There are some interesting and well-intentioned proposals in this Act, as a result of extensive consultation and laudable ambition which is to be applauded but the devil will be in the detail and that is yet to come by regulation. A cynical view might be that the current government, with its dismal record on housing delivery and conscious that there is an election looming, is legislating knowing it will not have to implement these provisions, some of which are controversial and are resource intensive upon already hard-pressed local authorities, many of which are under extreme financial pressures, as evidenced by the recent spate of Section 114 notices.
This important legislation received the Royal Assent on 26 October 2023, and some of the more controversial measures will depend upon further consultation and regulations with no precise timetable for their introduction , such as the introduction of Environmental Outcome Reports to replace Environmental Impact Assessments – “EOR” rather than “EIA” – aiming for a more outcome focussed analysis of development projects, and also the Infrastructure Levy, which despite developer opposition, has reached the statute book.
The Infrastructure Levy is intended to align with locally set targets to deliver affordable homes, with the community infrastructure levy (CIL) being replaced, with interim arrangements for London and Wales, and the retention of the use of s.106 agreements in some circumstances if the levy fails to deliver its aims. It is designed to capture an element of increased land value as a percentage of the value of the property on completion. But will it achieve its objectives?
The levy to be effective will need to be seen as fair and avoid complexity in its application and must not prejudice the delivery of housing. A 10 year “test and learn” – the pilot scheme – may not survive the general election as the Labour Party has pledged to replace the levy with more radical solutions. Assuming the levy is actually introduced, will it really accelerate desperately needed housing delivery or will it be another unintended ‘blocker’.
The UK’s reputation in delivering major new infrastructure is poor, so reform of the system for consents for NSIPs (nationally significant infrastructure projects) in order to shorten the time to examine projects and make development consent orders are all to be welcomed, as well as the intention to empower the setting up of new forms of development corporations, reforms to CPO powers and the digitisation and standardisation of planning data. The success of these proposals will again be dependent on whether local planning authorities are properly resourced and have the capacity to effectively use the new powers and implement the changes. The Labour Party proposals as signalled at their last party conference, for example, the introduction of new towns, and targeting brownfield sites may have the potential to be equally radical, if not more so.
The overriding objective of the Act is “to speed up the planning system, hold developers to account, cut bureaucracy, and encourage more councils to put in place plans to enable the building of new homes”. The government hopes that the Act’s reforms of the Local Plan system will expedite the adoption of local plans, key to resolving its housing delivery problems, with features such as a new 30 month deadline for making new plans, removing the local authority duty to cooperate, introducing area-wide design codes and strengthening the local plan’s importance in determining planning applications in conjunction with the National Development Management Policies (NDMP).
The introduction of NDMPs reflects the former Planning Policy Statements which were revoked and replaced by the first incarnation of the NPPF in 2012. The Secretary of State may take and use reserve powers to influence how these provisions actually work. Developers should watch this interaction with great interest and not a little concern. These provisions along with the proposal to implement Supplementary Plans will inevitably also impact upon a local planning authority’s stretched resources and capacity.
There are a range of other changes. These include Neighbourhood Priorities Statements, housing land supply revisions, variations to enforcement time limits and processes, and the introduction of ‘Street Votes’, a form of referendum on local development applications, a controversial proposal and silent on how the voting system will work never mind the resource implications of managing the process. The danger here is that subjective nature of individual persons or a group of residents may lose the objectivity which has been so important historically in underpinning respect for the planning system.
One proposal which developers will really need to monitor is the grant of new powers to local planning authorities to refuse to determine a planning application, if that developer has a history of building out slowly or actually not implementing permissions. In addition, powers to revoke a planning permission if the development clearly is not completed within a reasonable time and after the expiry of a completion notice, may result in the planning permission falling away. This process will be backed up by the requirement for development progress reports, all of which is intended to speed up housing delivery. The regulations for these proposals are awaited but the potential for contention is clear and whether they will actually speed up housing delivery or disincentivise the market remains to be seen.
The government’s record after many years in power on housing delivery has been criticised and the need to stimulate the wider economy is of course of paramount importance. The planning process is a crucial part of the solution. The granting of new powers to local authorities is in principle to be welcomed but the inescapable concern is that unless local planning authorities are resourced adequately, new powers will gather dust and never have real and decisive impact.
This is why the regulations to come are so important and will be subject to further consultation and drafting before being settled. Until then it is impossible to assess whether the Act’s objectives will be achieved. Some of this process will be after the next election and if there is a change of government, will we actually ever see this legislation impact upon the urgent economic and development imperatives? The government may consider that they will be able to ‘tick- box’ before the election that they have with this legislation having passed, addressed the key issues such as housing delivery, and may think therefore they can ameliorate their record in government. It may take, however a more radical and demonstrable resourced approach to accelerate change.
Notwithstanding LURA is intended to speed up aspects of the planning system to deliver much needed homes, there may be extraneous factors at work such as alleged collusion between housebuilders which have artificially suppressed the availability of housing supply. The outcome of the CMA investigation is awaited but it seems that a multi-pronged attack is needed to address the issues.
Malcolm Iley (Consultant)
T: 020 7870 7500
Stephanie Hall (Partner - Planning)
T: 01613 990127