Levelling Up and Regeneration Bill at a glance

Reforming England’s planning system was never going to be simple. It has been 73 years since the 1947 Town and Country Planning Act was enshrined into law, and since then the legal framework and supporting planning policies have been prodded and poked, altered and modified, and had new additions, with other parts taken away. The 2020 White Paper proposed a fresh start: a revolution to planning.

Covid, Brexit, climate change, the cost-ofliving crisis and the need for votes then took over. As a result, the proposals delivered through the Levelling Up and Regeneration Bill are somewhat watered down, comprising a further set of amendments to the existing legal framework.

While the Levelling up and Regeneration Bill has provided enough material for bedtime reading for the foreseeable (some 388 pages), we have focused our review on the proposed role of the five-year housing land supply and its impacts on the planning system moving forward.

Although criticised by the public, Councillors, environmental groups and even planning officers, it is fair to say that the need for Local Planning Authorities to maintain a five-year housing land supply has been a crucial element of the planning system during the lifetime of the National Planning Policy Framework (NPPF) and has driven the delivery of new homes across the country.

The test, which in essence examines the number of homes to be built over the next five-year period, has enabled speculative development schemes, which conflict with the Development Plan, to advance as planning applications where Authorities cannot satisfy the test. The rationale is that the Development Plan is unlikely to deliver sufficient housing over the coming years, and thus to address this, sustainable non-allocated sites can be brought forward unless the impacts of the proposal significantly and demonstrably outweigh the benefit provided by the new housing.

Proposals advanced under such circumstances often have little public support; particularly where the adopted Plan would normally clearly rule out the development. It was once described to me by a resident at a consultation event for one of our schemes as a ‘loophole’ to enable development. It is, of course, not a loophole, but a tool to ensure housing

The 2020 White Paper proposed a fresh start: a revolution to planning. Covid, Brexit, climate change, the cost-of-living crisis and the need for votes then took over.”

continues to be delivered to fight the housing crisis. Its benefit, unlike its relative the Housing Delivery Test, is seeking to remedy delivery issues before they occur.

However, planning is political, and over the past decade the pro-development approach, and the approach to land supply and its impact on development has lost voter support. Balancing the increasingly vocal action groups against the Government’s commitment to deliver 300,000 dwellings per annum nationally has become increasingly difficult.

So, as the UK government, how do you address this challenge? The Levelling up and Regeneration Bill proposes a partial revocation of the housing land supply ‘loophole’ provided a Local Planning Authority has an up-to-date Local Plan (less than five years old). The offer to Councils is: keep your local plan up to date,

ensure it includes enough housing sites, and we will disarm one of the avenues which fuel speculative development.

This, in practice, should free up Council time, with Officers able to focus on ensuring the Local Plan is kept up to date, instead of working through the speculative planning applications which can swamp Local Authorities with sizeable land supply shortfalls.

There will still be a requirement to have five-year land supply on adoption of the Local Plan, something that will be tested through Examination of the Local Plan and in circumstances where the Plan is more than five years old. In theory, this means that there should always be a sufficient supply of sites to meet the needs of the Authority, and any shortfalls can be dealt with through regular Local Plan review. Does this mean an end to speculative applications?

Under the current system, Local Plans should allocate sufficient sites to deliver at least 15 years' housing land supply, although this is rarely the case in practice. Why do so many Local Plans find themselves having land supply issues so early in the Plan period if they are examined thoroughly anyway?

The issue is the long lead times associated with the delivery of large housing allocations, the time planning applications take to move through the planning system, often as outline planning applications to start with, followed by Reserved Matters applications. This, combined with the complexity of Plan creation and ongoing need for review, slows housing delivery and results in the Authority not being able to demonstrate a five-year housing land supply. Under the current system this is where the speculative applications come in to assist delivery.

Under the new proposals, Local Plans which fail to demonstrate a supply will retain full weight. This means a shortfall of housing land supply will have no remedy until the next review of the Plan. It is not clear whether or not there will be a requirement to address any shortfall in delivery through future iterations of the Plan, or whether it is considered that the Standard Method (the means of calculating housing need) will respond to such shortfalls as an inherent part of its calculations. Regardless, the proposal will ultimately reduce the level of housing delivered.

Does that mean there is little merit in the proposals? Politically, the proposals will provide certainty to local residents in understanding where new developments will be brought forward over at least the next five years. It reinforces the notion that planning should be Plan-led, not a series of ad hoc decisions. It should also, in theory, help to ensure new developments are supported by the correct infrastructure and service provision.

The proposals also add further weight to the need to ensure land suitable for development is promoted early and throughout Plan-making, as an allocation will have even greater importance. Potentially, the proposals are likely to reward bad Plan-making and inevitably will be tested for a number of years through the Courts. At a wider level, the Bill is silent on wider issues such as the Green Belt, which already protects the position of a number of Authorities experiencing acute housing need.

01530 446039

james.beverley@fishergerman.co.uk