What could we see in a Planning and Infrastructure Bill?

In July, the King announced in his speech that the Government would be introducing a Planning and Infrastructure Bill to accelerate the delivery of high quality infrastructure and housing. With the publication of the NPPF consultation we can glean a little more as to what the bill may contain.

The background briefing notes to the King’s Speech promised that the bill would accelerate growth tackling the issues identified below.

• Streamlining the delivery process for critical infrastructure, including by simplifying the consenting process for national infrastructure.

Taking account of the pre-application process, determination of the application itself and any challenge, the average development consent order for nationally significant infrastructure projects (NSIPs) now takes over 4 years to obtain (up from the previous average of 2.6 years for the period from 2012 to 2021) and therefore the regime is in desperate need of streamlining. The King’s speech indicated that the consenting process will be simplified, but the consultation does not expand on this topic, which has been subject to previous consultations.

The consultation does seek views as to whether digital infrastructure projects such as data centres and laboratories could be determined under the NSIP regime, by allowing developers to request the Secretary of State to direct that a certain project be treated as an NSIP.  It also proposes the re-integration of onshore wind schemes into the NSIP regime (at a threshold of 100 megawatts, bringing this in line with the current threshold for offshore wind), and questions whether the threshold (currently set at 50 megawatts) for using the NSIP regime in relation to solar schemes should be increased to 150 megawatts to take account of technological advancements in the renewables sector. 

The consultation also clarifies that the bill will be used to simplify the process for allowing National Policy Statements to come forward, and to establish a review process enabling statements to be updated every five years (currently they can be reviewed when the Secretary of State considers it appropriate, so this is designed to increase certainty). 

• Reforming compulsory purchase compensation rules.

The briefing notes suggest further reform to compulsory purchase compensation rules through the bill, to ensure that compensation paid to landowners is fair but not excessive, where social and physical infrastructure and affordable housing is being delivered.

A policy objective in the consultation is to “extract more public value from development” including where necessary through use of strengthened compulsory purchase powers. The only reference to compensation in the consultation is in the context of Green Belt releases, where views are sought on the setting of indicative benchmark land values. The Government is also considering how bodies such as Homes England and local planning authorities can assist with land assembly using compulsory acquisition if necessary, and can justify the use of provisions under the Levelling Up and Regeneration Act 2023 enabling hope value to be ignored. These provisions are controversial and any further changes through the bill will be carefully scrutinised by landowners in particular.

• Improving local planning decision making by modernising planning committees.

The consultation discusses the Government’s wish to aid resourcing issues of authorities (see below) to help speed up decision making, but does not expand on how it envisages committees being modernised.

Whilst delegation can assist resourcing, local planning authorities already have the ability to delegate decision making to officers, sub-committees and committees via Section 101 of the Local Government Act 1972, with delegation usually dependent on the exact circumstances of each individual application, and potentially also including part delegation. There is therefore flexibility built into the system, but it is an often-heard complaint that applications are held up by members’ delay in making a decision (for example through deferrals). It will therefore be interesting to see what reforms are proposed. One to watch. 

• Increasing local planning authorities’ capacity.

Prior to the election, the then Shadow Chancellor promised that the new Labour Government would appoint 300 new planning officers. Following this, in August, the Deputy Prime Minister announced the “New Accelerator Programme” which involves an expert group that is intended to work with councils to speed up the planning process and to unlock stalled sites. Both of these measures will go toward assisting capacity in local authorities.

In its consultation the Government acknowledges that the timescales for planning decision-making are only getting longer, and therefore it is consulting on ways to help boost authority capacity. One such method it is advocating is through allowing authorities to set their own planning application fees, with it acknowledging that current planning fee levels do not generate enough income to cover the full cost of some applications. The introduction of a localised fee-scale would require primary legislation and thereby could be something we see in the bill. However, this would complicate matters for developers who work across multiple authority areas as well as burdening authorities with the need to publish, and justify, a local fee scale. 

• Using development to fund nature recovery. 

The consultation discusses the importance of Local Nature Recovery Strategies (brought in by the Levelling Up and Regeneration Act 2023) and emphasises both the need for supporting the environment and for strategic planning. Indeed, the consultation specifically confirms that the Government will legislate to promote a more strategic approach to planning, for example with a strengthening of the duty of councils to co-operate on cross border matters and via assisting the development of Spatial Development Strategies in both mayoral and non-mayoral areas.

The Government is no doubt keen to push ahead with its changes to the NPPF as soon as possible in order to kick-start its overhaul of the planning system and help boost housing delivery in particular, but it will be important to keep any eye on what legislative measures are proposed – noting also that the Government has confirmed it will not be introducing the Infrastructure Levy and that various aspects of the Levelling up and Regeneration Act 2023 are still to be brought into force.