It’s obvious now why the Levelling Up and Regeneration Bill was named as it was. Having now received Royal Assent on 26 October 2023 it is formally the Levelling Up and Regeneration Act 2023, or Lura to its friends.
I consulted the oracle which is The Bump website:
“Origin: German
Meaning: Alluring temptress
Lura is a feminine name of German origin that means “alluring temptress.” A variation of the traditional name Lorelei, Lura is a modern alternative with the same fascinating history and connotations. In legends, Lorelei was the name of a maiden who would lure fishermen to their deaths by singing her haunting song. Today, Lorelai is the name of a rock face along the Rhine River in Germany. With connotations of otherworldly beauty and natural wonder, Lura is an excellent option for your little one.”
Very clever Mr Gove, very clever.
(Although there is also the LURA, which is the Leeds University Rocketry Association. And there is a Portuguese singer, Lura. Planning law is going to get even more confusing).
As is usual, it will take a bit of time for the Act to be printed. In the meantime you either have to trawl through the various sets of amendments on the Parliament website, take your chances with the Government’s press statement or (more usefully) delve into the various summaries already on social media. I would recommend for instance:
Lichfields’ summary of the planning-related sections
I also very much recommend, as a wider update, the latest Planning Law (With Chickens) podcast episode, recorded that day by my Town colleagues, Victoria McKeegan and Nikita Sellers. The chat covers Lura but also much else of what has been happening in our world over the last few months.
Because it isn’t all about the Act, the operation of which is dependent on much further secondary legislation to come. The Act will only change the system’s hardware. A software update, in the form of an updated version of the NPPF following the December 2022 consultation draft, is expected any day now.
In the meantime, Michael Gove’s letter to local planning authorities dated 8 September 2023 is worth a read if you haven’t seen it. I’m not sure it was initially online. For instance:
“First and foremost, this Government is unashamedly supportive of development and regeneration in and around existing town and city centres. This is how we will get homes built where it makes sense, support growth, and enable people to get on the property ladder.
And making it easier to progress such developments is front of mind as we finalise the update to the National Planning Policy Framework (NPPF), following our consultation which attracted more than 26,000 responses. In that context, and ahead of the publication of the refreshed NPPF in the autumn, I wanted to make clear my expectation that:
• development should proceed on sites that are adopted in a local plan with full input from the local community unless there are strong reasons why it cannot;
• councils should be open and pragmatic in agreeing changes to developments where conditions mean that the original plan may no longer be viable, rather than losing the development wholesale or seeing development mothballed; and
• better use should be made of small pockets of brownfield land by being more permissive, so more homes can be built more quickly, where and how it makes sense, giving more confidence and certainty to SME builders.”
[That viability statement is particularly topical].
“My intention is for the regulations, policy and guidance necessary for the preparation of the first new-style local plans to be in place by Autumn 2024. In the new system, planning authorities will need to prepare, consult on and adopt plans within a 30-month timeframe – and follow the same process for each subsequent update of their plans, including examination by PINS.
In the interim, we want local authorities to continue adopting ambitious local plans, which is why we set out fair transitional arrangements in our current consultation on implementing the plan-making reforms. As part of these arrangements, we confirmed our intent that the last day to submit a plan under the current system will be 30 June 2025. I want to reiterate that local authorities without an up-to-date local plan are likely to be subject to the presumption in favour of sustainable development when facing applications.”
“I’m not sure that anyone can blame the EU, or lawyers, or local authorities, or developers, but no doubt they will. Rather, the problem arises from the apparent lack of adequate measures to ensure that, by virtue of its nitrate content, sewage generated as a result of new development does not harm the integrity of coastal waters protected as special areas of conservation and special protection areas under the Habitats and Birds Directives. Nitrate enrichment causes green algae, harmful to protected habitats and birds, through a process known as eutrophication. The chickens … are coming home to roost following a lack of priority for too long on the need by the Government and water companies to ensure that we have adequately funded and operated waste water treatment processes”
Of course the issue subsequently spread in terms of geography and by way of concerns as to phosphates as well as nitrates, hence references now to “nutrients”. (There are also related situations in relation to water neutrality in Sussex and in relation to recreational pressures on particular SACs – see my 9 October 2021 blog post Development Embargos: Nitrate, Phosphate & Now Water – and in relation to nitrogen deposition on protected areas caused by traffic, eg see my 8 April 2017 blog post Heffalump Traps: The Ashdown Forest Cases – but the rest of this post focuses on nutrients).
This Government failed for far too long to grasp the nettle and now, when it has, it has been badly stung. Surprise surprise.
My 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment set out the way in which the Government belatedly looked to neutralise the nutrient neutrality problem for housebuilders and others who are stuck unless and until acceptable strategic or bespoke mitigation solutions are in place, by way of an amendment to the Levelling up and Regeneration Bill. The proposal was to take to remove nutrient pollution, by way of urban waste water, out of the ambit of the “harm to protected sites” integrity test. Subtle it wasn’t.
The Lords report stage debate on what became Amendment 247YYA took place on 13 September 2013. We all know what happened: the amendment was rejected 192 – 161.
As I set out in my 29 August 2023 blog post on the day the amendment was published, on balance I supported it – the need for a solution now is almost overwhelming – but I identified some questions to which the Government needed to be ready with answers.
The brutal reality is that their answers weren’t good enough, particularly on the key question – whether this amounted to a regression from current environmental standards. The day after the amendment was published, the Office Of Environmental Protection sent the Government a lettermaking clear its expert view that the proposal would indeed amount to regression. Nature conservation bodies rose up as one notwithstanding Therese Coffey’s response (31 August 2023)
This may be a Government that still on paper retains a majority but boy it is on the ropes. The media and public opinion joyfully conflated the nutrient neutrality issue with its justified disgust as to the poor performance of water companies in allowing the discharge of untreated sewage to rivers and coastal waters (and the failure of the Government to hold those companies properly to account). I set out in my 9 September 2023 blog post LURB Lords Latest the kicking that the Government received on the proposal in the Commons on 5 September.
As at 5 September Labour appeared to be sitting on the fence as to whether it would support the proposal but once they came out against it on 12 September 2023 (proposing an alternative amendment which was subsequently withdrawn during the debate without a vote) I would suggest that the writing was on the wall. As a sign perhaps of the Government’s desperation, DLUHC published a late lobbying document in the form of the nutrient neutrality announcement: explanatory paper (11 September 2023).
