The only constant in planning is change | Sam Stafford

The only constant in planning is change

The Levelling Up & Regeneration Bill (LURB) is something of a curate’s egg, says Sam Stafford

On the one hand, as largely enabling legislation, it contains a number of hooks on which can be hung at a later date the kind of radical reform mooted by 2020’s ‘Planning for the Future’ White Paper. On the other hand, at present (and at the time of writing since being introduced to Parliament on 11 May 2022 the Bill has reached Committee state in the Commons), and perhaps deliberately to smooth it’s parliamentary passage, the detail that has emerged and the narrative around it amount merely to sensible ‘tidying up’ measures.

The LURB, according to the Government, “acts on several fronts to create a robust framework for levelling-up”. Despite the omission from the title, one of those fronts is the improvement the planning process so that, again according to the Government, “it gives local communities control over what is built, where it is built, and what it looks like, and so creates an incentive to welcome development provided it meets the standards which are set”.

The LURB recognises that local plans should be at the heart of the system and its proponents point to two initiatives that it is hoped will incentivise local authorities to get plans in place: the removal of the need to demonstrate a deliverable five year supply of housing (5YHLS) where a plan has been recently adopted, and

Proponents of the Bill also anticipate that it will boost planning officer capacity by rationalising Section 106 (S106) Agreements and the Community Infrastructure Levy into a single Infrastructure Levy (IL); transitioning from the current Environmental Impact Assessment (EIA) regime to a new outcomebased process; and continuing the move to a more standardised, more user-friendly, digitised system.

Within that context, it is possible to identify areas covered by the Bill that the housebuilding industry is likely to be more and less supportive of.

The current crisis in local plan-making highlights the need for urgent action. The idea that a Local Plan Commissioner can oversee gateway progress checks and take over the preparation of a plan seems sensible, as does the proposal than an authority cannot withdraw a submitted plan without the agreement of the Planning Inspectorate (PINS).

Whilst Strategic Development Strategies (SDS) are a welcome, tentative step back towards greaterthan-local planning, there is some scepticism as to whether they would address the fundamental reasons why plans are being delayed and withdrawn. SDSs would only be undertaken voluntarily, but not in areas where there is already a combined authority or a mayoral combined authority and only if a higher tier, county-level authority is involved. SDSs would not allocate sites, would only be reviewed ‘from time to time’, as opposed to the five-year obligation on local plans, and, unlike joint local plans, cannot be willed into existence by a Secretary of State. It is legitimate to ask whether these arrangements will make it more or less likely that the twenty or so authorities that have publicly raised plan-making issues in the last few months will adopt a local plan in anything shorter than the long term.

The industry is likely to welcome the retention of narrower Section 106 Agreements for site-specific infrastructure within a new IL regime. Less negotiation around S106 Agreements generally should make for quicker site start though it should be noted that the IL could have a negative impact on the amount of land coming forward for development if it is set unrealistically high.

Similarly the industry is likely to welcome a move to towards measuring environmental outcomes, which, whilst undoubtedly causing short-term delays as the EIA regime is replaced, is likely to be a helpful streamlining measure into the longer-term.

A proposed increase in planning fees (35% for ‘major’ applications), to be tied to a “better service for applicants”, will help to build capacity, but this increase on its own will not be enough to compre-

The word planning noticeably does not appear on the front of the bill, but it does appear 680 times inside.

Samuel Stafford is Planning Director at the Home Builders Federation

hensively address the issue of resourcing. A recent report by the Royal Town Planning Institute (RTPI) calculated that net expenditure on planning services by local authorities fell by 43%, from £844 million in 2009/10 to £480 million in 2020/21.

Amending planning approvals can be very complicated so new ‘fast track’ provisions to determine broadly similar applications “where the local planning authority is satisfied that it’s effect will not be substantially different from that of the existing permission" are to be welcomed.

Despite not being especially controversial when first mooted by the White Paper, the inclusion of National Development Management Policies in the Bill has precipitated concerns about a ‘power grab’ by Government. It does, however, seem entirely sensible that local plans not replicate or unnecessarily deviate from national policies on matters like, for example Green Belt, and that consistent standards be applied across the country on matters like, for example, sustainability or space standards.

It could be helpful for inspectors at PINS to be able to change an appeal’s determination procedure. This could lead to quicker decisions, especially if resources at PINS continue to be stretched.

The industry is likely to be comfortable with Commencement Notices, provided that the trigger point is the discharge of all pre-commencement conditions, on the basis that every builder is only ever keen to get on site as soon as is possible.

Of the areas that that the industry is less likely to be supportive of, the abolishment of the 5YHLS test, which is unlikely to be any kind of incentive to a recalcitrant plan-making authority, will have a detrimental affect on housing supply in those places. Similarly, it should not be made more difficult for sustainable applications in places without a plan to be approved.

The Duty to Cooperate, whilst a difficult legal test for some authorities to pass, does at least force difficult conversations about meeting housing need across a market area. The repealing of and its replacement with a nebulous new ‘Policy Alignment Test’ is likely to make it less likely that housing needs will be met in full.

The requirement for every local authority to progress a local design code is not necessarily something that the industry would be resistant to in principle, but the conclusions of the National Model Design Code pilot programme review were striking in this regard. This concluded that “a steep learning curve is required to produce design codes and to use the new methodology in the NMDC, and with a few exceptions local authorities were not set up to deliver design coding in-house.”

The industry is likely to be wary of Completion Notices, which authority’s will have the power to serve ceasing a permission if a development remains uncompleted after a certain time period. This could make it harder for smaller builders to restart on sites that another builder may have had to close down.

Finally, whilst industry welcomes recognition of the role for neighbourhood plans and the desire for them to afforded the same status and scrutiny as local plans, there could be some wariness towards ‘Neighbourhood Priority Statements’ if they can express views on matters such as design and housing locations that would be inconsistent with an emerging local plan.

Ultimately though, in respect of the LURB’s planning provisions, as has been identified by Levelling Up, Housing & Communities Committee, the main concerns are a lack of detail. As the Committee Chair Clive Betts wrote to Secretary of State Greg Clark:

If one central thrust of the Bill is not to centralise planning decisions, then the remaining planning provisions in the Bill can be described as loosely connected proposals to tinker with the current system, hopefully achieving some improvement. We have not received strong opposition to any of the proposals, but in part this is a factor of the detail not being published, so witnesses are having to hypothesise what will be enacted rather than respond to a firm proposal. Added to this, of course, is the LURB’s likely onward progress. The White Paper was published by Robert Jenrick, the Bill was introduced by Michael Gove, has been overseen briefly by Greg Clark, and is to be picked up by Simon Clarke who will undoubtedly have new ideas on it’s timing, scope and content.

As always, the only constant in planning is change. n

The next meeting of the London Planning & Development Forum

will be on Monday 12 December

For details and to attend please email the Hon Secretary at James Mitchell at jm@axiomarchitects.co.uk or riette.oosthuizen@hta.co.uk

AGENDA will be at www.planninginlondon.com > LP&DF