now received royal assent.
www.planningresource.co.uk
The bill was first published in May 2022, prior to its first reading in the House of Commons, alongside its explanatory notes. Since then, both parliamentary houses have debated its provisions and made a number of amendments to the legislation. The final version of the bill was agreed earlier this week following the conclusion of the stage known as “ping-pong”, which refers to the term for the to and fro of amendments to Bills between the House of Commons and the House of Lords.
According to the 2022 explanatory notes, “changes to planning procedures will begin to take place from 2024, once the Bill has Royal Assent and associated regulations and changes to national policy are in place”.
In a blog post, Nicola Gooch, partner at law firm Irwin Mitchell, said that, while getting royal assent is a “big achievement, there is a still a lot of work left to do… bringing the provisions in LURA into effect will require a huge raft of further consultations, detailed technical work and secondary legislation”.
Indeed, according to consultancy Lichfields, “most of the sections [in the Act] directly related to development management and plan-making have not commenced and will require secondary legislation”.
While the final version of the Act is yet to be published, and secondary legislation has not yet been enacted, here are 35 things you need to know about how the new laws are intended to change the planning system.
1. Local planning authorities will be required to have a design code in place covering their entire areas. The bill’s original explanatory notes say that the legislation will require “all local planning authorities to have a design code in place covering their entire area”.
The document states: “The area-wide codes will act as a framework, for which subsequent detailed design codes can come forward, prepared for specific areas or sites and led either by the local planning authority, neighbourhood planning groups or by developers as part of planning applications. This will help ensure good design is considered at all spatial scales, down to development sites and individual plots.”
2. A new levy will replace section 106 planning obligations and the Community Infrastructure Levy. On “infrastructure”, the document confirms that the Bill will replace the current section 106 and the Community Infrastructure Levy (CIL) regimes with a new Infrastructure Levy.
It says that the rates and thresholds of this new levy will, as with the existing CIL regime, be set in charging schedules “and set and raised by local planning authorities (rather than nationally), meaning that rates are tailored to local circumstances and deliver at least as much onsite affordable housing”.
The notes add: “Charging schedules must have regard to previous levels of affordable housing funded by developer contributions such that they are kept at a level that will exceed or maintain previous levels. All schedules will be subject to public examination.”
There will also be “a process to require developers to deliver some forms of infrastructure that are integral to the design and delivery of a site”.
A government amendment to the Bill, agreed at committee stage, will allow money raised by the levy to be spent on additional matters as well as affordable housing and infrastructure.
The government later proposed a further amendment to the bill designed to strengthen its provision of affordable housing and permit authorities to disapply the levy in cases where they consider it will make development “unviable”.
3. A new requirement will be placed on local authorities to prepare infrastructure delivery strategies. The Bill also places “a new duty on local authorities to prepare infrastructure delivery strategies to outline how they intend to spend the levy”. This is to “make sure that infrastructure requirements and levy spending priorities are considered carefully”, the notes say.
4. More weight will be given to local plans, neighbourhood plans and spatial development strategies proposed by mayors or combined authorities. Under the “democracy” heading, the notes say that local plans, neighbourhood plans and spatial development strategies proposed by mayors or combined authorities “will be given more weight when decisions are made on applications so that there must be strong reasons to override the plan, providing communities more certainty”.
Meanwhile, local plans, minerals and waste plans, supplementary plans and neighbourhood plans will all be required to “take account” of new local nature recovery strategies.
5. The scope of local plans will be limited to ‘locally specific’ matters, with ‘issues that apply in most areas’ to be covered by a new suite of national policies. The document says that the Bill “requires each local planning authority to prepare one local plan, with the content limited to locally specific matters such as allocating land for development, detailing required infrastructure and setting out principles of good design”.
It adds: “General policies on issues that apply in most areas (such as general heritage protection) will be set out nationally and contained in a suite of National Development Management Policies (NDMPs), which will have the same weight as plans so that they are fully taken into account in decisions. Local plans will not be able to repeat these.
NDMPs will be subject to consultation in “all but exceptional circumstances”, but will not be subject to parliamentary approval, despite repeated attempts by the House of Lords to insert such a provision.
6. Ministers will have to have regard to climate change when preparing NDMPs. Although the government rejected an amendment originally tabled in the House of Lords which would have required ministers to “have regard to climate change when preparing planning policy”, it accepted a watered-down version of the provision.
