Planning Update: Reflecting on 2024 and Looking to the Future

Looking Back: 2024 in Review

2024 was a particularly busy year in planning, with several important court decisions – some of which are summarised below...

• Section 73 can be used to make material/substantial/fundamental variations, not just ‘minor material’ amendments, but cannot be used to amend the description of development on the permission (Test Valley BC v Fiske [2024] EWCA Civ 1541) – although a new Section 73B (which will enable changes to the description of development) is expected shortly. 
• A local planning authority (LPA) cannot refuse to determine an application to discharge a condition after the expiry of the related permission if the application was submitted before expiry (Lisle-Mainwaring v RB Kensington and Chelsea [2024] EWHC 440 (Admin)). 
• An LPA should not have exercised its powers to decline to determine two applications for 9 houses on the same area of land as a refused application for 15 houses on the basis that they were “the same or substantially the same” and had no chance of success – it must determine them (Evans v Bridgend CBC [2024] EWHC 2607 (Admin)). 
• An appeal Inspector can refuse to accept new evidence submitted by the parties after the relevant deadline (Low Carbon Solar Park 6 Ltd v SSLUHC & Anor [2024] EWHC 770 (Admin)). 
• The rules on timescales for filing and serving High Court challenges are extremely strict, even if delay is down to the court office (SSLUHC v Rogers [2024] EWCA Civ 1554). 
• There is no presumption in the NPPF which favours reusing buildings, only a policy which encourages it (Marks and Spencer plc v SSLUHC [2024] EWHC 452 (Admin)). 
• An LPA was entitled to revoke a Certificate of Lawfulness as the applicant’s evidence was wrong or misleading (Mehta v RB Kensington and Chelsea [2024] EWHC 1986 (Admin)). 
• ‘Downstream’ greenhouse gas emissions arising from oil extraction must be assessed as part of an application/EIA (Finch v Surrey County Council [2024] UKSC 20), as must downstream emissions from coal burning for steel production (South Lakeland Action on Climate Change v SSLUHC [2024] EWHC 2349 (Admin).

There were also sweeping policy changes in the updated NPPF, highlighting the Government's growth agenda...

Adjustments to housing need calculations, resulting in significant increases in housing need figures for many authorities and an increase from 305k to c.370k homes across England. 

The introduction of ‘Grey Belt’ – i.e. either previously developed Green Belt land, or land which does not strongly contribute to some of the Green Belt purposes (such as preventing neighbouring towns from merging). A number of appeals have already been allowed on the basis that the land comprises Grey Belt. 

Increased policy support for renewables – especially onshore wind and solar. This has been supplemented by the DESNZ’s ‘Clean Power 2030 Action Plan’, which sets out the aim for clean sources to produce at least as much power as Britain consumes by 2030.

Changes were also introduced via legislation... 

Including the introduction of BNG law. It is still too early to get a proper picture of how the regime is panning out, but initial signs suggest that less off-site habitat has been created than expected by DEFRA. Very few habitat banks (which offer off-site units) have been created, which might mean that on-site uptake has been higher than expected. It is also the case that creating banks is a slow process, and that in time the number of banks will increase significantly. 

Another significant change was the abolition of the 4-year rule in England. As of April 2024, all planning breaches must now continue for 10 years to become lawful/immune from enforcement. Please note: transitional provisions mean that operational development which was completed before 25th April 2024 is still subject to the 4-year rule. The same applies to changes of use to dwellings that took place before this date. 

The Government has also announced that it will scrap the 2031 cut-off for applications to have unrecorded public rights of way officially recognised on definitive maps. 

Looking Forward: The Year Ahead

Planning and Infrastructure Bill 2025 

The Planning and Infrastructure Bill is likely to be introduced in March 2025 and aims to tackle issues which have stymied development. Expect to see: 

• A system for pool contributions to deal with nutrient neutrality issues.
• Changes to planning committees – including training, a national scheme of delegation and dedicated committees for strategic development.
• Simplification of the NSIP consenting process.
• LPAs given power to set their own application fees.

What else can we expect?

A number of permissions on Grey Belt land. Several significant appeal decisions have already been issued, including a 49.35MW battery energy storage system (BESS) on Grey Belt land near Walsall. 

Significant numbers of residential schemes. This includes schemes on Green and Grey Belt land, with research suggesting that the latter could accommodate more than 4m homes in England – 800k in the Northwest and 700k in the West Midlands.  

More BESS, onshore wind and solar schemes following changes to policy and the push for renewable energy schemes – although BP’s recent announcement that it will scale back its green investments is concerning. 

More decisions made by the Government. In its first six months it made 13 decisions and approved 9 NSIPs – including data centres, renewable energy sites (including almost 2 GW of solar) and housing schemes. The Government is committed to making 150 major infrastructure project decisions by the end of this Parliament, whilst also reducing the ability for objectors to challenge major infrastructure consents. 

More local authorities having issues with local plan reviews. Shropshire’s review has been delayed after inspectors identified a number of issues e.g. sites initially allocated to meet Shropshire’s needs being repurposed to cover unmet Black Country needs while no additional sites for Shropshire’s needs were identified. Other authorities, such as Stroud District Council, have been advised to withdraw their emerging plans altogether and start again. 

An increase in speculative applications – particularly in areas which lack a five-year supply of housing land.  

A strong push to speed up the delivery of stalled housing sites, as the New Homes Accelerator expert group gets to work.  

More detail on ‘brownfield passports’, which should make it easier to get consent on brownfield land.  

More detail on the New Towns Taskforce, which was created to help achieve the vision of several large communities of at least 10,000 new homes. 

More proceedings under the Proceeds of Crime Act 2002 (POCA). Local authorities can bring legal action against those convicted of planning offences (e.g. failure to comply with enforcement notices) and go after money made from illegal activities. 

In Wales, more Article 4 directions disapplying certain permitted development rights meaning planning permission will be required for changes of use of family homes to second or holiday homes. In Gwynedd, house prices have plunged by 12% as a result of measures (including an Article 4 direction) by Gwynedd Council to reduce the number of second homeowners.

The creation of a new National Park covering much of northeast Wales, which would have significant planning implications for those looking to develop land in the Park area. 

A new Welsh Planning Bill? The Welsh Government is working on a Planning Bill, which will consolidate existing planning laws in Wales into one (very large!) piece of legislation. This should make identifying Welsh planning laws much simpler. 

Overall, expect to see more planning applications (and appeals) generally – there seems to be more optimism in the industry, not least because of the changes to the NPPF (including Grey Belt), with many developers sensing a moment of opportunity.