The Government amendment was rejected 192 votes to 161. And that folks is that. Procedurally it cannot be reintroduced into the Bill when it returns to the Commons. Nor in my view is there time for a fresh Bill.
What lessons to draw?
The Government moved far too slowly. Clive Betts nailed in it the 5 September 2023 debate: “This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.”
As a result of moving too slowly, it brought forward a proposal which had not been tested by way of any consultation whatsoever. Nor plainly had it been the subject of any cross-party agreement. Nor it seems had the Office for Environmental Protection been asked to advise ahead of the amendment being tabled, nor indeed Natural England. Indeed Natural England have not made any public statement in support of the proposal! Isn’t this all politics 101?
There was no clear narrative that explained the precise nature of the eutrophication issue so as to separate it from other justified concerns over water quality.
What now should happen?
Plainly the Government should re-double its efforts to work with affected authorities and with the water industry to introduce strategic measures to reduce nutrient deposition into watercourses which are protected as SACs and SPAs.
Plainly it should be working with Natural England to ensure that Natural England is in a position where its advice to authorities can be that, due to its confidence that these reductions will take place within the required timescale, there will not be an adverse effect on the integrity of the relevant SPA/SAC as a result of the particular proposal. With that assurance, and perhaps with guidance that any effects arise largely from occupation rather than construction and that therefore there is a role for planning conditions which at least allow developers to get on with construction if they are prepared to take the risk that reductions will take place in time for occupation, there is no need whatsoever for legislation.
Other neutrality issues should receive equivalent focus. It’s not all about nutrients.
Why don’t I finish with a controversial idea? If, in the face of expert advice to the contrary, planning applications are still held up, why doesn’t the Secretary of State call in the relevant application, in which case he becomes the competent authority in place of the local planning authority when it comes to determining whether there is an adverse effect on the integrity of the relevant SPA/SAC?
This coming week’s Lords Built Environment Committee report on the impact of environmental regulations on development will make interesting reading. We haven’t really even started to talk about environmental outcomes reports…
The Levelling-up and Regeneration Bill resumed its progress through Report stage in the House of Lords this week, with sessions on 4 and 6 September. This post seeks to identify the main amendments made in those sessions.
I know what you’re all asking – what about the Government’s late proposed amendment to address the nutrient neutrality issue (see my 29 August 2023 blog post The Government’s Big Move On Nutrient Neutrality – Now We Have Seen The Government’s LURB Amendment)? That will be debated at a further session next week, on 13 September 2023. The proposed amendment was in the meantime the subject of an urgent question tabled in the House of Commons by the Green Party’s Caroline Lucas on 5 September 2023. The debate is interesting as a hint of what awaits both in the Lords on 13 September but then once the Bill returns to the Commons for its final stages:
The Speaker agreed that the urgent question was appropriate notwithstanding the Secretary’s written ministerial statement the previous day: “I expect Ministers to come to the House, as I did not think a written ministerial statement was the way to inform the House.”
On being challenged that the amendment amounted to a regression from current standards of environmental protection, the minister, Rachel Mclean responded: “It is important to consider what we are talking about here, which is unblocking 100,000 homes that add very little in terms of pollution. To be clear, our approach means that there will be no overall loss in environmental outcomes. Not only do the measures that we are taking address the very small amount of nutrient run-off from new housing, but at the same time, we are investing in the improvement of environmental outcomes. We do not agree that this is regression on environmental standards. We are taking direct action to continue to protect the environment and ensure that housing can be brought forward in areas where people need it.”
A nuanced question from shadow minister Matthew Pennycook:
“As a result of the Government’s failure over many years to make decisive progress in tackling the main sources of problem nutrients, namely farming and waste water treatment works, the requirements for nutrient neutrality in sensitive river catchments present a challenge to securing planning permission for new housing development. It is therefore right in Labour’s view that the operation of the rules around nutrient neutrality is reviewed with a view to addressing problematic delays and increasing the pace at which homes can be delivered in these areas.
However, we have serious concerns about the approach that the Government have decided on. Not only does it involve disapplying the Conservation of Habitats and Species Regulations 2017, but it does not legally secure the additional funding pledges to deliver nutrient management programmes and does not provide for a legal mechanism to ensure that housing developers contribute towards mitigation.
I put the following questions to the Minister: what advice did the Government receive from Natural England about potential reform of the laws around nutrient neutrality? Did it offer a view on the Government’s proposed approach? Given the amount of mitigation currently available in the pipeline, which is estimated at allowing for approximately 72,000 homes, did the Government consider an approach based on the habitat regulations assessment derogation and a revised credit mitigation system to front-load permissions and provide for future compensatory schemes? If so, why did they dismiss that option? What assessment have the Government made of the impact of their proposed approach on the nascent market in mitigation credits, and investor confidence in nature markets more generally? Why on earth do Ministers believe developers will voluntarily contribute to mitigation under the proposed approach?
Finally, the Government claim their approach will see 100,000 planning permissions expedited between now and 2030. Given that house building activity is falling sharply and the pipeline for future development is being squeezed—not least as a result of housing and planning policy decisions made by this Conservative Government—what assessment has the Department made of the number of permissions that its disruptive approach will unlock within the first 12 months of its operation?”
A rather pithy summation of the position, from the chair of the Levelling Up, Housing and Communities Committee, Clive Betts:
“This is hardly a new problem, is it? The Court decision was in 2018, yet last year we had the levelling-up Bill, which was really a planning Bill with a bit of levelling up added on—no mention of the issue there. In December we had major consultations on changes to the national planning policy framework—no mention of the issue there. The Committee wrote to the Minister and asked how many more consultations on planning issues there would be this year. We were given nine of them—no mention of the issue there. If it is such a serious issue, why has it taken the Government so long to act? It looks like the Government are making it up as they go along. This is a panicked response from the Government to the collapsing numbers of housing starts which the Minister simply wants to do something—anything—about.“
Turning now to the Report sessions on 4 and 6 September 2023 , I set out below the main amendments agreed upon (subject to them surviving the return of the Bill to the Commons). The full list of amendments is much longer and for the detail you can click on the following:
[Many thanks to my Town Legal colleague Amy Penrose for detailed work on all this].
Amendment 184A
This amendment clarifies that inserted subsection (5B) in section 38 of the Planning and Compulsory Purchase Act 2004 requires a determination under the planning Acts to be made in accordance with the development plan and any national development management policies, taken together.