Instead, the agreed-upon amendment which will form part of the final Act, will require the drafting of policies that are to be designated as NDMPs to “have regard to the need to mitigate, and adapt to, climate change, taking into account the range of climate scenarios and risk relevant to the policies being developed.”
7. The ‘duty to co-operate’ will be dropped, and time limits prescribed for different stages of plan preparation. The notes also say that the Bill makes “several other changes to improve the process for preparing local plans: new powers will enable the introduction of ‘Gateway’ checks so that issues are identified earlier during plan preparation, and allow time periods to be prescribed for different parts of the plan preparation process, enabling delivery of a time-bound end-to-end process; digital powers in the Bill will allow use of more standardised and reusable data, and there will be a new requirement for local planning authorities to produce a consolidated policies map of the full development plan for their area, improving the clarity and transparency of plans; and the ‘duty to co-operate’ contained in existing legislation is being repealed”.
Earlier this year, the government published a consultation on its proposed implementation of these plan-making reforms, which set out further details about the timetable authorities will be expected to follow when preparing their local plans.
8. There will be a new power for planning authorities to quickly create ‘supplementary plans’ for some or all of their areas. In addition, the notes continue, local planning authorities “will have a new power to prepare ‘supplementary plans’, where policies for specific sites or groups of sites need to be prepared quickly (e.g. in response to a new regeneration opportunity), or to set out design codes for a specific site, area or across their whole area”.
9. Groups of authorities will also be able to produce voluntary spatial development strategies on specific cross-boundary issues. “Groups of authorities” will also be allowed “to collaborate to produce a voluntary spatial development strategy, where they wish to provide strategic planning policies for issues that cut across their areas (echoing the powers conferred on some mayoral combined authorities already)”, the notes say.
10. The EU processes of environmental impact assessment and strategic environmental assessment will be replaced by ‘environmental outcomes reports’. Under “environment”, the notes say: “A new system of Environmental Outcomes Reports will replace the EU processes of Environmental Impact Assessment and Strategic Environmental Assessment whilst retaining the UK’s obligations under the UN Aarhus and Espoo Conventions.”
The notes say that the Bill, now the Act, introduces an “outcomes-based approach that will allow the government to set clear and tangible environmental outcomes which a plan or project is assessed against”. This will “allow decision-makers and local communities to clearly see where a plan or project is meeting these outcomes and what steps are being taken to avoid and mitigate any harm to the environment. These outcomes will be set following consultation and parliamentary scrutiny but will, for the first time, allow the government to reflect its environmental priorities directly in the decision-making process.”
11. A ‘simpler to prepare’ alternative to neighbourhood plans will be introduced. Under “neighbourhoods”, the notes say that the Bill introduces “a new neighbourhood planning tool called a ‘neighbourhood priorities statement’, providing communities with a simpler and more accessible way to set out their key priorities and preferences for their local areas. Local authorities will need to take these into account, where relevant, when preparing their local plans for the areas concerned, enabling more communities to better engage in the local plan-making process.”
Alongside this, the notes add, the Bill will “prescribe in more detail what communities can address in their neighbourhood plans and amend the ‘basic conditions’ to ensure neighbourhood plans are aligned with wider changes to the planning system”.
12. A ‘street votes’ system will permit residents to propose development on their street and hold a vote on whether planning permission should be given. The original version of the draft legislation included “placeholder for a substantive clause which will introduce a ‘Street Votes’ system that permits residents to propose development on their street and hold a vote on whether it should be given planning permission”. The document says: “This will provide a positive incentive for neighbours to consider the potential for development, especially in areas of higher demand, and support a gentle increase in densities through well-considered, well-designed and locally supported proposals.”
The government later amended the bill to make provision for “street vote development orders”, replacing the placeholder clause in earlier versions of the bill, and further clarified how these orders will work in practice.
The amendment confers “regulation-making powers relating to the preparation and making of an order, including provision for independent examination and a referendum”. Development granted by a street vote development order will also be subject to the Community Infrastructure Levy.
A further amendment, conferring a new “regulation-making power on the secretary of state to specify or describe development to be excluded from the remit of street vote development orders” was later agreed.
13. Decision-makers will face a new duty to act in line with the development plan and national policies. On “the planning application process”, the notes say the Bill will impose “a new duty on decision-makers to make planning decisions in accordance with the development plan and national development management policies unless material considerations strongly indicate otherwise”. The document says that this is to “increase certainty in planning decisions”.
