News Type: Legislation Update

Ahead of the upcoming Biodiversity Net Gain (‘BNG’) obligations, whereby from November 2023 applicable development must include a mandatory 10% net increase in biodiversity, Defra has now (February 2023) issued new guidance containing a number of important headlines for both developers and Local Authorities. The Government has simultaneously published their response to the BNG regulations and implementation consultation that ran last year. We have summarised the key points below:

Small Sites given grace period until April 2024

Of most significance, in an attempt to lessen initial burdens placed on Local Planning Authorities (LPAs), it has been confirmed that there will be a transition period for BNG mandatory requirements for ‘Small Sites’, which will now be enforceable five months later than originally intended, with this obligation now commencing from April 2024. Small Sites are defined as:

– For residential: Proposals in which the number of dwellings is between 1-9 on a site less than one hectare (1ha), or when the number of dwellings is not yet known, on a site area of less than 0.5ha;

– For non-residential: Where the floorspace to be created is less than 1,000 square metres, or where the site area is less than 1ha.

This phased introduction is a positive compromise for LPAs, many of whom remain challenged for resources, and can also be considered a welcome adjustment for developers, who are still awaiting final instructions from further guidance and secondary legislation. This phased introduction therefore provides developers with an opportunity to learn from the experience of larger developments and to apply best practice. It is understood that further guidance will be issued in the coming months in this respect.

Exemptions to the legislation

In terms of exemptions, development schemes that impact a small habitat (25sqm, or 5m for linear features such as hedgerows), along with householder applications and biodiversity gain sites (such as habitat land banks) will not be subject to BNG legislation. The update further confirms that small-scale self-build homes and custom house building will also be exempt. It has been clarified however that proposals within statutory designated sites for nature conservation will not be exempt.

Nationally Significant Infrastructure Projects (NSIPs)

It has been confirmed that BNG requirements for NSIPs will still come into force two years later in November 2025, to provide significant time for developers to prepare. Nevertheless, developers are encouraged to adopt BNG earlier on a voluntary basis where possible.

Biodiversity gain plan template

When the legislation comes into play in November, a new document will be required alongside applicable planning submissions called a BNG Statement, which must detail biodiversity gain in relation to proposed development. As we’ve discussed in previous BNG updates, the final Decision Notice will then include a standard pre-commencement BNG condition which will require submission of a biodiversity gain plan via a discharge of condition application to be approved prior to the commencement of development. The final biodiversity gain plan template is still outstanding. It is also understood that additional biodiversity gain information will be required for phased development to confirm how biodiversity gain will be achieved across the whole site across each phase.

Securing sites for more than 30 years

Under the proposed legislation, it is intended that biodiversity gain sites are secured for a minimum period of 30 years. In terms of next steps following the end of requisite 30-year period for the biodiversity gain site, a landowner would then be likely to be able to consider other available incentives to maintain or further enhance the site. The Government will consider how to incentivise retention of biodiversity gains once legal agreements expire.

Biodiversity units

As previously proposed in the Government consultation, any landowner or manager will be able to create or enhance habitat for the purpose of selling biodiversity units, subject to caveats including demonstrating no significant adverse impacts on priority habitats. Developers will be able to purchase biodiversity units anywhere in England, albeit the use of the units must be appropriate to the development proposal and the distance between the development and the off-site habitat must be robustly addressed in the biodiversity metric. Developers will be also able to sell excess biodiversity units as off-site gains for other development, however this excess gain must be registered.

The new guidance also identifies that a centralised trading platform for biodiversity units will not be created and that the price of units will be determined through negotiations between the buyer and seller, with price likely to vary across habitat type and location.

Habitat banking

The Government does not envisage setting a time limit on how long biodiversity units can be banked before they are allocated to a development. When biodiversity units are sold to a developer, the associated parcel of land within the habitat bank would need to be secured by a legal agreement and registered prior to approval of the biodiversity gain plan for the associated development.

The biodiversity gain site register

Natural England will assume the role as the Biodiversity Gain Site Register Operator, tasked with recording allocations of off-site biodiversity gains. Land can be registered as a BNG off-site  from November 2023 and there will be a fee for registering.

Statutory biodiversity credits

As an introductory measure, Natural England will sell statutory biodiversity credits on behalf of the Secretary of State, but this is designed to be a last resort. The biodiversity credit system enables developers to buy credits if required net gains cannot be achieved on-site or through the off-site market. These credits will then be invested in habitat creation. It is intended that the use of statutory credits is minimised with gradual phasing out once the biodiversity unit market has matured in due course. An indicative credit price will be published six months prior to BNG becoming mandatory, with the price to be reviewed bi-annually moving forwards.