So the replacement to section 38 (6) would now read: “the determination must be made in accordance with the development plan and any national development management policies taken together, unless material considerations strongly indicate otherwise”. What does “taken together“ add? Perhaps to avoid an interpretation that the determination needed to be both in accordance with the development plan and in accordance with any national development management policies – instead look at it all together in applying planning judgment as to whether the determination is in accordance? It’s great being a lawyer.
Amendment 190 (tabled by Baroness Thornhill) – voted through against the Government 186 – 180
The amendment requires the Secretary of State to carry out a sustainability appraisal before designating a national development management policy; it must comply with public consultation requirements and a process of parliamentary scrutiny based on processes set out in the Planning Act 2008 (as amended) for designating National Policy Statements, and it must contain explanations of the reasons for the policy, including an explanation of how the policy set out takes account of Government policy relating to the mitigation of, and adaptation to, climate change.
Amendment 191 (tabled by Lord Ravensdale) – voted through against the Government 182 – 172
The amendment places a duty on the Secretary of State and relevant planning authorities respectively to have special regard to the mitigation of, and adaptation to, climate change with respect to national policy, local plan-making and planning decisions.
Amendment 191A (tabled by Lord Crisp) – voted through against the Government 158 – 149
The amendment specifically places a duty on the Secretary of State to promote healthy homes and neighbourhoods – a huge success for the Town and Country Planning Association’s Campaign for Healthy Homes.
(see also a detailed Schedule to be inserted into the Bill setting out for instance what is meant by healthy homes principles – amendment 191B).
Amendment 193A (tabled by Lord Best) – voted through against the Government 173 – 156
The amendment requires local plans to “identify the local nature and scale of housing need in the local planning authority’s area and must make provision for sufficient social rent housing, to eliminate homelessness within a reasonable period as stipulated in the updated local plan, and to provide housing for persons registered on the local housing authority’s allocation scheme within the meaning of section 166A of the Housing Act 1996.” It would apply both “in relation to social housing provided both by the local housing authority where it retains its own housing stock and by private registered providers of social housing”. The information would need to be updated at least annually.
These are all significant interventions. Let’s see the approach that the Government takes back in the Commons. A motion will also be needed to carry over the Bill to the next Parliamentary session, without which we will see (wait for the LURB pun, wait for it, wait) .. LURB’s labours lost.
No-one should be playing party politics with the nutrient neutrality issue. It’s difficult. It needs to be fixed. This is a quick post just to try to head off some of the comments that I have seen on social media today because the urgent need for a solution is in danger of being subsumed by general scepticism of this Government, exacerbated by the way that water companies have been allowed to fail in relation to water supply and sewage discharges. I write this on the back of Nicola Gooch’s excellent blog post this morning, LURB Watch: Government confirms Nitrates’ amendments to be tabled in House of Lords shortly but since then we now have the proposed amendments to the LURB.
First of all, the basics:
House building is not the reason why some rivers and coastal waters around the country, protected as special areas of conservation or special protection areas by way of EU-derived legislation, are at or beyond a tipping point for the ecological integrity of those areas. Instead this is largely due to the historic run off of nitrates and/or phosphate from farm land and the inadequacy of our water infrastructure.
But the consequences of outflows from new housing has been seen by Natural England as the straw that would break the camel’s back and therefore its advice to local planning authorities faced with planning applications in affected catchments has been, in summary, not to approve them (and not to approve reserved matters applications or discharge pre-commencement conditions) unless the particular scheme can be shown to be nutrient neutral, given that otherwise in its view the “appropriate assessment” test in the Conservation of Habitats Regulations 2017 cannot be met, ie that the proposal will not adversely affect the integrity of any protected area.
So housebuilding has in practice been halted in various areas of the country until solutions can be implemented that demonstrably deliver nutrient neutrality.
To underline, this is not mainly about the polluting effects of new homes – it is about pre-existing problems.
The Government plainly recognises that the problem needs to be addressed. The current position, where so many schemes are stalled, is ridiculous and out of proportion to the extent to which housebuilding is actually the issue.
The key proposed amendment is to introduce a new regulation 85B into the 2017 Regulations (see pages 19 and 20 of the pdf). Sub-paragraphs (2) and (3) would read as follows:
“(2) When making the decision, the competent authority must assume that nutrients in urban waste water from the proposed development, whether alone or in combination with other factors, will not adversely affect the relevant site.
(3) Accordingly, a potentially adverse effect on a relevant site caused by nutrients in urban waste water, whether alone or in combination with other factors, is not a ground for the competent authority to determine that—
(a) an appropriate assessment is required by regulation 77(6), or
(b) the proposed development will adversely affect the integrity of the relevant site or otherwise have negative implications for the site.”
Strengthened duties on water companies by way of their environmental permitting processes are also proposed in the amendments, but this is radical!
If enacted, it would certainly enable permissions, reserved matters approvals and pre-commencement conditions to be unjammed. On balance in my view it is to be supported. However, the Government does need to be ready with answers to questions like these:
Given that the Government has committed to no regression from the environmental protections that we enjoyed pre-Brexit (NB Mr Gove, don’t give me that “defective EU laws” politicking – it’s our water system and environmental permitting system that is defective not the underlying law!), why does this not amount to regression? In its defence no doubt the Government would point to the commitments in the press statement not just to “significantly expanding investment in and evolving the Nutrient Mitigation Scheme run by Natural England, doubling investment to £280m to ensure it is sufficient to offset the very small amount of additional nutrient discharge attributable to up to 100,000 homes between now and 2030” but also the package of longer term measures that are set out in detail in the statement. But if these commitments are solid enough to be relied upon, why can’t they just be taken into account in determining that there will not be an adverse effect on the integrity of the relevant protected area? Why isn’t the Government confident that this would be Natural England’s advice? Wouldn’t that be a more legally coherent strategy than simply taking nutrients issues out of the appropriate assessment process? And if Natural England can’t sign that position off in relation to any particular protected area, doesn’t that rather have the whiff of regression?
What about developers who have signed up to expensive nutrient neutrality schemes or are negotiating at present if the Government is effectively now removing the issue from their plate? Or will Natural England and local authorities still raise the nutrients issue by way of objection to proposals in planning terms, even if no longer able to wave the Conservation of Habitats Regulations big stick? Is it indeed right (or even envisaged) that developers should be let entirely off the hook?
What about the water neutrality issue in Sussex, which has led to an equivalent logjam, or issues as to recreation impacts in other areas of the country? Similar principles surely apply.
Will Parliament allow the Government to get away with shoehorning this set of provisions into the Bill at this late stage (see the comments in Nicola’s post) and what does it mean for the timing of Royal Assent? How confident can we be that the provisions will (a) survive to Royal Assent and (b) be brought into force?
