Peter Ellis sent me overnight a judgment in the Chancery Division of the High Court from Friday: Cotham School v Bristol City Council (HHJ Paul Matthews, 2 February 2024) – part of the convoluted saga of whether some school playing fields had been wrongly registered as a town green. Peter particularly liked, as do I, the judge’s quote from George Bernard Shaw (paragraph 12):
“This kind of legal treasure hunt, searching in the interstices of secondary legislation for the text of the currently applicable law, and holding several inconsistent ideas in your mind simultaneously, is certainly not for the faint-hearted. How lay people can deal with it is beyond me. Little wonder that George Bernard Shaw once wrote that professions “are all conspiracies against the laity” (Preface to The Doctor’s Dilemma, 1906).”
Nice one. Whether we’re laity or lawyers, “treasure hunt” is exactly how it feels as we try to work out when, how and if elements of the Levelling-up and Regeneration Act 2023 will be brought into force.
The Levelling-up and Regeneration Act 2023 (Commencement No. 2 and Transitional Provisions) Regulations 2024 were made on 25 January 2024. (They followed a completely irrelevant (as far as we are concerned) set of commencement provisions made on 18 December 2023 with an even more snappy title: The Elections Act 2022 (Commencement No. 11, Transitional Provisions and Specified Day) and Levelling-up and Regeneration Act 2023 (Commencement No. 1) Regulations 2023).
So what do the latest Regulations achieve?
As of 31 January 2024 a whole range of provisions relevant to the planning system has been switched on, namely:
“(a) [ ]
(b) [ ]
(c)section 94 (national development management policies: meaning);
(d)section 106 (street votes), so far as it confers a power to make regulations and so far as it relates to the provisions of Schedule 9 brought into force by paragraph (q);
(e)section 107 (street votes: community infrastructure levy), so far as it confers a power to make regulations;
(f)section 123 (duty in relation to self-build and custom housebuilding);
(g)section 129 (hazardous substances consent: connected applications to the Secretary of State);
(h)section 140 (enforcement of community infrastructure levy);
(i)section 180 (acquisition by local authorities for purpose of regeneration);
(j)section 181 (online publicity), so far as it confers a power to make regulations;
(k)section 184 (corresponding provision for purchases by Ministers), so far as it relates to the provisions of Schedule 19 brought into force by paragraph (r);
(l)section 185 (time limits for implementation);
(m)section 186 (agreement to vary vesting date);
(n)section 187 (common standards for compulsory purchase data);
(o)section 188 (‘no-scheme’ principle: minor amendments);
(p)Schedule 5 [ ]
(q)paragraph 1 (Town and Country Planning Act 1990), sub-paragraphs (6) to (10) of Schedule 9 (street votes: minor and consequential amendments), so far as they confer a power to make a development order;
(r)paragraph 1 (online publicity) of Schedule 19 (compulsory purchase: corresponding provision for purchases by Ministers), so far as it confers a power to make regulations.”
However, care is needed. In most cases, the bringing into force of these sections simply enables the Secretary of State to introduce the actual changes without any changes yet “on the ground”. Looking through the sections, the only exceptions to that in the above list (save for some minor and unexciting tweaks to the wording of some provisions) appear to be various provisions in relation to compulsory purchase – eg acquisition for “improvement” can include “regeneration”; the possibility for the confirming authority to provide for an implementation deadline of more than three years, and the possibility for the authority to agree a postponed vesting date and minor amendments to the “no scheme” principle in section 6D of the Land Compensation Act 1961 (from the explanatory notes at the end of the Regulations: “These sections provide that where land is acquired for regeneration or redevelopment which is facilitated or made possible by a relevant transport project, the ‘scheme’ includes the relevant transport project. The amendments ensure that the definition of ‘scheme’ includes any re-development, regeneration and improvement that form part of the ‘scheme’).
As of 12 February 2024 the biodiversity net gain regime is switched on (albeit, as we know, with later dates for minor development and for NSIPs).
As of 30 April 2024, section 190 of the Act (power to require prospects of planning permission to be ignored) comes into force, in relation to England. This is the big “ignore hope value in some situations” one – from the explanatory notes: “The amendments allow confirming authorities, in relation to certain public sector acquiring authorities exercising certain CPO powers, to direct that the value associated with the following matters are not payable, provided doing so is in the public interest: (a) the prospect of the grant of a planning permission; and (b) compensation for the loss of the potential of development for which there was a reasonable expectation that planning permission would have been granted in the absence of the CPO”) and as of 31 January 2025 section 189 of the Act (prospects of planning permission for alternative development) comes into force (from the explanatory notes: “The amendments make various changes including to when prospective planning permission is to be treated as certain, what certificates of appropriate alternative development should contain, to clarify when the relevant planning date falls, whether account should be taken of the expenses incurred in the issue of a certificate, and corresponding amendments to the process of appeals to the Upper Tribunal against certificates”)– I’ll leave others to look at these in more detail. There are transitional provisions set out in Regulation 6 of the Regulations.
Ugh, that was hard yards. NB if you want to understand what drives me to continue writing these interminable posts, you might want to listen to the latest Hitting the High Notes/50 Shades of Planning podcast, where Sam Stafford interviews me and asks me exactly that question, maybe not quite in those terms. Listen here .
Simon Ricketts, 4 February 2024
Personal views, et cetera
SIMONICITY 