Section 73 permissions and 12 month timeframe for delivery of on-site BNG

Other practical clarifications set out in the new guidance include confirmation that Section 73 permissions granted after November 2023 will not be subject to BNG requirements, providing the original permission was not. The Government also acknowledged concerns regarding the previous proposal of on-site biodiversity gains to be secured within 12 months of commencement of development being unreasonable and unachievable for more complex sites. It is therefore expected that there will be a rebuttable presumption in respect of this requirement: the starting point will be 12 months post development, with developers potentially able to challenge where this is not possible on a case by case basis. Again, further detail is expected to follow in respect of this.

LPA Funding

In recognition of the extent of excess workload placed on Local Authorities as a consequence of the proposals, the Government has announced a further funding provision of £16 million from Defra to be made available to support LPAs with this transition in terms of expanding resources and upskilling teams to increase their capacity. It is not yet clear when this funding will be made available.

Further information required

Whilst the newly published consultation outcome and Defra guidance provides further insight and some welcomed flexibility in terms of Small Sites, there remains a significant level of detail still awaited which is expected to be published in phases in the coming months.

At present, secondary legislation is still outstanding, which, in particular, will provide a clear definition of what is defined as ‘irreplaceable habitat’, and a list of habitats to be considered irreplaceable. Further stakeholder engagement will be undertaken prior to BNG becoming mandatory, including discussion on how BNG will marry with the minerals industry. It is also understood that the latest version of the tool developed by Natural England to measure BNG, the biodiversity metric 4.0 , will be made available later in 2023, which is anticipated to become the statutory metric once BNG becomes mandatory. Finally, it is understood that policy will be developed for minor development exempt from mandatory net gain (i.e. householder and de-minimis development) to secure proportionate on-site biodiversity enhancements where possible.

Conclusion

The commencement of BNG in practice will undoubtedly require an adjustment period for LPAs and applicants alike. The new guidance can be considered to provide a helping ‘stepping stone’ for the new legislation for both developers and authorities, and can be considered to provide some useful extra clarification whilst full legislation is awaited. Advocates of BNG are likely to welcome these mandatory measures as facilitating a nature boost to house building and providing a lifeline in terms of reversing species decline.

Firstplan continues to closely monitor for additional guidance and legislation expected over the coming months and we will provide further updates in due course.

 

-The Press Release is available at: https://www.gov.uk/government/news/new-developments-to-deliver-for-people-and-nature

-The Government’s Response to BNG Consultation is available here: https://www.gov.uk/government/consultations/consultation-on-biodiversity-net-gain-regulations-and-implementation/outcome/government-response-and-summary-of-responses

-BNG guidance is now available here: https://www.gov.uk/government/collections/biodiversity-net-gain

-Guidance on how to sell biodiversity units as a land manager is available here: https://www.gov.uk/guidance/sell-biodiversity-units-as-a-land-manager

-Guidance on Combining Environmental Payments: BNG and nutrient mitigation is available here: https://www.gov.uk/guidance/combining-environmental-payments-biodiversity-net-gain-bng-and-nutrient-mitigation

-Guidance on Biodiversity metric is available here: https://www.gov.uk/guidance/biodiversity-metric-calculate-the-biodiversity-net-gain-of-a-project-or-development

 

Article by Claire Stafford

Within a Written Ministerial Statement published on 6^th December, the Government announced additional measures to be implemented alongside the Levelling Up and Regeneration Bill with a focus on placing local communities at the heart of the planning system. This follows on from the measures set out within the Bill when previously announced by the Government on 11^th May 2022.

The latest announcement concentrates on delivering a number of commitments previously announced in the summer, including suggested reforms to housing target requirements.

The Secretary of State for Levelling Up, Housing and Communities, Michael Gove’s, recent press release stated that: “We have an urgent need in this country to build more homes so that everyone – whether they aspire to home ownership or not – can have a high-quality, affordable place to live. But our planning system is not working as it should.”

Currently, England has a target of delivering 300,000 homes a year, however the Secretary of State, has suggested that this figure should be used as an ‘advisory’ guide, instead of a mandatory target. If this reform is indeed forthcoming, it would allow Councils greater flexibility in meeting their individual housing targets should they face genuine constraints.

Additional measures within the Bill also being considered and consulted on include:

 

– Abolishing the obligation for local authorities to maintain a rolling five-year housing land supply where their local plans are considered up-to-date and to also remove the requirement for a 20% buffer for both plan and decision-making. Those authorities with existing, up-to-date plans will benefit from this, however authorities with local plans at an advanced stage will be able to benefit from transitional changes.

