There is only one thing certain about the English planning system and that is that a general election has to be called by 17 December 2024, with the latest date for the election itself being 28 January 2025. But politicians don’t like winter elections (the snap election in December 2019 was part of the fallout from parliament’s failure that year to approve a revised Brexit withdrawal agreement) or, indeed, summer elections. So we are likely to have a spring or autumn election next year, with the pre-election period (previously known as “purdah”) usually starting 25 working days before polling day.
The uncertainty as to its timing will loom over the year and, of course, every announcement from the parties, on planning reform as much as anything else, will be all about political positioning.
For understandable reasons, there will be much focus on Labour’s policy position, its October 2023 plan having set out a basic framework: “the next generation of new towns”, a “housing recovery plan”, “unleashing mayors”, a “planning passport for urban brownfield development” and “first dibs for first-time buyers”.
Where things stand
With the Levelling-up and Regeneration Act 2023 finally on the statute book as of October 2023 and a recently revised National Planning Policy Framework in December 2023, one might expect the government to be rolling up its sleeves and making progress on the flotilla of consultation papers and secondary legislation required to give effect to what has been two years of hard slog.
Here are our predictions for some key outstanding issues:
- On local plan-making reform, the government has previously indicated that the new streamlined system outlined in the 2023 Act will apply to authorities that have not submitted their local plans under the current system by 30 July 2025 or reached adoption by 31 December 2026. It is going to have to get its skates on, as we have had no response to the July 2023 consultation paper, including sight of further proposed revisions to the NPPF or draft regulations – or of the national development management policies which will replace many individual local plan policies. There is a real danger of authorities being left in a state of limbo as to what the new system will entail (including how their supplementary development documents, currently heavily relied on by some authorities, are to become supplementary plans under the new regime) and those transitional dates slipping. In September, the secretary of state indicated that his intention was “for the regulations, policy and guidance… to be in place by autumn 2024”. Prediction: this could move forward, but is this really going to come ahead of the election?
- On environmental outcomes reports, the proposed post-Brexit version of environmental impact assessment and strategic environmental assessment, we await more detail following the March 2023 consultation paper. Prediction: on the “too difficult for now” pile.
- On the proposed infrastructure levy, slated to replace (partly) the community infrastructure levy (which will live on in Wales and at mayoral level in London), we await further detail following another March 2023 consultation paper. Prediction: same pile.
- On operational reforms to the nationally significant infrastructure project consenting process, we await further detail following the July 2023 consultation paper. Prediction: we could see some (unexciting but useful) progress.
- A whole range of further consultation processes, as well as parts of the 2023 Act that will only come into force once statutory instruments have been prepared and laid before parliament. Prediction: we could see some progress on those that may be simpler to introduce and are perceived to have political resonance.For example, measures to tighten enforcement and to combat the probably mythical beast that is land banking.
The biodiversity net gain regime (a world of complexity for developers and local authorities alike, judging from the various sets of regulations and guidance notes published recently) will finally come into force in January for major developments and in April for small sites (requiring 10% gain in relation to applications submitted after the relevant commencement date).
Surely, at last we will see the design details announced for second staircases, required in new residential buildings over 18m. Architects are currently unable to design schemes in the absence of a clear picture of what will actually be in approved document B of the Building Regulations.
Critical for those interested in housing development will be the government’s promised review this year of the “standard method” for assessing local housing need on the back of new household projections data from the 2021 census. There is a difficult tightrope for the government to tread, with no doubt an overwhelming temptation this year to seek to protect Conservative heartlands and the “red wall” without overtly departing from its 300,000 new homes national target.
Applications and challenges
The secretary of state’s decision as to whether to approve the called-in application for the demolition and redevelopment of ITV’s former South Bank studios is now due on or before 6 February, following two unexplained postponements, and will be an important signal as to his approach to design.
His controversial decision to reject Marks & Spencer’s proposal to demolish and redevelop its Oxford Street store in central London is to go to a full hearing before the High Court. The outcome will be keenly awaited in terms of the implications for the embodied carbon debate, the question of whether it is appropriate to refurbish rather than redevelop and the adequacy of the secretary of state’s reasoning for overturning his inspector’s recommendation to approve.
Finally, we also await the Supreme Court’s ruling in R (on the application of Finch) v Surrey County Council [2022] EWCA Civ 187; [2022] EGLR 18, on the scope of environmental impact assessment, following a hearing last June. Was it unlawful for the county council not to require that an environmental impact assessment for a project of crude oil extraction include an assessment of the impacts of downstream greenhouse emissions resulting from the eventual use of the refined products of the extracted oil? If the court rules against Surrey, there could be significant consequences for all involved in EIA.
I think we can be sure that difficult issues involving climate change, the economy and the need for housing will continue to dominate all of our work in 2024, together with continuing frustrations as to delays caused by both lack of resources and processes in desperate need of modernisation. Let us hope that potential solutions are not frustrated by short-term politicking and unnecessary polarisation.
Simon Ricketts is a partner at Town Legal LLP
