Unpicking the Levelling Up Bill

Following the demise of the planning white paper, focus shifted to the government’s pledge to reform perceived geographical inequalities across the UK through the Levelling Up and Regeneration Bill. Although planning reform is only part of the bill, there are several proposals that might have an impact on the construction sector.

As a draft piece of legislation, much of the detail will result from future consultations and resulting regulations, which limits the scope for extensive analysis at this stage. Furthermore, it should not be underestimated how long it might take for some proposals to come into force, although some may be easier to implement than others.

Three of the key proposals in the bill are:

The extension of enforcement action

In England, the time period when unlawful development gains immunity from enforcement action is currently four years for some projects and 10 years for others, but this will be simplified, making all breaches subject to a longer time period of 10 years.

This proposal is easy to implement, needing only a small amendment to the existing terms of the enforcement provisions in the Town and Country Planning Act 1990 (TCPA). However, the change to timescales is substantial, and the bill could mean landowners have to carefully consider how to deal with breaches that are over the current limit of four years but not close to 10 years.

Applications for certificates of lawful existing use (which are as good as planning permission) are a matter of fact and law, so the impact of local politics through the committee system should be removed in the consideration of such applications where the evidence is available to show that four years have passed since the development was substantially completed (subject to the law relating to concealment).

The new compulsory infrastructure levy

A new infrastructure levy is to become compulsory in England, replacing the community infrastructure levy (CIL) charged in some regions of the UK.

While this should create more consistency and certainty, there are still some exceptions and unknowns. For example, mayoral CIL will be retained in Greater London, while Wales will continue with the existing CIL, even though adoption has been limited there.

One major issue is how affordable housing will be provided for

The exact method of charging the new levy will be set out in regulations and come into effect via a “test and learn” approach.

Under the CIL regime, amendments to the regulations were set out almost annually to cope with the challenges, and this could go the same way. Furthermore, the extent to which section 106 agreements will still be used has yet to be confirmed.

One major issue is how affordable housing will be provided for, as currently developers are required to deliver affordable housing on site with very few commuted sums being payable. If the new infrastructure levy is to include payments for affordable housing, it is unclear how local planning authorities are going to deliver the construction of affordable housing.

A new route to vary existing planning permission

Currently, under the TCPA, businesses can choose two routes:

Firstlly, section 73 allows an application to vary or remove conditions from an earlier planning permission (“minor material amendment applications”). A successful application results in a new planning permission that sits alongside the original.

Following the Court of Appeal ruling in Finney vs Welsh Ministers, it is not possible to apply under section 73 of the TCPA for a variation of a condition which would lead to the development not being entirely consistent with the description in a planning permission.

Secondly, section 96A of the TCPA allows planning authorities to make “non-material changes” to a planning permission if they are satisfied that the change is not a material change, though a successful application does not result in a new planning permission.

If an application needs to be made under section 73, resulting in the original description of the development becoming inconsistent with the revised permission, an application under section 96A can sometimes be used to change the description of the development. However, this needs to be timed carefully and requires local planning authority co-operation.

The bill proposes the introduction of a section 73B in the TCPA which would allow the variation or removal of planning conditions attached to planning permissions and for non-material amendments to planning permissions.

This should remove ambiguity over which route to use, simplifying the process and, in theory, allowing alterations impossible under the existing framework without the need for multiple applications under different routes.

Conclusion

The bill suggests that changes are on the horizon for the building industry. However, the sector should not expect these changes any time soon, as the bill is unlikely to gain royal assent before 2023. Furthermore, many of its fundamental proposals will require secondary legislation or changes to national policy, and the government has suggested that many of these changes will not be brought about until 2024.

The industry will need to keep a close eye on developments as the bill passes through parliament over the coming months.

Katherine Evans is a partner at UK law firm TLT