Out-Law News 4 min. read
30 Oct 2023, 12:53 pm
Changes to the way housing and other infrastructure projects are delivered across England are expected to follow from the passage of the new Levelling-up and Regeneration Act into UK law.
The legislation, which received Royal Assent on 26 October, has been finalised after lengthy debate and scrutiny in the UK parliament.
The Department for Levelling-Up, Housing and Communities (DLUHC) said the Act supports the government’s objectives of delivering new housing and infrastructure faster by speeding up the planning process. It said the legislation “will ensure new development is built more beautifully, produces more local infrastructure, like GP surgeries, schools and transport links, is shaped by local people’s democratic wishes, enhances the environment, and creates neighbourhoods where people want to live and work”.
Much of the Act serves as framework legislation for more detailed regulations to follow.
Planning law expert Nicholle Kingsley of Pinsent Masons said: “There are few who doubt the positive intentions behind much of the Act but many who have highlighted the unintended consequences. Detailed regulations, once issued, will need careful consideration and local authorities will need sufficient resource and funds to deal with the changes. Whether the proposals do succeed in meeting the aim of delivering more homes within a faster and less bureaucratic planning system remains to be seen, particularly with a general election looming.”
One area where the Act serves as a framework for new regulation concerns the system of environmental assessment that attaches to the planning regime. The legislation provides for a shift to a new system of Environmental Outcomes Reports (EORs) centred around defined outcomes relating to environmental protection. It will replace the current process for the environmental impact assessment (EIA) of proposed development schemes, which is derived from EU law.
Richard Griffiths, planning and infrastructure expert at Pinsent Masons, said: “Now that the Levelling-up and Regeneration Bill has received Royal Assent, environmental assessment as we have known it is coming to an end. We now move into a new era of an outcomes focussed approach to environmental appraisal of development projects and schemes, but the timeline remains uncertain. We can expect further consultation and draft regulations setting out the details of how this complex transition could work.”
“Earlier this year, the government consulted on EORs, setting out its proposals for how a new outcomes framework could work and its intention to ‘simplify the process of deciding when an [environmental] assessment is required’, strengthening the role of mitigation in the context of environmental assessments, and a more robust approach to monitoring outcomes,” he said.
Major changes to the funding for new infrastructure is also provided for in the Levelling-up and Regeneration Act. The government has the power to introduce new regulations to introduce a new infrastructure levy regime. The levy would be locally-set and fund the delivery of new infrastructure needed to support communities living in new housing developments. The existing community infrastructure levy (CIL) will continue to apply in London and Wales and the ‘section 106’ regime, which enables local planning authorities to require housing developers to, among other things, fund or deliver new infrastructure as a condition of planning permission, would continue to apply alongside the new levy.
Planning law expert Jamie Lockerbie of Pinsent Masons said: “Despite protestations and reservations from across the development industry, the concept of the infrastructure levy has made it onto the statute book. If it does come into effect in due course the government would be wise to follow through on commitments to put into effect a pilot scheme to test if in fact it will, as so many have warned, prove a blocker to much needed housing delivery.”
The Act also provides the UK government with new powers to contribute to the ongoing reform of the system for consenting ‘nationally significant infrastructure projects’ (NSIPs), including to shorten the time it takes to examine applications for development consent orders, which are required for NSIPs. There has been widespread frustration across the political spectrum and industry over delays in the delivery of major new infrastructure in the UK.
Other changes provided for in the Act include powers to set up a new form of development corporation, reform of compulsory purchase rules, greater devolution of powers to local authorities and greater digitisation of the planning system – including a move towards the use of more standardised planning data.
The government consultation on proposed changes to the National Planning Policy Framework closed earlier this year. It said it plans to publish its response to that initiative “in due course” and that the paper “will set out how planning policies in England are expected to be applied to help deliver the right homes in the right places”.
At its annual party conference last month, Labour pledged to deliver 1.5 million new homes over the course of the next parliament, should it be elected to power at the next UK general election. The creation of a new generation of “new towns” and development on so-called ‘grey belt’ and ‘brownfield’ land is envisaged by Labour to meet that target. It wants to give new development corporations powers to “remove the blockages” that curtails development currently.
The party further pledged to update all national policy statements relevant to NSIPs within the first six months of a Labour government and accelerate the building of critical infrastructure for energy, transport and housing.
Planning law expert Robbie Owen of Pinsent Masons said: “The provisions of the Act relating to NSIPs are just three enabling measures that are part of the government’s wider reform proposals, as was clear from its July 2023 consultation paper. Much detail is awaited, and more far-reaching proposals may yet emerge in the Autumn Statement given the Network North command paper published at the beginning of October.”
“It remains to be seen how the new development corporation measures will be used, but it seems clear that neither they, nor the government’s limited proposals to reform the NSIPs regime, will be enough to underpin what appear at the moment to be much more radical proposals by Labour to bulldoze through the current blockages,” he said.
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