12.05.2022

The Levelling Up & Regeneration Bill: Highlights, Headlines and Henry the Eighth

On 11 May 2022,* the Levelling Up and Regeneration Bill was placed before Parliament. 

I am writing this post on the day of the bill's publication, so it is very much an initial overview of the planning related proposals in the bill. The team will be publishing more detailed analysis of the key proposals over the coming weeks. 

The bill contains the largest collection of Henry the Eighth clauses that I have seen in one place for a number of years. Very large sections of the bill are wholly dependent on secondary legislation for delivery. 

On the one hand this is very frustrating, as it  means that  important changes to our planning system could be made without any significant parliamentary scrutiny.  

On the other, It does provide a handy theme for my subheadings...

Local Government Reform & Development Corporations (Reformed)

Whilst there is nothing in the bill to address the pressing issue of local government resourcing, it does contain a range of provisions intended to encourage greater devolution. This is done primarily through:

• The creation of a legal framework for new "combined county authorities” - that would be made up of upper tier local authorities (county councils and unitary authorities)  - which could take on a wide range of local authority functions for their areas; 
• Setting up a new form of locally-led Development Corporation with the objective of regenerating its area that would be accountable to local authorities in the area rather than the Secretary of State; and
• Allowing existing Development Corporations to be become local planning authorities for the purposes of drawing up their own local plans. 

Moving to a CCA would be a wholly voluntary move for councils. This new local government structure is by no means compulsory, but given the lack of any mandatory mechanisms for strategic planning in the bill, I suspect the government is hoping that it proves popular.

Heritage Assets, Planning Enforcement  (Amended)

The bill sets out a wide ranging set of amendments to how our planning system deals with both the protection of heritage assets and breaches of planning control. Some of the more noteworthy include:

Heritage Assets

• Putting scheduled monuments, registered parks and gardens, World Heritage Sites, and registered battlefields on the same statutory footing as listed buildings and conservation areas;
• Introducing a new statutory duty requiring local authorities to maintain a Historic Environment Record for their area.
•  Introducing temporary stop notices allowing Councils to halt works to heritage assets and extending the scope of Urgent Works Notices so that they to apply to occupied listed buildings; and
• Significantly reducing the financial risk of heritage enforcement action to Councils by making the costs of carrying out remedial works to a heritage asset a local land charge; and removing the potential compensation liability in relation to Building Preservation Notices.

Enforcement

• Removing the four year immunity periods for operational development and the creation of new dwellings. This would standardise the immunity period for all breaches of planning control at ten years. 
• Introducing enforcement warning notices - requiring Councils to notify applicants of potential breaches that could be regularised through the submission of a planning application.
•  Increasing fines associated with certain planning breaches and doubling fees for retrospective applications.
• Extending the time period for temporary stop notices from 28 to 56 days; and giving the Planning Inspectorate the power to dismiss certain appeals where the appellant causes undue delay. 
• Reducing the scope for appeals against enforcement notices so that you cannot appeal an enforcement notice if you have also applied for retrospective consent for the same breach; and
• Enabling temporary relief to be given for enforcement action against specific planning conditions.

These changes should be watched carefully, as they are likely to have a significant impact. The changes to enforcement powers, in particular, could end up disproportionately affecting individual householders, protected groups (such as Travellers) and SMEs. These groups are more likely to engage with the system without professional help and (potentially as a result) are already over-represented in enforcement cases.

Duty to Cooperate (Died)

The Duty to Cooperate is to be repealed** and replaced with a more flexible alignment test that would be wholly policy based - as opposed to a statutory requirement.

This is a move that appears to be designed to get more local plans through the system. 

The lack of any kind of replacement mechanism for encouraging cross-border planning between local authorities is both telling and extremely disappointing.

Forced Rental of Vacant Units and CPO (Reformed)

The bill also contains provisions that are intended to make it easier for local authorities to regenerate deprived areas. The two big ideas put forward here include:

• Reforms designed to make it cheaper and easier for local authorities to use their compulsory purchase powers - by reducing the level of compensation they have to pay to landowners; and
• A new power to require landlords to put units that had been vacant for over a year into 'rental auctions', so that local community groups, charities and start-ups can bid on them.

As I have previously mentioned, this last proposal seems more likely to encourage the conversion of vacant units to residential use, than promote re-letting... especially given than the vacancy requirement for Class MA is only three months long...

Digitisation and Simplification of Plan Making (Amended)

A very large proportion of the bill is devoted to measures to promote both the digitisation and simplification of local plans. 

This is not surprising, as it was the one part of the Planning for the Future White Paper universally considered to be a good idea.

