UK – ’22 | Planning review of Hogan Lovells | Daily News Byte

UK – ’22 |  Planning review of Hogan Lovells

 | Daily News Byte


Planning reform

New year – new planning reforms. After the sweeping reforms proposed in its 2020 Planning White Paper fell flat – and, so the story goes, were the basis for some embarrassing by-election defeats in Chesham and Amersham – the government quietly shelved them. May 2022 saw the introduction of a less ambitious set of, albeit still bold, leveling-up and reforms planned in the regeneration bill, but it was still not enough to quell backbench unrest.

The bill, which is at the report stage of its journey through the Commons, would reform all stages of the planning system: introducing a framework for taking on new infrastructure, improving environmental impact assessments and, crucially, centralizing control of decision-making. By introducing a set of national development management policies. The Bill will reinforce the importance of design in planning policy and decision-making and will insert a new section 73B into the 1990 Act. This will address the changing narratives of development and current limitations on permitting development that is inconsistent with existing narratives of development.

However, it is important to note that in most cases the Bill only sets out a framework into which the secondary legislation (containing all the details) will slot, and is far from the finished article – the real substance will follow in the future.

And, as 2022 approaches, we’re promised even more planning improvements! On 5 December, the Secretary of State announced the National Planning Policy Framework Prospectus, which will be released for consultation before Christmas. This further set of reforms – which promises to “place local communities at the heart of the planning system”, came in response to a threatened rebellion by around 60 Conservative backbenchers over the question of whether housing need statistics should be mandatory. Expect consultations to look at “community control” over decision-making, local plan preparation, build-out rates and developers’ track-records, as well as intervention in the housing market itself.

Will next year see the end of reforms? The smart money is on more…

You can find the first in our series of detailed articles on key planning elements of the bill here

Hillside decision

While 2022 was not a vintage year for case planning, the highly anticipated Supreme Court decision Hillside Parks v Snowdonia National Park AuthorityHanded down in early November, it was the blockbuster verdict of the year.

This case concerned the relationship between successive grants in relation to the same land and, in particular, the effect of the execution of multiple planning permissions in relation to the same land. The decision has real implications for developers and planning authorities, particularly those working on large, complex developments where the practice of using drop-in permissions to change plans can be critical.

The Supreme Court clearly appreciated the importance of the case in organizing the law and upheld the underlying principles of the note. Pilkington In the event, it contains some important clarifications for practitioners.

Helpfully, the judgment removes some of the uncertainty that arose from the Court of Appeal’s suggestion that, in order for development to be legal, planning permission must be implemented “in full”. The judgment puts this uncertainty to bed and makes it clear that planning permission is, indeed, permissible. Failure to complete the project for which permission has been granted does not make development already carried out pursuant to the permission illegal – but the permission does not authorize any further development if it becomes physically impossible to comply with it (for example where inconsistent planning permission is in force ).

However, the judgment leaves open some important questions.

Where a developer has been granted full planning permission for an entire scheme and wishes to depart from it physically, the Supreme Court has held that the answer is to seek a duly drafted additional planning permission to vary the approved scheme which covers the whole scheme. Site and include necessary changes. As counsel for the appellant noted, this is likely to have serious practical implications for developers.

It is also likely to raise questions in some quarters about the validity of the important practice of obtaining drop-in permission to secure changes to separate parts of a development.

The Supreme Court did not directly address the drop-in question (let alone adopt a “best practice” approach) but practitioners can take some comfort from the fact-specific nature of the case. the hill One relates to a full permit which has consented to the whole of a multi-unit scheme – this can be distinguished from a phased outline permit for a complex regeneration scheme which is likely to be deliberately structured so as to allow for subdivision.

One of the main challenges developers have faced when considering drop-ins is the nervousness of planning authorities. Although the judgment provides some clarity on the position, it seems unlikely that it has done enough to fully address this. Planning authority attitudes are therefore likely to be a key factor in the ability to use drop-ins going forward.

Reimagining planning uses

Dark clouds gathering on the economic horizon have prompted many developers, investors and planning authorities to consider how planning practices can bring unused spaces back to economic life – and where they need to take hold.

Uses in the mean time – using the space while it waits for the next phase of its life – have the potential to be a win-win. Not only can landlords use them to generate income, but they can help reduce outgoings like vacancy rates. From a planning and placemaking point of view, they can also bring much-needed local activity and vitality.

However, careful consideration should be given to what planning consents are required and how to secure them to ensure that short-term gains are not eclipsed by long-term planning pains.

Click here to view key points

The introduction of new Class E (Commercial, Business and Services) uses has, likewise, created a regulatory environment that has the potential to transform the high street – with unbridled flexibility to transform offices into restaurants and shops into gyms without the need for planning. Permission

But have the changes in the use classes order been sufficient to support the multiplicity of new and emerging uses such as dark kitchens, last mile logistics and data centers?

Click here to read our note on emerging uses

Bonus points – NSIPs, importance of design and CIL

In the spirit of the season we double-checked our list – and ended up adding a few more bonus topics.

First, nationally significant infrastructure comes full circle. After introducing its reforms to the planning system in the Leveling-up and Regeneration Bill, the government looked at speeding up the consent regime for nationally significant infrastructure projects under the Planning Act 2008.

Click here to read our introduction to the proposals to speed up Fast Track.

Second, the importance of design in planning. Good design – with its many different meanings – is of critical importance and, looking forward, we can expect design to receive greater scrutiny in terms of planning and decision-making.

Click here to read our round-up for the Estate Gazette from early 2022. The direction of travel shown in this part remains correct during 2022.

And finally – in case you missed it – here’s our piece on some of the key takeaways from this year’s CIL cases. The rigor of the Community Infrastructure Levy regime means that a small mistake can have significant financial implications – losing exemptions, deductions or reliefs, imposing surcharges or being forced to pay a large CIL bill up front. Read on to see how you can avoid these pitfalls.


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