These are just initial thoughts. Better informed commentary very welcome.
Even if the policy thrust set out in the 22 December announcement was appropriate and worth some short-term process turbulence, it has already stalled. So, what really was the point (aside of course from its politically necessary signalling of capitulation to Conservative backbenchers’ concerns over the prospect of development taking place in their constituencies)? Consultation closed on 3 March 2023. The Government was to respond to the consultation and publish the revised NPPF in Spring 2023. There was then to be consultation on proposed changes to the rest of the NPPF and on more detailed policy options and proposals for National Development Management Policies (supported by environmental assessments), once the Levelling-up and Regeneration Bill had passed through all its Parliamentary stages shortly thereafter. But the Bill is still in the Lords. Lords Report Stage will be on 11 and 13 July. We then have the summer recess (Commons from 20 July, Lords from 26 July) and the Bill then needs to return to the Commons – so there is no prospect of Royal Assent before Autumn 2023. I can’t see how the LURB’s plan making reforms can be implemented this side of the general election.
And yet the Government criticises local planning authorities – and indeed developers – for not getting on with things….
In the meantime, we have little flutters of activity, the latest being Michael Gove’s endorsement this week of a paper published by Policy Exchange (the Government’s de facto policy incubation hub), Better Places: A Matrix for Measuring & Delivering Placemaking Quality, which is an exercise to see whether determining the quality of place making can be reduced to a “universal tool capable of measuring how successful developments will be, (or are) at placemaking for the very first time.”
“The Placemaking Matrix contained within this paper sets out a series of questions whose answers can be used to calculate a score which then reflects the placemaking quality of any new development. Combining the two words of its title and conveniently appropriating the Latin word for peace, the score will be known as the PAX rating.”
“The matrix questions are divided into three groups, those that relate to the Physical, Socio-Economic and Psychological elements of any new development. In this alone the rating system forms a pioneering departure from conventional placemaking practice, while it is relatively easy to define physical attributes and, to a slightly lesser extent, socio-economic ones, no previous study or standard has attempted to quantify the psychological content of places and yet these are arguably the most important when assessing their human impact. The PAX system does just this.”
Aside from the substance of the paper, one thing it really calls out for is some sub-editing and proof-reading. Mark these passages on a range of 0 to 4:
“It is important to note that the Placemaking Matrix does not present itself as a definitive ‘magic formula’ that can conclusively determine design quality and character. While the Matrix sets out to be a universal tool, the localised nature of placemaking will inevitably require adaptation to local contexts and conditions. Consequently It is not our intention that the current set of questions are forever fixed in stone forever. While the paper acknowledges that there are objective, observable truths that define good placemaking, it is not so ideologically rigid as to suggest that a tool such as this must attain pure, unqualified universality. We see our paper as the earliest development of the matrix and we hope and anticipate that with time, testing and hopefully trust from the industry, the questions can be modelled, adapted and evolved to strike the best possible balance between universal best practice and the localised, contextual nuance that also helps drive placemaking success.”
“Furthermore this paper emerges as the latest addition to a Policy Exchange Building Beautiful programme that has attempted to distil the very essence of beauty into an objective standard rather than a subjective instinct, a challenge that now form a central part of the political housing debate.”
So, it’s to be a “universal tool” but (I like this phrase) not “forever fixed in stone forever”. The paper is “not so ideologically rigid as to suggest that a tool such as this must attain pure, unqualified universality”.
Reader, my head was hurting. And then I entered the Matrix: 272 questions, each to be marked on a range of 0 to 4. The percentage score of each of 12 sections is then averaged out. 70% outstanding, 60% good, 50% average, below 50% poor. The questions are quite specific but in large part call for subjective responses. Their relevance is wholly dependent on the scale and nature of the scheme and its location. Some examples:
Does the development incorporate cycle lanes?
Does the development maintain a cycle hire scheme?
Does the development contain fountains?
To what extent do building uses integrate into existing usage patterns in the area surrounding the development site?
Does the programme design incorporate opportunities for impromptu street performance?
Does any programme apparatus incorporate audio-visual, tactile, sensory or play equipment?
What level of healthcare facilities have been provided on the development?
Has a letterbox been provided within the development?
Will any properties offer commonhold ownership?
Does the development incorporate audial stimulation? (i.e. church bells, wildlife habitats)?
Does the development promote a visual brand, motif or logo?
Why on earth add yet another technocratic process to the system, to be gamed by all concerned? I would say it’s tick-box but it’s worse than that!
This would all be classic “silly season” stuff. Except for Michael Gove’s endorsement by way of his foreword:
“…it is because placemaking is crucial to the country’s long-term health that Policy Exchange’s newly devised Placemaking Matrix promises to be an indispensable resource. A universal tool that can be used to score a range of elements seen in new and existing developments, it can help build confidence in the wider social value of new residential schemes during the planning process and so unlock much-needed new housing supply.”
“For too long, quality has been viewed by many as a planning impediment. The Placemaking Matrix could help transform it into an incentive. Ike Ijeh’s brilliant new paper for Policy Exchange is no less than a detailed instruction manual for how we can create the good places of the future. I hope it receives the welcome it deserves.”
I don’t disagree with the final sentence incidentally.
Hey let’s get Joan Armatrading on the Walkman. We’re going back – way back…
The Levelling-up and Regeneration Bill had its first reading in the House of Commons over a year ago on 11 May 2022. It’s not just intervening political chaos which has caused this slow-moving caravan of disparate policy notions to lurch from side to side with occasional abrupt halts Along the way additional bright notions have been loaded onto it, impeding progress still further.
One of those notions is the old chestnut of community land auctions. Clauses 127 to 137 were added to the Bill in November 2022 without prior consultation, once Michael Gove became Secretary of State, so as to allow community land auctions to be piloted for ten years.
CLAs are of course catnip to many political types and economists, for instance supported by Policy Exchange (see eg Alex Morton’s 2013 paper A Right To Build) and the YIMBY Alliance, as part of the wider thinking on land value capture (see eg my 20 May 2017 blog post Money For Nothing? CPO Compensation Reform, Land Value Capture). My conclusion remains that the introduction of community land auctions would inevitably be harmful to the principled operation of the planning system – it’s just too darned complicated – and to the delivery of development in the right places – for instance it introduces a huge conflict of interest for the local planning authority as between whether to plan for the best places or the best returns. In my view primary legislation to allow for a pilot is premature. If there are excess unearned gains for the state (in addition to what is already extracted via the planning system), why not just openly tax them rather than embark on this three cup trick?
