The Levelling-up and Regeneration Bill was published on 11 May 2022 and seeks to build on the measures outlined in the Queen’s Speech and to respond to the much-criticised recent White Paper.
A few key takeaways:
- National or Local Planning?
One of the key policies announced in the Queen’s Speech was the introduction of “Street Votes”, to allow for local residents to have a say in the way that their street is developed. Section 96 of the Bill explains that Regulations will be introduced for this, but (not surprisingly) there are very few details as to what this might entail.
Conversely, the Bill also gives the Secretary of State the power to make “national development management policies” (and there is no restriction on what these could be) which under section 83(2) of the Bill override Local Plans. This may be a response to LPAs adopting policies contrary to the NPPF or PPG.
- Just define it as a Minor Variation
The Court of Appeal in Finney determined that section 73 applications could not alter the description of a development. This meant that this could only be done through a s96A application followed by a s73 application- a rather unwieldy process.
The Bill introduces a new section 73B into TCPA 1990, which allows an applicant to make an application for a permission which would be substantially the same as an existing permission. These applications act in a similar way to section 73 applications – they should be determined only on the basis of the differences between the previous permission and the new proposal. Interestingly, there doesn’t seem to be any scope for an LPA to refuse to accept that the application should proceed under s73B and to require a full application, which applicants should welcome.
- Forced to complete
Completion notices are rarely used by LPAs. However, in the White Paper the Government suggested a number of reforms to make these more efficient. Two of these have been taken up in the Bill – instead of a requirement for each notice to be confirmed by the Secretary of State, there is now a right of appeal (with the only substantive ground that the appellant considers that the development will be completed within a reasonable period), and an LPA is able to issue a completion notice even before the three-year commencement period has elapsed if they believe that the development will not be completed within a reasonable period. It remains to be seen whether the use of completion notices will increase as a result of these changes.
- Enforcement – more or less
The Bill extends the enforcement warning provisions to England, giving an LPA the power to issue a warning in a situation where unauthorised development has taken place, but there is a reasonable prospect that planning permission would be granted for that development. This may mean that fewer enforcement notices are issued.
Simultaneously, the Bill extends the period after which operational development becomes lawful in England from four to 10 years, which may in fact mean that more enforcement notices are issued.
- The end of section 106 (again)?
Last but not least, the Bill provides for the much-heralded Infrastructure Levy, which is aimed to replace CIL and section 106 agreements with a locally-set levy. It will become clear from future Regulations whether this will work any better than CIL, but at first glance the new levy will operate in a very similar way, including exemptions and a publically-examined charging schedule.
Two initial concerns – will a levy set many times higher than CIL (as it will have to be to achieve the Bill’s aims of providing similar funding to both CIL and section 106 obligations including affordable housing) actually discourage development? And will the new obligation for already stretched local authorities to get permission for, fund and build affordable housing be any improvement on the current situation? Section 106 agreements have proven to be remarkably durable – it remains to be seen whether the planning system will move on.
This article was written by: James Kon, Senior Associate in the Planning Practice at Asserson Law Offices