The recently Assented Levelling Up and Regeneration Act runs to more than 500 pages, including 264 clauses and 25 schedules. Large parts relate to local authority functions generally, and supporting joint authority working through combined authorities. 110 provisions in all relate to town planning, and cut across various existing provisions: development plans, neighbourhood plans, the grant and implementation of permissions, enforcements, consultation, CIL, EIA, nutrient pollution, locally-led development corporations, CPO powers (including compensation).
So considerable are the changes, and their potential impacts on how we plan for sustainable growth, that it is not possible to treat them all in a short discussion.
I want to pick out just a few points on three topics. First is what the Act means for certain aspects of the plan-led system. Second what it means for historic environment regulation. And third what it means for the national design agenda.
Schedule 8 contains the new procedures relating to plan making, and they are too extensive to explore in this piece, but for me there are a few themes that will, I think, make a significant difference to the way I advise clients.
Provision 94 contains a particular important amendment that cascades across the work we do obtaining consents. Sub section (5B) changes the familiar formulation of 38 (6), the effect of which is to bolster the importance of development plans and clarify their interaction with national policy.
The amendment reads that planning determinations ‘must be made in accordance with the development and any national development management policies, taken together, unless material considerations strongly indicate otherwise’.
On its face, that appears to strengthen the existing system.
But does it really?
New sections, 38ZA through ZD treat the procedure for the designation of a new set of national development management policies, a critical part of the bill given that it appears to be putting development plans and a centrally produced policies (presumably resembling some now in the NPPF), on an equal footing.
Tension between Local and Central Governments?
There is an obvious tension here as between the intentions of the bill overall (to promote local decision making) and the role of central government, and particularly bearing in mind that national policy can practically be made and amended more quickly than local policy, even with the new procedural regulations in place.
The Robustness of the Evidence Base Supporting Allocations
The insertion of the word ‘strongly’ into 38 (6) shines a light on the soundness of the development plan, which in turn goes back to the evidence base on which one is formulated and the way they are scrutinised.
At the moment it appears that the capacity studies based on urban design and heritage considerations alone are proving are out of step with what can actually be delivered, introducing conflict into plans. This is the unintended consequence of the locational focus of London Plan 2021 policy on allocating sites for height and density, for example.
In this new world of an apparently stronger development plan system, allocations in local plans will need to be even more keenly tuned to what can be delivered and not simply what might be acceptable looked from a townscape or landscape perspective.
Stronger wording in 38 (6) will then also encourage more legal challenges to plan adoption where major allocations demonstrably do not take evidence into account, simply because it leaves decision makers with apparently less ability to consent applications on the basis of material considerations.
The only workable solution, avoiding conflict, is closer collaboration between site promoters and local planning authorities around allocations. A
And so to the Historic Environment…
With that large point to one side, professionals working to promote applications with a heritage or design dimension (and a lot of applications have that dimension) will want to familiarise themselves with Chapter 3 on ‘Heritage’ and the provisions for statutory design codes (discussed below).
Regularization of Special Regard across Previously Disparate Asset Classes
Section 58B effectively extends the current provisions of sections 16 (1), 66 (1) and 72 (1) of the PLBCAA 1990 – to pay special regard to the desirability of preserving their special interest – to Scheduled Monuments, Registered Parks and Gardens, World Heritage Sites and designated wrecks.
This provision smooths out the wrinkles across asset classes and the accompanying table regularises the statutory language, replacing ‘national importance’ and ‘outstanding universal value’ (for example) with the NPPF term ‘significance’. This is just good housekeeping, really, since national policies have effectively extended the special regard to all designated asset classes since the first Framework was published in 2011.
And Preservation or Enhancement is the New Norm
Likewise the singular object of ‘preservation’ (see section 66 of the PLBCAA 1990) is now amplified to include ‘enhancement’. This clarifies a point of some uncertainty when dealing, for example, with impacts on the setting of listed buildings. The old provision only mentioned preservation, that is, the avoidance of harm, and there was often a lot of debate, at inquiries for example, as to whether the avoidance of harm could be stretched to mean enhancement. Well, we do not have to make that stretch anymore, and so the special regard and great weight pertaining to the avoidance of harm to the setting of a listed building will now also apply to the enhancement of that setting.
Stop Notices and Building Preservation Notices
Powers relating to the serving of temporary stop notices in relation to listed buildings are strengthened (see provision 106) and the removal of compensation liability from the serving of building preservation notices is effect through changes to section 3 of the PLBCAA.
This latter provision should encourage the use of BPNs to prevent pre-emptive demolitions, and so practically means that the promoters of redevelopments will need to approach certain buildings with much greater care, seeking expert advice early and possibly applying for certificates of immunity from listing in order to avoid risks later. There may be implications in construction contracts.
