Planning Insights Bulletin - Jan 24

Welcome to the January 2024 edition of the Planning Insights Bulletin where we discuss:

• BNG commencement date
• The NPPF December 2023
• Nutrient Neutrality
• Fire Safety in Tall Buildings

There are a number of significant changes for planners and developers to consider as we move into 2024. In addition to the Levelling Up and Regeneration Act which came into force in November 2023, we were treated to a new National Planning Policy Framework in the week before Christmas along with a Written Ministerial Statement and the promise of more reforms to come.

After several delays in the implementation of the Biodiversity Net Gain (BNG) regime we now have a start date for the BNG regulations. Originally due to come into force in early January for major schemes, this has been pushed back and will now come into effect no earlier than 12 February 2024.

This applies to larger development proposals, including residential developments with 10 or more dwellings, or all development where the site area is greater than 0.5 hectares. Applications for smaller sites will be required to deliver BNG from 2 April.

The draft Statutory Instrument, which is yet to be debated, sets out that the BNG requirements will not apply to applications made before 12 February 2024. We therefore anticipate an increase in applications to be made ahead of this deadline and urge applicants to consider submitting applications as soon as possible to have certainty over BNG requirements.

Speak to any member of the Planning team to make sure your development complies with the BNG requirements.

The fallout from many of the changes to the NPPF will take months or years to be seen on the ground. Many of the changes relate to how Local Plans are prepared and evidenced, how housing targets are calculated and how Local Authorities should treat the Green Belt.

The Government has hinted at further changes to the NPPF in the future to accommodate policies to support Freeports as well as future National Development Management Policies introduced by the Levelling Up and Regeneration Act 2023. 

The reforms which have garnered the most headlines revolve around changes to how Local Authorities calculate and maintain their supply of land for housing, including that some Councils will no longer be required to demonstrate a five-year supply of housing. Linked to this is a reduced pressure on Local Authorities to review their Green Belt boundaries to meet housing need.

Other changes include a greater focus on design and ‘beauty’ within the planning system, policies relating to mansard roofs and policy support for energy efficiency and sustainable design.

As ever, amendments to high-level national planning policies will require developers and decision-takers to fully digest the changes in isolation and cumulatively and we will inevitably see further clarification being sought at appeal and in the courts.

We anticipate the greatest short-term impact to be a watering down of the ‘presumption in favour of sustainable development’ as many Councils will no longer be required to demonstrate five years of housing land supply and the greatest long-term impact to be fewer sites allocated for housing, especially in Local Authorities which include areas of Green Belt.

While the changes to national policy are generally strategic in nature, the NPPF 2023 is in place and its impacts are already being seen in planning decisions. It is important that the policy position of live and impending planning applications be reviewed in light of the new NPPF and that strategies for future applications and for sites being promoted be robust.

The concept of 'nutrient neutrality' has gained significant attention in recent years. In a nutshell, Nutrient Neutrality refers to the need for certain types of developments to not increase the level of nutrients (namely, phosphates and nitrates) entering vulnerable watercourses and catchment areas i.e. by ensuring that the nutrient load created by the development is mitigated.

This came about following the 'Dutch nitrogen case' in 2018 which, to summarise, concluded that measures to mitigate the impact of nutrients in water bodies can no longer be postponed into the future. For those less familiar with nutrient neutrality and its relationship with planning, we would recommend you visit the helpful guide and FAQ resource prepared by the Planning Advisory Service here.

While nutrient neutrality currently only impacts specific river catchments (as shown on this map prepared by the Local Government Association) the areas covered by effected catchments represents a significant proportion of England and the list of catchments may grow in the future.

As nutrient neutrality is still a relatively new issue for planning professionals, there remains several considerable unknowns. In particular, there is uncertainty around the possibility of a strategic approach to decision-making being implemented which would be applied to all affected Local Planning Authorities. The current literature on this points to such an approach being impractical due to the circumstances and sensitivities varying for each of the affected waterbodies.