“A “community land auction arrangement” means an arrangement provided for in CLA regulations under which—
(a) a local planning authority is to invite anyone who has a freehold or leasehold interest in land in the authority’s area to offer to grant a CLA option over the land, with a view to the land being allocated for development in the next local plan for the authority’s area,
(b) any CLA option granted under the arrangement ceases to have effect if the land subject to the option is not so allocated when that plan is adopted or approved (unless the option has already been exercised or been withdrawn or otherwise ceased to have effect), and
(c) the local planning authority may—
(i) exercise the CLA option and dispose of the interest in the land to a person who proposes to develop the land,
(ii) exercise the CLA option with a view to developing the land itself, or
(iii) dispose of the CLA option to a person who proposes to exercise it and then develop the land.”
Clause 128: “Power to permit community land auction arrangements
(1) This section applies where—
(a) the Secretary of State directs that a local planning authority which is to prepare a local plan may put in place a community land auction arrangement in relation to that plan,
(b) the local planning authority resolves to do so (and that resolution has not been rescinded), and
(c) the community land auction arrangement has not come to an end.
(2) The local plan may only allocate land in the authority’s area for development—
(a) if the land is subject to a CLA option or a CLA option has already been exercised in relation to it, or
(b) in circumstances which are prescribed by CLA regulations.
(3) Any financial benefit that the local planning authority has derived, or will or could derive, from a CLA option may be taken into account—
(a) in deciding whether to allocate land which is subject to the option, or in relation to which the option has been exercised, for development in the local plan;
(b) in deciding whether the local plan is sound in an examination under Part 2 of PCPA 2004.
(4) CLA regulations may make provision about how, or to what extent, any financial benefit may be taken into account under subsection (3) (including provision about how any financial benefit is to be weighed against any other considerations which may be relevant to whether the land should be allocated for development in the local plan or to whether the plan is sound).”
Receipts are to be used to support development in an area by funding infrastructure and paying for the administration of the community land auctions process.
The provisions were debated in House of Lords Committee on 18 May 2023 (the relevant part of the debate starts from amendment 364B) and it might put some flesh on the bones to see how a Government minister, Earl Howe, explains how it is all intended to work:
“Community land auctions are an innovative process of identifying land for allocation for development in a local planning authority’s area in a way that seeks to optimise land value capture. Their aim is to introduce transparency and certainty by allowing local planning authorities to know the exact price at which a landowner is willing to sell their land. The crux of our approach is to encourage landowners to compete against each other to secure allocation of their land for development in the local plan by granting a legally binding option over their land to the local planning authority.
The competitive nature of community land auction arrangements incentivises landowners to reveal the true price at which they would willingly part with their land. If the land is allocated in the local plan upon its adoption, the local planning authority can sell the CLA option, keeping the amount that the successful bidder has paid and capturing the value that has accrued to the land as a result of the allocation. The successful bidder must then pay the price set out by the original landowner in the option agreement to purchase the land. The detailed design of community land auction arrangements will be set out in regulations that will be subject to the affirmative procedure.”
“…sustainable development remains at the heart of our approach. Piloting authorities will decide which land to allocate in their emerging local plans by considering a range of factors, which the Government will set out in guidance. Unlike conventional local plans, when allocating sites, local planning authorities will be able to consider the financial benefits that they are likely to accrue from each site. How, and the extent to which, financial benefits may be taken into account will be determined in regulations. Importantly, the existing requirement to prepare local plans, with the objective of contributing to the achievement of sustainable development under Section 39 of the Planning and Compulsory Purchase Act 2004, will remain.
We are not altering the existing local plan consultation and examination process. Piloting authorities will still be required to consult on the proposed land allocations in their draft local plans, before they are submitted and independently examined in public in accordance with the local plan preparation procedures, as modified by Schedule 7 to the Bill.
… the Secretary of State is required to lay a report before each House of Parliament on the effectiveness of the pilot within the timeframe set out in Clause 134(2). There is a requirement to publish this report, which means that it will be publicly accessible and available to any combined authority that was involved in the pilot.
The noble Baroness, Lady Taylor, asked about whether there had been prior consultations. We will consult on community land auctions shortly, and taking part in the pilot will be voluntary for local authorities. We need the powers in the Bill to enable the pilot to happen.
I appreciate the thought behind my noble friend’s Amendment 366. However, as community land auctions are a new and innovative process for identifying land for allocation for development, our view is that it is right that the Bill makes provision for them to be piloted on a strictly time-limited basis.
If community land auction arrangements are deemed successful, and if there is ambition to extend the approach, further primary legislation would be required to implement them on a permanent basis. As we do not have the evidence about their effectiveness yet, we think it right that the Bill does not include provisions that could make CLAs a permanent fixture. Instead, the Government will take a decision at the relevant point in the future, based on the evidence.”
“The simplest way I can describe this is that community land auctions will be a process of price discovery. In the current system, local planning authorities have to make assumptions about the premium required by a reasonable landowner to release their land for development. For Section 106 agreements, this manifests itself through viability negotiations between the local planning authority and a developer. As these can be negotiated, there is a higher risk that, in effect, higher land prices lead to reduced developer contributions, rather than contributions being fully priced by developers into the amount that they pay for land.
For the community infrastructure levy and the proposed infrastructure levy, a levy rate is set for all development within certain parameters. When setting rates, the local planning authority has to calculate how much value uplift will occur on average, and has to make assumptions about landowner premiums and set a levy rate on that basis. The actual premium required by individual landowners will not be available to local planning authorities and will vary depending on individual circumstances. If the local planning authority makes an inaccurate assumption about landowner premiums, they may either make a lot of sites unviable by setting too high a levy rate, or else they will collect much less than they might have done otherwise by setting too low a levy rate.
Under the CLA process, landowners bid to have their land selected for allocation in an emerging local plan, as I have described, by stating the price at which they would willingly sell their land to the LPA for development. The offer from the landowner, once an option agreement is in place with the LPA, becomes legally binding. The LPA can either exercise it themselves, thereby purchasing the land, or auction it to developers. The competitive nature of CLAs incentivises landowners to reveal the true price at which they would willingly part with their land. If they choose to offer a higher price, they risk another piece of land being allocated for development, in which case they will not secure any value uplift at all.”