Design and the Requirement for a Whole Plan Area Code
The Act also creates a ‘requirement’ on local planning authorities to create design codes. This is effected through Schedule 8 on development plans, as already noted.
15F requires a design for the ‘whole’ of any plan area, which on its face sounds daunting and difficult to formulate (given the considerable variety of local characteristics). However, subsection 2 enables local authorities not to meet this requirement ‘for every description of development for every part of their area’. That same qualifying subsection also allows that authorities do not need to provide requirements for ‘every aspect of design’. So, some flexibility is allowed. ‘Every aspect of design’ as a matter of drafting must, I think, mean ‘any’ or indeed ‘all aspects of design’. Thus, for the sake of argument, you could have a code for mixed use regeneration area that had no particular height requirements, but had a design requirement for it all to be faced in brick.
It is unclear how this will develop practically over the years and how LPAs will respond in a time of reduced resources. It is a design code becomes statutory, as part of the plan, then it had better be robust and subject to proper consultation.
Some authorities already have design guides which are area-specific, and these may be deemed sufficient for new local plan preparations. The considerable number who do not, or whose coverage is partial, will have to find the resources to prepare them (and there does not appear to be any more funding for plan making, and notwithstanding the amendments to 38 (6) discussed earlier).
Will Codes Cut across Housing Delivery?
Some authorities may seek to use codes effectively to prevent intensification of established areas, and so there is potential conflict between the concept of land-use optimisation through design (which inevitably means variation from traditional building norms) and the desire to preserve or reinforce context which is one object of coding.
That tension already exists, albeit the National Design Guide does have some very good advice on this point, supporting the departure from established building norms. See paragraph 59, under the ‘Identity’ heading, which addresses the circumstances where the scale and intensity of new development is ‘very different to the existing place’, but which can nevertheless be acceptable.
Codes in Rural, Suburban and Urban Contexts
Basically, the new design code provisions will be welcomed by many in rural locations, where it should raise the standards of traditional house building design and even, potentially, make delivery easier by removing design reasons for refusal. That is an optimistic take on life, really, because practitioners know the main issue locally on urban extensions or edge infills is strain on local services, and highways, and the loss of outlook on agricultural and open land.
In urban areas with growth-based plans, local authorities will naturally adopt the concept of optimisation as established notably in the London Plan, where intensification is not presented as harmful to context, per se, but can be managed through design.
Where this leaves housing delivery in the outer London Boroughs is uncertain, because it seems likely there will be pressure to use design codes to restrict intensification. That would naturally involve the GLA in pressing for more flexibility at plan stage. And so the matter goes back to local plan examinations and the major modifications Inspectors will advise.
The SoS’s Powers to Require a Code
A surprising provision, to those who have not followed the bill’s progress, is 15HB, again in the regulations, which gives the SoS statutory powers to direct an LPA to prepare a design code where they have not complied with the section 15F requirement. However, I do not think this power will be often used, and not least because the provisions for the local plan timetable includes 15B (2) (e) which requires it to set out how the authority ‘propose to comply with the requirement’ for a design code.
So what does this mean for practitioners?
In summary, and in relation to heritage, the bill provides some welcome housekeeping. It also may encourage local authorities to use their powers to serve building preservation notices, or temporary listing orders, more often, without the concern over liability that previously limited their use. There are greater powers also to intervene in works that could be damaging to a listed building, where these do not benefit from consent.
Extra diligence on behalf of developers, in relation to BPNs, is required both at purchase stage and before letting contracts for altering buildings that be considered to have heritage interest.
This will lead to an evolution in current practice.
As to development plans, well, their position is stronger but then also, alongside that, so are the provisions of national development management policies. This resolves a certain tension that exists in some areas of practice at the moment, but does not resolve the tension between policy locally and nationally. There is a kind of sleight of hand here. More power to local people, more power to national policy which can evolve and adapt to new circumstances more quickly than development plans.
The consequences of revisions to section 38 (6) for local authorities are financial and at least in two respects. First, their emerging allocation capacity studies will come under even tighter scrutiny because the material considerations that might allow deviation from an allocation will have to pass an apparently higher test.
And then, second, there is the new design code requirement. What this really means will vary from place to place. The requirement will in effect be applied differentially depending on the physical characteristics of an area and whether the plan is what we used to call a restraints based one or a growth one.
The tension here will be in suburban areas associated with major conurbations that have insufficient housing land. Design codes may in these areas come to be seen as ways of restricting intensification, so limiting housing delivery in otherwise sustainable locations.