3. Planning update
3.1 Biodiversity
- Biodiversity net gain: The current policy in the National
Planning Policy framework ("NPPF") and supporting
planning practice guidance is that the planning system in England
should provide biodiversity net gains where possible. It sets out a
biodiversity mitigation hierarchy for local planning authorities
("LPAs") to consider when determining planning
applications, which requires that significant harm to biodiversity
should be firstly avoided, by locating the development on an
alternative site with less harmful impacts; secondly, adequately
mitigated; and finally, compensated, as a last resort. If none of
these can be achieved, the application should be refused. The new
Schedule 7A of the Town and Country Planning Act ("TCPA")
1990 (which is not yet in force) set out a new general condition to
all planning permissions granted in England, subject to exceptions.
The condition requires a biodiversity gain plan to be submitted and
approved by the LPA before development can lawfully commence. The
plan should contain an assessment of the value of natural habitats
both before development and after development, and ensure that at
least a 10% net gain is achieved either on site or offsite.
Importantly, the 10% figure is a minimum – some LPAs will be
seeking a higher percentage (in some cases double) in their
emerging or adopted Local Plan policies.
Enshrining the principle of biodiversity net gain within the planning system represents a significant step forward in recognising the need to mitigate the effects of new development on the natural environment. With the requirements kicking in in November 2023, there is a pressing need for meaningful engagement with LPAs to ensure that the condition can be met and that delays to the start of development are avoided. Third party approvals for pre-commencement condition requirements represent a real development risk and delays can prove costly.
- On 2 February 2023, Natural England published a new tool to
help towns and cities turn greener. Aimed at LPAs and developers,
the Green Infrastructure Framework aims to help
increase the amount of green cover in urban residential areas.
Delivering on a commitment first set out in the Government's 25 Year Environment Plan our
briefing on which is here, the Framework highlights the importance
of good quality Green Infrastructure. There is a focus on improving
"health and wellbeing, air quality, nature recovery and
resilience to and mitigation of climate change, along with
addressing issues of social inequality and environmental
decline". Traditionally, some developers may have resisted the
provision of Green Infrastructure, focussing on costs and impact on
viability. However, the Framework highlights a better understanding
of the inherent benefits that flow from the provision of Green
Infrastructure in developments, and the key role that it plays in
creating healthy and sustainable new communities.
- Defra published the delayed Environmental Improvement Plan for England on
31 January 2023. This sets out a delivery plan for the
Government's approach to halting and reversing the decline in
nature over the next five years. However, most of the items on the
plan are already required by existing legislation or are being
developed under other policies.
- Defra published a short guidance note on 2 May 2023 advising
developers as to what they can count towards their biodiversity net
gain. Essentially, if they are creating or enhancing habitat as
part of a development, this could count towards its biodiversity
net gain even if the habitat is required for the development in
order to comply with a statutory obligation or policy (such as
sustainable drainage); to provide river basin management plan
mitigation and enhancement measures; or to provide mitigation or
compensation for protected species or sites. Off-site mitigation
and compensation for protected sites and species may also count,
provided that off-site units are legally secure for at least 30
years, and registered, but at least 10% of the biodiversity net
gain should be provided through other activities, for example,
on-site habitat creation and enhancement. Habitat creation or
enhancements do not count if they are required for restocking
conditions relating to a tree-felling licence, marine licensing, or
remediation under the environmental damage regime.
These measures underline the Government's commitment to ensuring new development is sustainable and protects the environment. However, with so many new initiatives being introduced by a range of different bodies, the challenge will be ensuring that they complement one another and work in tandem with new development projects. For now, there is some scepticism with the Climate Change Committee recently warning of the inconsistent application of national planning policy, emerging policies for biodiversity net gain and management of green and blue space.
3.2 Travel planning
The Town and Country Planning (Development Management Procedure) (England) (Amendment) Order 2023 has been published, and amends the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015/595) (DMPO 2015). It adds Active Travel England as a statutory consultee for certain planning applications made on or after 1 June 2023, including those with more than 150 dwellings. According to its website, Active Travel England will lead the delivery of the Government's strategy and vision for creating a new golden age of walking and cycling where half of all journeys in towns and cities are walked and cycled by 2030.