But if you’re regularly involved in local plan making and/or the promotion of land for development, obvious points arise, none of which are addressed in the above – or anywhere as far as I can see:
the nature, terms and timing of these “options”. They would need to be investment-grade binding commitments on the owner (or owners – many potential allocations are a patchwork of interests knotted together by land promoters) and the owner’s successors in title, with all those with relevant interests (eg mortgagees, tenants) having consented, legally binding for a very long period of time, until drawdown which would be way past local plan adoption, with no get out if any owner changes its plans.
The above means heavy-duty conveyancing input on the part of the owner but also on the part of the local authority, all within the necessary local plan preparation window. Given the number of sites proposed in any local authority’s “call for sites” this is a truly massive amount of work to be resourced by the authority, even with terms as standardised as possible.
The proposed option price by the land owner is going to be influenced by whether best values are to be achieved (1) blind via this route, (2) by in some way bringing forward a scheme outside the process (if this is ruled out the system is utter nationalisation and state control of development – if that’s what you voted for, fine, but I suspect it’s not) or (3), as has happened with other forms of development land tax, by just waiting it out for a less restrictive regime.
Say two pieces of land are put forward as alternative locations for the expansion of a town, one less sustainable than the other (eg it may be greenfield rather than brownfield, remote from public transport connections). The owner of the less sustainable site may offer to make its land available for a lower price. To what extent can or should the authority take into account the additional monies to be extracted from on-sale of the less sustainable site in deciding which to allocate? My early years as a planning lawyer were in the out of town supermarket wars, where the common situation was the local authority seeking to promote a supermarket on its own, worse, site in opposition to better proposals by others, for obvious reasons that at the time of course had to remain unspoken because having regard to the authority’s potential financial returns was obviously verboten. Just think how this would play out under what is proposed – and with much of the decision making inevitably taking place behind closed doors due to inevitable commercial confidentiality.
How is commercial and mixed used development to be approached and dealt with in valuation terms? Is this how we are going to allocate land for major logistics or industry? It’s a cookie cutter approach as presented: housing, housing, housing.
The local authority is envisaged to be the ring master and banker of the whole processes. Whilst this may be welcome in some ways, capacity building would be required on a huge scale.
In any event, the current system already minimises land values, and will increasingly do that if relatively recent changes to the viability process are allowed to bed down. Every time development comes forward with less affordable housing than required by policy, that is because the authority, or inspector on appeal, has been satisfied, on the basis of valuation advice, that no more affordable housing could be extracted and the scheme still proceed, based on an appraisal that doesn’t feed in the price the developer may actually have paid for the land but, usually, just existing use value with a premium set at the minimum that the valuers agree would have been necessary to persuade the owner to sell. I would like to see an explanation of why the option price offered by a land owner would be likely to be lower than EUV+.
Oh and there’s nothing “community” about it.
That’s just the outcome 15 minutes’ thought at the kitchen table on a Saturday morning with Joan Armatrading on in the background.
Some people seem to think that the planning system can be used as a sandbox for trying out these over-complicated, theoretical constructs. I set out my brief thoughts on the infrastructure levy last week and see also the “no hope value” thinking. We’re barking up the wrong tree folks. Drop the pilot. We don’t have the time. Get the existing system to work, now, with more resources and less complexity, better guidance and – perish the thought – some political consistency. Use the local plans system for planning and the tax system for taxation rather than creating something which sounds more like a complicated board game. In my humble opinion.
Simon Ricketts, 19 May 2023
Personal views, et cetera
The phrase to “drop the pilot” means to abandon a trustworthy adviser. This 1890 Punch cartoon depicts the dismissal of Otto von Bismarck from the Chancellorship of the German Empire by Wilhelm II.
Thinkin’ ’bout the IL and how to build some homes”.
Many of us have had an intense few weeks of meetings and calls on the subject of the proposed infrastructure levy since publication in March 2023 of DLUHC’s technical consultation document and ahead of the 9 June deadline for responses to the 45 questions asked.
There is some bewilderment. We’re used to proposals for planning reform that introduce additional complexity, that as yet have no proof of concept or that are likely to have unintended, unwelcome, consequences, but the consensus seems to be that IL really takes the biscuit.
Sam Stafford and BECG have now done wonders in editing a recent Clubhouse discussion I hosted on the subject (featuring some people who know what they are talking about – my Town Legal partner Clare Fielding, Quod’s Sasha Gordon, BNP Real Estate’s Anthony Lee, the BPF’s Sam Bensted, Irwin Mitchell’s Nicola Gooch and, last but not least, Gilian MacInnes) into a 50 Shades of Planning podcast episode. Whatever your current level of knowledge of the proposals I think you will find it worth a listen – if only for Sam’s comments at the head and tail of the piece. It’s available to listen to here.
“Cheer up, it might never happen”, you could say. But it might.
I mentioned in last week’s blog post that the Government has of course now published its consultation on the environmental outcomes reports system (17 March 2023) which is proposed to replace environmental impact assessment and strategic environmental assessment, as per the enabling provisions in the Levelling-up and Regeneration Bill. Consultation responses are due by 9 June 2023.
This is going to be a fundamental change to our plan-making and decision-making process.
We are going to dive into the detail in a Clubhouse session arranged for 4 pm on 30 March, led by my Town Legal partner Duncan Field, with other panellists including Riki Therivel (Levett-Therivel), Juliette Callaghan and Venessa Thorpe (Trium) and Elin Fradgley (Quod). So that we have an idea of likely numbers and so you receive a reminder when the event starts, do RSVP here.
By way of reminder, Part 6 of the LURB (clauses 138 to 152) sets out the legislative framework for environmental outcomes reports.
The “non-regression” duty set out in clause 142(1) is an important protection:
“The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.”
The consultation paper sets out a number of the issues arising from the present system, all of which I’m sure we can all recognise:
• inefficiency
• duplication
• risk aversion
• loss of focus
• issues with data
Under “risk aversion”, Sullivan LJ is quoted from his 2004 Court of Appeal judgment in Blewett:
“It would be no advantage to anyone concerned […] if Environmental Statements were drafted on a purely “defensive basis” mentioning every possible scrap of information […] Such documents would be a hindrance, not an aid, to sound decision-making by the local planning authority since they would obscure the principal issues with a welter of detail”.
(Personally I would expand the comment: this is the direction that the whole planning system has gone, not just in relation to environmental statements, but the whole gamut of application documents, (particularly design and access statements), planning committee reports and planning permissions themselves often with 50 or more conditions imposed where the permission relates to development of any scale or complexity).
I read the consultation document with a view to summarising the main changes from the current system but can’t improve on this pithy summary by Duncan:
“EORs are expected to act as a translator of technical assessment work and only address performance against outcomes in a concise and publicly accessible way; in doing so EORs will need to identify necessary mitigation and/or compensation.
