Levelling Up and Regeneration Bill: Development Plans

Legislation Update
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The Bill includes some significant changes to the development plan system – specifically, what should be included in national, local and neighbourhood plans and the weight which should be afforded to development plan policies in the determination of planning applications.  The Government’s aim is to get ‘simple, meaningful local plans in place faster’.  Here we look at the key measures introduced by the Bill, which are intended to achieve this.

National Development Management Policy (NDMP) 

The Bill introduces ‘national development management policies’*– with the idea being that ‘general’ development control policies are taken out of Local Plans and are, instead, centrally-set.  NDMPs are likely to include policies relevant to most local authorities, such as heritage protection and green belt policies. Local Plans will not be able to repeat these NDMPs.

The removal of these types of common policy (which are currently repeated across most Local Plans, often with slight variations in terms of form and wording) is intended to make Local Plans shorter, so that they can focus on locally-specific matters, and, in doing so, expediate their preparation.

The Bill also alters the current test for the determination of planning applications to give more weight to development plans.  At present, s38(6) of the Planning and Compulsory Purchase Act 2004 requires a planning application to be determined in accordance with the development plan ‘unless material considerations indicate otherwise’. This is to be replaced with a subtly, but significantly, changed requirement that planning applications in England ‘must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise’ [our emphasis].

The Bill goes on to state that:

‘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’.

The consequence of these changes is that a) NDMP’s will have the same weight as development plans and will be given priority over development plan policies where there is a conflict; and b) the introduction of the word ‘strongly’ is intended to strengthen the plan-led approach to decision making, thereby ‘providing communities more certainty’ (although, should the Bill survive in its current form, the meaning of ‘strongly’ will no doubt become the subject of much scrutiny and debate in decision making going forward).

The Government has confirmed that it will consult on the proposed suite of NDMPs, as well as the revised National Planning Policy Framework (NPPF).  Further details of plans for the transition to this new development plan system will be published as part of the consultation.  In the meantime, the Government’s Policy Paper advises that ‘in broad terms‘ the changes are likely to ‘begin to take place from 2024′ once the Bill has received Royal Assent and associated regulations and changes to national policy are in place. This circa two-year interim period would presumably allow emerging Local Plans at an advanced stage of preparation to proceed without being impacted (or delayed) by the changes.  It remains to be seen how Plans in earlier stages of preparation will be impacted.

Other changes 

The Bill makes various other changes designed to streamline the slow ( and, in some cases, totally stalled) Local Plan making process.  These include:

– The introduction of ‘gateway’ checks so that issues are identified early during plan preparation;

– Local planning authorities will have powers to prepare ‘supplementary plans’ where policies for specific sites or groups of sites need to be prepared quickly.  Importantly, these will replace the ‘supplementary planning documents’ which councils produce currently.

– The ‘duty to cooperate’ contained in existing legislation is being repealed and is to be replaced with a ‘more flexible alignment test set out in national policy’.

– The introduction of ‘neighbourhood priorities statements’ – effectively a simpler version of a neighbourhood plan which allow communities to set out their key priorities and preferences for their local areas.  Local authorities will then need to take these into account in the preparation of Local Plans.  Neighbourhood Plans will remain, and confirmation is provided on what can, and cannot, be included in the plans.

Alongside the Bill, the Government has confirmed its intention to remove the requirement for authorities to maintain a rolling five-year supply of land for housing, where their plan is up-to-date i.e. adopted within the past five years.  This is intended to incentivise plan production as an up-to-date plan will avoid a ‘presumption in favour of sustainable development’ being applied, even if there is no demonstrable five-year land supply.

The Government will also update regulations to set a clear timetable for plan production – with the expectation that plans are produced within 30 months and updated at least every five years.  Currently only 39% of local authorities have an up-to-date plan in place.  The aim is that with this more streamlined plan-making system in place (along with the digitalisation of the planning system and additional resources generated by higher planning fees), this timetable will become achievable.

There is of course a danger that transitioning to a new system will, in itself, cause delay.  The Government’s intended changes to the NPPF and the new NDMP’s will be key to the effective implementation of the Bill and to minimising delay and uncertainty during the transition period.  We therefore look forward to consultation on these documents and will be keeping a close eye on the Bill as it passes through parliament.


* “national development management policy” is defined in the Bill as ‘a policy (however expressed) of the Secretary of State in relation to the development or use of land in England, or any part of England, which the Secretary of State by direction designates as a national development management policy’.