The long-awaited Levelling-up and Regeneration Act 2023 (the LURA) finally secured royal assent on 26 October 2023. Amongst its 454 A4 pages, there are numerous and significant changes to planning and related areas of law.
The following is a brief summary of the main innovations in the LURA that are likely to impact SME developers (we intend to provide more detailed commentary on some of the changes as they come into force). Some of these innovations are already in force, others will be brought into force shortly, others depend on the government drafting complex regulations to give them effect. In any event, it is important that SME developers are aware of these and prepared for them.
| Is it in Force?[1] | |
| Planning Data (LURA s. 85) Developers Beware! Section 85 confers on local planning authorities a power to require planning application materials to be provided by applicants in specific electronic formats. A failure to do so may mean that application materials are refused. This provision is dependent on new regulations to be made by the Secretary of State, and hence unlikely to come into effect for some time. | No |
| Presumption in favour of the Development Plan (LURA s.93) The traditional presumption in favour of the development plan is to be extended so that planning applications will need to be determined in accordance with both the adopted development plan and the Government’s, yet to be published, National Development Management Policies (NDMP) “unless material considerations strongly indicate otherwise”. Where there is a conflict between the two the policies in the NDMP take precedence, hence concerns about a power grab by the government. Developers in particular should note the increased weight to be given to breaches of adopted policies. The assumption is that this will increase the hurdles for proposals on unallocated sites. The NDMP will be consulted on before it is designated as such by the Secretary of State. It is not clear whether the NDMP will be designated before the Autumn general election, and indeed, there may be political mileage in the government delaying the NDMP until after any election. | No |
| Street Votes (LURA s. 106) Section 106 of LURA introduces a power for planning permission to be granted following a vote by the residents of the relevant street. The process is dependent on rules set out in regulations that still have to be made, so this one will take some time. It is also not clear what the take up will be, albeit the Government expects the process to be used for community facilities and will not apply to other planning applications. | No. |
| Material Variations in Planning Permission (LURA s. 110) A new section 73B is introduced into the Town and Country Planning Act 1990 which enables an application to be made for a planning permission for development that “will not be substantially different from that of the existing permission”. This is the Government’s solution to the problems created by the case of Hillside Parks Ltd v Snowdonia National Park [2022] UKSC and will allow both amendments to conditions (other than timing conditions) and to the development description. The amendment is only allowed to an original consent (where appropriate, as amended by s. 96A), not to subsequent s. 73 consents. The assessment of the application is limited to any differences in its “effects” from the original permission. If those “effects” are not substantially different from the original permission, permission must be granted. The scope of this new right appears to be wider than what is currently allowed under s. 73, where a proposed replacement condition cannot ‘fundamentally alter’ what was originally applied for[2]. Doubtless there will be arguments regarding what constitutes a ‘substantial’ amendment. But common sense suggests it should be assessed with reference to planning impacts. It is likely that in future, s. 73B applications will be more common than s. 73 applications. | No |
| Development Commencement Notices (LURA s. 111) This innovation is dependent on the Government setting out what types of development it relates to in regulations. However, subject to that, a new section 93 added to the TCPA1990 will require developers to serve a commencement notice with an expected commencement date on the LPA in advance of commencement, and a revised notice where that date changes. Failure to do so, may trigger a reminder from the Council, and failure to respond to the reminder is an offence punishable with a fine. The notice will go on a register of commencement notices, and the purpose of the provision appears to be to allow public scrutiny, and it will help LPAs keep abreast of housing sites and development progress. | No |
| Power to decline to determine applications for earlier non-implementation (LURA s.113) A new s. 70C to the TCPA1990 gives LPAs a power to decline applications which are made by the same applicant for an earlier permission which has either not begun, or where a development is ongoing but unreasonably slow. The type of application to which this relates will be specified in regulations yet to be made and any such refusal is open to an appeal to the Secretary of State in the usual way. This proposal has always been highly controversial, and it seems unlikely that it will be invoked regularly. | Yes |
