Planning update – The Levelling Up and Regeneration Act, the National Planning Policy Framework and BNG

 The Act has brought about a number of key changes to the planning system including:

• The requirement for local authorities to have a design code in place which will set out things like where homes will be built, how they will look etc.
• The introduction of a new ‘Infrastructure Levy’ to replace the Community Infrastructure Levy and section 106 planning obligations. The rates and thresholds will be set in charging schedules by local planning authorities so that they can be tailored to local circumstances.
• The requirement for local authorities to prepare infrastructure delivery strategies in order to outline how they intend to spend the levy.
• Greater weight will be given to local plans, neighbourhood plans and spatial development strategies proposed by mayors or combined authorities when decisions are made on applications and local plans, minerals and waste plans, supplementary plans and neighbourhood plans will all be required to take account of new local nature recovery strategies. 
• A requirement for each local authority to prepare a local plan, detailing only locally specific matters. Policies on issues more generally that will apply to most areas will be contained within a suite of National Development Management Policies (NDMPs) which will be subject to consultation, except in exceptional circumstances, but will not require parliamentary approval. Local plans and NDMPs will carry the same weight and should both be fully taken into account when making decisions.
• A requirement that policies designated as NDMPs will have regard to the need to mitigate and adapt to, climate change, taking into account the range of climate scenarios and risks relevant to the policies being developed.
• The abolition of the duty to cooperate. Groups of authorities will be able to collaborate to produce a voluntary spatial development strategy on specific cross-boundary issues.
• The introduction of a new power for planning authorities to create supplementary plans for use where policies for specific sites need to be prepared quickly.
• The introduction of neighbourhood priorities statements which will provide communities with a simpler and more accessible way to set out their key priorities and preferences for their local areas and will need to be taken into account by local authorities when preparing local plans.
• The introduction of a ‘street votes system’ which will permit residents to propose development on their street and hold a vote on whether it should be given planning permission. The Act confers regulation-making powers relating to the preparation and making of an order and regulation-making power on the Secretary of State to specify or describe development to be excluded from the remit of street vote development orders.
• The removal of current loopholes which are being exploited in relation to planning enforcement. The changes are intended to strengthen the powers of local planning authorities and include the introduction of enforcement warning notices, making timescales more consistent and allowing additional time for investigation of breaches.
• Providing designated heritage assets, such as parks and gardens and World Heritage Sites the same statutory protection in the planning system as listed buildings and conservation areas.
• The increase in planning application fees which are to be raised by 35% for major applications and 25% for minor applications and the expansion of the existing performance framework to measure performance across a broader range of measures.
• A simplification of the power to issue completion notices to make it easier for planning authorities to issue completion notices to developers to complete their projects and the introduction of commencement notices which will be required when a scheme with planning permission starts on site.
• The introduction of a power for councils to refuse to determine an application for planning permission in cases where there was a previous application relating to land within the authority’s area and development was not begun or has been carried out unreasonably slowly.
• The introduction of a new duty on councils by the Act in relation to granting permission for self-build and custom-build housing. The intention is that planning permissions will only count as meeting the demand for self-build and custom-build development if they are actually designed for this purpose. Any demand within a 12-month period for self-build or custom-build housing that has not been met should be included in the next 12-month period. In addition, amendments made will allow the Secretary of State to specify descriptions of planning permissions or permissions in principle that will count as development permissions for the purpose of a local planning authority complying with its duty to meet demand for self-build and custom-build housing.
• A new power for the Secretary of State to permit a person taking part in certain proceedings relating to planning, development or the compulsory purchase of land to do so wholly or partly remotely. Councils will not be afforded the same right.

It should be noted that the vast majority of the changes made by the Act will have not yet commenced and will require secondary legislation particularly the sections directly related to development management and plan-making. September also saw the publication of the revised National Planning Policy Framework.

The NPPF has been updated in relation to onshore wind developments and now includes amended tests to make clear that suitable locations can be identified in a number of ways (rather than solely through an area’s development plan).

The updated National Planning Policy Framework will take effect immediately (there are some transitional arrangements for plan-making which are set out in Annex 1). The amendments are to chapter 14 of the National Planning Policy Framework and include the following:

• An amendment to paragraph 155 to add the words ‘their future re-powering and life extension’;
• an amendment to paragraph 155a to align the text with new footnote 53a;
• the addition of a new paragraph at 158c to add weight to the way in which the value of existing sites are recognised;
• the addition of a new footnote at 53a to clarify how wind energy development can be granted; and
• an amendment to footnote 54 to add the word ‘life-extension’ and to also clarify how wind energy development can be granted, aligning it with the text at new footnote at 53a.

Finally, the Government have advised that the measures introduced by the Environment Act 2021 to secure the mandatory biodiversity net gain of 10% for all new developments which were due to begin in November 2023 will now be pushed back until January 2024. The Department for the Environment and Rural Affairs published new guidance on 26 October 2023 which provides guidance to developers and local planning authorities in relation to the preparation and review of biodiversity gain plans. DEFRA has stated that it will publish secondary legislation by the end of November together with an updated BNG plan which will become the final statutory version once the requirement to provide BNG launches in January.

For more information, please contact Max Howarth.

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