Thoughts on the Planning Bill

The long anticipated Planning Bill was introduced into the new parliamentary year in this week’s Queen’s Speech, along with 29 other bills. In advance of a formal response by the government to last summer’s consultation on the Planning for the Future white paper, this is the first indication of which proposed reforms are being pursued.

Among the more controversial proposals in the white paper were those to refocus local plans, introduce zoning of land and a new infrastructure levy, which are now confirmed (among other reforms) to feature in the new bill.

Changes to local plans

The Planning Bill will “change local plans so that they provide more certainty over the type, scale and design of development permitted on different categories of land”. In essence, this sounds like some form of zonal system will be introduced, although it is notable that this language is not used by government. However, what the categories or zones will be, whether all land across the country must be allocated to a category, and what development rules and restrictions will apply, is unknown at this stage.

The white paper proposed the allocation of land to either two (development and protected) or three (growth, renewal and protected) categories. If a binary system is favoured, this may in practice not be dissimilar from the current system of land allocation in local plans. However, if a three zone system is pursued, this could have more significant land value implications and designations could be contentious. While the objective is to simplify the system, the reality may be far from this.

Faster planning

The new legislation will “significantly decrease the time it takes for developments to go through the planning system”. Simpler and faster procedures and the introduction of a digitised system will be widely welcomed by all in the development community, but the government will have to ensure new systems are robust and adequately resourced, and it must tread carefully to ensure the democratic process that sits at the heart of the planning system is not undermined by any new efficiencies.

New infrastructure levy

The replacement of existing systems for funding affordable housing and infrastructure from development with a new levy will be a big change from the current system of delivery through section 106 negotiations. In theory a fixed levy sounds attractive, and could be an improvement if it is set at the right level, but it will be very difficult for the many nuances and variables in predicting development values and viability to be factored in. There has been little detail published on how the levy will work, and there will be huge sensitivities and challenges in getting this aspect of the reforms right so that it does not deter development and jeopardise the government’s housebuilding agenda. It is not clear whether this will be the end of section 106 agreements altogether.

Simplification of environmental impact assessments

The white paper proposed a new system for environmental considerations and the environment secretary announced in summer 2020 there would be a consultation (which is still yet to be published) on environmental impact assessments (EIAs), so the announcement that “post-Brexit freedoms will be used to change and simplify the framework for environmental assessments for developments” is not a surprise. While the current EIA regime is notoriously complicated and a fertile area for judicial challenge, the draft legislation will inevitably attract close scrutiny, and any changes will spark fierce debate and opposition if there is any hint current environmental standards will be weakened.

Development corporations

The white paper’s proposed reformed to powers for development corporations did not attract much attention at the time of publication, but it is now confirmed that reforming the framework for locally led development corporations will be a main element of the Planning Bill.

Development corporations bring the public and private sector together and have been used in the past, with mixed success, to deliver new settlements and large-scale regeneration. Their creation by individual statutory orders that designates their geographical area and grants a suite of planning and Treasury powers has resulted in a confusing legal framework that can be a barrier to their uptake. If the bill is successful in simplifying this framework and creates a vehicle that is more modern and nimble, then it could create a more attractive model for development and enhance investor confidence in schemes.

Looking forward

The Planning Bill is unlikely to have smooth ride through parliament given the amount of controversy the proposals have attracted to date. We do not know where the bill sits in terms of priority, but there is a chance it could be shelved if the next general election is called in May 2023, as is rumoured, and it continues to be controversial among Tory MPs and the electorate. Exactly how controversial the bill is to be will emerge in the legislative detail and the ensuing debate over the coming weeks and months.

Tim Hellier is partner and head of planning and zoning at BCLP