– Increasing community protections and powers afforded by neighbourhood plans against appeals by increasing these protections where the plan has evidently been part of the wider development plan for five years or less, instead of two. Furthermore, the Government will be consulting on certain areas which will be in scope of the new National Development Management Policies, and each new policy will be consulted on before it is brought forward.

– Consultation on the possibility of increasing planning fees, including the doubling of fees for retrospective applications in instances where breaches of planning have occurred. This also includes a new planning performance framework which will seek to monitor local performance across a wider set of measures of planning service delivery, which will include enforcement.

– Various measures to help ensure developers proceed in building out and implementing planning permissions that have already been granted by allowing local authorities to refuse applications submitted by developers who have a history of slow build-out and by also making sure local authorities grant that have granted permissions are not penalised by the housing delivery test as a result of slow build-out by developers.

– Consultation on a new financial penalty approach in order to accelerate the speed at which permissions are built out.

– A new Infrastructure Levy to be set by local planning authorities, which will enable them to set differing Levy rates across differing area of the authoritative boundaries. This could, for example, introduce lower rates on brownfield land, in a bid to try and increase brownfield development.

– Proposal of a registration scheme for short-term lets and tourist accommodation, and consideration as to whether homeowners should be required to apply for planning permission to rent out their properties as short-term holiday lets, such as Airbnb’s.

 

The Secretary of State has also commissioned the Competition and Markets Authority to undertake a market study on the housebuilding industry, an update for which is understood to be provided early next year.

Concluding remarks made by Gove has sought to summarise the proposed changes above, in that: “No planning reforms will ever be perfect, but I judge that the Bill, alongside the broader policy changes that I am proposing above, will leave us with a significantly improved planning system than the status quo.”

It will be interesting to understand the implications this will have for the housebuilding and construction industries, as well as for local planning authorities. Firstplan are closely monitoring the Levelling Up and Regeneration Bill as it continues its journey through Parliament and will continue to provide further updates.

A link to the latest Written Ministerial Statement can be found here: Written statements – Written questions, answers and statements – UK Parliament

 

Article by James Emblin

The Secretary of State (SoS) for Levelling Up, Housing and Communities has, at the end of July, directed that Article 4 Directions be modified which restrict Class MA permitted development rights (PDRs) made by Westminster, RBKC, Richmond on Thames and Wandsworth Councils.

As a recap, Class MA PDRs came into force on 1st August 2021, and, subject to Prior Approval, allow for the change of use of a building and any land within its curtilage from a use falling within Class E (Commercial, Business and Service) to residential (Use Class C3). Class MA replaces the previous commercial to residential PDRs including Class O (Office to Residential) and Class M (A1 shops and A2 financial and professional services to Residential), which have since expired.

These significant provisions were seen to provide wide-ranging opportunities for under-used or vacant town centre and strategic sites following the introduction of the newly formed Class E use in September 2020 which encompasses a raft of uses. The PDR allows for a more streamlined process with greater planning certainty and was intended by Central Government to support economic recovery, rejuvenate and diversify high streets through better use of vacant premises and to encourage sustainable use of brownfield sites.

Nevertheless, as predicted, numerous Councils have subsequently sought to restrict this through the imposition of non-immediate Article 4 Directions (most of which are due to come into force now – a year later). A number of London Councils have gone down this route, principally owing to concerns over the loss of business space in town centres and employment locations, with several authorities seeking to cover their administrative areas.

Westminster City Council

Westminster City Council first made a direction on 14th July 2021 under Article 4(1) of the General Permitted Development Order removing Class MA for the majority of the Westminster Central Activities Zone (CAZ). The Article 4 direction was due to come into force on 1st August 2022 and would mean proposals for conversion from Class E to residential would require planning permission and, crucially, relevant development plan policies would apply.

Nevertheless, the SoS has seen fit to modify this Direction, overruling the Council’s proposals to determine that the Direction must cover a smaller geographical area.

The SoS has, within his letter, quoted Paragraph 53 of the NPPF which stipulates Article 4 Directions should be limited to:

• “…situations where an Article 4 direction is necessary to avoid wholly unacceptable adverse impacts (this could include the loss of the essential core of a primary shopping area which would seriously undermine its vitality and viability, but would be very unlikely to extend to the whole of a town centre);
• In other cases, be limited to situations where an Article 4 direction is necessary to protect local amenity or the well-being of the area (this could include the use of Article 4 directions to require planning permission for the demolition of local facilities);
• In all cases, be based on robust evidence, and apply to the smallest geographical area possible”.

