Planning law solicitor Ellie Hambling and trainee solicitor, Issy Bainbridge give an insight into some of the proposed changes within Planning Law following the 'Levelling Up and Regeneration Bill'.
On 11th May 2022, the Levelling Up and Regeneration Bill (“the Bill”) was placed before Parliament. As some of our readers may (or may not) have seen, the Bill comprises a raft of changes across local government, regeneration, planning, and compulsory purchase.
This article provides an overview of some of the key sections of the Bill concerning planning law, namely:
A significant proportion of the Bill considers the need to digitalise and simplify the planning system to ensure that there is consistency and transparency.
The Bill foreshadows the introduction of regulations which will require planning authorities to comply with “approved data standards”. It also provides planning authorities with the power to require “planning data” to be provided to them in accordance with the approved data standards. “Planning data” is defined as information which is sent to or used by planning authorities under relevant enactments or for the purposes of planning or development.
To put this into context, the explanatory note to the Bill provides the example of conservation areas. Currently, there is no standard format in which planning authorities refer to conservation areas which makes it hard for users of this data to identify which areas are suitable for development and what restrictions are in place. By setting a standard, a coherent and consistent national map of conservation areas can be developed, which in turn can be used to better safeguard areas of special importance.
The Bill also makes provision for regulations which will require planning authorities to make certain planning data available to the public in England. For example, at present, there is no requirement for planning authorities to publish Article 4 Directions that are within their area, which makes it difficult for applicants to know what rules to follow. Through the new powers, the Secretary of State may require planning authorities to openly publish Article 4 Directions online to a set data standard. The aim is to ensure consistency and ensure interested parties can all understand the rules for development in any given area.
The law currently prescribes that in deciding on planning applications the determination must be made in accordance with the development plan i.e., Local Plan, unless material considerations indicate otherwise. There are many things capable of being a “material consideration” to include the National Planning Policy Framework.
Under the Bill, in England (not applicable in Wales) this formulation is replaced – namely that the decision must be made in accordance with “the development plan and any national development management policies, unless material considerations strongly indicate otherwise” (emphasis added).
The idea behind this change is to increase certainty in planning decisions, however, it will be interesting to see how the word “strongly” is interpreted in practice. There is clear scope for challenge before the Planning Court.
Local plans are also to be given more weight when making decisions on applications. This change will mean that there must be a strong reason to override the local plan. The same weight will also be given to other parts of the development plan, including neighbourhood plans prepared by local communities and waste plans prepared by minerals and waste planning authorities.
In addition, to help make the process for producing plans easier, policies on issues that apply in most areas such as general heritage protection and green belt protection, will be set out nationally. These will be contained in a suite of “National Development Management Policies”, which are to be given the same weight as plans. This should provide more consistent planning.
There are other changes proposed, all of which with the aim of speeding up the preparation and adoption of Local Plans, which includes the removal of the current requirement to provide a rolling five-year housing land supply, where a Local Plan has been adopted in the last five years.
Part 4 of the Bill introduces a new charge in England called the “Infrastructure Levy” (“IL”). Schedule 11 of the Bill contains powers for the Secretary of State to create regulations for the IL and Schedule 11 will be inserted into the Planning Act 2008 as a new Part 10A.
The Government have said that they want to make sure more of the money accrued by landowners and developers goes towards funding the local infrastructure – affordable housing, schools, GP surgeries, and roads. To do this, the Bill will replace the current system of developer contributions with a “simple, mandatory, and local determined Infrastructure Levy”.
The Bill states that IL will ensure that the level of affordable housing and the level of funding providing by developers is “maintained at a level which, over a specified period, is equal to or exceeds the level of such housing and funding provided over an earlier specified period of the same length”.
The method of charging IL will be set in future regulations, but it is currently intended that IL will be charged on the value of property when it is sold and applied above a minimum threshold. The Levy rates and minimum thresholds will be set and collected locally, and authorities can set different rates in their area. The rates will be set as a percentage of the final gross development value of development, rather than based on the floorspace of development as presently required by CIL.
The devil will be in the detail, as it is not yet known how IL will work in practice and its relationship with other planning obligations (i.e. s.106 and s.278 agreements). However, it does appear to be the Government’s intention to reduce the use of Section 106 planning obligations, so that they are primarily used on the largest sites in place of IL to provide onsite infrastructure.
Clause 92 of the Bill sees the preservation measures for Listed Buildings and Conservation Areas extended to Scheduled Monuments, Protected Wreck Sites, Registered Parks and Gardens, Registered Battlefields, and World Heritage Sites.
The Bill also inserts a new Section 58B to the TCPA 1990, which provides that when determining a permission for development of land in England which affects a relevant asset or its setting, the local planning authority (“LPA”) must have special regard to the desirability of preserving or enhancing the affected asset or its setting.
The enforcement powers available to protect historic buildings will also be enhanced, with the introduction of temporary stop notices; strengthening the power to issue Urgent Works Notices by extending them to apply to occupied listed buildings; making the costs of carrying out works a local land charge to aid cost recovery by LPA’s; and removing the compensation liability in relation to Building Preservation Notices.
The Bill will also place a statutory duty on local authorities to maintain a Historic Environment Record for their area.
This has attracted attention in the popular media. Clause 96 of the Bill is a placeholder clause which concerns the Government’s wishes to introduce a “street votes” system which (if implemented) will allow residents of a street to:“(a) propose development on their street, and (b) determine, by means of a vote, whether that development should be given planning permission, on condition that certain requirements prescribed in regulations are met.”
This proposal will mainly apply to applications for extensions to existing properties (i.e., conservatories, loft conversations, and the like), but also to new-build sites. The purpose of this proposal is to encourage more local involvement in nearby development plans and shape their local area. It is hoped that the ‘street vote’ system will rebuild public trust in the planning system.
