Episode 102 - Levelling Up and Regeneration Act 2023

This week we will be talking about the Levelling Up and Regeneration Act 2023. This episode content meets PC3 - Legal Framework & Processes of the Part 3 Criteria.

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Episode 102:

Hello and Welcome to the Part3 with me podcast.

The show that helps part 3 students jump-start into their careers as qualified architects and also provides refresher episodes for practicing architects. I am your host Maria Skoutari and this week we will be talking about the Levelling Up and Regeneration Act 2023. Today’s episode meets PC3 of the Part 3 Criteria.

I briefly mentioned this act in Episode 96 where I discussed the legislation updates coming into force.

So the Levelling Up and Regeneration Act officially became law in October 2023 but it hasn’t yet taken full effect. The intention of the Act is to introduce a new category of planning policies which are the national development management policies which will carry the same weight as local plans in the decision-making on planning applications.

Something to bear in mind with the proposed changes under the Levelling Up and Regeneration Act is that a number of the items covered within it depend on secondary legislation to be imposed for their delivery. So many of the Acts changes to planning procedures are unlikely to take effect until associated regulatory and national policy changes are in place. The Levelling Up and Regeneration Act should be considered as the framework setting out and providing the way for further legislation to follow. When this secondary legislation may be released is still to be determined.

So looking at the Act more closely, it introduces some short-term and medium to long term provisions.

Starting with the short term:

The act introduces new notices concerning development commencement, whereby developers will be required to submit commencement notices to the LPA specifying the date that development is expected to start and this will be mandatory for developers and they will need to submit another notice if the development doesn’t start on the anticipated date. If a developer fails to submit a notice they can face a fine.
Alongside this, the act also introduces the power to issue completion notices if a development is being built out unreasonably slowly and the LPA will also be able to issue a completion notice even before the three-year commencement period has lapsed if they believe that the development will not be completed within a reasonable period. The aim is to force developer to complete developments.
LPA’s also have the power under the act to decline to determine applications in cases of earlier non-implementation or unreasonably slow build-out.
The act also introduces the power to impose mandatory conditions relating to annual development progress reports on specified residential planning permissions in England
Another change is the introduction of a consultation requirements for developments affecting ancient woodlands. Local planning authorities will be required to consult the housing secretary if they are minded to grant planning permission for developments that affect ancient woodland. Amendments to the National Planning Policy Framework (NPPF) wording are also expected to strengthen the protection of ancient woodland.
Also another proposed update under the act is to replace Environmental Impact Assessments, Sustainability Appraisal and Strategic Environmental Assessment with what will be known as Environmental Outcome Reports. This report is meant to streamline the system and place a greater focus on delivering environmental ambitions. The Act secures powers to implement a new system of environmental assessment. We are awaiting the outcome of an earlier consultation that ended on 9 June 2023 to inform the detailed approach to developing Environmental Outcomes Reports.

These are just some of the changes that we are aware of and the ones considered to be the most impactful planning changes in the LURA, although what has been mentioned is by no means an exhaustive summary.

Now lets move on to the Medium to long terms effects, whereby the Act makes changes to the plan-making process and decision-making on planning applications, which include:

Abolishing the ‘duty to cooperate’, which requires Local Planning Authorities to cooperate with each other in preparing their local plans. The government said that it will introduce a new ‘flexible alignment policy’ instead.
Replacing supplementary planning documents (SPDs) used to expand on policies in local plans) with ‘supplementary plans’. Their scope would be limited to setting either site-specific policies or area-wide design codes.
Introducing a statutory requirement for Local Planning Authorities to prepare design codes, in which they set out design requirements for developments in their area.