The SoS goes on to state that:

“The Article 4 direction, as made, does not take a sufficiently targeted approach in the assessment of the wholly unacceptable adverse impacts of the permitted development right in each location. Such an approach is necessary to ensure that Article 4 direction applies only to the smallest geographical area possible. I am therefore of the view that the boundary must now be modified in accordance with the notice attached to this letter”.

“This will ensure that the Article 4 Direction is focused on protecting the most significant clusters of commercial activity where the permitted development right would have a wholly unacceptable adverse impact. It covers core locations within town centres with continuous ground floor frontages, Special Policy Areas that offer a unique mix of commercial uses and mature Opportunity Areas that have delivered high levels of commercial floorspace in the last decade”.

These modifications will ensure that the Article 4 Direction boundary for areas within the Westminster Central Activities Zone is justified by robust evidence and complies with national planning policy”.

As such, with immediate effect, Class MA PDRs are now restricted only within specific areas and streets within Westminster.

Nevertheless, as per the site boundary revision, Class MA Prior Approval applications can now be made within certain areas of the CAZ, affording a range of opportunities. Westminster is also proposing a separate Article 4 Direction for high streets outside of the CAZ, and which the Council intends to formally introduce in December 2022 (12 months after it was made).

RBKC

The Royal Borough of Kensington and Chelsea (RBKC) made a Direction on 20th July 2021 for the entire administrative area to be covered by an Article 4 Direction.

The SoS saw it necessary to amend the location of the Direction on 22nd July 2022 to:

“… ensure that the Article 4 Direction is focused on protecting the most significant clusters of commercial and, where appropriate, other activity where the permitted development right would have a wholly unacceptable adverse impact. It covers core locations within larger town centres, important neighbourhood centres, Employment Zones, clusters of office and light industrial uses across the borough and valued medical uses and creches outside of our town centres”

Richmond on Thames

Richmond on Thames applied on 30th July 2021 for 67 sites to be covered by an Article 4 Direction restricting Class MA.  The SoS has since, on 22nd July 2022, reduced the extent of the Direction, which will come into effect on 31st July 2022.

Wandsworth

Wandsworth applied for an Article 4 Direction on 30th July 2021 to cover the CAZ (Nine Elms) and 62 other sites. The SoS has since reduced the extent of the area covered.

Summary

In summary, it appears that Central Government will be steadfast in their stance that Article 4 directions should be limited to precise and small geographical areas to encourage the intended benefits of the PDR, such as providing a level of flexibility within the planning system to help smaller buildings which can more easily change their use and to help increase housing supply via a more straightforward approach.

It will be very interesting to see where else the SoS will see fit to intervene regarding Class MA Article 4 Directions, particularly considering the legal challenge to revoke Class MA launched by Islington Council.

Given that certain areas of the Westminster CAZ have now been removed from the now live Article 4 Direction, and prior to the implementation a Direction affecting other Westminster high streets in December, there could be some opportunities in the next few months to benefit from these PDRs as Central Government intends.

Firstplan are continuing to monitor the progression of Article 4 Directions across London and elsewhere. Please contact a member of the Firstplan team to discuss opportunities afforded by this PDR and clarification on where the Article 4 Directions do and don’t apply.

 

Article by Claire Stafford

On Friday 22nd July 2022, the Government announced that the temporary pavement licence provisions allowing pubs, cafes, bars, and restaurants to provide furniture on pavements and pedestrianised roads adjacent to their premises for a capped fee of £100 would be extended by a further year until 30th September 2023.

The fast-track application process was due to come to a close at the end of September 2022 but has been extended by an additional year whilst further permanent legislation is being prepared. The changes are expected to become permanent in Spring next year when the Government will introduce additional legislation through the Levelling up and Regeneration Bill.

Firstplan will continue to monitor this on behalf of our clients, but in the meantime this extension will ensure businesses can continue to operate under temporary provisions until permanent changes become law next year. This will no doubt come as welcome news to many operators as it reduces the time and cost associated with the provision of outdoor dining and drinking at their premises.

The Levelling Up and Regeneration Bill will see the replacement of existing EU-generated Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments with new government-created Environmental Outcomes Reports.

The Bill is intended to build upon the Environment Act 2021 by improving ‘the process used to assess the potential environmental effects of relevant plans and major projects, through a requirement to prepare ‘Environmental Outcome Reports’ (EOR’s).  Importantly, the Bill also creates a duty on the Secretary of State to ensure that the new system of environmental assessment does not reduce the overall level of environmental protection.