In Michael Gove’s words:
“Arithmetic is important but so is beauty, so is belonging, so is democracy, and so is making sure that we are building communities… that people love and are proud of.”
However, there is the potential for this proposal to “fall apart” or be subject to “mob rule”. The devil will be in the detail which we await.
Clause 98 of the Bill considers “minor variations in planning permission” to allow greater flexibility for making non-substantial changes to planning permission than the procedure currently in place under s.73 and s.96A of the TCPA.
The Bill proposes to amend the TCPA by inserting a new s.73B to deal with applications for permission which are “substantially the same as existing permission” on the basis that:
“Planning permission may be granted in accordance with this section only if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission” [emphasis added]”
The Government’s Explanatory Note explains how this change will enable sensible and practical changes to be made to planning permissions which are not possible under the existing framework without the submission of multiple applications under different routes.
Clause 99 of the Bill inserts a new section 93G to the TCPA, which imposes a duty on the person intending to carry out a development to serve a commencement notice before any development has begun on site. The LPA also has power to require the information requested in the commencement notice. Commencement notices are also put on a LPA’s public register.
A new section 93H to the TCPA will be created, giving LPA’s power to serve a completion notice on grants of planning permission for development which have commenced, but which in their opinion, will not be completed in a response period. A completion notice will set out a time limit after which planning permission will cease to have effect for any unfinished parts of the development.
The completion notice deadline must be at least 12 months after the notice was served and where planning permission was granted subject to a condition requiring development to have begun by a particular period, at least 12 months after the end of that period.
Clause 101 of the Bill has regard to the time limits for bringing enforcement action against unauthorised use and development.
Currently, the provisions of s.171B of the TCPA mean that, at present, if you have undertaken any ‘operational development’ (within the meaning contained at s.55 of the TCPA) or developed a dwelling without permission, and no enforcement action for that breach has been actioned within four years of completion, the development becomes immune from enforcement action being taken and is considered to be lawful.
However, the proposed changes look to alter this position and make all development (in England) subject to a ten-year period. Simply put, an LPA will have 10 years in which to take enforcement action against any breach of planning control.
Whilst this may alleviate any confusion as to which time limit applies, there is likely to be an increase in the amount of enforcement action taken as LPA’s will have additional time in which to locate and action against breaches which may currently be slipping under the radar.
Temporary stop notices are used by LPA’s to pause development to establish the facts of the case where a planning breach is suspected and currently (under s.171E TCPA) cease to have effect after 28 days of the notice being displayed.
Clause 102 of the Bill seeks to extend the time period for temporary stop notices to 56 days from 28 days (in England) to allow further investigation time.
Clause 103 of the Bill creates a new power for LPA’s in England to issue an “enforcement warning notice”. This provides a new power for LPA’s to use where they become aware of an unauthorised development that has a reasonable prospect of being acceptable in planning terms.
The new power enables LPA’s to serve an enforcement warning notice asking the person concerned to submit a retrospective planning application within a specified period. The LPA can take further enforcement action if an application is not received within the specified period.
Clause 104 of the Bill sets to reduce the scope by which an appeal against enforcement notices can be made so that you cannot appeal against an enforcement notice relating to a breach where you have also applied for retrospective consent for said breach. This change effectively removes ground (a) of section 174 TCPA so that there is only one opportunity to obtain retrospective planning permission.
The Bill also intends (at clause 105) to provide the Planning Inspectorate (in England) the power to dismiss certain appeals of enforcement notices (s.176 TCPA) or rejected applications for Certificates of Lawfulness (s.195 TCPA) where the appellant causes undue delay and fails to expedite the appeal within a certain time frame (following a notice of potential dismissal being issued).
Clause 106 of the Bill considers the potential increase in the penalties for breaches of planning control (and failure to comply with notices).
Currently, the maximum fine for failure to comply with a breach of condition notice in England is no more than level 4 on the standard scale (£2,500) – this could be increased to level 5 (unlimited). Similarly, failure to comply with a s.215 notice attracts no more than a level 3 fine (£1,000), but this too may be increased to level 5 (unlimited). There may also be an increase in the maximum daily fine (currently, up to one-tenth of level 3 (£1,000)) to the greater of either (i) one-tenth of level 4 (£2,500) or £5,000.
The message: compliance with planning control is mandatory.
The Bill will also give local authorities an important new power to instigate high street rental auctions of selected vacant commercial properties in town centres and on high streets which have been vacant for more than one year.
There will be a two-month notice period during which landlords can evidence a signed lease, and if none is presented, an authority will be able to serve a final rental auction notice, triggering a two-month auction period for bidders to come forward.
It will be interesting to see how effective this proposal will be in practice as it may well encourage owners of vacant high street premises to utilise their PD rights for a change of use to residential under Class MA instead.
As mentioned at the start of this article, the Bill contains a raft of changes to the planning system and this article has only sought to provide brief coverage of some of the key changes and is by no means an exhaustive summary of all the changes proposed by the Bill.
The second reading of the Bill is scheduled in the House of Commons for 8th June 2022 and the Government has announced that in broad terms, changes to the planning procedures will begin to take place from 2024, once the Bill has received Royal Assent and the associated regulations and changes to the national policy are in place.
Holmes & Hills Solicitors Planning and Development Team is monitoring the progress of the Bill closely and will continue to provide updates on its development. If you have any concerns arising from the changes made by the Bill, or indeed any planning issues, the specialist planning law solicitors at Holmes & Hills are always on hand to assist.
Call 01206593933 and speak to one of our specialist Planning Law solicitors. Or complete the form below.
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