Out-Law Analysis 5 min. read
17 Nov 2023, 12:13 pm
Labour leader Sir Keir Starmer recently labelled the King’s Speech, which did not include any proposals for planning reform, a “missed opportunity” to provide affordable housing in England.
If it wins the next election, Labour has promised a “blitz of planning reform to quickly boost housebuilding”, with a pledge to build 1.5 million homes over the course of the next parliament. But what new measures might the party’s planning reform “blitz” contain? There are a number of changes that could be relatively quick to enact and would help to speed up England’s planning process.
The 2023 Levelling-up and Regeneration Act (LURA) contains provisions that would allow the secretary of state to make national development management policies (NDMPs) “in relation to the development or use of land in England, or any part of England”. Section 93 of LURA amends the 2004 Planning and Compulsory Purchase Act so that, in the event of a conflict between the statutory development plan for an area and a NDMP, the conflict must be resolved in favour of the NDMP. An incoming Labour government could therefore use this power to set mandatory housing delivery targets for all areas of England.
The 2008 Planning Act introduced the concept of nationally significant infrastructure projects (NSIPs) and revolutionised the consenting process for such projects by providing a ‘sped up one stop shop’ for obtaining development consent orders (DCOs). Promoters of DCOs under the Planning Act regime know that their application must be determined within statutory timescales and that the DCO can cover a range of consents and powers needed to deliver a project, including powers for the compulsory acquisition of land. Housing could be added to the list of NSIP projects in Section 14 of the Planning Act so that housing developers can benefit from this expedited consenting regime to promote housing schemes of scale.
Currently, if a developer wishes to make any variation to its planning permission it is subject to archaic processes that limit the extent of the variations. Section 73 of the 1990 Town and Country Planning Act (TCPA), which is the power enabling changes or removal of conditions on a planning permission, does not allow amendments to be made to the description of development, otherwise known as the ‘operative part’, of a planning permission. The process is burdensome and bureaucratic.
Notwithstanding new Section 73B of the TCPA that is proposed under LURA that seeks to deal with some of these restrictions, the whole process of making changes to a planning permission could be massively simplified so that an applicant can apply to make changes to an existing planning permission to any extent and without that process resulting in the grant of a new permission. Such applications could be determined in the same manner as a ‘normal’ planning application is currently, such as having regard to the development plan and any relevant material considerations.
England’s National Planning Policy Framework (NPPF) currently states that green belt boundaries should only be altered in “exceptional circumstances”. This could be changed to state that green belt boundaries must be reviewed as part of the local planning process. Such reviews could be undertaken in accordance with nationally prescribed criteria and standards and areas that perform poorly, when tested against the ‘five purposes’, should be released for development in cases where this is considered a sustainable option for the area.
Any loss of green belt could be mitigated by providing for designation of an area of equivalent size as ‘biodiversity net gain land’. This would maintain protected areas of open space and simultaneously provide for the creation of BNG credits that could be sold to developers who need an offsite BNG solution.
The new infrastructure levy proposed under LURA could be abandoned and the current Community Infrastructure Levy (CIL) regime reformed and simplified. The proposals set out in the 2016 CIL Review Group report (64 pages / 3.22MB PDF) should be enacted, and CIL should be replaced by a hybrid system of a low level ‘local infrastructure tariff’ and planning obligations contains in section 106 of the TCPA.
Section 106 agreement negotiations are frequently cited as a significant delay to the path to securing planning permission. It is commonly the case that negotiations do not start until the developer has received resolution to grant from the local planning authority (LPA). The national planning practice guidance should be amended to state that the LPA should engage in section 106 negotiations at any time from submission of the planning application if the applicant so wishes. Twin tracking the determination and section 106 negotiation periods should significantly reduce ‘back end’ delay in the planning process.
Existing planning practice guidance currently contains a link to the old Circular 11/95 (use of conditions in planning permission), which is now nearly 30 years old. This should be updated, and new much-promised model conditions should be issued that should follow a logical ‘development cycle’ structure – from pre-commencement conditions to pre-occupation conditions, and finally to conditions requiring on-going compliance. This would provide more certainty for LPAs and developers and avoid poorly drafted conditions which give rise to legal challenges and issues further down the line.
Section 106 of the TCPA should be reformed so that the four powers listed in section 106(1)(a)-(d) are removed. Instead, it should be stated that a section 106 agreement can secure any type of contribution and/or require any form of action to be taken/performed provided that the tests set out in Regulation 122(2) of the 2010 Community Infrastructure Levy Regulations are met. It may also be beneficial for these tests to be revisited and liberalised to provide more flexibility to developers and local planning authorities when they are looking to secure mitigation or planning gain.
Local authorities are some of the largest landowners in the country and are often looking to promote their own land for development, particularly in order to secure higher than normal levels of affordable housing. When a local authority is acting as both landowner and local planning authority problems arise in the structuring of the section 106 agreement due to the issue of ‘contracting with yourself’.
This issue is resolvable but only by putting in place relatively complex legal structures. This could be made much simpler if legislation were introduced, perhaps by amending section 106 of the TCPA, to make it clear that a local authority can contract with itself to secure planning obligations. The secretary of state could be specified to be the enforcing authority for such time as the land is vested in the local authority.
Very often, large parts of a local plan are ‘boilerplate’ development management policies that don’t much differ from LPA to LPA. The government could produce a set of model form development management policies that can then be adopted by each LPA, with or without modification, as they wish and thereby cut down on the length, and process associated with the making, of the local plan.
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