The planning white paper - what will it mean for LPAs?

08 October 2020

On Tuesday 22 September Birketts’ planning experts (Tom Newcombe, Deborah Sharples and Steven Bell) were joined by guest speaker William Upton QC for a webinar on The Planning White Paper and what impact it will have on Local Planning Authorities (LPAs).

Throughout the webinar there were many questions submitted surrounding Pillar 1 and Pillar 3. As a result Steven Bell and William Upton QC have provided more guidance on the most popular questions asked by our audience.

Questions for Steven Bell

What proposals are there to secure affordable housing by way of a legal obligation if s106 are no longer required? 

The financial contribution towards affordable housing will form part of the infrastructure levy (IL) (and can be used for affordable housing in the area) but there appears options for delivering greater Affordable housing on-site to reduce the infrastructure levy due which can be flexible with the housing market. This, very sensibly, appears to put the control of affordable housing clearly with the local planning authority. They are only options/suggestions at this stage.

What is the minimum number of homes likely to be under infrastructure levy?

This is unclear but according to the White Paper there will be a "value-based minimum threshold below which the levy is not charged, to prevent low viability development becoming unviable, reflecting average build costs per square metre, with a small, fixed allowance for land costs. Where the value of development is below the threshold, no levy would be charged. Where the value of development is above the threshold, the levy would only be charged on the proportion of the value that exceeded the threshold".

How do county councils get infrastructure levy funds? 

This is unclear but we expect it to be like community infrastructure levy (CIL) in that the district as the local planning authority will pass part of any infrastructure levy received to the county. This is a point to raise in the consultation responses based on experience of CIL to date.

Could you give clarity on what infrastructure levy will be received by parishes with neighbourhood plans?

If there is a neighbourhood plan (NP) then the White Paper suggests "It is important that there is a strong link between where development occurs and where funding is spent. Currently, the Neighbourhood Share of the Community Infrastructure Levy ensures that up to 25 per cent of the levy is spent on priorities in the area that development occurred, with funding transferred to parish councils in parished areas. There are fewer restrictions on how this funding is spent, and we believe it provides an important incentive to local communities to allow development in their area. We therefore propose that under this approach the Neighbourhood Share would be kept."

Will enforcement become a statutory function rather than just a power than can be utilised by the LPA if it wishes to do so?

Planning enforcement has always been a balance and a power that local planning authorities can use to deal with a breach of planning assuming that it is expedient to do so. What is needed for planning enforcement to be more effective is for it to be a quicker process when there is an appeal of the enforcement notice served. We would hope that all planning enforcement officers respond and stress the importance and delay attached to taking enforcement action and the impact that would have on the locality, local authority funds and the view taken by those willing to breach planning under the current system where a breach of planning is not a criminal offence until the planning enforcement notice takes effect.

I understand that infrastructure levy can be used to reduce precept. Will there be an obligation to use IL for infrastructure or could it be used as a political tool coming up to elections to reduce council tax?

At present we are told in the White Paper that "There is scope for even more flexibility around spending. We could also increase local authority flexibility, allowing them to spend receipts on their policy priorities, once core infrastructure obligations have been met. In addition to the provision of local infrastructure, including parks, open spaces, street trees and delivery or enhancement of community facilities, this could include improving services or reducing council tax. The balance of affordable housing and infrastructure may vary depending on a local authority’s circumstances, but under this approach it may be necessary to consider ring-fencing a certain amount of levy funding for affordable housing to ensure that affordable housing continues to be delivered on-site at current levels (or higher).There would also be opportunities to enhance digital engagement with communities as part of decision making around spending priorities. Alternatively, the permitted uses of the levy could remain focused on infrastructure and affordable housing, as they are broadly are at present. Local authorities would continue to identify the right balance between these to meet local needs, as they do at present."

Questions for William Upton QC

What impact does the Planning White Paper have on current emerging Local Plans?

There is clearly a temptation to pause any existing work, given the great uncertainty that this White Paper brings. However, it is worth looking at the timescale for any change. Indeed, this is the point that Ministry of Housing, Communities & Local Government (MHCLG) has recently made. In her 1 October letter to Chief Planning Officers, the MHCLG Chief Planner has strongly encouraged planning authorities to continue to prepare and adopt their current plans. As she points out, there will be a period of policy development after the receipt of the responses to this consultation, followed by the preparation and progress of the new legislation. Even then, as the White Paper suggests, it is intended to allow more time for this transition where a planning authority has recently adopted or is revising its current local plan. They will be allowed 42 months, rather than 30 months, to adopt a new-style plan. So, in the meantime, it is important that local areas try to have a development plan in place.

What does this mean for the future of development management as we know it?

Development management will change. Once the new plans and design codes are in place, the idea is that it then becomes a matter of complying with the parameters and rules that they set out. This is intended to be a rules-based system, rather than a system that relies on policy-based judgments on each site. This should also reduce the scope for argument from developers that other proposals should be accepted. The approval of the development details will become more of an enforcement role, and the White Paper expresses the preference for this to be done by professional planning officers under delegated powers, and for the planning committee to concentrate on the local plan stage. It should also be speedier, as the White Paper mentions the intention to “streamline the opportunity for consultation at the planning application stage". The emphasis on the involvement of local councillors and residents is intended to be focused on the local plan stage.

Development Management would however still have to deal with planning applications in Areas of Restraint. It is also intended that individual planning permissions could be made for development outside the terms of the local plan, or where the local plan has become out of date. This suggests that the new system could be a curious hybrid. However, there would be some significant changes in the way that these planning application are considered, as the design codes will bite. 

What impact will this new legislation have on the Neighbourhood Plan in the hierarchy of planning? 

This is one of the awkward corners of the new system, as the White Paper expresses its strong support for their continuation without explaining how they would relate to the new-style Local Plans. One role could be to produce design guides and codes to reflect local character and preferences about the form and appearance of new development, which will be subject to local referendum and which any developer would then have little scope to argue about. Even without these changes, the MHCLG Chief Planner has said that the government wants current neighbourhood plans to continue to be progressed “to give more communities a greater role in shaping the development and growth of their local areas”.

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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2020.