Key insights into the Levelling Up and Regeneration Act

Despite being long awaited, the majority of the Act, which relates directly to development management and plan-making, has not come into force, requiring secondary legislation and policy making by the councils to enable implementation. We can expect that parts of the Act will start to come into force mid-way through 2024. Notably, absent now from the Act are any provisions to deal with relaxing the position on nutrient neutrality that has resulted in a significant number of applications for housing being left undetermined.

A few key changes that will be brought into force include:

There are key changes that should make it easier to get planning permission for schemes comprising solely or including a self-build housing element. To achieve this, a new duty on local planning authorities is introduced whereby they must give sufficient permissions for self-build and custom housebuilding on serviced plots to meet the demand for such development in their area over a given period (under the current system, councils can count any planning permission which may loosely fit the term of self-build even if it was for market housing hence it was much easier for councils to meet the self-build demand). Planning permissions will only qualify towards meeting demand for self-build and custom housebuilding if they are actually designed for this purpose and secondary legislation will set out the detail on what can/cannot count.  

A separate provision “provides that the demand for self-build and custom housebuilding in an authority’s area in a particular 12-month base period should be treated as including any demand from an earlier 12-month base period which has not been met within the time period allowed for complying with the duty to meet that demand”.

This is a new duty on councils to grant sufficient permission for self- and custom-build housing and include pre-existing unmet demand for this housing when calculating their current level of demand.

This will introduce a new way of calculating developer contributions towards affordable housing and infrastructure replacing s106 agreements and the Community Infrastructure Levy with a system based on Gross Development Value (GDV) of the property at completion per square metre so the local authorities can benefit from any uplift in values during construction. Key changes that were made to the Bill as it made its way through parliament include that local planning authorities will be allowed to require developers to pay a proportion of the IL in-kind as onsite affordable housing. There will also be a 10 year test and learn process for its gradual introduction and s106 agreements/conditions will remain as mechanisms to secure on-site infrastructure e.g. flood risk mitigation and play areas. A key change from CIL will be that as IL will be charged on final GDV, rather than floorspace, changes of use will be subject to IL whereas under CIL, provided the floorspace has been in recent lawful use, it will not be.

Changes will allow planning authorities to refuse applications where the developer has a history of not implementing planning permissions or building out too slowly. There will also be a requirement for developers to submit development progress reports for residential development.

A new way to amend a planning permission (s73B) has been created to allow for changes that are not substantially different to the original scheme and will allow changes to the description of development and conditions. Clearly there will be subjectivity in what each LPA will consider is not substantially different. Hopefully will streamline the ability to changes which at the moment often need both a s96A application and s73 application.

Currently the period for taking enforcement action is four years for operational development. Once the relevant part of the Act is in force this would increase to ten years in all cases. A window remains therefore to make Certificate of Lawful Development Applications based on four years immunity up until these provisions come into force.