‘New Planning Bill: Levelling-up and Regeneration’ - Simon Randle and Vivienne Sedgley
New Planning Bill: Levelling-up and Regeneration
The new Levelling-up and Regeneration Bill was published on 11 May 2022.
This article highlights three of the Bill’s key proposals:
1. Certainty of decision making: Determinations to accord with planning policy unless material considerations strongly indicate otherwise and national policy to have primacy over local policy.
2. New local infrastructure levy to largely replace s.106 contributions and CIL payments
3. Street votes on planning applications.
The Government had initially proposed “a whole new planning system for England” to speed up the process with a view to building more housing. However, these plans were put on hold in September 2021, following a Cabinet reshuffle (see our earlier article). This is the first glimpse of alternative, and apparently more modest, proposals.
Overall, it is clear from the Bill that the Government’s initial plans to simplify and speed-up development have been considerably scaled back. This is notable at a time when restrictions on nutrient pollution in certain areas has been blamed for the delay in delivering as many as 100,000 homes.
Certainty of decision-making
The Bill proposes to amend section 38 of the Planning and Compulsory Purchase Act 2004 in England.
The existing section 38(6) provides that planning determinations must be made in accordance with the development plan unless material considerations indicate otherwise.
A new section 38(5B) would strengthen this, so that planning determinations must be made in accordance with the development plan and any national development management policies unless material considerations strongly indicate otherwise.
The clear purpose is to increase certainty for developers and reduce the likelihood of subjective decision-making by decision-makers. The change maintains room for argument and local influence and so avoids concerns that had been raised about the proposed “wholesale” changes that might have removed local discretion altogether.
In addition, a new section 38(5C) would provide for the primacy of national over local policy:
If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy.
A key motivation is likely to be allowing the national interest in extensive housing development to trump local policy. This is an interesting contrast to the emphasis elsewhere on the importance of local influence (e.g. in street votes).
New infrastructure levy
The Bill proposes an amendment to the Planning Act 2008 to provide a new Infrastructure Levy (“IL”) to gradually replace the existing Community Infrastructure Levy (CIL).
A key purpose of the change is to tailor the infrastructure levy rates to local circumstances. Much of the detail is reserved for secondary legislation.
- CIL would remain in respect of the Mayoral CIL in London and CIL in Wales.
- IL charging authorities would generally be Local Planning Authorities.
- Charging authorities would set rates, having regard to previous levels of affordable housing funded by developer contributions in their area and the desirability of maintaining or exceeding previous levels.
- The explanatory notes suggest IL would be charged based on the final gross development value of development. This would be a change from CIL, which is charged based on the floorspace of development when planning permission is granted with relief available (e.g. for affordable housing).
- Secondary legislation may make further provision as to how section 106 agreements may be used. It seems likely therefore that there will be restriction or prohibition on the power to require financial contributions by way of a section 106 agreement. Section 106 may nevertheless provide a means to bypass the IL by requiring direct provision by developers rather than financial contributions.
The proposal for ‘street votes’ on development has been much publicised and the subject of some debate. Would it be a recipe for ‘nimbyism’ to halt development or provide a form of localised permission, akin to a development order, permitting certain classes of development for which residents had voted in favour?
In reality, this is the subject of a placeholder clause in the draft legislation and so it is currently unclear what it would entail.
It would be for secondary legislation to provide a system for residents of a street to ‘propose development on their street’ and ‘determine, by means of a vote, whether that development should be given planning permission, on condition that certain requirements prescribed in regulations are met’.
It is easy to see the public appeal of residents having greater say on nearby developments. However, it is also easy to see the concerns about the prospect of neighbourhood arguments and increased subjectivity if neighbours were to be able to have a determinative vote on an application for planning permission. The success or otherwise of this proposal will clearly depend on secondary legislation, which is unlikely to arrive very soon.
16 May 2022
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