Planning ahead

There will be quite a few legislative changes in 2023. In fact, so much so that several local authorities have put their local plans on hold to deal with all the consultations and to review all the changes on the horizon. Here is a summary.

Levelling up and regeneration

The Levelling Up and Regeneration Bill (LURB) went through its second reading in the House of Lords in January 2023 and by the end of the year is set to become the Levelling Up and Regeneration Act (LURA) 2023. 

The government website assures us that “the government is committed to levelling up across the country, building more homes to increase home ownership, empowering communities to make better places…”. We are informed that the LURB does this by “creating a genuinely plan-led system with a stronger voice for communities.”

There are 13 Parts in total. Part 3, Chapters 1-6 cover planning matters (including enforcement matters, and heritage). Among other planning-related changes, it will increase flexibility for amending planning permissions (inserting a new section into the Town and Country Planning Act 1990, accordingly). The LURA will introduce National Development Management Policies (NDMPs) for the first time. These NDMPs will set policies that sit alongside local plans, for local authorities to refer to when determining planning applications.

Each and every local authority will soon need to produce specific “design requirements”, in order for planning permission to be granted. This is a new concept, which developers will need to adjust to. Regarding heritage assets, Part 3 proposes to enhance local authorities’ enforcement powers, with a view to better protecting listed buildings. In response to unlawful works to listed buildings, local authorities will soon be able to issue temporary stop notices (TSNs – which were previously not permitted to be used for unauthorised works to listed buildings) and urgent works notices (UWNs). The post-enforcement cost recovery process will be made easier for local authorities; including in relation to their recovery of the cost of works carried out by direct action.  

Part 4 covers changes to the Community Infrastructure Levy (CIL). The LURA will set in motion a framework for government to introduce a new Infrastructure Levy (“IL), which will replace the existing two processes for seeking developer contributions: the Community Infrastructure Levy (CIL) and section 106 agreements. The IL, like CIL, will serve as a charge on development, to provide for local infrastructure. Section 106 can still be used but will mainly be reserved for the largest sites. Any development that was granted planning permission prior to the introduction of IL will continue to be subject to any CIL and section 106 obligations that were imposed upon the grant of that permission. The changes will be implemented for any new planning permissions granted. 

Part 6 covers environmental targets. Proposed changes to the National Planning Policy Framework (NPPF) will ensure that the reforms introduced by the Environment Act 2021 are implemented into planning policy and into local authorities’ decision-making processes (see more on the environment below).

Part 7 covers nutrient pollution. Without going into too much detail, the idea is that local authorities should be able to permit the building of new homes without increasing nutrient pollution in the most badly affected rivers. Mitigation measures will be needed, to offset any possible increase in pollution. DEFRA and the Department for Levelling Up, Housing and Communities (DLUHC) are investing up to £30m over the next three years to fund the Natural England-led Nutrient Mitigation Scheme. The aim is to reduce pollution in England and Wales’ rivers, to protect the natural environment when new housing schemes are built, and to support sustainable development. Natural England states as follows: “It is envisaged that the scheme will enable [local authorities] to grant permission subject to conditions or obligations securing mitigation and phasing developments (if needed) so that mitigation is operational and in place, prior to any nutrient pollution being discharged.”

Part 11 is called “Information about interests and dealings in land”. The LURA will introduce a method through which the government can collate and publish data on land ownership and land transactions. The aim is to increase transparency in these areas and to produce data in the value of land being bought and sold. 

In relation to “regeneration” (one of the main priorities of the LURB and dealt with in various places in the Bill), the LURA introduces measures aimed at encouraging investment and development in towns and cities. Some of the measures include: 

• simplifying the compulsory purchase process, reducing the time and risks involved – which should encourage local authorities to use compulsory purchase for the purposes of regeneration;
• increased freedoms for New Town Development Corporations;
• a locally-led urban development corporation;
• new powers enabling local authorities to force landlords to find tenants for vacant buildings; and
• temporary changes to pavement licensing permanent (to encourage outdoor dining).

Hopefully these measures will help to revitalise our high streets and town centers. 

The national planning policy framework

The Department for Levelling Up and Regeneration is proposing some changes to the National Planning Policy Framework (NPPF); those changes were published on 22 December 2022. 

The government website for the consultation on the LURB sets out that the changes to the NPPF are intended to achieve the following:

• “make clear how housing figures should be derived and applied so that communities can respond to local circumstances;
• address issues in the operation of the housing delivery and land supply tests;
• tackle problems of slow build-out;
• encourage local planning authorities to support the role of community-led groups in delivering affordable housing on exception sites;
• set clearer expectations around planning for older people’s housing;
• promote more beautiful homes, including through gentle density;
• make sure that food security considerations are factored into planning decisions that affect farm land;
• and enable new methods for demonstrating local support for onshore wind development.”

