Act Up!

Following royal assent on 26 October 2023, the Levelling-up and Regeneration Act 2023 was finally published on 3 November 2023.

My, this has been some development project. The Bill was introduced into Parliament on 11 May 2022. Due particularly to the amendments introduced at report stage in the House of Lords and subsequent ping pong between the Commons and Lords (which saw all except one of those ultimately rejected), tracking through to work out the final form of the provisions has not been straight forward without sight until yesterday of the final version,

This is still not of course a completed development. The Act just gets the majority of its contents to “shell and core”. Secondary legislation will be needed to complete the job. Timescales for the substantive changes being brought into force? Shrugging shoulders emoji.

Nicola Gooch’s updated commencement table , drawing on section 255 (commencement and transitional provisions) is a useful guide to where we are with most of the planning-related provisions. Some additional comments:

• Chapter 2 of Part 3 of the Bill (sections 92 to 101) covers development plans, national development management policies, the London Plan and neighbourhood plans and none of this will come into force until such day as the Secretary of State appoints by way of Regulations. The reality is that the Government first needs to conclude its detailed position on implementing the proposed plan-making reforms, following its 25 July 2023 consultation paper. The transitional arrangements announced in that consultation paper were as follows:

“We confirm our intention that the latest date for plan-makers to submit local plans, minerals and waste plans, and spatial development strategies for examination under the current system will be 30 June 2025. We also confirm our intention that those plans will, in general, need to be adopted by 31 December 2026. As referred to above, these dates are contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations. However, we are setting this out now to provide planning authorities with as much notice as possible of these dates.”

“We confirm our intention to have in place the regulations, policy and guidance by autumn 2024 to enable the preparation of the first new-style local plans and minerals and waste plans. As set out above, this deadline is contingent upon Royal Assent of the Levelling Up and Regeneration Bill, as well as Parliamentary approval of the relevant regulations.”

The Government consulted on options for a phased roll-out of new local plans, to ensure a smooth transition. We don’t yet know the outcome of this.

In terms of protection from speculative development in the meantime:

“We also intend to set out that plans that will become more than 5 years old during the first 30 months of the new system (i.e. while the local planning authority is preparing their new plan), will continue to be considered ‘up-to-date’ for decision-making purposes for 30 months after the new system starts.

Additionally, where a plan has been found sound subject to an early update requirement, and the Inspector has given a deadline to submit an updated plan within the first 30 months of the new system going live, this deadline will be extended to 30 months after the new system goes live. This will ensure that local planning authorities are protected from the risk of speculative development while preparing their new plan.”

This could be extended, depending on the roll-out option adopted.

• There has been some discussion around the planning enforcement provisions, particularly as to the extension in England to ten years of the current four years’ deadline for enforcement in the case of building operations and unauthorised change of use of a building to a dwelling. The change will come into force on such day as the Secretary of State appoints by way of Regulations. We don’t yet know whether the Regulations will include any transitional protection – I wouldn’t bet on it. Accordingly, if you are currently in that four to ten year danger zone you might think about applying for a certificate of lawfulness.

• Fast track DCOs will in theory be possible from 26 December 2023, together with the power for the Secretary of State to make non-material changes to DCOs, which is when sections 127 and 128 come into force. In practice I assume that we will need the Government to have concluded its detailed thinking on reforms to the DCO process following its 25 July 2023 consultation paper.

• Part 4 of the Act deals with the infrastructure levy and, like much of the Act, will not come into force until the Secretary of State introduces Regulations to that effect. Again we await the outcome of the consultation process which took place earlier this year, as to the detail.

• A similar story in relation to Part 6 of the Act, environmental outcomes reports, where the Secretary of Sate may make Regulations from 26 December 2023. Again, we await the outcome of the consultation process which took place earlier this year, as to the detail. In formulating the regime, I hope that the Government takes into account the Office of Environmental Protection’s recent research (see Environmental assessments are not as effective as they should be due to practical barriers to implementation, says OEP , 19 October 2023, which is accompanied by a massively useful 84 page paper by Stephen Tromans KC, Ned Helme, Ruth Keating and Eleanor Leydon, Legislation, Case Law and Implementation of Environmental Impact Assessment, Strategic Environmental Assessment and Habitats Regulations Assessment Regimes in England and Northern Ireland as well as reports by WSP and LUC ).

This is just a first and very much incomplete dip into the Act, now that we finally have it to hand. I look forward to publication of the official accompanying explanatory notes and, no doubt, a winter blizzard of summaries as to what it all will mean in practice. Part of the difficulty arising from this long LURB soap opera period since last May is that we do need to come back to the final text with fresh eyes so as to work out what it is likely to mean for what we do – and most importantly, when!

And still we wait for the final version of the updated NPPF…

Simon Ricketts, 4 November 2023

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