So, what are Environmental Outcomes Reports and what is the idea behind their introduction?

EORs represent a switch to an outcomes-based approach allowing the government to set ‘clear and tangible environmental outcomes which a plan or project is assessed against.’   These outcomes will be subject to consultation and ​parliamentary scrutiny prior to adoption and will also need to have regard to the Government’s environmental improvement plan (currently its 25-Year Environment Plan).

The idea is that EORs will be a much simpler, less bureaucratic system whereby environmental effects are measured against (soon to be agreed) environmental outcomes.

The Bill allows the Secretary of State to make new regulations requiring the preparation of EORs in respect of ‘relevant plans’ and ‘relevant consents’.

The EOR must:

– demonstrate how the plan or consent would effect the delivery of specified environmental outcomes as defined in regulations.

– assess any steps proposed to avoid, mitigate, remedy or compensate (the mitigation hierarchy) effects relating to the delivery of a specified environmental outcome.

– consider reasonable alternatives to the consent or plan.

– include an assessment of how matters raised through assessment are monitored or secured.

In terms of decision making, the Bill allows the Secretary of State to set the extent to which EORs are taken into account. The Bill’s Explanatory Note states that:

‘While Environmental Outcomes Reports must always be taken into account when prepared, the Secretary of State would have the power to make regulations that increased the weight afforded to an Environmental Outcomes Report. This would, for example, allow the Secretary of State to make regulations specifying that a decision-maker should, in certain circumstances, give increased weight to the findings of an Environmental Outcomes Report when considering whether to grant a consent’.

Regulations are to be drawn up setting out which ‘relevant consents’ will require EORs (‘Category 1’ consents will always require an EOR, whereas ‘Category 2’ consents will only be required to produce an EOR where it meets certain criteria to be set out in the new regulations).

The Government’s objective with the introduction of this new system is to ‘turn passive assessment into a more active tool to support environmental regeneration’.  Effective monitoring and enforcement is key to this and, as such, the Bill allows for regulations to be made to enable action to be taken where monitoring shows that the expect delivery of an outcome is not being met.

At present, detail relating to how EORs will operate in practice is subject to future consultation and secondary legislation.  However, the principle of replacing the EIA and SEA system with the new ‘outcomes-based’ system certainly represents a significant change, which will require careful drafting and implementation.

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’.  

 

As confirmed as part of the Queen’s Speech on 11^th May 2022, the Government is to introduce the new planning reforms through its Levelling Up and Regeneration Bill. The Bill itself proposes various measures to transform and improve the planning system. One of the new key measures involves various changes to the enforcement process in an attempt to make the process more efficient and close existing loopholes which can be exploited to prolong unauthorised development. The Bill notes that it will ‘amend and strengthen the powers and sanctions available to local planning authorities to deal with individuals who fail to abide by the rules and process of the planning system’.

The proposed changes to the enforcement regime are summarised below:

– Extension to the period in which enforcement action will be taken to ten years in all cases, thereby removing the current four-year rule which applies to development consisting of building, engineering, mining or other operations and the change of use of any building to a single dwellinghouse. (This applies to England only.  The four year time limit will be retained in Wales).

– Introduction of enforcement warning notices which provide a new power for local planning authorities in England to use where they become aware of an unauthorised development that has a ‘reasonable prospect of being acceptable in planning terms’ i.e. that it could be regularised via the submission of a planning application within a specified period.  The enforcement warning notice will require a retrospective application to be submitted in a specified time, otherwise further enforcement action will be taken.

– Increased fines associated with certain breaches of planning in England.  The existing cap on the fine for failure to comply with a breach of condition notice and failure to comply with a section 215 notice (maintenance of land) is removed.  In addition, fees for retrospective applications are to be doubled.

– Extension to the time period for temporary stop notices from 28 to 56 days.

– Providing the Planning Inspectorate with the power to dismiss certain appeals in England where undue delay is caused by the appellant.  In such cases, the appellant would be notified that the appeal may be dismissed unless steps specified in the notice are taken within a specified time.

– Tightening of the scope of appeals against enforcement notices to allow only one opportunity to obtain retrospective planning permission.

– Enabling temporary relief for enforcement action against prescribed planning conditions, and, where necessary, to remove constraints on operations (e.g. for construction and delivery times).

A high-level summary of all of the proposed changes in the Bill can be found using the following link: Levelling Up and Regeneration: further information – GOV.UK (www.gov.uk), with further detail provided within the Bill document itself.