A key item to highlight here is that in addition to the changes in planning law, the Act will also be proposing changes to planning regulations to reform the plan-making process which is anticipated to come into force later this year. This will essentially require Local Planning Authorities to produce local plans within 30 months and update them every five years, as opposed to the no set timetable that is currently in effect for Local Planning Authorities to prepare their local plans. Its proposed that, in these 30 months, local plans would be examined by the Planning Inspectorate and undergo:

two rounds of consultations to allow the local community and certain public bodies to participate in the plan-making process.
three ‘gateway’ checks (of four to six weeks each) where technical specialists or planning inspectors would help LPAs resolve issues. The first and second gateway would take place at the start and part-way through the plan-making process. And the third gateway would be at the end of the plan-making process and is intended to ensure that a local plan meets key requirements and is “ready to proceed to examination” and only a planning inspector would be able to advise the local planning authority at this gateway and it will be binding if the planning inspector determines that key requirements are met. The three gateway checks will ensure “any issues with the plan are picked up earlier in the plan-making process and resolved prior to the examination”. And will reduce the risk of local plans being found unsound at examination.

Additionally, the government proposes for LPAs to complete “a light touch annual return” where they would be required every year to report on their progress against certain metrics set out by the government and against policies in their local plan. The government proposed requiring LPAs to report on:

• Housing, including the number of additional dwellings, affordable units, and homes on brownfield land.

• Employment, including the change in employment floorspace.

• Environment and open space, including the change in designated open space, the progress toward net zero emissions from buildings, and the delivery of 10% biodiversity net gain.

In the first instance, the intention will be for LPA’s to submit their local plans for examination by June 2025 if they want their local plans to be adopted under the old plan making system, otherwise they will need to prepare them in accordance with the new plan-making system.

The intention of this change is to speed up the local plan-making process, but this reform is still under review as to whether 30 months will be enough time for Local Authorities to produce the local plans.

Currently, the process in preparing local plans, is that Local Planning Authorities are expected to:

consult the local community, local businesses and certain public bodies
And publish and consult on their draft local plans for at least 6 weeks before submitting it for examination
And the issue is that they take too long to prepare and be adopted with many local plans being out of date.

Hence the required change by the Levelling Up and Regeneration Act to give the government the power to set a mandatory timetable for local plan preparation.

Now reverting back to the initial policies I referred to at the beginning of the episode, of the government's intentions to make the planning system simpler, clearer and quicker to navigate with the introduction of the Housing Grants, Construction and Regeneration Act. Looking firstly at the new category of planning policies, known as National Development Management Policies:

To aid the decision-making process of planning applications, the new National Development Management Policies role, is as mentioned, to have the same weight as local plans in the decision-making on planning applications and will have a statutory footing in planning law. Once National Development Management Policies have been designated, LPAs will decide planning applications in line with their local plan and the National Development Management Policies, unless material considerations strongly indicate otherwise. In case of a conflict between a local plan and an National Development Management Policy, the Policy would take precedence over the local plan. Local plans will also not be able to repeat National Development Management Policies or be inconsistent with them.

The benefit of these National Development Management Policies is that:

They will make local plans faster to produce and easier to navigate, because LPAs could focus on locally important issues while policies on nationally important issues will be set out by the government.
And will provide safeguards where local plans are out-of-date, because, unlike the NPPF, the Policies will “have clear statutory status equivalent to an up-to-date local plan”.

In terms of who has authority over these policies to designate, modify and revoke them, is the Secretary of State for the Department of Levelling Up, Housing and Communities. The National Development Management Policies will cover general planning policies on issues that apply in most areas in England, while locally specific policies will continue to be set out in local plans. In a policy paper accompanying the Levelling Up and Regeneration Bill published in May 2022, the government suggested that National Development Management Policies would be derived from the policies currently set out in the NPPF. Which set out that the NPPF would be refocused on “setting out the principles to be taken into account in [local] plan-making”. For example, the government suggested that policies preventing inappropriate development on green belt land and in areas at high risk of flooding might become National Development Management Policies.

The government also said that National Development Management Policies will adhere to a number of principles including that:

They will only cover matters that have a direct impact on the determination of planning applications.
They will be limited to nationally important issues that affect decision-making across England, or across significant parts of England.
They will only address planning issues that concern the development and use of land.

Now when it comes the relationship between the National Development Management Policies and Local Plans, so generally when considering planning applications for developments, LPAs make decisions in line with their local plans and once in force they will also make decisions in line with the National Development Management Policies.