Among the key changes (relevant here), is that there will no longer be a need for local authorities to demonstrate a deliverable five-year housing land supply, which is clearly a backward step in terms of plan-making. Local plans no longer need to be ‘justified’ in planning terms. The status of neighbourhood plans will be boosted and protected. Green belts will receive greater protection: local authorities will not need to review/alter green belt boundaries if the review/alteration would be the only way of meeting the objectively assessed need for housing; other means are encouraged (which will no doubt lead to less development being permitted in such areas). There is a renewed emphasis on the words ‘beauty in design’ (although there is no definition of ‘beauty’ – an incredibly subjective term) and a stronger emphasis on local design codes (incorporating beauty). Local authorities are encouraged to refuse ugliness (whatever that means!).

In my view, the proposed changes to the NPPF (and the ones proposed by the LURB generally) will make the plan-making system less (rather than more) robust, give local authorities more flexibility when determining planning applications, and will likely result in an under-delivery of housing and a decline in development. Unfortunately, the changes, I believe, may cause further delays and uncertainty in the planning system.

Environmental obligations

The transitional period for Biodiversity Net Gain (BNG) will come to an end in November, after which 10% BNG will be mandatory for all new housing developments under the Environment Act 2021. That is, once a development has been completed, the development must demonstrably provide at least a 10% BNG. 

This year we will also see the roll-out of the first Nutrient Neutrality Schemes (NNS), as briefly mentioned above; the aim being to reduce nutrient pollution in England and Wales, which currently hugely impacts river health and therefore the habitats of birds, fish and insects. Increased levels of nitrogen and phosphorous negatively impacts wildlife, and the NNS should assist by introducing: 

• a new legal duty on water companies to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels; and
• a new Nutrient Mitigation Scheme (NMS), based on a nutrient credit process, setting out to increase building and decrease nutrient pollution. 

On 13 January 2023, the Rt Hon Chris Skidmore MP (formerly the energy minister responsible for signing the UK’s net zero target into law) produced an independent review called: ‘Mission Zero – Independent Review of Net Zero’.

The independent review acknowledges that “delays in the planning system” need to be addressed in order to progress decarbonization and to “catalyse the deployment of clean solutions”. The introduction to the review is as follows: “By 2050, the UK is legally required to have reduced its greenhouse gas emissions by 100% from 1990 levels. An independent review considered how this ‘net zero’ target could maximise economic growth whilst also increasing energy security and affordability for consumers and businesses. The review recommended that the government takes action to ensure the UK benefits from the investment and economic growth opportunities that net zero presents.”

The Climate Change Act 2008 (2050 Target Amendment) Order 2019 made the net zero emissions target binding. The UK government is said to be the first ‘major economy’ to pass a law on net zero emissions. 

The review (‘Mission Zero’) outlines a total of ten priorities, helpfully laid out in an infographic in the Executive Summary of the review, including onshore windfarms, solar, nuclear energy, enhanced research and development (R&D), and carbon capitalisation, utilisation and storage (CCUS). Most relevant to the topics here are priorities 7–9. 

• Priority 7: “unblocking the planning system and reforming the relationship between central and local government to give local authorities and communities the power they need to act on net zero.” 
• Priority 8: “Working towards gas free homes by 2035 and giving consumers greater understanding of their household through a Net Zero Performance Certificate [(NZPC)]”. 
• Priority 9: “Embed nature and habitat restoration throughout transition plans, maximising co-benefits for climate and nature where possible.”

In relation to the planning system, the review states that “planning presents a major barrier to net zero action”, and it recommends reforming local planning and the National Planning Policy Framework (separate from the changes that are outlined in the LURB).

In relation to properties, the review recommended the delivery of cleaner, cheaper and greener homes, by: 

• adopting a ten-year mission to make heat pumps a widespread technology in the UK and regulating for the end of new and replacement gas boilers by 2033 at the latest;
• reforming EPC ratings to create a clearer, more accessible net zero performance certificate for households.

A short debate of the review took place on 26 January 2023.

The government’s Environment Improvement Plan 2023 and Natural England’s Green Infrastructure Framework are worth a read for anyone with a particular interest in the environment. 

What next?

Many consultations (some overdue) are planned in 2023 in relation to:

• the content of new national development management policies;
• increased planning fees; and
• changes to the Community Infrastructure Levy (CIL). 

It will be interesting to see if the outcomes of these consultations coincide with many of the proposed changes outlined in this article by the end of 2023.