Firstplan will be continuing to publish additional briefing notes on the changes, as well as on any forthcoming updates as they are made available. In the meantime, should you have any queries regarding the proposed reforms, or the enforcement process in general, please contact one of the Firstplan team.

 

Article by James Emblin

The Levelling Up and Regeneration Bill (all 338 pages of it) was published yesterday (11 May 2022).  Whilst the proposed planning reforms contained within the Bill do not fit within the ‘rip it up and start again’ category (as promised in the 2020 White Paper), the measures are nonetheless sufficient to still be classed as ‘reforms’ – albeit it of the lighter-touch variety.

Many of the proposed measures will require secondary legislation, so much of the Bill sets out the changes at a high level.  The detail of each of the measures will be all important, and we will update you further as these emerge.  In the meantime, we briefly outline below some of the key measures:

– A digital transformation – one of the sole survivors of the White Paper, the Bill includes measures to digitalise the planning process, including powers to set common data standards and software.
– Changes to the enforcement regime – Without an effective enforcement process, the planning system does not work.  In recognition of this, the Bill proposes various measures to improve the current system, including extending the period for taking enforcement action to ten years in all cases (i.e. removing the current ‘four-year rule’ which applies to some specific types of development) and increasing fines for certain planning breaches.
– Streamlining Local Plans – 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.  The suite of National Development Management Policies will have the same weight as plans and Local Plans will not be able to repeat them. Local planning authorities will also have powers to prepare ‘supplementary plans’ where policies for specific sites or groups of sites need to be prepared quickly.  It is not clear as yet what implications these changes will have on emerging Local Plans.
– The Bill also tweaks the current test for the determination of planning applications to give more weight to Local Plans, confirming any planning application in England ‘must be made in accordance with the development plan and any national development management policies, unless material considerations strongly indicate otherwise’.  
– A new Infrastructure Levy – The Bill replaces the current s106 and CIL system for securing developer contributions with a ‘simple, non-negotiable, locally set Infrastructure Levy’.   Section 106 agreements will be retained in some, more targeted form.  It remains to be seen if it is indeed possible to design a ‘simple’ levy – which is perhaps why the government is proposing a ‘test and learn’ approach to its introduction.
– Street Votes – The idea that took the headlines.  The Bill allows for regulations to be made for a system that permits residents of a street to proposed development on their street and determine, by means of a vote, whether that development should be given planning permission.
– Environmental Outcome Reports – It is proposed to replace Strategic Environmental Assessments and Environmental Impact Assessments with ‘Environmental Outcome Reports’.  The idea is to create an ‘outcome-based approach’, allowing the government to reflect its environmental priorities directly in the decision-making process.
– Heritage protection – The Bill includes further measures to further protect the historic environment with, among other measures, designated heritage assets, such as registered parks and gardens, to be given the same statutory protection in the planning system as listed buildings.

This summary does not detail of all the planning reform measures in the Bill but does give a flavour of some of the key changes.  We will be publishing further briefing notes over the coming days covering the various proposals in more detail.   In the meantime, if you have any queries regarding the proposed planning reforms, please feel free to contact one of our team.

Biodiversity Net Gain (BNG) is on its way, and now is the time to understand and start planning for its impact on development!

BNG represents a fundamental change to the planning system and, once in force, will be a mandatory requirement for the majority of development proposals.  Getting an efficient, transparent, and accountable BNG system up and running nationwide will be no easy task.  In practical terms, it will require new secondary legislation.  More significantly, BNG will also require the creation of an entirely new market where biodiversity units can be created and sold, as well as developing the skills and resources across the sector needed to implement the requirement.

DEFRA has recently concluded their consultation on BNG Regulations and Implementation.  Until the Government issue their response, there remains some uncertainty regarding the details of how BNG will work when it is introduced in November 2023 following the transition period.  Nevertheless, it is important that all those involved in the planning process seek to use the intervening period to get to grips with the challenges and opportunities presented by BNG.   Here we briefly outline how BNG is likely to work, and highlight some of the specific considerations for developers.

What is BNG?
BNG is a mandatory requirement introduced by the Environment Act 2021 that requires developers to ensure new proposals feature at least 10% improvement to biodiversity.  The Environment Act, and therefore BNG, only applies to England.

Biodiversity Net Gain (BNG) is ‘an approach to development, and/or land management, that leaves nature in a measurably better state than beforehand’.  The key word here is measurable.  BNG takes a standardised, quantifiable approach to habitat enhancement based on a biodiversity metric and the approval of a Biodiversity Gain Plan.  Any BNG must be guaranteed for 30 years, which will be secured by a Section 106 agreement or ‘conservation covenant’.  Importantly, any BNG requirement will be paid for by the developer.

