All change please: the new test at the heart of the “Levelling-up and Regeneration Bill”
First, some advice: paternity leave is a wonderful thing. It’s the best. Course it is. But lord help you if you’re taking paternity leave and you also happen to write a planning law and policy blog [ed. now realising this advice may not be relevant for everybody].
Because while you’re off changing nappies and trying to rock your howling bundle of joy back to sleep, things can change out there in the plan-i-verse. Big things, like an environmental regulator which isn’t supposed to be in control of the planning system more or less taking over the planning system - more on Natural England in another post. Big things like the quashing of the Secretary of State’s decision to grant planning permission for the national Holocaust Memorial and Learning Centre at Westminster (full disclosure: I appeared in support of the scheme both at the inquiry and in the High Court, and the decision has now been appealed to the Court of Appeal).
And other very big things, like a proposal to change the fundamental ingredients of the English planning system.
Ah yes. Spring is here again. It’s bluebell time in Kent - as a famous judge once put it. Which means only one thing: it’s time for some planning reform. Welcome to yesterday’s Levelling-up and Regeneration Bill.
In the few hours since its release, we’ve obviously all read it front-to-back and back-to-front many times. Haven’t we? All 196 sections and 17 Schedules-worth of it. But just in case you haven’t, can I get the ball rolling by pointing out a couple of big, big items which are in this bill:
Lots of areas it covers fall into the category of “wait and see once regulations are made”. Into that “TBD” basket we can put the much-discussed idea for “street votes” (for more on the genesis of that idea, see here). We can also put the new idea for an Infrastructure Levy which may or may not replace in full or to some extent the existing mechanisms under s.106 of the Town and Country Planning Act 1990 for providing things like affordable housing. Also TBD is the possibility for new “environmental outcome reports” which could replace the whopping great wodge of EIA and SEA reports some of us vainly attempt to plough through in our day jobs.
Lots and lots of regulations still to come. And it’s in those regs where we’ll get the proper detail. Where the devil lives. So for many of these topics, our headline should be “Breathe. Hold your horses. We shall see”.
Many topics, but not all. Because for some points, the detail’s already there. For example, we have a proposed reform of the plan-making system, and of the role of plans in decision-making. For planoraks like us, it doesn’t get much bigger than this. The legal structure of plan-making and decision-taking is on the chopping block. If that doesn’t excite you even a little bit, then reader I’m sorry to tell you: this may not be the blog for you.
So, what’s all the hullabaloo? Let me, just for a short minute, walk you back to the beginning:
What we call the “plan-led” system was introduced by the Town and Country Planning Act 1947, which brought in a requirement – now in section 70(2) of the Town and Country Planning Act 1990 – for Local Planning Authorities determining planning applications to:
“have regard to the provisions of the development plan, so far as material thereto, and to any other material considerations.”
Next step: the legal presumption in favour of the development plan was introduced by the Planning and Compensation Act 1991 which amended the 1990 Act so that now:
“Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.”
That requirement is now in section 38(6) of the Planning and Compulsory Purchase Act 2004, and has been - let’s be clear - the benchmark of planning decision-making in this country for over 3 decades. Lots and lots and lots of cases have interpreted these provisions - prime amongst them the House of Lords in Edinburgh City Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447 - and these have set the tone and the legal parameters for the last 3 decades of planning decisions. I covered some of the basic ideas here. They include that:
What matters under section 38(6) is whether a proposal accords with the development plan as a whole.
But even then, the development plan does not have absolute authority. The decision-maker doesn’t have to “slavishly adhere” to the plan.
In particular, the plan’s “provisions may become outdated as national policies change” - see my earlier post on outdatedness.
The authority can to depart from the development plan if material considerations indicate otherwise - see my earlier post on the on the meaning of that harmless little phrase.
And deciding where the balance lies between the plan on the one hand and other material considerations on the other is a question for the decision-maker’s judgment.
