Budget 2024: What does it mean for Planning

It is Budget Day - a day of pageantry, speeches, and scarlet briefcases. 

Whilst there has been a lot of speculation about how this budget fits into the wider political picture, it was not generally expected to be a big day in respect of planning news. 

Well….  it is fair to say that the Budget itself lived up to expectations…

Budget Announcements

The future funding plans for local government remain highly constrained - meaning that additional funds for improving planning services are not going to be easy to find.

Promises of an AI pilot to improve productivity amongst planning officers, increasing taxes on holiday lets, and additional levelling up funds will not change the fundamental underlying picture. Without functioning Local Government, we cannot have a functioning planning system; and local government needs more help than this budget is offering.

In short, the budget speech itself was a bit of a damp squib.

The accompanying deluge of budget day announcements from the DLUHC website, however, are rather more exciting!

Consultation on Accelerating the Planning System.

Firstly, and most importantly, we have a new consultation on accelerating the planning system, which is open until 1 May 2024.

This consultation is a big one as it is seeking views on:

1.  A new Accelerated Planning Service for major commercial applications with a decision time in 10 weeks and fee refunds if this is not met'
2.  significantly scaling back the use of extensions of time: ending their use for householder applications and only allowing one extension of time for other developments. This proposal links to a proposed new performance measure for local planning authority speed of decision-making against statutory time limits
3. expanding the current simplified written representations appeals process for householder and minor commercial appeals to more complex appeal types; and 
4.  implementing section 73B for applications to vary planning permissions and the treatment of overlapping permissions.

All of these proposals are potentially significant. Some of them could backfire spectacularly (I'm looking at you ‘extensions of time’). 

The final proposal is particularly fascinating to planning lawyers, as it sets out how the Government is proposing to deal with the mess caused by Hillside and Dennis.

I have set that part of the consultation that addresses this in full below:

"9. The treatment of overlapping planning permissions has recently gained attention by the Hillside Supreme Court judgment. This judgment confirmed existing caselaw that full planning permissions are not usually severable. That is to say, parts of the permission cannot be selectively implemented and that, if a new permission which overlaps with an existing permission in a material way commences, should the carrying out of the new permission make it physically impossible to carry out the rest of the existing permission, it would be unlawful to continue further development under the existing permission.  The Court then went on to say, if someone wanted to change part of the development, they should seek to amend the entire existing permission. A subsequent judgement^{[footnote 9]} has considered the implications for outline planning permissions and the question of severability further.

90. These judgments have questioned the ability to use ‘drop in’ permissions where a subsequent permission is granted for an alternative development on a section of a larger development previously granted permission and still being implemented. Such drop in permissions have often been used during the implementation of outline planning permissions for large scale phased residential and commercial developments where a new development is proposed through a separate application for a phase outside the scope of the outline planning permission while the rest of the phases continue to be implemented under the outline permission. This approach has provided a flexible way of enabling changes to a specific phase to be managed through planning without having to seek a new planning permission for the entire development, particularly when the scale of change is outside the scope of a section 73 application.

91. The government believes that the new section 73B route provides a new way of dealing with such changes to a specific phase of a large scale development granted through outline planning permission in many cases. While the use of section 73B is constrained by the substantively different test, these changes often continue to fit within the existing masterplan which underpins the outline permission and do not necessarily fundamentally change this permission – for instance, changing a phase of commercial development (use class E) to a cinema (use class – sui genesis) where the outline permission only allows class E uses. In this case, the section 73B application would provide details of the proposed variation to the outline planning permission and the consideration by the local planning authority would focus on the merits of this variation.

92. We recognise, however, there could be circumstances where the section 73B route may not be appropriate – for instance, if the change could be considered to be substantially different or there are wider financial and legal relationships between the master developer, land owners and investors which makes the preparation of a section 73B application difficult. We would welcome views about the extent the section 73B route could be used to grant permission for changes for outline planning permission in practice and what are constraints.

93. If the section 73B route cannot address all the circumstances, we are keen to explore whether there are alternative options to facilitate the operation of overlapping permissions, especially when there are outline permissions for largescale development where phases are clearly identified. One option could be to create a framework through a new general development order. This would deal with overlapping permissions in certain prescribed circumstances. The Secretary of State has broad powers under section 59 of the Town and Country Planning Act to provide for the granting of planning permission through an order, including classes of development. This may be for a specific development or for a class of development. Views would be welcome on whether the focus of such an approach should be on outline permissions for largescale phased development or whether there are any other categories of development which could benefit from an alternative approach."

In short, this is a consultation to engage with!

Changes to NSIP procedures

We also have the outcome of the consultation on NSIP procedures which closed last September. 

The detailed response can be found here, but at a very high level, the Government has decided to:

• Introduce a new fast-track route to consent for projects capable of meeting the new fast-track quality standard. These projects will be supported to achieve a non-statutory 12-month target timescale from acceptance to decision, including a shorter statutory maximum examination timescale.
• Improved pre-application services and advice will be made available for all projects from the Planning Inspectorate. This will include a new enhanced pre-application service for the most complex projects or those seeking a faster examination through the new fast-track route to consent.

Cambridge & Water Issues

A joint statement on the water supply issues in Cambridge has been published and can be found here. 

A more detailed statement on the specific steps being taken to address the situation is available here.  

In summary, the Government is proposing:

• to address the water shortage issues in the long-term through a mixture of:
  • bringing forward new major infrastructure - namely the Fens Reservoir and Grafham transfer proposals; and
  • investing over £1 million in nature-based solutions (NBS), which can effectively enhance the long-term flow of water bodies, improve resilience to floods and improve biodiversity; and 
• in the short term, setting up a ‘water credits system’ backed by up to £4.5 million of funding to retrofit water efficient devices into existing buildings and offset projected demand of development coming forward.

For anyone interested in how these types of water credit schemes can work - I would anticipate them being very similar to the water neutrality agreements currenting being used in a small part of sussex….. albeit with a better funded and nationally backed strategic mitigation scheme in place to support them!

Nutrient Neutrality

A second round of bidding for the Local Nutrient Mitigation Fund also opened today.

The expression of interest invites local planning authorities affected by nutrient neutrality advice to submit a completed template for costed expressions of interest for programmes or strategies to deliver nutrient mitigation. The aim is to unlock housing delivery in catchments of Habitats Sites affected by nutrient pollution. 

Details can be found here 

Designations

And finally, Budget Day has also seen DLUHC designate another two Council's as poor performing - allowing some  planning applications in those areas to be made directly to the Planning Inspectorate.  

• St Albans has been designated in respect of planning applications for non-major development.  
• Bristol has been designated in respect of planning applications for non-major development.

As such, applications for non- major developments in these authorities can now be made directly to PINS. This does not include retrospective planning applications, or householder applications, which should be made to the Council as normal. 

In short, today is a day to ignore the Treasury and instead do a deep dive into the news from DLUHC…..