Which development will need to provide BNG?
It is currently proposed that almost all applications in England will require BNG, including small sites.  Exemptions are likely to be limited to:

– Developments impacting habitats below a de minimus (minimal) threshold
– Householder applications
– Change of use applications

Permitted development (PD) is also exempt (which may be an influencing factor in deciding whether permission for a proposal is sought via the PD or planning application route).

It is currently proposed that brownfield sites will be subject to BNG.  However, there are calls (including from the RTPI) for the Government to exempt brownfield sites as the requirement may deter regeneration efforts.  In some cases, the biodiversity value of a brownfield site can be surprisingly high, particularly if a site has laid vacant for several years and flora and fauna have become re-established.  There are also likely to be limited opportunities for on-site or nearby off-site biodiversity compensation in urban areas.

It is currently proposed that smaller developments will remain within the scope of BNG (albeit subject to a simplified biodiversity metric).  However, DEFRA have sought views on this and there may yet be changes, with possibilities such as a longer transition time being considered.

When will BNG come into force?
Mandatory BNG is set to come into force for all applications submitted in England in November 2023 (with the exact date to be confirmed).  The transition period for Development Consent Orders (DCOs) is longer and will take effect in November 2025.

November 2023 is only 18 months away and, for many proposals, particularly larger scale ones, developers may already be assessing potential sites and/or in the early design stages of a project. It is therefore important that BNG is considered now as there may be a need to secure additional land and/or account for the cost of purchasing credits.

Furthermore, as BNG is already encouraged in the National Planning Policy Framework (NPPF), and an increasing number of local authorities have their own Local Plan policies in place (in some cases, these local policies exceed the statutory 10% requirement), we are finding that BNG evidence is being requested more frequently by LPAs to inform planning applications.

How BNG works
At the heart of BNG is the mitigation hierarchy. Developers should do everything possible to first avoid and then minimise impacts on biodiversity. Only as a last resort, and in agreement with the LPA where possible, should developers seek to compensate for losses that cannot be avoided.

It is particularly important to avoid any impact on ‘irreplaceable’ biodiversity, as the Environment Act includes provision to exempt irreplaceable habitats from the mandatory BNG requirement.  The NPPF already includes a list of ‘irreplaceable habitats’ such as ancient woodland and blanket bog, but this list is not exhaustive. Natural England is therefore expected to issue draft guidance on what is considered a definitive list shortly (by Summer 2022).  Clearly, if a potential development site includes any irreplaceable habitat, this should be highlighted as a planning risk at the site selection stage.

Biodiversity compensation for any loss as a result of development can be delivered on-site, off-site or via a new statutory biodiversity credits scheme (the latter being set up by the Secretary of State).

The priority will always be for on-site delivery.  This is likely to have implications in the design and viability of any scheme, so should be considered at an early stage (and indeed, the costs associated with providing BNG compensation could feed into negotiations with the relevant LPA regarding other s106 contributions).  It is possible to mix on-site and off-site BNG provision. Land nearby the application site will being afforded more value than land further way.  All off-site gains must be delivered within England.

Developers should be aware that the Government’s statutory biodiversity credits will only be available as a last resort and will be deliberately set at a high price to try and kickstart (and not undermine) the BNG market.  Biodiversity credits will therefore not be an easy ‘go-to’ option to meet BNG requirements – although, in some cases, they may be the only option whilst the BNG market becomes established.

The BNG requirement will be framed as a pre-commencement condition, meaning that the biodiversity gain condition must be discharged before development can begin. To discharge the condition, the planning authority must approve the development’s Biodiversity Gain Plan.  Biodiversity Gain Plans will therefore increasingly become a common submission document in support of a planning application (with the planning application or at the condition stage).

How is BNG measured?
BNG is measured using the Biodiversity Metric developed by Natural England (Natural England has just released Version 3.1 of the Metric).

This standard industry metric is used to measure, and give a score to, the existing baseline condition of a site i.e. the ‘pre-development value’.  The metric is then used to predict the future biodiversity value, including any contributions provided by creating or enhancing habitats offsite i.e. the ‘post development value’.

The ‘pre-development value’ is calculated using three site-specific factors:

1. a ‘distinctiveness’ score which gives a score to the type of habitat e.g. modified grassland has a “Low” distinctiveness score, lowland meadows are “Very High”;
2. a ‘condition’ score – a score based on the biodiversity value of the habitat relative to others of the same type; and
3. a strategic significance – a score based on whether the location of the development and/or off-site work or the habitats present/created have been identified as significant for nature.