14. A new route will be created to allow the Crown to apply directly to the secretary of state for determination of nationally important development. Further, the notes say that the Bill will “speed up the process of dealing with applications for nationally important Crown developments in the planning system”, including through “a new process for nationally important and urgent developments, and a new route which allow the Crown to apply directly to the secretary of state for determination of nationally important development”.
15. ‘Loopholes’ preventing planning enforcement will be closed. Under “enforcement”, the notes say that the Bill “amends and strengthens the powers and sanctions available to local planning authorities to deal with individuals who fail to abide by the rules and process of the planning system”.
This includes “facilitating enforcement action by closing existing loopholes which can be exploited to prolong unauthorised development, allowing more time for the investigation of breaches, introducing enforcement warning notices, making the enforcement timescales that currently apply more consistent, and increasing fines”.
16. Registered parks and gardens will get the same level of planning protection as listed buildings. On “protecting heritage”, the notes says that the Bill will “make changes so that designated heritage assets, such as registered parks and gardens, World Heritage Sites, protected wreck sites, and registered battlefields, enjoy the same statutory protection in the planning system as listed buildings and conservation areas”.
17. The compulsory purchase order system will be changed. According to the explanatory notes, the Bill “streamlines and modernises Compulsory Purchase Orders (CPO) and grants the power to local authorities to use CPO for regeneration purposes”. These changes “would empower local decision-making and improve transparency regarding local authorities’ power to acquire brownfield land compulsorily for regeneration in their area”, the notes say. The measures include changes to publicity requirements around CPOs and how inquiry procedures are held.
The government’s amendment 412D will allow ministers to disapply the “hope value” of land obtained via a compulsory purchase order – and see landowners compensated for just the existing use of their land – for schemes that include affordable housing, health or education provision.
18. Urban development corporations’ planning powers will be revised, and a new type of corporation introduced. The notes explain that, currently, there are four types of development corporation: “The New Town Development Corporation, the Urban Development Corporation, the Mayoral Development Corporation and the locally-led New Town Development Corporation”. The document says: “Each model reflects the time and circumstances when they were introduced, and thus have varying powers and remits.”
This Bill “makes provision for a new type of locally-led Urban Development Corporation, with the objective of regenerating its area and accountable to local authorities in the area rather than the secretary of state”, the notes say. It also “updates the planning powers available to centrally and locally-led development corporations, so that they can become local planning authorities for the purposes of local plan-making, overseeing neighbourhood planning and development management. This is to bring them in line with the Mayoral Development Corporation model.” The Bill also “amends the process for establishing locally-led New Town Development Corporations, [removes] the cap on the number of board members and [removes] the aggregate limits to borrowing”.
19. Planning authorities will get the power to instigate auctions to take leases on vacant high street properties. The notes confirm a new measure, heavily trailed by the government prior to the publication of the Bill, to give “local authorities powers to instigate auctions to rent vacant commercial properties in town centres and on high streets, for leases from one to five years to attract new tenants”. The notes say these new powers “can be exercised at the discretion of local authorities, based on their local context and need, but only on properties which have been vacant for over 12 months”.
20. A council tax premium on second homes can be introduced. The Bill introduces a “discretionary council tax premium on second homes and changes the qualifying period for use of the long term-empty homes premium”, the notes say. The document says that “local authorities may levy a premium of up to an additional 100 per cent on council tax bills for second homes and for empty homes after one year (as opposed to two years which is the current requirement)”. The government will consult on exemptions to this, the notes add.
21. A new route will be created for upper-tier councils to combine without the consent of lower-tier authorities in their areas. The notes say that, at present, “the available model for establishing a combined authority is primarily designed for urban areas”. To address this, “the Bill creates a new model for a ‘combined county authority’, which is made up of upper-tier local authorities only”.
The notes explain that the “main difference between combined county authorities and combined authorities is the membership: a combined county authority must include one two-tier county council and at least one other upper-tier county council or upper-tier unitary authority (i.e. district councils cannot be members and do not consent to the forming of a combined county authority), whereas a combined authority has to include all the local authorities within the area it is to cover (i.e. in a two-tier area, the county council and all district councils must be members, and consent to the forming of the combined authority)”.
