Planning

We reported on the key planning reforms proposed in the Bill when it was first published back in May 2022 (see the links for ‘Related Materials’), and the majority of these have survived such as the streamlining of the local plan-making process, the requirement for local authorities to adopt design codes, changes to compensation associated with compulsory purchase orders, and changes to heritage-related enforcement.

There were a couple of very late but notable changes:

• Adoption of the proposed new Infrastructure Levy (which would replace the Community Infrastructure Levy) will not be mandatory for all local authorities as had been originally proposed.
• A duty on the Secretary of State to have special regard to mitigation of, and adaption to, climate change when preparing planning policy and guidance was restricted solely in relation to the new national development management policies.

Environment

Environmental impact assessment

LURA sets the stage for reform of current (EU-derived) system for environmental impact assessments (EIA) and strategic environmental assessments by providing instead for “Environmental Outcome Reports” (EORs) designed to reduce duplication and streamline the process for identifying and assessing the environmental impact of plans and projects.

The Act provides the Secretary of State with the power to make EOR regulations which will specify environmental outcomes against which to assess relevant plans and programmes. Those outcomes will be subject to consultation.

There is limited detail in the Act on the detail of the new EOR regime but we know that - like there is for EIA - there will be two categories of plans and developments that will require an EOR: (1) Category 1 consents which will require an assessment in all circumstances; and (2) Category 2 consents which will require an assessment if the criteria set out in the regulations are met.

We also know that an EOR must:

• measure the expected environmental effects of a plan or consent against the environmental outcomes set out by the Secretary of State;
• set out the impact of any reasonable mitigation or compensation measures; and
• consider reasonable alternatives to the plan or consent.

Regulations will be able to amend, repeal or revoke relevant existing environmental legislation, however, the Secretary of State must be satisfied that the regulations will not result in a lower overall level of environmental protection and that they are consistent with the UK’s obligations under international law. Initial public consultation on the approach to EOR was published earlier this year (closing on 9 June) but a response to this is still awaited.

Nutrient neutrality

The House of Lords rejected amendments proposed by the government that would have abolished the requirement for new developments in sensitive catchment areas to be nutrient neutral, therefore this requirement remains in place, though the government has indicated that it will be making further announcements on possible next steps in due course.

What next?

Hot on the heels of the Act, the government is expected to publish its long-awaited revisions to the National Planning Policy Framework (NPPF) based on the changes proposed back in December that would remove the need for local authorities to maintain a rolling 5-year housing land supply where their local plan is up-to-date.

However, significant changes in the Act remain reliant on the publication of new regulations, and will need to be supported by guidance. We can expect an increasing number of public consultations, with much of the detail yet to be provided. The December 2022 consultation on the NPPF revisions received over 20,000 responses, and responses are also awaited on over a dozen more planning-related consultations which have closed since the beginning of the year.

The EOR provisions under the Act are case in point. While they are another example of post-Brexit divergence between the UK and EU, there is a real lack of detail in the Act, and implementation is dependent on new regulations. Given the likely time needed to establish a clear policy framework (and supporting guidance), and a likely General Election in 2024, the nature and scope of EOR and its divergence are unlikely to crystallise imminently.

Bringing forward EOR, and many of the other planning reforms are therefore likely to be open to successive ministers (or governments) who may take different approaches and this is likely to be dictated by policy choices and priorities (with Keir Starmer at the recent party conference setting out his plans to “bulldoze” through the planning system). Any bulldozing in the EOR context will, as noted above, need to ensure that there is no lowering of environmental protection, however.

More analysis to come

The Act is lengthy and wide-ranging in scope with a lot of detail to analyse. Our planning team will follow up with more detailed analysis of the planning changes arising from the Act and our public law team will also be sharing more analysis on the environmental impact regime changes and the interaction with the Retained EU Law Act 2023.