Applicants should be mindful of the practical effect that the addition of a further statutory consultee may have on the determination timeframes for applications, and the need for early and meaningful engagement to elicit supportive responses. In particular, this will lead to increased scrutiny of proposed travel measures for new developments, and necessitate careful consideration, from the masterplanning stage, about how best to integrate sustainable travel solutions within the proposed scheme design. Measures proposed will need to effectively interact with surrounding sites where appropriate.
3.3 The Law Commission has announced that it is to review the compulsory purchase laws.
It has been generally agreed for some time that this area of planning law is in need of modernisation. The Law Commission carried out a project in this area in 2003/4 but its recommendations were not implemented in full. This new project will involve a review of the current law on compulsory purchase, focussing on:
3.3.1 the procedures governing the acquisition of land through compulsory purchase orders; and
3.3.2 the system for assessing the compensation awarded to parties in relation to such acquisitions.
3.4 Proposed changes to the NPPF
The Government has published a consultation on the revised National Planning Policy Framework and its proposed approach for preparing National Development Management Policies. The consultation closed on 2 March 2023. One of the more controversial proposals is that local planning authorities with an up-to-date local plan will no longer need to continually show a deliverable five-year housing land supply. We have a briefing on this consultation, in so far as it refers to retirement housing, here.
Changes of the nature proposed in the consultation were considered by the Government to be better framed as revisions to the NPPF, rather than being introduced through new legislation such as the Levelling Up and Regeneration Bill which is currently passing through Parliament. That may reflect a perception that the path towards introduction via national policy may be less perilous. However, elements of the proposals have provoked strong feelings from consultees. This is particularly true of the proposed housing land supply and plan-making changes, with many perceiving that these will exacerbate the housing crisis. As such, it will be interesting to see whether the proposed changes survive intact to form part of the revised NPPF that eventually emerges.
3.5 Infrastructure levy consultation
On 17th March, the Government published a new consultation into the design of a new infrastructure levy to be paid by developers to fund affordable housing and local facilities such as GP surgeries, transport links and schools. Its key features are as follows:
- It will replace section 106 contributions for most developments;
- The sum that developers will have to pay will be calculated once a project is complete, instead of when the scheme is given planning permission. This will make sure that councils benefit from increases in land value, which can be significant for large developments that take years to complete.
- Planning authorities will be given powers to set rates themselves.
- A portion of the levy will be passed directly to communities as a 'neighbourhood share' to fund their infrastructure priorities, and councils will be required to engage with communities to create an infrastructure delivery strategy.
The proposal is quite radical and represents a brave move by Government to tackle a complex issue. Sensibly, there is a recognition that such a significant overhaul will, inevitably, create some teething troubles as people grapple with its introduction. As a result, the Government will adopt a 'test and learn' approach (as opposed to 'trial and error'!) with a phased introduction over the course of a decade and a minority of LPAs being introduced to it initially.
The consultation will run for 12 weeks, closing on 9 June 2023, and the Government anticipates that it will consult further on proposed regulations, when the responses to this consultation have been fully considered. A link to the consultation is here.
3.6 The LPA's duty of care
In Primavera Associates Ltd v Hertsmere Borough Council [2022] EWHC 1240, the High Court held that:
- the LPA did not have a duty of care to the developer in processing its application for planning permission. The purpose of the planning legislation was not to confer a private law benefit on an applicant, but to prevent it from carrying out development except in accordance with statutory controls;
- the developer failed in its argument that the LPA's conduct amounted to an assumption of responsibility to exercise reasonable care. The planning officers did not provide any commercial or legal advice to the developer on which it had relied during its application process; and
- although it is best practice to decide planning applications within 26 weeks, this is guidance rather than a statutory duty. Therefore, applicants cannot use these time limits to impose deadlines on planning authorities, and an applicant who is unhappy with the progress of their application should appeal against its non-determination. A right of appeal arises after eight weeks and the applicant has six months in which to exercise it.
This judgment is a useful reminder that a negligence claim by a developer against a local planning authority is unlikely to be successful.
Originally published 10 May 2023
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