The site area is multiplied by these factors to give a ‘biodiversity unit score’.

The above calculation is repeated for the ‘post-intervention’ scenario, with three further factors discounted:

1. difficulty of creating or restoring/enhancing a habitat;
2. a temporal risk i.e. how long the habitat takes to establish and reach a target condition; and
3. a spatial risk – the closer the enhanced habitat to the site, the better the score.

The ‘post-development score’ needs to be at least 110% the number of pre-development units in order to meet the mandatory BNG requirement.

A key rule for using the metric is that habitats cannot be ‘traded down’.  The loss of habitats needs to be compensated for on a ‘like for like’ or ‘like for better’ basis.

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Site Area x (distinctiveness x condition x strategic location) = Pre-development score

 

Site Area x (distinctiveness x condition x strategic location) 

discount – (difficulty of creation / time until target conditions / distance from site) 

= Post-development score 

 

Post-development score – pre-development score = Biodiversity Net Gain

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From a developer’s perspective, it is important to have a clear understanding of a site’s baseline position at an early stage – ideally at the site acquisition stage.  This will enable the developer to know the level of post-intervention biodiversity compensation required and to then either design this into proposals or to start looking at off-site options.  It will also form the basis of any Biodiversity Gain Plan.

Whilst the Biodiversity Metric 3.0 is designed to quantify BNG, there remains an element of professional judgement, particularly if a site does not fit neatly into the metric.  Early input into a development from an experienced ecologist can therefore pay dividends in the longer term.

Developers should also be aware that the biodiversity metric scoring system provides an incentive for the advanced creation of habitats or ‘habitat banking’ – again, another reason that it may be beneficial to consider BNG sooner rather than later in the development process.  There may also be opportunities for developers to sell on or ‘bank’ any biodiversity units should a development create a surplus.

BNG will no doubt continue to evolve until it comes into force in November 2023.  In the meantime, we trust this is useful in giving you a flavour of BNG and the potential implications for developers.  Should you have any specific questions, please feel free to get in touch with one of the Firstplan team.

Temporary permitted development rights (PDR) which were introduced in April 2021 and which enabled the provision of moveable structures within the curtilage of pubs, cafes, restaurants and historic attractions without the need for planning permission, have now been made permanent.

In light of the previous Covid restrictions and the subsequent reduction in footfall in town centre areas, the temporary measures enabled establishments to still operate in the pandemic, providing a vital boost for struggling businesses. 

As stated by Housing Minister Christopher Pincher ‘Making these measures permanent will help business and communities to build back better from the pandemic’, with hospitality businesses now able to install a gazebo or marquee year-round, thereby helping them to make better use of their outside space.  

The Town and Country Planning (General Permitted Development) (England) (Amendment No. 3) Order 2021 came into force in January 2022. The newly inserted Class G of Part 2 permits ‘the provision of one moveable structure within the curtilage, and for the purposes, of a building used for a purpose within: 

(a) article 3(6)(p) or (q) (drinking establishments etc.) of the Use Classes Order(3); or 

(b) Class E(b) (sale of food and drink etc.) of Schedule 2 to that Order.’ 

There are a number of restrictions attached to Part G which seek to address any potential amenity and visual impacts, including limits on the height and scale of the structures.   In addition, development will not be permitted where a movable structure would be within 2 metres of the curtilage of any adjacent land that is used for a purpose within Part C (residential uses).

It is important to highlight that structures need to be placed on land within the curtilage of restaurants and pubs; however, these provisions will not apply to many town centre venues that do not benefit from forecourts, yards and gardens. It is currently unclear whether the Government will be proposing any new relaxations for the placement of tables and chairs and structures on the public highway, as it did in 2021.

Class BB of Part 4 ‘moveable structures for historic visitor attractions and listed pubs, restaurants etc’ allows historic visitor attractions and hospitality businesses operating in listed buildings to install a moveable structure for 120 days in a 12-month period, subject to prior approval in respect of siting and installation method. The new legislation is intended to provide additional flexibility while minimising the impacts on heritage sites.

The Government has also taken the opportunity to make permanent PDR’s which enable Councils to hold outdoor markets for an unlimited number of days, including the provision of movable structures related to this use (under Class BA of Part 12, Schedule 2 of the GDPO). The right excludes markets on sites designated as Scheduled Monuments and Sites of Special Scientific Interest.

The introduction of these PDR’s on a permanent basis will no doubt come as welcome news to the hospitability sector, where reliance on outdoor trade can be a key issue.

 

Article by Joshua Hindle