Key proposals include:

• Laying a statutory framework for standardising the format of planning application documents, and changing copyright rules to make it easier to re-use and republish their content.
• Moving the more 'standard' local plan policies out of local plans and into a newly created set of National Development Management Policies, which will have the same weight as plans so that they are taken fully into account in decisions.
• The test in s.38(6) of the PCPA 2004 is to be tweaked so that applications for planning permission will now be required to be determined in accordance with the statutory development plan unless material considerations *strongly*  indicate otherwise*^; 
• Granting local planning authorities a new power to prepare ‘supplementary plans’, where policies for specific sites or groups of sites need to be prepared quickly or to set out design standards.; and
• Making local authority design codes both mandatory and digitally accessible

The Infrastructure Levy and Planning Obligation Reform (Survived)

Given the recent stories in the press, it is not surprising that the bill contains measures to replace CIL with a new Infrastructure levy. 

What may be more surprising to those who have just been reading the headlines, is that reports of the demise of s.106 Agreements have been greatly exaggerated.

Instead the bill contains a set of enabling legislation that is largely identical to the provisions in the Planning Act 2008.

I will return to these proposals in a lot more detail shortly (with the help of a special guest contributer), but the high level proposals are as follows:

• A locally set mandatory levy based on GDV, that will not apply to Wales or Greater London;
• Which permits local authorities to set differential rates;
• Requires viability testing prior to adoption; and 
• Will operate alongside scaled back s 106 agreements designed to deliver onsite infrastructure requirements and environmental improvements.

In short, a system that is fairly similar to the one we have now - albeit that this version will also raise funds for affordable housing delivery and will be backed by mandatory infrastructure strategy statements.

Potentially more interesting are the Government's comments on the potential implementation of the new levy. Which state that the Government intends to

• "Require developers to deliver infrastructure integral to the operation and physical design of a site – such as an internal play area or flood risk mitigation. Planning conditions and narrowly targeted section 106 agreements will be used to make sure this type of infrastructure is delivered.
• Detail the retained role for section 106 agreements to support delivery of the largest sites. In these instances, infrastructure will be able to be provided in-kind and negotiated, but with the guarantee that the value of what is agreed will be no less than will be paid through the Levy.
• Retain the neighbourhood share and administrative portion as currently occurs under the Community Infrastructure Levy; and
• Introduce the Levy through a ‘test and learn’ approach. This means it will be rolled out nationally over several years, allowing for careful monitoring and evaluation, in order to design the most effective system possible"

In short, they are very aware that this could all go horribly wrong....

Fast Track Procedure For Near Duplicate Applications, Street Votes, Outdoor Seating & Environmental Reforms  (Henry the eighth I am, I am)

The Bill also contains measures to:

• Create a new power to "fast track" broadly similar applications to consents that have already been granted - in what appears intended to be a more flexible alternative power to the existing provisions in s 73 TCPA 1990. Whilst it is not entirely clear, it looks as if this is intended to help resolve some of the difficulties developers are facing in amending consents post Finney and Hillside.
• Introduce 'Street Votes' into our planning system for the first time. These seem to be a cross between an extremely localised local development order and a micro neighbourhood plan, that would need to be  drawn up by local residents and approved via a mini referendum.
• Make permanent existing temporary measures on pavement licensing. 
• Replace Strategic Environmental Assessment (including Sustainability Appraisals) and Environmental Impact Assessments with a new form of Environmental Outcome Report. These are intended to be clearer and simpler than the current system as well as (hopefully) more joined up; and
• Creates a new statutory duty on the Secretary of State to ensure that the revised system of environmental assessment does not reduce the overall level of environmental protection. 

These last two points, in particular, deserve far more attention than I am giving them; but it is late and I am running out of steam (and coffee)....

To summarise the summary: As currently drafted, the Levelling Up and Regeneration Bill grants the Secretary of State the power to make a lot of important decisions about our planning system with minimal involvement from Parliament.

If you can, now would be a very good time to set up a monitoring system for government consulation documents and draft statutory instruments.

*ironically slap bang in the middle of a team meeting called to discuss the Queen's Speech

** beheaded/ defenestrated/disposed of - please take your pick!

*^  a change which i suspect will only serve to make  'strongly' the word that launched a thousand judicial reviews....

The Levelling Up and Regeneration Bill, given its first reading today (11 May 2022), will put the foundations in place for delivering this agenda and ensuring all parts of the country share equally in our nation’s success. As well as delivering against some of the ambitions set out in the Levelling Up White Paper, it also incorporates some of the proposals for planning reform outlined in the earlier Planning for the Future White Paper (August 2020), where they support our approach to Levelling Up.

Beyond the Bill, we are taking a number of other steps to help local leaders and communities make better places, which are summarised in this paper. The approach that we are taking has been informed by the responses to the Planning for the Future White Paper.”