The government has set out bold ambitions in the Levelling Up and Regeneration Act 2023, ‘to speed up the planning system, hold developers to account, cut bureaucracy, and encourage the building of new homes’ and ‘deliver revitalised high streets.’
So what does the Act actually do? Currently, not much, because essentially, it’s a framework that leaves most of the detail to be fleshed out by secondary legislation. Nonetheless, the Act introduces sweeping and significant reforms.
The Act is wide-ranging so this article focuses primarily on the planning proposals.
Key amendments include:
- A power for central government to impose a timetable on local planning authorities (LPAs) for adoption of local plans, together with a new power for the Secretary of State to take over the plan-making process if it considers a LPA’s performance unsatisfactory. Last year’s consultation proposed 30 months, significantly shorter than the current average (according to the consultation) of seven years.
- Limiting the scope of local plans to locally specific matters and introducing National Development Management Policies (NDMPs) for national issues such as climate change, greenbelt and heritage. NDMPs should help LPAs produce shorter local plans more quickly as they will only have to consider local issues. Planning decisions will be made in accordance with the local plan and any NDMP but conflicts are to be resolved in favour of NDMPs, effectively elevating their status above local plans.
- An extension to the current enforcement period for planning breaches in England from four to ten years in the case of unauthorised dwellings, bringing it into line with other planning breach enforcement time periods.
- Fast-tracking development consent orders by shortening the deadline for examination of applications.
- A new reporting system to help LPAs monitor progress on new developments. Developers must give LPAs a commencement notice specifying the date on which they expect to begin development of certain types of land with planning permission (to be prescribed) and submit annual progress reports. If an LPA believes a development will not be completed within a reasonable time, it can serve a completion notice specifying a deadline which must be at least 12 months away. If the deadline is not met, the planning permission will fall away, necessitating a new one.
- Giving LPAs power to refuse to decide planning applications for development of a (yet to be) prescribed description where a developer has a track record of building out too slowly or not implementing planning permissions at all.
- Replacing the Community Infrastructure Levy and section 106 agreements with a new Infrastructure Levy charged as a percentage of the value of the property at completion, to ‘simplify and speed up’ the process.
- Replacing Environmental Impact Assessments with Environmental Out- comes Reports (EORs), an outcomes-based system, the outcome being an ‘increase in the abundance of protected species and supporting habitat’. EOR regulations must not result in a lower level of environmental protec- tion under environmental law than at October 2023.
- A new duty on water companies to upgrade wastewater treatment works (WwTW) by April 1, 2030 in catchments of protected habitats sites that have been identified as being in an unfavourable condition due to nutrient pollution. When reviewing applications in these areas, LPAs must assume that the 2030 WwTW upgrades will occur, reducing nutrient mitigation costs for developers.
Disclosure requirements
Currently there is no legal requirement on developers to provide information on agreements that secure land for development (contractual control agreements), making it impossible to gain a complete picture of contracts affecting land.
A consultation is under way, seeking views on how to capture and publish information relating to option agreements, pre-emption agreements, conditional contracts and land promotion agreements.
If these proposals see the light of day, would they speed up the planning process?
Organisations representing local authorities and planners have questioned the feasibility of producing local plans in 30 months, highlighting resourcing constraints and lack of time to meaningfully consult the public. Some (but not all) support NDMPs ‘in principle’ as a tool to speed up local plan-making and standardise planning policies across LPAs but are concerned that the proposed preva- lence of NDMPs over local plans would undermine the concept of a local plan-led system.
The proposed new Infrastructure Levy has attracted heavy criticism, and the government says it will be phased in over a ten-year pilot scheme, making it unlikely to come into force any time soon. A coalition of local authorities, developers, housing associations and charities have written to the Secretary of State warning against the complexities of the levy which they believe could reduce the funding available for affordable and social rent homes. They have asked the government to work with them to improve the existing system, to avoid the uncertainty and upheaval of yet another new levy.
The monitoring proposals are significant, and developers will need to be open with LPAs about any external or market forces delaying their build-out rates. The government hopes to boost housing delivery by reducing the overall mitigation burden on housing developments in nutrient neutrality catchments.
Finally, landowners should look to regularise any schemes which already have immunity under the four-year rule before the new deadline impacts.
Many of the Act’s proposals are controversial and may be amended following consultations or a change of government. We will all have to watch this space.
Howes Percival’s commercial property solicitors provide a full range of services for developers including transactional work, planning and construction advice and dispute resolution.
Alexandra Kirkwood
Partner, Howes Percival
For more information, contact Alexandra Kirkwood on 01604 258071 or email alexandra.kirkwood@howespercival.com or visit howespercival.com
