Do you believe in a thing called LURB?

2023 will see a shake-up to the planning system. This article looks at the key amendments to the planning system that are currently proposed in the Levelling Up and Regeneration Bill and the resulting revisions to the National Planning Policy Framework.

Levelling Up and Regeneration Bill (LURB)

The LURB has now reached committee stage in the House of Lords and the most recent version is composed of an eye-watering 408 pages (some 70 more since it was first introduced into Parliament in May 2022). There has been much debate about what “levelling up” actually means and how it can realistically achieve a reduction in geographical inequality. In February 2022, Michael Gove unveiled the Government’s ‘Levelling Up White Paper’, which sets out twelve "missions" geared towards creating opportunities for everyone across the UK (i.e. “levelling up”). These include improving pride in place, housing and local leadership. The LURB will act as a framework for achieving these missions, with a particular emphasis on improving the planning process. Emphasis has been placed on the devolution of responsibility, meaning local authorities will be given greater control over how they help their communities and meet localised housing needs. The key provisions that we are tracking include:

  1. Infrastructure Levy

A new Infrastructure Levy is proposed, which will replace the current Community Infrastructure Levy scheme (CIL). The Infrastructure Levy will broadly follow the same principle as CIL, but the charge will be calculated at completion of development rather than at the implementation stage. As a result, local communities will have the opportunity to share in the gross development value of a site. Whilst the LURB has set the stage for the Infrastructure Levy, the mechanism for how it will function will be delivered through regulations, with a further separate consultation document to be released pertaining only to the Infrastructure Levy.

  1. Environmental Outcome Reports

As part of the continuing effort to better safeguard the environment, the current means of assessing the environmental effects of plans and projects (through Strategic Environmental Assessments and Environmental Impact Assessments) will be replaced by Environmental Outcome Reports (EORs). Again, it is not yet known precisely how these will function, with further details expected to be delivered via regulations. However, the initial reaction appears positive as it is expected that EORs will reduce the issues experienced with the current environmental assessment system (which is often criticised for being slow, inconsistent and misleading), making the process far simpler and clearer to follow.

  1. Time Limit for Enforcement Action

Currently, the time limits within which a local authority can take enforcement action for breaches of planning control are 4 years (for unauthorised operational development or change of use to a single dwelling) and 10 years (for all other breaches). The LURB realigns these time limits and proposes that enforcement action may be taken within 10 years, regardless of the type of breach. This would be a significant change to the planning enforcement regime as well as the wider property market. For example, for those purchasing properties where substantial development works may have been undertaken in the past without the required planning consents being obtained, whether innocently or otherwise. As always, it is recommended that a comprehensive planning review is conducted to determine whether any liability for potential breaches of planning control will pass to the purchaser on completion.

National Planning Policy Framework (NPPF)

Improvements to the planning process extend beyond the LURB to the NPPF. The NPPF was first introduced in 2012 and sets out the Government’s planning policies in England, providing guidance on how these should be applied in development plan making and decision taking. The NPPF is a material consideration in the determination of planning applications, so it has an important role to play for developers and landowners alike. Amendments were made to the NPPF in 2021 and a further revision is anticipated once the LURB has been enacted. The most prominent proposed changes in this revision include:

  1. Presumption in Favour of Sustainable Development

At the very heart of the NPPF lies the presumption in favour of sustainable development. Essentially, this means “the needs of the present should be met without compromising the ability of future generations to meet their own needs”.

An amendment to paragraph 7 of the NPPF underlines that the presumption applies to the provision of homes and other development. However, a balance must always be struck between the need for a proposal and the impact it would have on the local environment and community. As such, an amendment to paragraph 11(b) is proposed, which states that, where building at densities in order to meet housing needs would render developments “significantly out of character with the existing area”, then the presumption in favour of sustainable development would be rebutted. Additionally, where a local authority has over-delivered on housing, the percentage of such over-delivery can be deducted from the quota provided in new plans. Currently, provision is only made for when local authorities have under-delivered on housing targets.

  1. Soundness of Local Plans

Paragraph 35 sets out a test that must be met in order for a local plan to be considered “sound”. Currently, local plans are sound if they are: positively prepared; justified; effective and consistent with national policy. A local plan is justified if it is "an appropriate strategy, taking into account the reasonable alternatives, and based on proportionate evidence". However, the revised NPPF proposes that the requirement for plans to be justified is removed. Taking this amendment at face value, it is arguably one of the most questionable of the current proposed revision. However, by removing this limb from the test for soundness the aim appears to be that local authorities will no longer be required to provide a disproportionate amount of evidence in support of their local plan. Instead, the focus will be on what is best for the local community and environment, rather than greater weight being given to how the plan fits into national policy.

  1. Green Belt Boundaries

Green Belt boundaries can only be altered by local authorities through amendments to local plans where there are evidenced and justified exceptional circumstances. The provision of housing in order to meet localised needs is an example of such a circumstance. However, a caveat to this has been proposed to make it clear that, even where there are such exceptional circumstances, there is no requirement for local authorities to review and alter Green Belt boundaries if this is the only means of meeting housing needs. Ultimately, the decision lies with the local authority as to whether it releases Green Belt land for housing or not. The revision would therefore add greater protection for Green Belt land in plan making.

  1. Renewable and Low Carbon Energy

The Government’s commitment to tackling climate change is echoed in the NPPF which requires that local plans support new development that would help to reduce greenhouse gas emissions. Under the proposed new amendments to the NPPF, local plans would need to include a positive strategy for maximising the future re-powering and maintenance of energy sources that would increase the use and supply of renewable and low carbon energy. Providing the impacts of these developments are or can be made acceptable, local authorities are encouraged to approve applications for the re-powering and extension of existing renewables sites. This suggests that development with time limited planning consents (e.g. for 25, 30 or 40 years) could be extended into the future.

Most notably, a new paragraph 161 has been inserted which stipulates that local planning authorities should give great weight to proposals that would support energy efficiency improvements by adapting existing buildings to improve their energy performance. For example, the installation of solar panels on large non-domestic buildings. There are protections for listed buildings and conservation areas affected by such proposals.

  1. Emphasis on Beauty

“Building beautiful” was the headline revision to the NPPF 2021, however the new round of proposed changes includes minor amendments that seek to ensure the notion of beauty in design is reinforced. There is still a notable lack of a definition for “beautiful”, which is somewhat disappointing given the term’s subjective nature. Furthermore, this requirement continues to raise the question of how conflict between meeting an ambitious housing target (300,000 homes per year) can be reconciled with the need to provide high quality, "beautiful" housing.

The revised NPPF is currently going through the consultation stage, which is due to close on 2 March 2023. The Government has committed to publishing its response in spring. In the meantime, a useful tracked-change version of the NPPF is available here.

We will provide a further update on both the LURB and the NPPF at the appropriate stage.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.