Legal development

Take 5 - The Levelling Up and Regeneration Act 2023

Silhouette of a man pushing against a wall

     It's finally here. 17 months in the making, but the Levelling Up and Regeneration Bill is now officially law. It covers a wide range of planning and infrastructure issues, and a lot of it needs further legislation to come into effect, but here are our top five things to look out for:

    1. Local plans reform

    A significant chunk of the Act is concerned with simplifying the content of and speeding up the adoption of local plans. The Government sees this as the silver bullet to housing delivery. The reforms include: a new 30 month deadline for making new plans; removing the local authority "duty to co-operate"; and introducing new area-wide design codes.

    The importance of local planning policies in the determination of planning applications is strengthened as the law is changed so that the decision to grant or refuse permission must be made in accordance with the local plan and any National Development Management Policies (see below) unless material considerations "strongly" indicate otherwise. This means that if the local (and national) planning policies do not support the planning application, the benefits of granting permission would have to be so clear as to strongly outweigh the conflict for permission to be granted.

    2. National policy power

    The Act introduces a new type of national policy: the National Development Management Policy (NDMPs). NDMPs will sit separately to the National Planning Policy Framework and cover issues of national importance such as climate change, greenbelt and heritage.

    The sales pitch is that NDMPs will help to achieve shorter local plans (speeding up adoption) as local authorities will only have to consider local issues. However, NDMPs will have a higher status than local plans in the sense that any conflict between the two must be resolved in favour of the NDMPs. This has made NDMPs quite controversial and there was much debate about whether Parliamentary scrutiny of NDMPs should be required as the Bill passed through Parliament.

    In the end, the government got its way, and so whilst there must be advance consultation, the Secretary of State's powers to bring in NDMPs are relatively untouchable.

    3. Watch out developers

    The new Act gives local planning authorities the power to refuse to decide planning applications if the developer has a track record for building out too slowly or not implementing planning permissions in the area at all.

    It also gives the authority the ability to effectively revoke a planning permission if it thinks that the development will not be completed within a reasonable time. The authority has to serve a "completion notice" specifying the deadline for completion (at least 12 months away), but if this is not reached, the planning permission falls away and a new one would be needed.

    A new requirement for development progress reports for "relevant residential" planning permissions will be secured by planning condition in due course. This is all aimed at speeding up the delivery of new homes, but we await further details.

    4. Power to amend if not "substantially different"

    In an attempt to clear the muddy waters of scheme amendments, the Act brings in a new way to amend a planning permission (via "Section 73B") if the changes proposed are not substantially different to the original scheme planning permission for the site. It will allow changes to be made to the description of development as well as planning conditions. Like Section 73 of the Town and Country Planning Act 1990 (TCPA), it cannot be used to extend the life of the permission.

    The original permission must not be a Section 73 permission and any non-material amendments made pursuant to Section 96A of the TCPA must also be disregarded. It will be interesting to see how much this is used and how generous local authorities are in deciding what is substantially different.

    5. The Infrastructure Levy

    Another change which continues to receive a lot of opposition is the new form of developer contribution which will replace the Community Infrastructure Levy and to a large extent, Section 106 Agreements.

    Designed to recover some of the increase in land value, the levy will be charged as a percentage of the value of the property at completion. This comes with its own problems and the new levy has been heavily criticised since its inception for being unfair, too complicated and threatening affordable housing delivery. Labour have vowed to replace it, and even the Conservatives have said that it will be introduced through a ten year pilot.

    The long road ahead

    That's our top five, but there are plenty of other changes to get your teeth into: extending the enforcement period for planning breaches in England from four to ten years; Environmental Outcomes Reports replacing Environmental Impact Assessments; and changes to compulsory purchase compensation rules, to name a few.

    How much of and how quickly the new Act actually comes into effect will depend on the government's priorities; DLUHC capacity; and the lead-up to and outcome of the general election. Labour have already said that it would draw a line through items such as the Infrastructure Levy and produce their own Planning Bill within 100 days of leadership. Until then however, we look forward to the raft of consultations and secondary legislation which will set the detail on some of these ground-breaking reforms. There is still much to do and very little time to do it in. We're sure some developers would like to serve the Government with completion notices of their own.

    The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
    Readers should take legal advice before applying it to specific issues or transactions.


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