New year – new planning reform. After the sweeping reforms proposed in its 2020 Planning White Paper fell flat – and, so the story goes, formed the basis of some embarrassing by-election defeats in Chesham and Amersham – the government quietly shelved them. May 2022 saw the introduction of a set of less ambitious, although still bold, planning reforms in the Levelling-Up and Regeneration Bill, but this still wasn't enough to quell the disquiet on the back benches.
The Bill, which is at the report stage of its journey through the Commons, would reform all stages of the planning system: including introducing the framework for a new Infrastructure Levy, reforms to environmental impact assessment and, importantly, centralising control of decision-making by introducing a suite of National Development Management Policies. The Bill would strengthen further the importance of design in planning policy and decision-making, and introduce a new section 73B to the 1990 Act. This would address current limitations around changing descriptions of development and permitting development that is inconsistent with existing descriptions of development.
It's important to note, though, that in most instances the Bill merely sets out a framework into which secondary legislation (containing all the details) will slot, and is far from the finished article – the real substance will follow in the future.
And, as 2022 comes to a close, we're promised yet more planning reform! On 5 December, the Secretary of State announced a National Planning Policy Framework Prospectus, which will be released for consultation before Christmas. This further set of reforms – which promises to "place local communities at the heart of the planning system" arose in response to a threatened rebellion by around 60 Conservative backbenchers over the question of whether or not housing need figures should be mandatory. Expect the consultation to look at "community control" over decision making, local plan preparation, build out rates and developers' track-records, as well as interventions in the housing market itself.
Will next year see the end of the reforms? The smart money is on more of the same…
You can find the first in our series of detailed articles on the key planning elements of the Bill here
The Hillside decision
While 2022 wasn't a vintage year for planning cases, the highly anticipated decision of the Supreme Court in Hillside Parks v Snowdonia National Park Authority, handed down at the start of November, was the blockbuster judgment of the year.
The case concerned the relationship between successive grants of permission in relation to the same land and, in particular, the effect of implementing multiple planning permissions in respect of the same land. The decision has real implications for developers and planning authorities alike, particularly those working on large, complicated developments where the practice of using drop-in permissions can be vital to make changes to the scheme.
The Supreme Court clearly appreciated the importance of the case for planning law and, endorsing the principles underlying the noted Pilkington case, it contains some important clarifications for practitioners.
Helpfully, the judgment removes some of the uncertainty which arose from the Court of Appeal’s suggestion that in order for development to be lawful, a planning permission must be implemented “fully”. The judgment puts this uncertainty to bed and makes clear that planning permission is, indeed, permissive. The failure to complete a project for which permission has been granted doesn't make development already carried out pursuant to the permission unlawful – but the permission doesn’t authorise any further development if compliance with it becomes physically impossible (for example where an inconsistent planning permission is implemented).
The judgment does, however, leave open some important questions.
Where a developer has been granted a full planning permission for an entire scheme and wishes to depart from it in a material way, the Supreme Court said that the answer is to modify the approved scheme by seeking an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. As the appellant’s counsel noted, this has the potential to have serious practical implications for developers.
It's also likely to raise questions in some quarters as to the validity of the important practice of obtaining drop-in permissions to secure changes to discrete parts of a development.
The Supreme Court didn’t address the drop-in question directly (let alone articulate a “best practice” approach to adopt) but practitioners can take some comfort from the fact-specific nature of the case. Hillside is concerned with one full permission which granted consent for an entire multi-unit scheme – this can be distinguished from a phased outline permission for a complex regeneration scheme which is likely to be deliberately structured so as to be severable.
One of the key challenges developers have faced when considering drop-ins has been the nervousness of planning authorities. Although the judgment provides some clarity on the position, it seems unlikely that it has done enough to address this entirely. The attitude of the planning authority is therefore likely to remain a key factor in the ability to use drop-ins going forward.
Click here to listen to Hannah Quarterman, Partner and Head of Planning, discuss the Hillside decision on EG’s “Top 10 Cases of 2022” (from 18 minutes 30 seconds onwards).
Reimagining planning uses
The dark clouds gathering on the economic horizon prompted many developers, investors and planning authorities to give thought to how the planning system can bring unused spaces back to economic life – and where it needs to play catch up.
Meanwhile uses – making use of a space while it is waiting for the next stage in its life – have the potential to be a win-win. Not only can landowners use them to generate income, but they can help minimise outgoings, such as empty building rates. From a planning and placemaking point of view, they can also bring much-needed local activity and vitality.
However, careful consideration must be given to what planning consents are required, and how to secure them, to ensure that any short-term gain is not eclipsed by long-term planning pain.
Click here to look at the key issues
The introduction of the new Class E (commercial, business and services) use has, similarly, created a regulatory environment which has the potential to transform the high street – with unbridled flexibility to transform offices into restaurants and shops to gyms without the need for planning permission.
But have the changes to the Use Classes Order gone far enough to support the multiplicity of new and emerging uses such as dark kitchens, last mile logistics and data centres?
Click here to read our note on emerging uses
Bonus points – NSIPs, the importance of design and CIL
In the spirit of the season we checked our list twice – and ended up adding another few bonus topics.
First, nationally significant infrastructure comes full circle. Having tabled its reforms to the planning system in the Levelling-Up and Regeneration Bill, the government turned its attention to speeding up the consenting regime for nationally significant infrastructure projects under the Planning Act 2008.
Click here to read our introduction to the proposals to fast track the fast track.
Second, the importance of design in planning. Good design – with its many different meanings – is of critical importance and, looking forward, we can expect design to receive even greater scrutiny in plan making and decision taking terms.
Click here to read our round-up for Estates Gazette from the start of 2022. The direction of travel outlined in this piece held true throughout 2022.
And finally – in case you missed it – here's our run through some of the key takeaways from this year’s CIL cases. The rigidity of the community infrastructure levy regime means that one small mistake can have significant financial implications – exemptions, deductions or reliefs may be lost, surcharges imposed, or large CIL bills forced to be paid upfront. Read on to see how you can avoid these pitfalls.
Authored by David Wood.