The Levelling-up and Regeneration Act 2023: streamlining and simplifying plan making?

The amendments made by Schedule 7 of The Levelling-up and Regeneration Act 2023 (LURA) to Part 2 of the Planning and Compulsory Purchase Act 2004 (PCPA 2004) are aimed at ensuring plans can be produced more quickly and their content simplified. While the LURA sets the framework, much of the detail will be set out in guidance, policy and secondary legislation still to come.

Spatial development strategies (SDS)

The LURA amends the Greater London Authority Act 1999 in relation to SDS, requiring a statement of the Mayor’s policies in relation to the development and use of land in Greater London which are of strategic importance and designed to achieve objectives relating to the Greater London area.  The Secretary of State may also by regulation prescribe additional matters to be dealt with by SDS.

Additionally, amendments to the LURA see a welcome return to regional spatial planning with the introduction of joint SDS for two or more eligible authorities outside London. Joint SDS are to set out policies which are (a) of strategic importance to that area, and (b) designed to achieve objectives that relate to the particular characteristics or circumstances of that area.

Faster delivery of new plans

New section 15C provides that each local planning authority (LPA) must prepare a local plan. New section 15B requires LPAs to prepare and maintain a local plan timetable (similar to the former local development schemes) specifying matters to be dealt with in the local plan. Such matters include the geographical area to which the local plan, any supplementary plans (which in effect replace and elevate supplementary planning documents to part of the development plan) to be prepared (and the subject matter and geographical area, site or sites to which each of those supplementary plans is to relate), and, relevantly, a timetable for the preparation of the local plan (and any supplementary plans).  The local plan timetable must also set out how the requirement for design code will be met (see below).  The Secretary of State (SOS) may prescribe the form and content of the local plan timetable and further matters that it must deal with.

The LURA itself does not prescribe timescales for plan making as these are to be brought forward in regulations, however, the government’s July 2023 consultation on the implementation of plan-making reforms (2023 Consultation) indicates that LPAs will be required to prepare and adopt a plan within 30 months (significantly faster than the current average of 7 years [1]) and to start work on new plans by, at the latest, 5 years after adoption of their previous plan.

The 2023 Consultation identified the following key stages in the new plan making regime:

• Scoping and early participation – including requirements to: “notify” the public and stakeholders including statutory bodies and “invite” participation; prepare or update the timetable; and give a minimum of four months’ notice before LPAs intend to formally commence the 30-month plan preparation timeframe (starting with the first gateway advisory assessment – see below on the gateway assessments).
• Plan visioning and strategy development – including the first formal public consultation (to last 8 weeks) on the plan.
• Evidence gathering and drafting the plan – preparation of evidence to demonstrate soundness of the plan and will include the second advisory gateway assessment.
• Engagement, proposing changes and submission of the plan – including the second public consultation on the plan (to last 6 weeks) and undertaking the third gateway assessment which is a stop/go decision point.
• Examination – 6 months (plus an additional three months if further consultation is needed).
• Adoption.

The 2023 Consultation proposes three mandatory gateway assessments. Gateway 1 and 2 are intended to be advisory only and gateway 3 is to be a stop/go check pre-examination. Gateway 1 will be assessed by “independent, specialist hands-on support” and may involve planning inspectors. The focus is to ensure the plan is setting off in the right direction and to support the early identification of potential issues including legal and procedural requirements and soundness. Gateway 2 will be assessed by planning inspectors and (optionally) supported by technical specialists. The focus is to support the early resolution of potential soundness issues, where possible, and ensure legal and procedural compliance and monitor and track progress. Gateway 3 will be assessed also by planning inspectors and the focus will be on validating key requirements so the plan can move to examination (together with ensuring legal and procedural compliance and monitoring and tracking progress).

For plan making under the current system, plan makers will have:

• until 30 June 2025 to submit plans under the existing legal framework and;
• until 31 December 2026 for their plans to be adopted, with all independent examinations also having been completed by this point.

Authorities that do not meet the 30 June 2025 submission deadline for old-style plans will need to prepare plans under the new system. For LPAs that are currently in the early stages of plan development under the existing scheme, it will be critical to meet the 30 June 2025 deadline so as to avoid having to start again from scratch and in accordance with the LURA.  However, whether LPAs choose to continue under the current system or move to the new system may depend on the scope of changes proposed to plan making and particularly housing need in the NPPF and the LPA’s view as to whether the changes are advantageous or not.

