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  • Overview

    The Levelling Up and Regeneration Bill (affectionately known as “LURB”) contains some fairly life-changing proposals to the planning system but as we all know, Bills have a life of their own and some body parts are often left behind on the hurdles through parliament.  

    As the name suggests, the main thrust of the Bill is to support the “levelling up” of the country which, to many, has been a puzzling phrase.  What does it mean?  Essentially, the government wishes to see a flattening out of the differentials experienced between North, South, East and West; to rid the country of the division of economic and social demographic concepts (whether actual or perceived), to support new areas of growth and to ease the pressure on those areas in which growth has outstripped capacity(or is about to), by way of a system of investment funding and loans, streamlining powers of compulsory purchase, the introduction of a new type of locally-led development corporation, high street vacant property auctions, among other equally interesting ideas. 

    As it is currently drafted, the LURB proposes the following six key planning reforms:
    (1)    Changes to development plan documents, introducing new National Development Management Plans which it is proposed will take precedence if there is any conflict between a Local Plan and the new NDMP. Some say this is nationalisation under a different guise;
    (2)    A new mandatory “Infrastructure Levy” to replace the previous “Community Infrastructure Levy” and (to some degree) section 106 agreements, which calculates a levy (tax) based on the forecast revenue from the completed development proposal (inevitably driven by regional values); 
    (3)    Changes to the enforcement immunity period (10 years for unauthorised development) and the introduction of Enforcement Warning Notices for unauthorised development which the local authority nevertheless considers may be acceptable;
    (4)    New powers to amend planning permissions, including the descriptor and the imposition of conditions;
    (5)    New duty on developers to serve Commencement Notices; and
    (6)    Revised provisions regarding Completion Notices.

    As ever, the devil is in the detail (and subject to further scrutiny through the Houses) and many of the proposals are to be set in place by secondary legislation so we will have to wait and see which elements survive the gauntlet. 

    The BNG

    For farmers and owners of agricultural land looking to diversify or find themselves on the edge of the house-building world, the most interesting development in the planning system over the last year or so has to be the coming into force of the requirement for all new development to offer biodiversity net gain (BNG). 

    A rather complex formula has been produced by DEFRA in order to calculate the requirement and the use of off-site land parcels in order to mitigate the biodiversity harm caused by developments has caused a shuffle in the barns. 

    The truth of the matter is that in order to gain maximum benefit from a development site, instead of providing mitigation measures on site, a developer may instead look for off-site opportunities to provide pockets of super-enhanced biodiversity which go above and beyond anything that could have been provided on site (or than was even present on the site in the first place).  That strip of land beside a field or a road which was previously derelict or in dire need of recuperation, could provide the ideal prospect of new life to support a proposal for a nearby development. But how will these pockets of land and ‘net gain’ be secured?  It may be that the additional land will be negotiated as part of the application process itself and included in the site location plan. In those circumstances, the landowner will be required to be a party to a section 106 agreement which secures the provision of the land and the enhancement measures.  Behind that public document (together with any associated conditions imposed on the planning permission) may sit a private agreement between the landowner and the developer as to whose responsibility it is to maintain the habitats and biodiversity levels within that land and a financial arrangement for the lease or occupation of the land. I don’t envisage that local authorities will automatically release a landowner from the obligations contained in a s106 agreement without a struggle, particularly as the need will be a long term one. 

    Another option is for the use of Conservation Covenants to be enlisted for this purpose, either alongside or instead of s106 agreements (see the more detailed article by my colleague, Robert Trench, on this matter)

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