The Levelling-Up and Regeneration Act 2023
The LURA received Royal Assent on 26 October 2023, and introduces a number of significant changes in England, including:
- The abolition of the 4-year rule for planning breaches, meaning that all breaches will have to continue for 10 years to become lawful;
- A power for local authorities to decline to determine an application if they consider that an applicant has a record of being “unreasonably slow” to build developments;
- A power for local authorities to issue completion notices if it appears that a development will not be completed within a “reasonable period”;
- A requirement that, in addition to the development plan, applications be determined in accordance with national development management policies, unless material considerations indicate otherwise. In the event of a conflict, national policies take precedence;
- Increased powers to amend permissions, so long as the scheme will not be “substantially different”.
The provisions will take effect in due course, whilst regulations are needed to add meat to the bones.
The changes mark yet further divergence between the English and Welsh planning systems. For example, the 4-year rule will remain in Wales, for now at least.
It is not yet clear whether there will be saving provisions, which protect breaches which have already achieved immunity after 4 years, but are less than ten years old, so it may be sensible to seek a Certificate of Lawfulness sooner rather than later.
Many of the new provisions lack clarity; for example, it is not clear what “unreasonably slow” or “a reasonable period” means, and, if these provisions are used, there is likely to be litigation as a result.
The most surprising change is arguably that which requires applications to be determined in accordance with national development management policies (NDMPs), in addition to local plans, with the former taking precedence if there’s a conflict between the two. The NDMPs will be drawn up in due course and unlike the NPPF, will have a statutory footing in planning law.
The advantages of NDMPs are that they will:
(i) Speed up the introduction of and simplify local plans, allowing LPAs to focus on locally important issues;
(ii) Provide safeguards where local plans are out-of-date.
However, there are concerns that NDMPs will override local plans, which conflicts with a local, plan-led system.
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Changes to Planning Fees
There have been a number of significant changes to the fee regime in England, most notably:
- On 6 December 2023 planning fees for major applications increased by 35% and for other applications by 25%;
- The ‘free-go’ for repeat applications submitted within 12 months has been abolished;
- The fee for non-major applications will be refunded if it is undetermined after 16 weeks (reduced from 26 weeks);
- Fees will be increased annually from April 2025 in line with inflation, up to a cap of 10%.
Whilst the initial intention was that the additional income generated by the fee increase could be ring-fenced by local authorities and spent on addressing staff shortfalls in planning departments, that is no longer the case and authorities will be free to spend the income on whatever they please, which might mean that service levels see no improvement, despite the significant hike in fees.
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The Introduction of Biodiversity Net Gain (BNG)
From January 2024 developments in England will be required to deliver a minimum 10% BNG, to be maintained for at least 30 years.
Essentially, the requirement is for the delivery of a net positive for the local environment e.g. the creation of new habitats and green spaces.
This must be secured either via (i) on-site habitat creation or green infrastructure (ii) offsite delivery, either on land owned by the developer or via (ideally local) units purchased from a landowner, or (iii) purchasing statutory credits from Natural England.
A Biodiversity Gain Plan will need to be submitted and approved in respect of each development, and likely secured via a section 106 agreement.
Exempt schemes include householder applications, self and custom builds, and s73 applications where the parent permission predates the regime.
The new regime will pose challenges for developers, particularly in a world of increasing costs and delay. The requirement that a complex Gain Plan be approved prior to commencement might result in developers having to undertake works on-site to implement, in breach of the relevant condition, with a view to implementing the permission, and then having to obtain confirmation that the permission has not expired.
There are concerns about the ability of the industry, particularly local authorities, to deal with the significant new requirements, as well as unintended consequences, such as making brownfield sites even less attractive.
The changes do offer significant opportunities for landowners, particularly those who wish to habitat bank and sell units. There are also opportunities for developers and investors; for example, the inclusion of nature-based solutions such as green spaces, rooftop gardens and living walls can enhance property values, and fulfil the requirements of an increasing number of environmentally conscious investors.
You can learn more about Biodiversity Net Gain by clicking here.
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Caselaw and Appeals
Marks & Spencer Appeal
The Secretary of State rejected M&S’ proposal to rebuild its flagship store on Oxford Street on the basis that “there should generally be a strong presumption in favour of repurposing and reusing buildings”, and said that “the onus lies on the applicant to demonstrate that refurbishment would not be deliverable or appropriate” and “it is for the applicant to show that it had considered all reasonable alternatives”.
This decision is being challenged in Court by M&S, and it remains to be seen whether it will result in greater difficulty for developers wanting to demolish and rebuild.
Lazari Properties 2 Ltd v Secretary of State [2023] EWHC 2026
The Court decided that a condition imposed on a planning permission in 2003 which restricted the use of premises to use Classes A2 and A3 (as was) prevented the use from moving freely within the new Class E, which replaced a number of Classes.
Enforcement
Greenwich Council has served an enforcement notice requiring the demolition of 204 apartments because the 26 variations between the approved plans and the built development (including a larger than approved footprint, different cladding, less glazing, and smaller balconies) are so substantial that the buildings should be demolished in their entirety.
Learn more about this case by clicking here
Appeal costs
Tendring District Council will pay over £100,000 to a developer in respect of its appeal costs after the Council’s planning committee refused an application for a 180-home scheme against officer recommendation. Whilst this is a rare case, it is a good reminder that costs awards are often granted to developers, and applications should be considered where the local authority may have behaved unreasonably.
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What to look out for in 2024
A revised National Planning Policy Framework (NPPF) is expected shortly.
In Wales, the Historic Environment (Wales) Act 2023 will be brought into force in 2024 and is the first part of the Welsh Government’s plans to consolidate and improve the accessibility and clarity of Welsh planning law.
The Proceeds of Crime Act 2002 (POCA)
The Proceeds of Crime Act 2002 (POCA) facilitates the confiscation of funds which have been generated by illegal activities. The legislation was introduced to target drug dealers and the like, however, we are seeing more and more local authorities using it to target illegal planning activities, such as activities which carry on after an enforcement notice comes into effect.
A good example of the extent of the powers is a landlord who was the subject of a £1.5m confiscation order after converting several houses into flats/bedsits without planning permission. The amount confiscated related to the rental income received by the landlord in breach of several enforcement notices. In another example, a Staffordshire man was ordered to pay around £150,000 for continuing to run an unauthorised scrap yard in breach of an enforcement notice.
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