In addition:

• LPAs with plans which are more than five years old when the new system goes live will be required to begin preparing a new style plan immediately; but
• Plans which are less than five years old when the new system goes live will not need to be replaced until they are five years old.

Regulations are required to bring these provisions into force and the government has indicated that the earliest expected date would be November 2024.

Simplifying content

The scope of local plans will be limited to ‘locally specific’ matters. New section 15C sets out what local plans may include and the SOS may prescribe by regulation further matters.  Local plans must:

• be in general conformity with the spatial development strategy (if there is one);
• be designed to secure that the use and development of land in the LPA’s area contributes to the mitigation of, and adaptation to, climate change;
• take account of any local nature recovery strategy;
• take account of an assessment of the amount, and type, of housing that is needed in the LPA’s area, including affordable housing.

In preparing local plans, LPAs must have regard to (inter alia) national development management policies (NDMPs), other national policy and advice contained in guidance; and any other such matters as the SOS prescribes.

The LURA repeals the statutory duty to cooperate (s33A PCPA) and a new “Alignment Policy” is proposed to be brought in through amendments to the NPPF. Where plans are being progressed under the old system the duty to cooperate will still apply.

There is a new requirement for LPAs to ensure that for every part of their area, the development plan includes requirements with respect to design that relate to development which should be met in order for permission to be granted.  

There are a suite of amendments to the neighbourhood planning system but notably, amendments to the TCPA by the LURA ensure that neighbourhood plans cannot prevent proposed housing development in the development plan.

National policy to override local plans

General policies on issues that apply in most areas (such as general heritage protection) will be set out nationally and contained in a suite of NDMPs. These will be subject to consultation (the extent of which is to be determined by the SOS) before they can be made and the SOS must have regard to the need to mitigate and adapt to climate change in preparing an NDMP (or modifying the same).  Indicative examples of ‘gaps’ where current national policy is silent on common decision-making issues, which NDMPs might address, include:

• carbon reduction in new developments;
• allotments;
• housing in town centres and built up areas.

Section 93 LURA amends s38 PCPA 2004 and purports to put NDMPs on an equal footing with the development plan requiring planning determinations to be made in accordance with the development plan and any NDMP, taken together, unless material considerations strongly indicate otherwise. The result is an even greater presumption against development that is not in accordance with policy. However, the legislation further states, that if to any extent the development plan conflicts with a NDMP, the conflict must be resolved in favour of the NDMP; so in effect the NDMP will trump the development plan.

SOS intervention

Section 15HA confers power on the SOS to essentially take over the role of the LPA if it thinks the LPA is failing to do anything necessary or expedient in connection with the preparation, adoption or revision of a local plan or where the SOS considers a plan (including a revised plan) may be unsatisfactory.  In such circumstances, the SOS may:

• (if the plan has not come into effect), take over preparation of the plan;
• if the plan has come into effect, revise the plan;
• give directions to the relevant authority in relation to the preparation, adoption, revocation or revision of the plan; and
• appoint a local plan commissioner to investigate and report to the SOS or carry out any of the above.

To date, the government has been reluctant to intervene in local plan making.

What will be the impact of these changes?

It is difficult to argue with a more focused local plan system to enable more efficient preparation and delivery. However, despite the flavour of LURA pushing towards local empowerment, national planning policy is still given primacy.  

The role of NDMPs will relieve some of the pressure on local plan makers who must focus on local matters. However, it may prove difficult to achieve smaller plans in practice if LPAs want to include detail on “national” matters.  

Whether the 30-month timeframe is realistic will depend in large part on the content of the plan – the resourcing of LPAs is, as ever, a key issue – though the move toward digitisation will be beneficial in streamlining processes. It is unclear the extent to which the changes will genuinely incentivise LPAs to produce local plans, however, it will be interesting to see how the SOS chooses to use the more interventionist powers under section 15HA in the circumstance where an LPA is at risk of failing (or has already failed) prepare or revise its plan consistent with LURA.

As ever, politics is key.  Delays in local plan making arise where governments consider fundamental changes to national policies, particularly around housing need. Many local plans are currently stalled, whilst LPAs await clarity on the revisions to the NPPF. Without certainty as to those key requirements for local plan context, the system will continue to fail to produce new plans.

[1] Levelling-up and Regeneration Bill: consultation on implementation of plan-making reforms - GOV.UK (www.gov.uk)