In a series of articles over the coming weeks, we consider some of the key themes for the real estate industry.  In this article we begin with the proposed changes for securing a planning permission. 

The devil's in the detail

Before diving into the detail of the Bill, it is worth stressing that these are only proposals. It is inevitable that some elements will evolve or be dropped altogether before it receives Royal Assent. 

There is also a, sometimes alarming, lack of detail, with some proposals being either placeholders or merely introducing a concept, without providing the detail on how it will operate. Much of the detail will be contained in secondary legislation or policy revisions. To help navigate these gaps, a “Policy Paper” was published with the Bill, setting out changes which will be addressed elsewhere. 

A new framework of requirements 

The planning regime has long required applicants to demonstrate that planning proposals comply with current policy. The nature of these requirements, as well as the balance between whether they are local or centrally dictated, has fluctuated over time, and the Bill introduces some further important shifts:

•    The introduction of new National Development Management Policies (“NDMPs”). To help speed up preparation of Local Plans, and ensure greater uniformity nationally, the government proposes to centrally adopt policies on certain matters for all or part of England. Local Plans will be required to conform with these policies. There are no fixed parameters for what should be addressed in these policies which gives the government scope to assume control of a wide range of policy matters.  

•    Consequently, there will be changes to the National Planning Policy Framework (NPPF). These will remove those elements better suited to the NDMPs and shift the focus of the NPPF to be plan-making, not decision-taking. 

•    Critically, the requirements around determination of applications are amended.  Decisions will need to be determined in accordance with the development plan and the NDMPs, and where there is a conflict between the two, the nationally set policies will take precedence.

•    The role of material considerations would change.  Material considerations would have to “strongly indicate” that development should be granted despite policies to the contrary. Given the care that is currently applied when relying on material considerations to justify a departure from policy, this appears to address an overstated harm and could create greater scope for uncertainty and legal challenge with parties arguing about the meaning of “strongly”. 

•    Various changes are introduced around the content and operation of Neighbourhood Plans. As well as an express obligation not to contradict or repeat any NDMP, Neighbourhood Plans must not cause an overall reduction in housing levels otherwise proposed by the development plan. The message is clear: these plans cannot be used to restrict housing levels in an area without appropriate alternatives. 

•    Local housing authorities can collaborate to create Joint Local Plans. Although this is not obligatory, the government can require it if a Joint Local Plan would facilitate more effective planning of a particular area.  The aim is to overcome the long standing issue of cross-authority matters such as housing and infrastructure needs.  Hopefully the historic lack of co-operation in some places will be overcome by these new provisions, particularly given the threat of government intervention . 

•    The need for a Local Planning Authority (“LPA”) to demonstrate a five year housing land supply will be removed where it has an up to date Local Plan (one adopted in the last five years). 

What does this mean? 

These key proposals have the potential to significantly change how planning applications are determined.  But they also introduce potential areas of conflict. After publicly extolling the virtues of a heavily pruned national planning policy, the government now seems to be reversing that view. 

Of greater importance is the shift to central government policy, whilst simultaneously professing to return power to the local level. 

Whilst it will increase planning certainty for key matters to be dealt with uniformly, what happens in circumstances when standard rules are not appropriate? Given the lack of detail, it isn’t clear how the balance between standard policies and local priorities will be struck.   Too far one way, and we risk failing to recognise the special characteristics of truly unique places; too far the other and the benefit of national certainty is lost. 

The relaxation of the five year housing land supply requirement has a clear rationale, as many LPAs have found themselves forced to accept housing which would have otherwise been refused, due to a lack of housing supply. However, given that in so many cases LPAs have not been able to demonstrate the required level of supply, and given the great need for housing,  this decision may result in fewer homes coming forward in areas where there is a genuine need for them. 

Building beautiful 

All LPAs will be required to adopt area wide Design Codes. The government has been vocal about the need for beautiful design, together with a firm view that anything which doesn’t meet this requirement should be refused consent. The government has already published various national documents to help deliver “beautiful, enduring and successful places,” and is now proceeding with local level requirements.   

Although the new Design Codes must cover an LPA’s entire area, they should not be homogenous, and should instead reflect the different characteristics of areas within its control. The Codes can  focus on certain types of development and specific design aspects, and will be used to determine what is appropriate development, in design terms. However, there is still nothing to address the subjective nature of beauty, and unless handled with great care design innovation may be stifled.

Power to the people?

One of the most headline grabbing proposals is also one of those thinnest in detail. The proposed Street Votes would allow residents of a street to propose and then vote on planning permissions.  The intention is to encourage locals to bring forward development they do want, instead of focussing on what they don’t want. However, beyond this, there is no detail as to how it will work. Will the scheme need to comply with national and local policy? Will the usual rules around mitigation – securing enough but not requiring too much – be binding? 

The Explanatory Notes accompanying the Bill acknowledge that these provisions may be removed altogether and replaced with an alternative procedure. However, it is very difficult to see these proposals making a significant dent on the country’s housing need. 

The Bill also takes the opportunity to make existing, but temporary, requirements around pre-application consultation a permanent feature. However, the requirement only applies where a relevant development order is made and, to date, that has only been the case in respect of certain wind farm developments. Unless there is a marked shift in approach by the government, this change would be of limited impact.  

Notable omissions

One of the key – and most controversial – planks of the Planning White Paper was the proposal to introduce a form of zoning. Each part of an LPA’s area would be designated as suitable for protection, renewal, or growth with the extent to which express planning permission was required depending upon the relevant designation. This angered many, who saw it as removing the opportunity for local communities to comment on development at the most critical point in the approval process. Developers also weren’t convinced of the benefits, given that the approved parameters would likely not be adequately ambitious in many cases. 

In light of this, it isn’t surprising to see that the proposals have been abandoned entirely in the Bill.  

Still so much more to come

Of course, demonstrating compliance with appropriate policy is only part of the story when securing planning permission. There still remains the ever thorny issue of mitigation. In our next article, we will consider how the government proposes to handle this going forward, including changes to the role of s106 agreements and a shake-up of the position on infrastructure levies.  

Authored by Hannah Quarterman.