| Development Progress Report (LURA s. 114) This innovation also relies on regulations specifying applicable types of residential development which have yet to be made. Subject to those regulations, relevant residential permissions will in future be subject to a condition requiring 12-monthly progress reports to be provided to the LPA. This is doubtless a companion piece to the proposed Development Commencement Notices and will allow LPAs to better monitor residential delivery rates. | Yes |
| Enforcement (LURA ss. 115, 117 and 118) The current mix of 4 and 10 year periods following which unauthorised development is immune from enforcement will in future be unified at 10 years. A new section 172ZA to the TCPA1990 allows a LPA to send an Enforcement Warning Notice where it considers that a breach of planning control could reasonably be rectified through a planning application. A new sub-section 2A to s. 174 of the TCPA1990 removes ground (a) appeals (application for planning permission) where the enforcement notice was issued within two years following a conditional approval, refusal or withdrawal of an application for the development referred to in the notice. These innovations are part of a drive by the Government to placate local communities, but may cause difficulties for individual householders, who have quite innocently carried out unauthorised development when it comes to selling their houses. | No |
| Infrastructure Levy (LURA s. 137 and Schedule 12) One of the highest profile and most controversial innovations, is the introduction of a new power into the Planning Act 2008 for the Secretary of State to make regulations instituting a compulsory infrastructure levy. A currently envisaged and unlike CIL, levy receipts will also be applicable to affordable housing. That may change when the regulations are published. The regulations will also contain a power to restrict the use of s. 106 of the TCPA1990, albeit, it is expected that s. 106 agreements will survive for large developments. We await publication of the draft regulations to understand the precise details of the proposed Infrastructure Levy, but evidently it will be heavily modelled on the Community Infrastructure Levy (CIL). The hope is that the eventual Infrastructure Levy can somehow avoid the obvious flaws of CIL. Once in force, the government is expecting to pilot the levy in certain areas, and is unlikely to roll it out across the country (if at all) before 2030. | No |
| Nutrient Neutrality (LURA SS. 168, 169 and Schedule 15) Concerns about sewerage discharges affecting European Sites (i.e. a special area of conservation, special protection area, or site of Community Importance (etc)) have been holding up development in parts of Kent and Norfolk in particular in recent years, and nutrient neutrality was a particularly controversial issue as the bill made its way through parliament. LURA addresses nutrient neutrality (in simple term) by: (a) amending the Water Industry Act 1991 so that the Secretary of State must designate relevant areas in England as Nitrate or Phosphate sensitive areas. Any sewerage plant that discharges into a nitrogen or phosphorous sensitive catchment area and which is not otherwise exempt, is required to meet certain improved standards within 7 years of that designation (the Upgrade Date). (b) a new regulation 85A is also added to the Conservation of Habitats and Species Regulations 2017 which requires LPAs determining applications in nitrate or phosphorous sensitive areas, to assume that sewerage plant within those areas will meet the relevant standards by the upgrade date. That should allow an occupation restriction to be placed on relevant permissions, preventing occupation before the Upgrade Date, thereby overcoming the general prohibition on development which is likely to have an adverse effect on the integrity of a European Site. | Yes |
| Environmental Outcome Reports (LURAs. 152 – 167) The Government is proposing to replace Environmental Impact Assessments (and potentially also Appropriate Assessments under the Habitats Regulations) with ‘Environmental Outcome Reports’ (EORs). EORs will assess the impacts of a proposed development or plan/programme (NB: development is likely to be similarly categorised as the current Schedule 1 and Schedule 2 developments under the EIA Regime, see s. 154) on ‘specified environmental outcomes’. All of this is dependent on EOR Regulations being put in place, and the point of LURA ss. 152-167 is to authorise and set the scope of those regulations. Some will welcome the idea that developments will have to be assessed against specified outcomes, others will worry that limiting an assessment to impacts on specified outcomes only will result in a narrower assessment than under the current regime. Whether or not that will be the case should become clearer when the Government publishes draft EOR Regulations for consultation. For the moment, the EIA and Habitats Regulations regimes remain in place. | Yes |
The above are just headline innovations, each of which deserves careful consideration. The majority still have to come into force or are reliant for their effect on new regulations. However, we expect many of the above to be in effect before an autumn election, and we will provide further commentary as appropriate.
In the meantime, if you have any queries about the impact of LURA2023 feel free to contact Buckles Planning team via enquiries@buckles-law.co.uk or call 01733 888888.
[1] As at the date this article is published.
[2] R. v Coventry City Council Ex p. Arrowcroft Group Plc, [2000] 7 WLUK 647 21 Jul 2000