The Bill “also includes measures to enable local authorities to move into directly elected leadership governance models more quickly to support devolution deals”, the notes say.
22. New measures intended to make land ownership more transparent will be introduced. The notes say that the Bill “includes measures that will facilitate a better understanding of who ultimately owns or controls land in England and Wales”, supporting a 2017 housing white paper commitment by “collecting and publishing data on contractual arrangements used by developers to control land, such as rights of pre-emption, options and conditional contracts”.
23. The secretary of state will gain new powers to control changes to street names. The Bill grants a power to the secretary of state “to set out the process to secure consent on any proposed changes to a street’s name”. The notes say: “This will ensure all local authorities follow the same process for changing street names and that they cannot do without the consent of those who live on the street.”
The measure follows moves by some councils to change street names considered to be offensive in the wake of the 2020 Black Lives Matter protests. A survey by the Guardian in January 2021 found that 30 statues, plaques and other memorials had been altered or removed following the protests. Some 130 Labour-led councils across the UK plus the mayor of London had commissioned reviews of their monuments, buildings or street names, the newspaper said.
24. Planning application fees will be raised by more than one-third. The government intends to increase planning fees for major and minor applications by 35 per cent and 25 per cent respectively, subject to consultation, the companion document to the Bill said.
It adds: “We will seek to bring forward powers to charge developers and promoters for statutory consultee advice in certain circumstances.”
The existing performance framework for planning authorities will be expanded to measure performance across a broader range of quantitative and qualitative measures, the document says. It also repeats previous government promises to develop a planning skills strategy for local planning authorities.
Earlier this week, the statutory instrument which would provide for the proposed fee increase was approved by both parliamentary houses and will now proceed to the committee stage.
However, MPs refused to accept an amendment proposed in the House of Lords which would have allowed councils to set their own application fees.
25. The emphasis of the National Planning Policy Framework will shift to guiding plan-making. Policies in the current National Planning Policy Framework (NPPF) that are intended to guide decision-making will be stripped out to form the basis of the promised National Development Management Policies that will take precedence over local plans as the primary policy guide for decision-making, the companion document to the Bill says. A draft version of the NPPF revisions was published in December 2023.
26. Tools to force developers to complete schemes will be made easier for authorities to use. The Act will make it easier for planning authorities to issue completion notices to developers to require them to complete their projects. And it will introduce commencement notices which will be required when a scheme with planning permission starts on site, which it says will address “perceptions of ‘land banking’ and slow build-out by larger developers”.
27. Benefit to the public purse will become a factor in authorities’ land allocation decisions. Planning authorities will be able to partially base their land allocation decisions on the option price of sites offered to them by developers, under legislation promised by the Bill to enable the piloting of “Community Land Auctions”.
“Landowners will be able to submit their land into an allocation process as part of an emerging local plan, offering the local planning authority an option on the land at a price set by the landowner,” the companion document to the Bill says.
“The local authority will allocate land based on both planning considerations and the option price,” it continues. “It will then auction the development rights onto a successful bidder once land is allocated in the adopted plan. The difference between the option price offered by landowners, and the price offered to develop allocated land, will be retained by local authorities for the benefit of local communities”.
28. Powers to require developers to engage with communities pre-application will be made permanent. For decision-making, the Act will also enable pre-application engagement with communities to be required before a planning application is submitted, removing the sunset clause, making the powers that currently expire in 2025 permanent.
The companion document also promises new guidance on community engagement in planning, “including the opportunities which digital technology offers”. But it adds that any new digital engagement tools “will sit alongside existing methods of engagement (such as site notices and neighbour letters)”.
29. Councils will have the power to decline to determine applications from applicants who have been slow to implement previous permissions across their entire authority areas. In December 2022, the government amended the bill to include new Clause 67, to allow “local planning authorities in England to decline to determine applications for planning permission in cases where an earlier permission has not been implemented or the development has been carried out unreasonably slowly”.
This provision was later extended, via amendment 261A, to cover the whole council area, rather than a particular site. Authorities will therefore be able “to refuse to determine an application for planning permission in certain cases where there was a previous application relating to land within the authority’s area and the development was not begun or has been carried out unreasonably slowly”.
30. Provisions to allow councils to benefit financially from land allocations will be introduced. The amendments make temporary provision for the piloting of “community land auctions”, which will allow landowners to “grant options over land…with a view to the land being allocated for development in the local plan”.