– The range of possible topics (outcomes) to be covered by EORs is likely to be slimmed down to avoid duplication with other assessments required in the planning process.
– Although Government will maintain a distinction between projects where EORs are always required and projects where they may be required, there should be fewer discretionary decisions around screening due to the inclusion of more directive screening criteria.
– On changes to scoping there seems likely to be less of a focus on scoping outcomes in or out and more of a focus on assessing scoped in outcomes in a proportionate way (so some outcomes may be included but assessed in less detail).
– Outcomes will be measured by reference to data-based indicators, and these will be developed at a national level to ensure consistency.
– The Government acknowledges that there needs to be better alignment between assessments at a strategic (plan) level and those at a project level so that they speak to each other; it is hoped that the focus of EORs on the same outcomes and the application of nationally determined indicators will help with this.
– Guidance on alternatives will be developed to focus assessment on realistic/credible options. However, this will need to include an analysis of the alternatives by reference to the mitigation hierarchy (avoidance-mitigation-compensation).
– There will be a greater emphasis on adaptive management of mitigation and monitoring/enforcement of measures after decisions have been taken.
– There is recognition that there needs to be better access to and collection of environmental data to assist with EORs.”
The Government envisages that an EOR at the project stage under the Town and Country Planning Act would be structured as follows:
• a short introduction (which references the project details in the accompanying Planning Statement)
• a short, high level, summary of how reasonable alternatives and the mitigation hierarchy were considered early in the development of the project
• an assessment of contribution towards achieving an outcome supported by the indicators set out in guidance – this will include
• the residual effects on the environment identified through the underlying technical work, with relevant conclusions in the technical work clearly pinpointed
• the current baseline and relevant trend data, similarly identified
• commentary on levels of uncertainty for that data or indicator set
• proposed mitigation, and
• monitoring proposals
• a summary of the contribution of the cumulative effects of the project as a whole on outcomes and how this relates to the conclusions of any strategic or plan level assessment.
Outcomes (to be consulted upon in coming months), measured by reference to a national data set, will need to be set out for at least the following:
• biodiversity
• air quality
• landscape and seascape
• geodiversity, soil and sediment
• noise and vibration
• water
• waste
• cultural heritage and archaeology
The idea is promising. The real challenge, not referred to in the consultation paper? How to discourage the sorts of legal challenges which have caused our current processes to be so bloated, whilst ensuring that unjustified assessment short cuts cannot be taken.
The LURB is currently making slow progress through its Lords Committee stage, due to the hundreds of amendments tabled, some of them by the Government, such as (see amendment 412D) the proposed change to the compulsory purchase system that would allow acquiring authorities in some circumstances to seek a direction, when making a compulsory purchase order, disapplying any entitlement to hope value on the part of the land owner. This could have huge implications on the the land promotion and development market – in that the risk of compulsory purchase at an under-value may well prove a significant potential disincentive to development promoters and those funding them. As usual it was a bit chaotic to begin with but we had a good and sparky discussion on the issue on Clubhouse last week, with the basic concept being defended by Shelter’s Venus Galarza, against an array of compulsory purchase surveyors and lawyers (none of whom were objecting to the objective of enabling greater delivery of housing, including affordable housing – rather the way it being done!). Shelter have their own slightly different amendment, amendment 414, narrow than that of the Government. You can hear it all here.
Looking further ahead, we now have a Clubhouse session on the dreaded Infrastructure Levy arranged for 2pm on 19 April, to be led by another of my Town Legal partners, Clare Fielding. If you would like to join the panel for that one do let me know.
You may be returning from that escapist world that is MIPIM and grimacing at the prospect of a week’s worth of emails, or you may be finishing a week of grimacing at all the LinkedIn pics of your colleagues in Ray-Bans. In any event, we now have three developments in relation to the Levelling-up and Regeneration Bill, currently at Committee stage in the House of Lords, sent to test the old saying that a change is a good as a rest…
I’m very grateful for three of my partners, not part of the MIPIM contingent, who have particularly had their eyes on the following:
Government amendment relating to removal of “hope” value in relation to particular categories of CPO
The Government tabled amendments on 13 March 2023 to the Levelling-up and Regeneration Bill that would have significant impacts on landowners. Raj Gupta has written a Compulsory Reading blog post LURB in the Lords – no hope (16 March 2023) on the potentially far-reaching implications. We have arranged a Clubhouse Planning Law Unplanned session at 5 pm on Thursday 23 March to discuss the proposal, led by Raj, Jon Stott, Greg Dickson and other leading specialists. Please RSVP here if you would like to tune in and/or take part in the discussion.
Government consultation on environmental outcomes reports – a new approach to environmental assessment
The Government published its consultation today, 17 March 2023, on the design on its proposed new system of environmental assessment. See the press statement, and consultation document. Duncan Field has set out some initial comments in a LinkedIn post. Again, we are going to arrange a Clubhouse Planning Law Unplanned event, probably for Thursday 30 March but further details will appear shortly.
Government consultation on the proposed infrastructure levy
The Government published its consultation today, 17 March 2023, on the design of the proposed infrastructure levy. See the press statement, technical consultation and a February 2023 research paper published alongside it. Clare Fielding will shortly be publishing a Levy-Headed blog post as to the likely implications.
Now to unpack. And let my picture be a warning for you to keep your parents away from the Be Real app.
I think I can point to something good that came out of Liz Truss’s premiership.
On 26 September 2022 she appointed former energy minister Chris Skidmore MP to carry out an “Independent review of net zero delivery by 2050 aims to ensure delivery of legally-binding climate goals are pro-growth and pro-business” and to “scrutinise green transition to make sure investment continues to boost economic growth and create jobs as well as increase energy security”.
Some of us may have feared the worst as to what lay behind this. Was the intention to back-end progress on the net zero by 2050 target?
The final report, Mission Zero: Independent Review of Net Zero, was published on 13 January 2023. I’m no expert but it seems to me – and to many better-informed commentators (although some of course express disappointment that the recommendations could be more radical) – to be a remarkably thorough and practical piece of work – running to 340 pages of waffle-free analysis and recommendations, with (such is the modern way of these things):
7 conclusions
10 priority missions
6 pillars
A “25 by 2025” set of recommendations
It only needed a golden thread and … bingo!
There is this good House of Lords library summary published on 20 January 2023 ahead of a short debate on the document that is due to take place on 26 January 2023.
