Update on the Levelling-up and Regeneration Act – What developers, investors and landowners need to know

The Levelling-up and Regeneration Bill received Royal Assent on 26 October.

The Act aims to "speed up the planning system, hold developers to account, cut bureaucracy, and encourage more councils to put in place plans to enable the building of new homes".

Most of these changes will not come into effect straight away, as they will require secondary legislation, changes to national policy and further consultation.

Key changes and their implications for developers, investors and landowners

Outlined below are some of the main changes introduced by the Act. Please note, there are other changes also such as the Infrastructure Levy and changes to compulsory purchase compensation rules.

1. Power to vary a planning permission: A new statutory variation mechanism allowing for planning permissions to be materially amended is being introduced – Section 73B. This will allow for more material (but not substantial) changes to be made to planning permissions, providing there is an existing permission (which is not a Section 73 planning permission), and the proposed variations are not “substantially different from that of the existing permission”.

Like Section 73, Section 73B cannot be used to extend the life of the permission.

2. National Development Management Policy (NDMPs): The introduction of NDMPs will form the statutory policy standard against which applications for planning permission will be determined. NDMPs will have a higher status than local plans and will deal with issues such as heritage, greenbelt and climate change.

It is important to note the Act introduces an even greater presumption against development that is not in accordance with statutory policy (NDMPs) and local plans. In fact, there must be material considerations which strongly indicate why the proposed development will not be in accordance with these.

3. Enforcement: The planning enforcement period for all breaches of planning control will rise to 10 years. The four-year rule for breaches will be abolished.

Further, enforcement warning notices are being introduced which can be used by Local Planning Authorities before bringing enforcement proceedings in circumstances when a planning application could regularise the breach.

4. Commencement notices and other reports: There will be an obligatory requirement for developers to serve a commencement notice before development begins – similar to obligations often included in S106 Agreements and the Community Infrastructure Levy (CIL) process. This will be extremely helpful if you are acquiring a property.

The notice must contain the expected commencement date and any other information that will be prescribed by subsequent regulations. Another notice may be submitted if development does not begin on the anticipated date.

It is important to note that failure to serve a notice is an offence.

A planning condition will also be imposed on all planning permissions requiring annual development progress reports to be submitted to the Local Planning Authority.

However, it can be assumed that these reports will only really be used by Local Planning Authorities when they suspect a breach of the planning permission or if progress with the development is slow.

5. Power to refuse to determine applications: Local Planning Authorities will be able to refuse to determine an application for planning permission if the developer has either a history of not implementing planning permissions in that local area, or a track record for building out their developments unreasonably slowly.

6. Environmental Assessment Regime: Environmental Impact Assessments and Strategic Environmental Assessments will be replaced by 'Environmental Outcome Reports', which aims to simplify the environmental assessment process.

The detail of what will need to be included in these reports will be set out in separate regulations (yet to be consulted on).

However, we assume the report will include details on steps to mitigate/remedy/avoid/achieve specified environmental outcomes.

Whether all these changes come into effect will depend on many factors, including the political landscape and government priorities.

If you have any questions about what the Act may mean for you, please do not hesitate to contact the planning team at Fieldfisher.