Planning
Levelling Up and Regeneration Act 2023 (LURA)
LURA is a framework for significant and wide-ranging changes that will impact almost every aspect of the English planning system. Whilst the Act came into force in 2023, the implementation of the provisions will take effect in 2024.
The Act enables the Government to work towards a more uniform digital planning system. Its arrival promises the imposition of data standards, common IT systems and the standardisation of how both local plans and planning applications are presented. We don’t know when these reforms might take place or the shape of them, but if introduced, it will necessitate changes in how planning applications are prepared and submitted.
- The changes to planning enforcement, and the new regime for monitoring build-out rates, are significant. They may impact on the way new schemes are planned for and built out. It’s advisable for developers to be very transparent with local planning authorities about external or market forces that are impacting their ability to complete particular project.
- It will also be sensible to formally regularise any schemes which benefit from immunity under the ‘four-year rule.’ The Act will remove this immunity period for operational development, and conversions to residential use, at some point in the future.
- National Development Management Policies represent a sizeable shift to the current system. Being automatically imported into all local plans in England, these policies will take priority over any conflicting local plan policies. When combined with the new system for preparing local plans, this could significantly change the planning policy landscape in England moving forward.
- The upgrading of wastewater treatment facilities, to remove nutrient pollution at source, is a vital step towards removing nutrient neutrality restrictions on new developments in large parts of England. However, it will take some time for the impact of these upgrades to be felt, as the statutory upgrade date is not until 2030.
Most of the changes set out in the note do not have a timetable for coming into force. Many, such as the introduction to Environmental Outcome Reports and the Infrastructure Levy, will require additional consultation before they are adopted.
National Planning Policy Framework
Firstly, local planning authorities (LPAs) don’t need to maintain a rolling five-year housing land supply anymore – for the most part. There are some circumstances in which this requirement still applies.
In order to benefit from the change, an LPA must:
- Have an adopted plan that is less than five years old
- Have had that adopted plan examined by PINS (strategic reviews don't count)
- Have identified in that local plan at least a five-year supply of specific, deliverable sites at the time the examination concluded.
Therefore, to be exempt from the requirement, a plan must be examined and adopted every five years and have identified at least a five-year supply of land at the time its examination concluded.
Housing delivery
The Housing Delivery Test remains unaltered for now. Whilst some changes are being made to the ‘buffer’ requirements, they’re not being completely removed. Instead, the 5% and 10% buffers have been removed, with the 20% buffer being left in place. This 20% buffer is the penalty applied to LPAs who have failed to meet the Housing Delivery Test. Its application is, however, being narrowed to Councils that:
- Have underdelivered against the Housing Delivery Test
- Do not have a plan in place that has identified at least a five-year supply of land at the time its examination concluded.
The proposed changes to the tests of soundness for local plans have been abandoned for now – so justifiable alternative approaches to assessing housing need are here to stay for the time-being. The proposed consultation wording for the standard method has, however, been adopted in full.
Green belt
The amended wording on green belt protection, regarding planning, has softened considerably since the consultation draft was published. It now states:
“Once established, there is no requirement for Green Belt boundaries to be reviewed or changed when plans are being prepared or updated.”
Beauty, good design and Mansard roofs
Most respondents to the consultation said they didn’t find the continual references to ‘beauty’ in the NPPF helpful. Nevertheless, the DLUHC has decided to retain them.
The strangely specific policies in favour of Mansard roofs also survived the consultation process, albeit with a lot more caveats, definitions and explanatory text than originally proposed.
Renewable energy and retrofitting
Alongside a footnote preventing onshore wind in all but limited circumstances, there’s a new provision for retrofitting. It covers low-carbon heating and energy efficiency measures relating to heat pumps and solar panels. Local planning authorities must now give significant weight to these proposals.
Local authorities in jeopardy
There remains an existential threat to LPAs in 2024. The Secretary of State for the Department of Levelling Up, Housing and Communities recently confirmed the following measures will be introduced this year:
- Consultation on measures to limit the use of extension of time agreements by LPAs
- Publication of league tables on LPA performance
- Launch of a rapid, three-month review into the wider statutory consultee system
- Tougher action against LPAs who are not performing.
As well as interventions in Amber Valley, Ashfield, Basildon, Castle Point, Medway, St Albans and Uttlesford at the end of last year, we also saw:
· A new direction preventing West Berkshire from withdrawing its Local Plan
- The publication of the outcome of the 2022 Housing Delivery Test
- The designation of Fareham and Chorley on the grounds of poor quality decision-making
- A decidedly testy letter to the Mayor of London over housing delivery.
The Planning Skills Delivery Fund has been announced with 111 local authorities receiving funding for support with planning application backlogs. 36 local authorities also received for support with skills development.
Retained EU Law (Revocation and Reform) Act (REULA)
There’s been a reprieve from the much discussed ‘sunset clause’ of a previous form of REULA. The sunset clause would have meant that any remaining EU derived law not removed or altered would have been revoked. However, from Monday 1 January 2024, all retained EU law will now be known as ‘assimilated law,’ and should be interpreted according to ordinary domestic law and principles.
The Court has its own test and procedures for dealing with the assimilated law, so we expect to see cases throughout 2024 grapple with this change.
Contacts
Nicola Gooch
Partner, Planning & Environment +44 (0)774 777 3258
nicola.gooch@irwinmitchell.com
Pamela Chesterman
Partner, Planning & Environment +44 (0)788 046 1710
pamela.chesterman@irwinmitchell.com