Goodbye LURB, hello LURA
In late October the Levelling-up and Regeneration Act received Royal Assent and became an Act of Parliament. While few will lament the loss of one questionable acronym (LURB), its accepted replacement (LURA) isn’t much better.
The abbreviations don’t stop there, however. At 454 pages it’s hard to believe that the Act itself is truncated, but it’s true: LURA is structured so that it operates largely as a framework with much of the detail to follow in secondary legislation or updated planning guidance.
Headline areas for reform include environmental outcome reports (EORs), infrastructure levy (IL) and national development management policies (the less snappy NDMPs). Click here for our introduction to LURA and here to take a deeper dive into some of the background.
Now that LURA has seen the light of day, some long-awaited revisions to the National Planning Policy Framework (NPPF) are expected to be published any day now. The government’s proposed changes to the NPPF were first consulted on this time last year, and a response has been promised before 2023 is out. Let’s hope they don’t miss the last Christmas post!
This is not just a planning application – it’s an M&S planning application
If 2022 was the year of Hillside (and the development industry continues to grapple with the implications of the Supreme Court’s decision) then 2023 belonged to Marks & Spencer.
July saw the Secretary of State’s much-anticipated call-in decision on the proposals to demolish and rebuild M&S’s flagship Marble Arch store. Against the recommendation of his inspector, Michael Gove refused permission. Here is our summary of the key takeaways from the decision, which grappled with heritage harm and the importance of assessing embodied carbon when considering proposals for demolition rather than retrofitting existing buildings.
Stuart Machin, M&S’s chief executive, pulled no punches, calling the refusal “unfathomable” and a “short-sighted act of self-sabotage”. The saga is set to continue well into 2024, with M&S having been granted permission in November to challenge the Secretary of State’s decision – so sit back, crack open the Percy Pigs and watch the show unfold…
Away from Oxford Street, the issues facing M&S resonate with the wider context of developers and decision-makers being increasingly mindful of the potential to repurpose property as an alternative to demolishing it. Here is our run-down of some of the key considerations, opportunities and constraints to bear in mind when thinking about repurposing.
All change, please
The courts have remained busy, and the topic of scheme changes continues to be a pertinent one as the prevailing macroeconomic climate and political uncertainty encourage developers to optimise planning permissions they already hold.
At the start of the year the High Court in Armstrong put to bed the misnomer that applications under s.73 of the 1990 Act are limited in scope to making “minor material amendments” (see our summary of the decision here). The court held that this classification, which was set out in government guidance, doesn’t accurately reflect the law and that, provided the development permitted by the conditions is consistent with the description of development, there is no limit on the scale of changes which can be made pursuant to s.73.
The clarity brought by the Armstrong decision was short-lived, however, when the High Court found in September in the case of Fiske that the use of the power in s.73 was subject to two distinct restrictions. First, that a s.73 permission must not give rise to any conflict or inconsistency with the description of development of the original permission – but also that a s.73 permission must not fundamentally alter the development permitted under the original permission. The “fundamental alteration” restriction in Fiske gives rise to a tension with the decision in Armstrong with which developers and decision-makers alike will need to resolve. The scope of the power in s.73 continues to be a fertile ground for litigation – look out for more of the same throughout 2024.
Drop-in permissions remain as complex and contentious as they are important to contemporary large-scale regeneration schemes. The High Court will hear a judicial review of a decision to grant a non-material amendment under s.96A of the 1990 Act to insert the word “severable” into the description of development of an outline planning permission. The claim, brought by a campaigner, will be of particular interest to those grappling with the implications of Hillside for drop-in planning permissions and for whom the Supreme Court left unanswered a number of practical questions in its decision. Look out for our thoughts on this case once a decision has been handed down.
What will 2024 B[ri]NG?
Away from the courts (for now, at least), it’s fair to say that 2024 will start with a bang as the new Biodiversity Net Gain regime comes into force in January. To help you bridge the gap between Christmas and the New Year we’ve prepared a short video, one page summary document and a flowchart to help you navigate the new system.
While developers are likely to see BNG as yet another hurdle, the system regime is likely to present opportunities for some landowners and investors. Click the links above as we explain what the new BNG requirement is, when it’s relevant, and what the options are for satisfying it.
And finally…
In case you missed them in the avalanche of seasonal email traffic – don’t forget to take a look at our year-end round-up on the community infrastructure levy and our review of the development of heritage planning law over the past year.
Authored by David Wood.