That was then. This is now. Yesterday’s bill proposes a new test. This is the big stuff. You need to read it. I’ll paste it in full. Instead of section 38(6), we get section 38(5A)-(5C) which tell us that:
“(5A) For the purposes of any area in England, subsections (5B) and (5C) apply if, for the purposes of any determination to be made under the planning Acts, regard is to be had to—
(a) the development plan, and
(b) any national development management policies.
(5B) Subject to subsections (5) and (5C), the determination must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise.
(5C) If to any extent the development plan conflicts with a national development management policy, the conflict must be resolved in favour of the national development management policy.”
That would to change the law in at least 2 important ways. First, now the central requirement would be to take a determination in accordance with (i) “national development management policy” first - more on that in a sec, and then (ii) next, and so long as there’s no conflict with that national dm policy, the development plan. Second, now for material considerations to indicate taking a different decision, they would have to strongly “indicate otherwise”. Strongly. Not just a bit. But with strength. So long, weakling material considerations.
What is a “national development management policy”? It’s anything the Government says it should be which relates to the development or use of land in England. And under the new regime, local plans cannot repeat or be inconsistent with anything in any national dm policy.
What should we make of all of this? A few quick-hit thoughts are that:
Lots of (I think) sensible ideas. For instance, it’s been a strange feature of our system that documents like the NPPF which we spend so much time poring over are (at least in theory) lower in the pecking order set by our statutory scheme that the local development plan, but on the other hand are capable of deeming that local plan to be out of date (more on that here).
So being more explicit in the statutory scheme about the relationship between local and national policy is a positive step in the direction of clarity - even if it represents a radical departure from the “local-plan first” approach which has run the show for many decades now.
Here’s a positive feature: I think nationalising generic development management policies is a great idea which will save oodles of time and paper, and lead to a more consistent and robust system. And this bill creates the legal structures to avoid duplication between local plans. To leave the detailed DM policies to central government. And thereby (we should hope, at any rate) to simplify the task that a local plan has to perform.
What about the idea that the national and local plans rule unless material considerations “strongly” indicate otherwise? We’ll have to see. That word “strongly” is ripe for poring over by clever-clogs planning lawyers - so we should pre-order popcorn and reserve our seats in the High Court for the 2023/4 cases on that topic. One of the key material considerations which currently tells against following the local plan is national policy, but under this approach some national policy will moved out of the “material consideration” bucket altogether. So a comparison with our existing system is not straightforward. The idea is that there be more consistency in the system. That plans are followed. That departures from plans are less frequent. To which you might think - bravo. BUT of course, that only works if plans are actually being made in a way that is both timely and effective…
Now, as we’ve discussed many times in these pages, the current plan-making system in England hasn’t been anything like timely or effective for a while now. This bill has lots in it designed to change that, including allowing for an interesting tier of new strategic plans (aka “joint spatial development strategies”), and those plan-making provisions will be the subject of future posts.
There’s a huge amount to digest in this new bill. At least my schedule of blog posts for the next few months is sorted. And that’s what really matters. Making sure that bloggers about planning law and policy have things to write about. Thank you, Mr Gove.
But even on day 2 of this bill, even while the ink is drying, I think this is clear:
At its heart, for all the headlines on localism, street votes and neighbourhood planning, this bill contains a power grab by central government. You and I are still living in the dying days of the legal “presumption in favour of the development plan”. But those days are numbered. Where it seems we are heading it toward a legal presumption in favour of national policy (and only after that local plans to the extent they’re consistent with national policy). That may (let’s hope) lead to more consistency, to streamed-down more focussed plans, and so on to better decision-making. But don’t kid yourself: it’s a radically different approach to what we have now.
I do hope you’re enjoying the sunshine and are getting considerably more sleep than either me or my 10-week-old daughter. More to come on talk of reform, but in the meantime - stay well, enjoy the bluebells and, most of all, #keeponplanning.
