I have spent a lot of time over the last week pondering why there are so many - completely disjointed - statutory regimes which overlay our planning system. 

Admittedly, this particular thought process was inspired by working on our firm's response to DEFRA's Biodiversity Net Gain Consultation, which can be found here, but biodiversity net gain is not the only culprit. 

Anyone trying to engage in development these days has to navigate a myriad of statutory regimes which should neatly interconnect, but frequently don't. A few of the most obvious culprits include: 

  • Planning; 
  • Environmental and Habitat Protection;
  • Listed Building and Heritage Assets; 
  • CIL; and, of course, 
  • Building Regulations

and, unfortunately, it is a list that seems to be getting longer rather than shorter. 

It comes to something when the first two pages of your consultation response on a policy as significant as biodiversity net gain are devoted to questions about how it is intended to integrate into the wider planning system. 

For example:

  • where in the order of priorities does delivering biodiversity net gain sit when you are having discussions over viability? Is it a 'top slice' policy - like CIL - or something that could be reduced if necessary? 
  • Will councils be able to use CIL funding to deliver their own habitat sites? If so, how will this factor into the credit purchasing scheme? 
  • How are you going to deal with the need to provide biodiversity net gain on heritage sites, where the grounds themselves may be listed?  

All of these questions need to be answered before we reach the end of the transition period and not one of them featured in the DEFRA consultation. 

This lack of joined up thinking can have serious consequences. Take for example, the government's repeatedly stated intention to 'abolish s.106 Agreements'. Despite recent indications that this is still very much on the cards, it is likely to be easier said that done. Not least because two very recent government initiatives - the introduction of First Homes  and Biodiversity Net Gain itself, are largely dependent on s.106 Agreements as their mechanism for delivery. Without s.106, or a similar legislative mechanism, there is no obvious way of ensuring the delivery and ongoing maintenance/ protection of either policy..... 

My Head of Department, Claire Petricca-Riding, has similar concerns about the Government's Energy Strategy, which was published yesterday.

Turning to more practical, every day, examples, under our current system: 

  • It is currently possible for a building to simultaneously be 'vacant' for the purposes of Vacant Building Credit and 'in lawful use' for the purposes of a CIL calculation; 
  • You can take mitigation measures into account at screening stage for an Environmental Impact Assessment but not for a Habitat Regulations Assessment;
  • A 100% affordable housing site can fail to qualify for 100% affordable housing CIL relief; 
  • Whilst you can apply to vary conditions on both a planning permission and a listed building consent - the factors that a local planning authority can take into account when considering the applications (which will frequently be on the same site) are different; and 
  • The current iteration of the NPPF contains an entire chapter on promoting town centres and retail planning that entirely ignores the existence of Use Class E and its associated permitted development rights. 

Is it any wonder that new entrants to the market can sometimes struggle to find their feet?

There are, at least, some glimmers of hope that a more holistic approach maybe on the horizon for retirement living and older persons housing. Not only did last year's Social Care Reform White Paper acknowledge that a holistic approach to older persons housing was necessary; but the Levelling Up White Paper  even went so far as to set up a taskforce to consider the issue. 

If only we could do the same for the planning system as a whole..... 

...... On the plus side, at least we now have confirmation that taking in a Ukrainian Refugee will not constitute a 'disqualifying event' for the purposes regulation 42C(2)(b) of the CIL Regulations.