It has been (another) year in which the Government has tried to carry out the tricky balancing act between getting more houses built and living up to its green credentials, write Alastair Lewis, Bernadette Hillman, Emily Knowles and James Goldthorpe.
Last year, we reported on the Levelling-up and Regeneration Bill, which was finally enacted on 26 October 2023. In 2023 we helped clients draft amendments to the Bill on nutrient standards (a topic which we look at below) and on national development management policies (NDMPs).
When the relevant sections of the Act are brought into force, they will bring in changes to section 38 of the Planning and Compulsory Purchase Act 2004 (which all planners will be familiar with), requiring planning determinations to be made not just in accordance with the development plan, but also in accordance with any NDMPs unless material considerations strongly indicate otherwise. We’ll be looking out for the start of and consultations on NDMPs in 2024.
POLICY HIGHLIGHT 1: NUTRIENT NEUTRALITY
Throughout 2023, nutrient neutrality and the housebuilding moratorium in areas affected by Natural England’s advice on habitats proved to be a key issue for our clients, as attempts to tackle the problem at a national level proved elusive.
Over the past 12 months, we have advised several clients grappling with the issues caused by nutrient neutrality in different guises. Our work has included:
- Advising local planning authorities assessing planning applications impacted by the Natural England advice;
- Supporting authorities defending appeals stemming from planning permission refusals on the basis of nutrient neutrality issues;
- Advising landowners intending to manage land and sell units to developers; and
- Advising clients on Levelling Up and Regeneration Bill amendments that were proposed to tackle the issue, but were defeated in the House of Lords.
An essential takeaway from our involvement across the year is the absence of a universal remedy or a one-size-fits-all solution. Approaches tailored to the context and facts are necessary. Local authorities need to be flexible in assessing the solution that is put in front of them and developers need to be imaginative in finding those solutions.
In a landmark case in 2023, C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities, the High Court held that habitat assessments can be required at condition discharge stage if a habitat assessment was not carried out at the grant of the initial planning permission.
The court found that an appropriate assessment has to consider the implications of a project as a whole and therefore an appropriate assessment could not just be limited to the subject of the conditions that were required to be discharged.
Recognising the importance of this decision, permission has been granted to appeal directly to the Supreme Court, bypassing the Court of Appeal. We’ll be on the lookout for further developments and ready to advise our clients on the impact of any judgment.
POLICY HIGHLIGHT 2: MANDATORY BIODIVERSITY NET GAIN
One of the most significant developments in planning law over the forthcoming year will undoubtedly be the coming into force of mandatory Biodiversity Net Gain (BNG) as introduced by the Environment Act 2021.
The government has announced that mandatory BNG for major development will come into force in February, so local planning authorities will need to familiarise themselves with this significant change to planning law as quickly as possible in order to ensure a seamless implementation of the new procedures.
Under the new statutory framework, every grant of planning permission within the scope of the legislation will be deemed to be granted subject to a general BNG condition to secure at least a ten per cent increase to the pre-development biodiversity value of the development.
It will not be possible to vary or remove the condition and authorities will not have to replicate the condition in decision notices unless they wish to impose conditions which go further than the mandated gain.
Regulations setting out the detailed procedures for biodiversity gain plans were published just as this note was finalised and we will be explaining them in other publications.
There will be relatively complex transitional arrangements and mandatory BGN will not apply to permissions granted before the implementation date, nor to Section 73 permissions where the original permission was granted before the commencement of the new regime.
Standing at the precipice of these significant changes, there are a number of concepts and procedures with which local planning authorities will need to be familiar. First, the details of BNG will be a post-permission matter – it will require the submission of a BNG plan no earlier than the grant of permission and before commencement of the development. The plan will need to explain:
- How the developer has applied the required biodiversity gain hierarchy;
- The biodiversity unit values before and after the development is carried out; and
- How the developer will deliver the ten per cent BNG mandated by the deemed condition.
Whilst it will usually be inappropriate to refuse a planning application solely based on BNG non-compliance, whether the condition can be discharged successfully will be a material consideration at the determination stage.
Ensuring compliance with the mandatory condition (i.e. the delivery of the ten per cent net gain) will be achieved through conditions, section 106 agreements and/or conservation covenants. Furthermore, any mitigations and enhancements required to achieve the ten per cent BNG must be maintained for at least 30 years after the
development is completed. We suspect that maintenance, and funding and monitoring obligations are most likely to be secured through section 106 agreements, but it will be interesting to see the take up in use of conservation covenants.
In summary, mandatory BNG represents a big change for planning professionals! However, as the final details of the new regime are finalised at the start of the year, local planning authorities and developers who invest the time and resources in familiarising themselves with the new regime can be optimistic about a smooth transition and a potentially transformative impact on environmental protection.
LOOKING BACK: OUR CASE HIGHLIGHTS
We acted for Guildford Borough Council on a number of key projects this year, including the regeneration of the city centre and most notably on the Wisley Airfield Planning Inquiry, relating to the creation of 1730 new homes as part of a sustainable new settlement proposed on an allocated site.
The Inquiry, a particularly long one, opened on 26 September and closed on 20 December. It was nine weeks in total, over 32 sitting days with over four days spent on the conditions and the section 106 agreement. We were mainly involved in the complex negotiations and drafting of the s.106. The decision is likely to be in April.
On infrastructure authorisation, we acted on a number of Nationally Significant Infrastructure Projects (NSIPs), including transport (highways and airports) and energy (solar, wind farm and electricity transmission) projects, including acting for host local authorities. An example is the Lower Thames Crossing, which is the most significant highways project in the country for many years.
We assisted Gravesham Borough Council during the process, including drafting documents for the examination, appearing at hearings and negotiating the section 106 agreement. The examination completed just before Christmas and the examining authority is due to make its recommendation to the Secretary of State in March 2024, with a decision to come later.
Alastair Lewis is a Partner and Parliamentary Agent, Bernadette Hillman is a Partner, Emily Knowles is a Senior Associate and James Goldthorpe is a Trainee Solicitor at Sharpe Pritchard LLP.
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