The participating local planning authority will then have the power to “exercise or sell” the option, allowing it to capture “some of the increased value that would result from allocation for development”.
The difference between the option price and the post-allocation price could subsequently be used by authorities to “support development of the area”.
Authorities will be permitted to take into account the “financial benefits arising from options” when making decisions about the local plan.
However, the government also amended the bill to make clear that authorities cannot be forced to pilot controversial community land auctions (CLAs) and will have to “actively volunteer”.
31. Statutory consultees can charge for advice related to Nationally Significant Infrastructure Project applications. The secretary of state will be given the power to make regulations permitting “certain public authorities to charge fees for the provision of advice, information or other assistance in connection with applications for development consent orders”.
This will also apply to changes to Development Consent Orders for NSIPs and “other prescribed matters to do with nationally significant infrastructure projects”.
32. New duty on councils to grant sufficient permission for self- and custom-build housing and include pre-existing unmet demand for this housing when calculating their current level of demand. Amendment 68 revises section 2A(2) of 2015’s Self-build and Custom Housebuilding Act. The revised clause says local planning authorities must give sufficient permissions for self-build and custom housebuilding on serviced plots to meet the demand for such development in their area over a given period.
The explanatory notes for the amendment say the government’s intention is that planning permissions will only qualify towards meeting demand for self-build and custom housebuilding as set out in the 2015 Act if they are actually designed for this purpose. The revised wording deletes a subsection, which proponents of the sector argue allows councils to count any planning permission that ‘could’ be used for self-build and custom housing, even if it was for market housing.
A separate provision, introduced by amendment 281CC, “provides that the demand for self-build and custom housebuilding in an authority’s area in a particular 12-month base period should be treated as including any demand from an earlier 12-month base period which has not been met within the time period allowed for complying with the duty to meet that demand”.
A further amendment, number 281CB, will allow the secretary of state to “specify descriptions of planning permissions or permissions in principle that will count as development permissions for the purpose of a local planning authority complying with its duty to meet the demand for self-build and custom housebuilding in its area”.
33. The legislation makes provision for registration of short-term rental properties. Amendment NC119 adds a new clause to the bill requiring the secretary of state “to make provision by regulations requiring or permitting the registration of specified ‘short-term rental properties’”.
The amendment sets out that a “short-term rental property” means (a) a dwelling, or part of a dwelling, which is provided by a person (‘the host’) to another person (‘the guest’) (i) for use by the guest as accommodation other than the guest’s only or principal residence, (ii) in return for payment (whether or not by the guest), and (iii) in the course of a trade or business carried on by the host, and (b) any dwelling or premises, or part of a dwelling or premises, not falling within paragraph (a) which is specified for the purposes of this paragraph”.
The amendment says that the secretary of state “must consult the public before making the first regulations under this section”.
34. The secretary of state can allow planning inspectors the power to conduct proceedings “wholly or partly remotely”. Tabled by DLUHC junior minister Baroness Scott of Bybrook, amendment number 285B inserts a new clause that will confer a “power on the secretary of state to require or permit a person who takes part in certain proceedings relating to planning, development or the compulsory purchase of land to do so wholly or partly remotely”.
The amendment’s explanatory note states that the power could be “exercised by a person appointed by the secretary of state and it is intended that the Planning Inspectorate will be appointed for this purpose”.
According to the amendment, this could apply to “any inquiry, hearing, examination, meeting or other proceedings…which relate to planning, development or the compulsory purchase of land”.
However, councils will not be given the same right, after MPs blocked an amendment which will have allowed virtual committee meetings. Housing minister Rachel Maclean told the Commons that ministers hold the “strong view” that one of the “core principles” of local democracy is that citizens can attend council meetings “to interact in person with their local representatives”, and MPs voted against the amendment.
35. The secretary of state can ask authorities to reimburse the government for local plan advice costs. An amendment to the bill, number 216A, will allow the secretary of state to “require a local planning authority to reimburse the secretary of state for expenditure incurred in connection with appointing a person to provide observations or advice on a proposed local plan or to pay any fees and expenses of that person”.
Wild Flowers Seaton Road Colyford Devon EX24 6QWRef. No: 23/2240/FUL | Validated: Fri 20 Oct 2023 | Status: Awaiting decision
East Devon Watch 