Bob Pritchard picks out key elements of the explanatory notes to the Levelling Up and Regeneration Bill to see what changes are in store for the planning system.
The Levelling Up and Regeneration Bill aims to reverse geographical disparities between different parts of the United Kingdom by spreading opportunity more equally.
Given the scale of this ambition, the Bill is inevitably lengthy - the Explanatory Notes alone run to 247 pages - and includes a disparate set of measures encompassing devolution, regeneration and planning.
Whilst the proposed planning reforms in the Bill are many and varied, there are a number of themes that run through the proposals.
Both bottom up and top down
First of all, there are measures to further advance the localism agenda.
Neighbourhood planning is re-engineered in the ‘levelled up’ system. The draft legislation includes proposals for a ‘neighbourhood priorities statement’ intended to provide communities with a simpler and more accessible way to set out priorities and preferences for their local areas.
These statements will need to be considered by local authorities in local plan preparation.
The Bill also includes a placeholder for provisions to 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.
According to the Explanatory Notes the concept is ‘to incentivise 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’.
However, the proposals for neighbourhood planning also reflect another theme that permeates the Bill and which is at direct odds with localism - namely reducing the influence of local democracy in key aspects of planning decision making.
With an eye to ensuring that neighbourhood planning does not act as a brake on housing delivery, a new basic condition is proposed for neighbourhood plans, which provides that they must not result in the development plan for the area proposing less housing development than would have been the case if the plan were not to be made.
Perhaps the starkest example of this selective retreat from subsidiarity in planning decision making is the reformulation of the statutory status of the development plan in decision-making.
Currently the effect of section 38(6) of The Planning and Compulsory Purchase Act 2004 is that applications for planning permission should be determined in accordance with the development plan unless material considerations indicate otherwise.
If enacted, clause 91 of the Bill would replace this test with a requirement that determinations must be made in accordance with the development plan together with national development management policies, unless material considerations strongly indicate otherwise.
In the event of conflict between the development plan and national development management policy, the latter will have primacy, which means that under the new arrangements national will trump local policy.
This begs the question, what is a ‘national development management policy’?
The answer is that it is a policy, which the Secretary of State by direction designates as a national development management policy. So, the Secretary of State will have considerable latitude when it comes to steering planning decision making at local level.
White paper revisited
Other provisions in the Bill take forward the less controversial proposals set out in the 2020 Planning White Paper.
Following on from the elevation of design to a ‘higher order’ policy consideration in the July 2021 National Planning Policy Framework (NPPF), there are measures to further embed good design in the planning system.
The Bill will require local planning authorities to have a design code in place covering their entire area. These are intended to act as a framework for the preparation of detailed design codes 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.
Proposals to digitise the planning process contained in the white paper are also reflected in the Bill. For example, there are provisions which will require local planning authorities to follow set standards in how they store or publish local plan information, with the contents of a local plan to be in accordance with approved data standards.
As trailed in the white paper, the Bill proposes the introduction of a new mandatory infrastructure levy. Significantly, the new levy will fund the provision of affordable housing.
However, the rates and thresholds will be set and raised by local planning authorities rather than nationally as was suggested in the white paper.
Whilst the levy is intended to replace the Community Infrastructure Levy (CIL) in England, with the exception of Mayoral CIL in Greater London, the Policy Paper accompanying the Bill suggests that there will be a continuing role for section 106 planning obligations. These could be employed on the largest sites in place of the levy and also on sites where ‘narrowly focused’ planning obligations could be used to provide onsite infrastructure.
As with CIL, the new levy will be set out in charging schedules that will be subject to public examination. There will be a duty on local authorities to prepare infrastructure delivery strategies outlining how they intend to spend the levy.
There is a raft of proposals in the Bill that are intended to improve the operation of the current planning regime by strengthening powers, addressing gaps and closing loopholes.
These include reforms to enforcement, including the introduction of enforcement warning notices and making the enforcement timescales that currently apply more consistent, opting for a standard 10-year time period to enforce breaches of planning control.
Heritage protection is also to be enhanced with designated heritage assets, such as registered parks and gardens, World Heritage Sites, protected wreck sites, and registered battlefields to be given the same statutory protection in the planning system as listed buildings and conservation areas.
Procedural changes to the compulsory purchase (CPO) process are also included and the planning CPO power is to be amended to make it clear that the power facilitates regeneration.
A new system of Environmental Outcomes Reports will replace the EU processes of Environmental Impact Assessment and Strategic Environmental Assessment, while retaining the UK's obligations under the UN Aarhus and Espoo Conventions.
The Bill is an eclectic mix of proposed fixes to the existing planning system together with enhancements to public engagement in some areas and constraints to the role of local decision making in others.
Even in the absence of the more radical measures set out in the planning white paper there is every prospect that it will face an eventful journey through the legislative process.
Bob Pritchard is a legal director and part of Shoosmiths’ planning practice.