The Planning and Infrastructure Bill in the UK: the best of the rest and what to expect next

Achieving good decision making

There are many cogs in the planning machine, and achieving the right decisions in a timely manner requires them all to be working together. A crucial element of this is how decisions are made, and by whom. The Bill includes two main changes aimed at improving decision making:

• A national scheme of delegation - meaning that whether schemes of a certain type are to be decided by planning officers or at committee will be set nationally. The notes accompanying the Bill say that the government wants committees to focus on complex or contentious development where local democratic oversight is required.

In principle, this uniformity is to be welcomed. However, the details provided so far are scant. Both the effectiveness and the robustness of the changes will depend upon the approach adopted in the national scheme. It will be interesting, for example, to see the extent to which, if at all, the government recognises regional variations in what is considered significant or sensitive.

• Mandatory training for those sitting on planning committees – requiring all members of relevant committees to have undertaken certified training, which will need to be repeated periodically. Given the complexities of the planning system, it’s hard to argue against those making the decisions being required to have a base level of understanding of the regime they are implementing. And whilst well-made decisions don’t necessarily mean the granting of more planning applications, they are a good thing for everyone, as decisions should be more predictable and robust, meaning that communities and developers alike have more faith in the fate of schemes.

However, based on the details available so far, it only seems that members need to undertake training. There is no requirement for proof that they have engaged with and learnt from that training, for example by passing a test. Further, given the inherently political nature of planning, we will need to watch and see what the impact of training really is on politically motivated decisions.

Crucially, the Bill does make it clear that failure to comply with these rules will not render decision by planning committees unlawful. This is important for applicants - it avoids the risk of challenges to their permissions based on the failure by members to undertake the necessary training. It does, though, raise questions as to whether LPAs really will have the appetite to take the time (and expense) to require their members to keep on top of their training obligations.

A different approach to planning fees

Instead of continuing to be set centrally and, once levied by a local authority, forming part of their general budget, the Bill proposes that planning fees be set locally, at a rate appropriate to cover planning costs. These costs would include the various specialists necessary to enable an LPA to discharge its decision making functions, although not those linked to plan making. Given the increasingly specialised nature of the various documents required for many planning applications, this seems a logical move, notwithstanding the fact that in many cases applicants already found themselves meeting many of those costs.

Fees would also be ringfenced, so that they can only be used on planning services. For some time, many in the development industry have been clear that they will happily pay more in planning fees for a guaranteed improvement in service. The government hopes that ringfencing will achieve this. There is, though, a fear for some that this will mean that the baseline budgets for planning teams will be significantly reduced, and they will have to survive on the fees they generate. This could lead to significant fluctuations in resources, potentially reducing the overall quality of LPA planning teams.

More pieces in the tapestry of CPO reform

The compulsory purchase regime is a complex one, not least of all as it has evolved incrementally, through a mix of legislation and case law. Despite calls for wholesale reform on a number of occasions, amendments to the regime continue to be piecemeal, and that has remained the case in recent years. The Bill has continued this trend, with a number of further changes relevant to CPO, including the following:

• The introduction of the ability to serve notices electronically, which should help modernise, simplify, and speed up the system. It is worth noting, though, that email service will be deemed to take place on the first business day after the email is sent. This could well trip up those used to treating receipt of emails as instantaneous.
• Acquiring authorities have been granted the ability to confirm their own CPOs with modifications, in certain cases. The modification can only remove land, not affect other people’s land, or must have been approved by the landowner affected. This has the potential to allow CPOs to be more nimble, being revised more easily when that would be to the benefit of all.
• Flexibility has been introduced to the timing requirements around exercising general vesting declarations, including the ability for acquiring authorities and owners to agree that an interest will vest after a period shorter than the standard three months.

The erosion of hope value continues

Hope value has long been enshrined in the right to compensation for the compulsory acquisition of a land interest, as part of the principle of equivalence – a landowner should be left no better, nor worse, than they would have been had there been no CPO. However, changes in recent years have meant that in some cases, the additional value of land attributable to the prospect of securing planning permission, or the value from “appropriate alternative development” can be directed to be disregarded when calculating market value. In these cases, land is effectively valued on an existing use value. 

The Bill expands the scope of when hope value can be disregarded – but only ever so slightly. Acquiring authorities would now be able to confirm the application of this rule to their own CPOs, not needing to satisfy the Secretary of State, but only where there is no objection to the CPO. The power to make a direction that hope value is to be disregarded now extends to qualifying CPOs made by parish or town councils, or community councils, where the underlying scheme would facilitate affordable housing. This change will impact every aspect of compensation which is derived from market value, including, for example, basic loss payments.

However, in practice, the impact of these changes is likely to be small, not least of all given the nature of the bodies granted new powers.

A step in the right direction – but still a long road ahead

Generally the reaction by the industry to the Bill, and the announcements preceding it, has been positive. There are measures in the Bill which should help ensure more predictable, better quality decisions, with a view to delivering strategic priorities, and then remove hurdles to the delivery of the development permitted. However, there is still a huge amount of information to be filled in by regulations – including some very significant details – so it feels too early to say whether the Bill will achieve its goal.

There are also some important parts of the planning regime not yet addressed, ranging from the community infrastructure levy, to issues arising from the Hillside decision relating to the compatibility of overlapping planning permissions. So whilst the Bill may be good progress, there’s still a long way to go before the hurdles facing the planning regime are removed entirely.

Looking ahead – what’s next?

The Bill had its second reading in the House of Commons on 24 March. After Easter recess, five weeks have been set aside for Committee stage, ending 22 May, with Commons remaining stages in early June. These amending stages are helpful for airing issues, but we are unlikely to see any ‘hostile’ amendments succeed in the Commons given the size of the government’s majority. We may, however, see many amendments from the government side (as we did with the Employment Rights Bill) and those potentially impacted should not underestimate the importance of engaging with Whitehall – particularly if the issue is one of detail rather than challenging the overarching policy direction.

Where you are considering seeking changes that challenge the government’s position, the Lords should be the focus. We anticipate second reading in late June, and Committee stage could span July to the end of October. Planning ahead and building awareness of the issues in Westminster – and where possible the media - over the summer is vital. To secure changes you will need to build support on the Labour backbenches or a coalition of Conservative, Liberal Democrat and crossbench peers.

If you are concerned about any aspect of the Bill, Hogan Lovells’ Public Law and Policy team and our Planning team and infrastructure specialists can work together to assess the likelihood of success, design a solution that is legally, politically, and legislatively watertight, and develop a strategy for securing changes.

Authored by Hannah Quarterman and David Wood.