Actually, if one looks more closely, there is a golden thread to the report: the need for urgent reform of the planning system so as to make the path to decarbonisation smoother and faster.
From the paragraph 12 of the executive summary:
“We have made great progress decarbonising already with success stories in offshore wind and electric vehicles and it is essential we continue these. However, too often, we heard of problems hampering business and local areas from going as far and as fast as they want to. Whether it is lack of policy clarity, capital waiting for investible propositions, infrastructure bottlenecks, or delays in the planning system, it is clear that we need action to catalyse the deployment of clean solutions, particularly if we want British companies to capture the economic benefits.”
See priority mission 7: ““unblocking the planning system and reforming the relationship between central and local government to give local authorities and communities the power they need to act on net zero”.
From pillar 4, “Net Zero and the Community”:
“There is plenty of regional, local and community will to act on net zero, but too often government gets in the way. The UK government must provide central leadership on net zero, but it must also empower people and places to deliver. Place-based action on net zero will not only lead to more local support but can deliver better economic outcomes as well.
Key recommendations
1. Government should simplify the net zero funding landscape by the next Spending Review
2. Government should fully back at least one Trailblazer Net Zero City, Local Authority and Community, with the aim for these places to reach net zero by 2030
3. Government should reform local planning and the National Planning Policy Framework now”
See recommended action 21 in the “25 by 2025” list:
“Local and regional Reform the local planning system and the National Planning Policy Framework now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits.”
See also commentary like this:
“Planning system presents major barrier to net zero action. View of system on net zero is unclear and does not give sufficient weight to net zero as a national priority. Often slow and difficult to navigate, especially for individuals and communities.
Central government should reform the local planning system and the NPPF now. Have a clearer vision on net zero with the intention to introduce a net zero test, give clarity on when local areas can exceed national standards, give guidance on LAEP, encourage greater use of spatial planning and the creation of Net Zero Neighbourhood plans, and set out a framework for community benefits. Government should undertake a rapid review of the bottlenecks for net zero and energy efficiency projects in the planning system, and ensure that local planning authorities are properly resourced to deliver faster turnaround times”
“817. While the National Planning Policy Framework (NPPF) references climate change, it does not reference net zero specifically and the Review heard that the vision of the planning system on net zero is not clear. Too often there are conflicting or unclear messages, with important points relegated to footnotes.
818. The planning system should be an essential tool in delivering the changes needed for net zero. A system that appears ambivalent to net zero will not be capable of delivering the scale of change required.
819. The planning system should move towards implementing a test for all developments to be net zero compliant, ensuring enough lead-in time to prevent adverse economic consequences or stalling of current development plans. Across the economy the cost of building to net zero standards and using net zero technologies is coming down. Providing clarity and certainty on net zero requirements in the planning system could help drive further action and build supply chains, making net zero development the norm.
“Planning can be a driving force for not only net zero but for growth as well, helping to unlock opportunities across the country […] The reputation of planning in the UK would only be furthered if it were given the ability and position to be a key driving force for net zero. Our own research suggests that planning brings in millions to the UK and has the potential to have a much larger impact if the passion and expertise of our consultancies both large and small were showcased as one of our key exports” – the Royal Town Planning Institute.
820. There is also confusion over whether, where and how local authorities can exceed national standards on planning. The litigious nature of the planning system means local authorities are often unwilling to take risks, and so the system effectively puts a ceiling on local ambition.
821. For example, the Review heard from several stakeholders about the difficulty faced by West Oxfordshire District Council in their plans for the Salt Cross Garden Village.568 The Council had proposed that development at Salt Cross would be required to demonstrate net zero carbon, with submission of a validated and monitored energy strategy. However, in May 2022 the Planning Inspectorate provisionally found that such a policy was not ‘consistent with national policy or justified’ and the plan was modified as a result. This is a clear example of the planning system being unclear in its support for net zero.
“Local authorities are wary of the threat of legal challenge, this means to make confident use of their powers, they have to undertake rigorous legal checks, which slows delivery, adds expense and makes some of them risk averse” – Climate Change Committee (CCC).
822. Similarly, some local authorities felt that planning requirements on viability presented a hindrance to net zero development. These local authorities felt that some developers use viability requirements to reject proposed net zero improvements. These local authorities suggested that such viability considerations should be reformed or scrapped, and that net zero should be a fundamental consideration when determining the viability of a project. Current guidance states that viability assessments “should not compromise sustainable development.” This language should be strengthened to ensure that viability assessments actively encourage sustainable and net zero developments, and that assessments take a longer-term approach to determining what is viable.
823. Reforms to the planning system should therefore make it clear when local authorities can exceed standards and provide guidance on how local areas could go further should they wish to.”
(and there is more, through to paragraph 836 in the document, but you get the picture).
So how joined-up is this with current proposals to reform the planning system?
In summing up on behalf of the Government at the end of the House of Lords second reading debate on the Levelling-up and Regeneration Bill on 17 January 2023 Baroness Scott said this on climate change:
“The Government recognise the challenge of climate change. It is critical that the planning system must address this effectively. Through the Climate Change Act 2008 the Government have committed to reduce emissions by at least 100% of 1990 levels by 2050 and to produce national adaptation programmes every five years that respond to economy-wide climate change risk assessments. The Bill sets out that local plans “must be designed to secure that the development and use of land in”— the local planning authority area — “contribute to the mitigation of, and adaptation to, climate change.”
Our new outcomes-based approach to environmental assessment will ensure that the ambitions of the Environment Act and the 25-year environment plan are reflected in the planning process, placing the Government’s environmental commitments at the centre of decision-making.
The National Planning Policy Framework is already clear that plans should take a proactive approach to mitigating and adapting to climate change, taking into account the long-term implications for flood risk, coastal change, water supply, biodiversity and landscapes, and the risk of overheating from rising temperatures, in line with the objectives and provisions of the Climate Change Act 2008. The National Planning Policy Framework must be taken into account in preparing the development plan and is a material consideration in planning decisions. This includes the framework’s current policies related to climate change mitigation and adaptation. Furthermore, as committed to in the net-zero strategy, we will carry out a full review of the National Planning Policy Framework to ensure it contributes to climate change mitigation and adaptation as fully as possible. This will be consulted on as part of wider changes to the National Planning Policy Framework to support the ambitions in the Levelling-up and Regeneration Bill.”
Does this go far enough? Chris Skidmore’s report is a useful reminder of the importance of a properly functioning, resourced and managed planning system and I hope he has a hand in shaping the current reforms.
SIMONICITY 