Here are our top ten predictions on what lies ahead this year:
- The Environment Act 2021
Currently awaiting its third reading in the House of Commons, the Environment Bill's progress was stalled last year. Presuming it passes the next stage at the Commons, it will still need to go through the House of Lords before getting royal assent and becoming law. We expect this to happen quite quickly now that things are looking brighter on the Brexit front.
What will it do? The Act will set legally binding targets for nature, air quality, water and waste. It will introduce a net biodiversity gain requirement for development and a new Office for Environmental Protection which will hold the government to account on environmental issues.
- New permitted development (PD) rights
2020 was a big year for PD rights. Their scope has increased dramatically, with demolition and residential rebuild now permitted without a traditional planning permission. The government is showing no let up on its PD expansion programme and is currently consulting on two other controversial rights allowing:
(1) changes from the new Class E (shops, offices, restaurants, gyms, creches etc) to residential use, even in conservation areas. The premises must have been in Class E use on 1 September 2020. There is no size limit (imagine how many homes you could fit inside a supermarket), but in practice the Environmental Impact Assessment regime means numbers could be limited to 150 homes; and
(2) larger extensions to "public service infrastructure", such as schools and hospitals, than is currently allowed using PD rights. Prisons may be added to the listbut school playing fields would still be protected.
A fast-track approval process for planning applications for public service infrastructure is also proposed. Such development would have to be prioritised by local planning authorities and applications could have different consultation requirements and a shorter determination period of 10 weeks.
The consultation also lists a number of existing PD rights which need to be considered and updated in light of new PD rights and changes to the Use Classes Order. The consultation runs until 28 January 2021 and we think there'll be a large number of responses.
- Further consultation on the Planning White Paper proposals
The government is still ploughing through the 44,000 responses to the punchy Planning White Paper and has confirmed that it will issue its response in the Spring. As a result, there has been some doubt that the changes will be in place by May 2024 as was originally suggested.
Just before Christmas, housing minister Christopher Pincher said that they are still on track, but want to refine the proposals so that they are in "tight shape by the time we get to legislation". This is bound to require a lot more consultation. Joanna Averley, the Chief Planner suggested that any necessary legislation will be prepared in Autumn 2021, so we expect a busy Summer.
Much of the White Paper was high-level. Take the new infrastructure levy, for example. So much detail was missing that even those who grapple with the Community Infrastructure Levy (CIL) for a living, struggled to see how it would be workable in practice. MHCLG has since admitted that a lot of the detail is yet to be decided and that further views will be sought as the various proposals are developed. If MHCLG wants to keep to its tight timetable, it'll need to move quickly.
- London Plan adoption
The new London Plan (still in draft) reached a major milestone at the end of last year when the "publication version" was submitted to the Secretary of State for approval. The new version makes no change to the 522,870 new homes target, but addresses some of the Secretary of State's previous concerns regarding the green belt and metropolitan open land (MOL).
The amendments bring the London Plan closer to national policy on green belt development where very special circumstances apply, and provides for MOL boundaries to be amended "in exceptional circumstances when this is fully evidenced and justified". The requirement of "no net loss" of industrial floorspace within Strategic Industrial Locations and Locally Significant Industrial Sites (criticised for being overly restrictive) has also been removed, along with small site affordable housing expectations.
The Secretary of State's response is expected before 1 February 2021. If approval is given, the Mayor can publish his adopted plan, bringing certainty on planning policy for the capital.
- First Homes requirement
The latest First Homes consultation was somewhat overshadowed by the Planning White Paper which was published on the same day, but the word on the street is that the government is keen to push forward with this in 2021.
A requirement that 25% of all affordable units delivered through section 106 agreements will be First Homes will be included in revisions to the National Planning Policy Framework. Further changes will be required if the new infrastructure levy comes in. The homes must be sold to first time buyers at a discount of at least 30%.
MHCLG has already confirmed that First Homes will be CIL exempt and secondary legislation to deal with this has already been made, bolstering opinion that the new requirement will be introduced shortly.
- Legal challenge to Airports National Planning Statement (ANPS)
The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. It doesn't itself grant development consent for the runway, but an application for development consent will be considered against it.
The Supreme Court's ruling last month on the lawfulness of the ANPS was one of the biggest legal cases of 2020. Despite Heathrow winning thatcase, the Secretary of State for Transport has been warned of a potential new challenge by another campaign group, The Good Law Project, which may be filed this year.
The Good Law Project is urging the Secretary of State to review the ANPS to bring it in line with the UK’s new greenhouse gas emissions reduction pledges for 2030 and 2050. They have warned that a judicial review challenge will be brought if the government refuses to suspend and review the ANPS. The government has until 18 January 2021 to respond.
- Devolution White Paper
You've probably forgotten about the promised devolution white paper as it's been delayed so many times. Originally aimed at shaking up local government organisation, it was expected to include new powers and funding for councilswhich form cross boundary combined authorities with directly elected mayors. Ring any bells?
In July 2020 it was renamed the "Local Economic Recovery and Devolution White Paper", suggesting a shift in focus to the economy (perhaps not unsurprising after the year we had). Later on, civil servants were told that it would be pushed back again to 2021. Let's see whether it makes it out this year.
- A new Mayor of London?
The Mayoral elections were due to take place in May last year but were postponed due to the pandemic. Poll results in the press suggest that Sadiq Khan is still the favourite to win, but as we saw from the big election of 2020, the polls are not always right…
Whoever wins will have their work cut out for them. There will be a new London Plan amidst radical reform of the national planning system, a pandemic and the new reality of Brexit. This is in addition to the substantial pressure to rebuild the London economy whilst creating places and spaces which meet Londoner's needs.
As usual, the elections will probably cause delay to development timelines as work within City Hall is disrupted during the purdah period which is expected to start in March. This may result in a flurry of application submissions now in the hope that they can be determined before purdah kicks in.
- National space standards requirement
Coming into force on 6 April 2021, the new national space standard requirement will mean that new homes delivered through PD rights will have to meet national space standards. Over 60,000 new homes were delivered via PD rights over the last four years.
The new law will be welcomed by many who have been concerned about the quality of housing provision. Size isn't always the answer of course, but the colossal impact of the pandemic has increased support for a national requirement. The standard begins at 37m² of floorspace for a new one bed flat with a shower room.
- Response to the judicial review, review
The government launched an independent review of judicial review last year, which considered the need for potential reform of the system. Falling victim to a number of challenges to its own decisions recently (Heathrow being a big one), it will be interesting to see how the government takes this matter forward. The panel has been looking at the system generally, and not just to challenges to planning decisions, but it has been asked to specifically consider whether certain grounds and remedies should be available in challenges brought against the government.
The panel's report, expected in the next couple of months, is keenly awaited by campaign groups, developers, public bodies and lawyers alike who are eager to see whether procedural reform is recommended and, if so, how radical it will be.
Another busy year
So, plenty to be getting our teeth into. Some of the changes, like the Environment Act, have been a long time coming, whilst others, such as the new PD rights, have been more of a surprise.
In this time of national, no, global uncertainty, many will be looking for some stability in the year ahead. One thing is for certain: planning changes will continue to divide opinion and fuel debate, but with the Brexit deal done and US election stories dwindling, we'll all need something to talk about!