Under the Levelling Up and Regeneration Act, provisions will also be made to allow other Local Planning Authorities, that are not part of combined authorities, mayoral combined or authorities or in Greater London, to prepare a joint Spatial Development Strategy for their are which will set out policies that deal with matters that are only of strategic importance to the development and land use in the joint area. This power will be optional to use at the discretion of the Local Planning Authorities.

So once a joint spatial development strategy is adopted it will form part of the policies in line with which a Local Planning Authority will make decisions on planning applications along with the local plan and the National Development Management Policies.

Now referring back to one of the other changes the act is seeking to make to the plan-making process and decision-making on planning applications, which is abolishing the ‘duty to cooperate’, which requires Local Planning Authorities to cooperate with each other in preparing their local plans so far as relating to a strategic matter which relates to the “sustainable development or use of land that has or would have a significant impact on at least two planning areas” and “engage constructively, actively and on an ongoing basis” with each other and other prescribed bodies, such as Homes England, the Environment Agency and Natural England, in preparing their local plans. The government has stated that the duty to cooperate will remain in place until the flexible alignment policy takes effect as part of a future revised NPPF.

Now lets look at the other change the Act is proposing which the intention of replacing supplementary planning documents (SPDs) with supplementary plans that will have the same statutory weight as local plans in decision-making on planning applications and are intended to help LPA’s react and respond to unanticipated changes in their area and provide area-wide design codes and/or set out site-specific policies on affordable housing or infrastructure.

The government said supplementary planning documents will remain in place until LPAs have adopted new local plans under the new plan-making system.

The other change the Act is proposing is requiring LPA’s to prepare local design codes for their area which are to include a set of illustrated design requirements that provide specific, detailed parameters for the physical development of a site or area. There is provision currently within the NPPF for LPA’s to prepare design guides and codes as part of their local plans or set them out in their supplementary planning documents but LPA’s are currently not required to prepare these. The Act will make it a requirement for LPA’s to prepare local design codes either in the form of supplementary plans or as part of their local plans. Because both supplementary plans and local plans have statutory weight in decision-making on planning applications, in future, proposed developments will be required to adhere to requirements set out in local design codes.

Again these are just some of the changes that we are aware of and the ones considered to be the most impactful planning changes in the LURA, although what has been mentioned is by no means an exhaustive summary.

The Act is also seeking to make changes to the Infrastructure Levy replacing the current system of developer contributions with a more simple, mandatory and locally determined levy. So the Levy will be charged based on the value of the property when its sold and applied above a minimum threshold. Levy rates and minimum thresholds will be set and collected locally, and local authorities will be able to set different rates within their area. The rates will be set as a percentage of gross development value rather than based on floorspace, as with the Community Infrastructure Levy at present. To strengthen infrastructure delivery further, the Bill will require local authorities to prepare infrastructure delivery strategies. These will set out a strategy for delivering local infrastructure and spending Levy proceeds. These changes to the Levy will of course need to go through a consultation process first and then to be formally set out in regulations and be applied, so these changes haven’t as yet been implemented.

Essentially the aim of the Levelling Up and Regeneration Act is to speed up the planning system, hold developers to account, cut bureaucracy, and encourage more councils to put in place plans to enable the building of new homes, but let's see if this is actually put in practice over the next forthcoming year.

To sum up what I discussed today:

The Levelling Up and Regeneration Act 2023 became law in October 2023
The Act is to introduce a new category of planning policies, the national development management policies which will carry the same weight as local plans in the decision-making on planning applications
The key changes proposed by the Act are in relation to the plan-making process and decision-making on planning applications, which includes abolishing the ‘duty to cooperate’ requiring Local Planning Authorities to cooperate with each other in preparing their local plans.
It also proposes to replace supplementary planning documents (SPDs) used to expand on policies in local plans with ‘supplementary plans’.
And introducing a statutory requirement for Local Planning Authorities to prepare design codes, in which they set out design requirements for developments in their area.
Local Authorities will also be expected to produce local plans within 30 months and update them every five year and would be examined by the Planning Inspectorate

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Episode 102 - Levelling Up and Regeneration Act 2023

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