Planning Insights Bulletin - Nov 23

In this edition, we review:

• The Levelling-Up and Regeneration Act 2023
• Biodiversity Net Gain
• Planning Fees Increase on 6 December 2023

New legislation and changes to Government policy is having a major impact on the English planning system. The adoption of the Levelling-up and Regeneration Act 2023 and Environment Act in 2021, proposals for changes to UK net zero policy and updated details on nutrient neutrality mean that the planning system will remain a complex space for some time. 

Levelling-up and Regeneration Act 2023

The Levelling-up and Regeneration Act 2023 (LURA) came into force on 26 October 2023 after a protracted journey through Parliament.

Although the LURA includes a number of headline-grabbing changes to the planning system, it requires substantial secondary legislation and further policy-making before the majority of the changes come into effect.

Here are a few key matters to keep an eye on: 

• National Development Management Policy – a late amendment to the Act, requires the Secretary of State to have regard to climate change. As yet the substance of the policies has not been published but once in force, they will in many cases overrule policies in the local plan.
• Changes to the plan-making process – these will be subject to new regulations which are yet to be published. The intention is to deliver Local Plans within a 30-month timeframe. 
• Commencement and Competition Notices – In some cases Councils will have the power to force developers to complete developments. Councils will also have the right to decline to determine applications from developers who have persistently built out developments too slowly. These powers are effective in some cases from 26 December 2023. 
• Infrastructure Levy - a new levy to replace CIL and some financial contributions in s106. The previous consultation on this was controversial with further work anticipated. 

Key to much of this is a new version of the NPPF which is also yet to be published.

While the various amendments made possible by the LURA may have a positive impact on the planning system, as ever, the devil will be in the detail, much of which we are yet to see.

Future issues of this Bulletin will keep you up to date of the key developments and what they mean for your projects.

Biodiversity Net Gain

The Environmental Act 2021 aims to address the long-term decline of biodiversity by mandating developments achieve a minimum of 10% Biodiversity Net Gain (BNG). 

Key dates: 

• Most major developments: Starting from January 2024. 
• Minor sites: Starting from April 2024. 
• Nationally Significant Infrastructure Projects: Starting from 2025. 

Biodiversity Net Gain (BNG) will first avoid and then minimise the loss of nature as far as possible and achieve measurable net gains that contribute towards local and strategic biodiversity priorities. JLL is committed to helping clients understand the relationship between BNG and Local Nature Recovery Strategies (LNRS) for successful project delivery in 2024.

The offsetting hierarchy promotes the delivery of onsite habitats. Where this cannot be delivered, applicants may fund third parties in the vicinity of the application site to deliver offsets on their behalf. Where a third-party arrangement cannot be found, applicants can make use of a government sanctioned market of offsetting ‘credits’, the receipts from which will be used to deliver projects nationally. In many cases, purchasing such credits will present the most costly option; Statutory Biodiversity Units have given us an indication of the costs, and these are priced via a tier system (A1 to A5) which range in price from £42,000 to £650,000 per unit.

Further guidance and information is anticipated ahead of the requirement becoming mandatory in January. While the industry has been factoring in the requirements and costs of BNG for some time, we are now only a matter of weeks away from BNG becoming a reality.

Planning Fees

From 6 December 2023, planning application fees will be increasing. In summary:

• Increase by 35% for applications for major development
• Increase by 25% for all other applications.
• Introduce an annual indexation of planning applications fees, capped at 10%, from 1 April 2025.
• Remove the fee exemption for repeat applications -the ‘free-go’. An applicant will still be able to benefit from a free-go if their application was withdrawn or refused in the preceding 12 months, subject to all other conditions for the free-go being met. 
• Reduce the Planning Guarantee for non-major planning applications from 26 to 16 weeks meaning you can ask for a refund sooner.

Whilst the prospect of a fee increase has been known for some time, the actual implementation date has been brought forward from April 2024. Developers and planning consultants can consult the handy fee summary document published by the Planning Portal.

Initially the Government proposed that Council’s ringfence the receipts from planning fees in order to increase resources and improve the performance of planning departments. However, this has not carried forward, allowing Council’s to spend planning fee receipts as they see fit. As a result, despite paying more for planning applications, developers may not necessarily see any benefit in terms of easing the burden on increasing stretched planning departments.

To discuss any of the matters discussed above or any other recent and upcoming changes to the planning system, please contact the team.