In recognition of the ongoing implications to housebuilding across the country, the Government proposed last year to include amendments within the then 'Levelling Up and Regeneration Bill' (now 'Levelling Up and Regeneration Act') which would have provided developers with increased certainty on Nutrient Neutrality matters by requiring LPAs (as the 'competent authority') to apply an assumption that new developments would not have increased nutrient pollution on protected sites. The House of Lords voted against the proposed amendments in September 2023. Accordingly, the Government confirmed on 20 December 2023 that it will no longer be pursuing primary legislative measures in relation to these amendments. The current status quo therefore remains.

In lieu of the amendments, the Government outlined a suite of other measures to help provide some increased certainty to developers, landowners and LPAs alike. These measures include:

• A continuation of the Nutrient Mitigation Scheme, providing credits for new homes and complementing locally and privately-led mitigation schemes.
• The establishment of a £110 million Local Nutrient Mitigation Fund to enable local authorities to invest in innovative mitigation schemes and increase mitigation credits.
• A duty on water companies to upgrade wastewater treatment works by 2030, the key benefit being a resulting reduction in the costs of nutrient mitigation for individual developments.

It is anticipated that these measures will help ease the burden on developments and unlock housing sites to enable much-needed delivery.

Elsewhere in the world of nutrient neutrality, the House Builders Federation (HBF) commissioned Brookbanks to prepare a report to examine the extent to which housebuilding contributes to nutrient pollution. The report, published in November 2023, concluded that new housebuilding (based on an assumption of 230,000 new houses per annum with an average of 2.4 people per house) would contribute only 0.29% of total nitrogen and 0.73% of the total phosphorus in the water system. Conversely, the report identifies that agricultural activities represent a considerably larger contributor to nutrient pollution. The report therefore opines that the current Natural England advice on nutrient neutrality "represents a disproportionate restriction on the construction of new homes", concluding that the continuation of such restrictions on developments "will do little to improve the condition of our rivers and associated habitats".

JLL continue to monitor progress on nutrient neutrality at both the national and local level. We are in a position to advise clients and landowners on what the current implications mean for development potential and how to best navigate the legislation and guidance.

When it comes to navigating building regulations, approved documents serve as an essential source of guidance. Among these documents, Approved Document B outlines fire safety requirements for residential developments. This legislation aims to provide clear direction to facilitate the creation of safe and secure environments for occupants. On the 1 of June 2022, the Government sought to strengthen and clarify building regulations and fire safety guidance as part of wider reforms to building safety. As a result, a revision has been applied, requiring the inclusion of a second staircase in buildings exceeding a height of 18 metres.

The new requirement aims to enhance the safety measures in high-rise buildings and facilitate efficient emergency evacuations. The introduction of a second staircase will provide an alternative means of escape, reducing congestion and enabling residents to evacuate swiftly in the event of emergencies. Compliance with this regulation is crucial for developers and stakeholders involved in the design and construction of residential buildings above the specified height threshold to ensure the safety and well-being of the occupants.

The introduction of a second staircase at 18 metres follows the view of the National Fire Chiefs and the Royal Institute of British Architects. While the introduction of a second staircase in residential buildings is primarily aimed at enhancing safety and emergency evacuation, the shift in policy generates concerns from developers, such as:

• Increased cost of construction and implications on a development’s viability.
• The introduction of a second staircase may require reconfiguring the layout of the building, potentially resulting in a decrease in available floor space.
• Higher rental or purchase prices for residential units.

In October 2023, Michael Gove announced that developers would be given a 30-month transition period (Until 2026) during which building regulation applications could adhere to the existing fire safety rules.

JLLs committed to maintaining close collaboration with clients in the residential development sector, offering valuable guidance on the most appropriate strategies in response to this regulatory change.

To discuss any of the matters raised in this bulletin or any other planning matter, please contact any of the JLL team mentioned below or any existing JLL contact.

To discuss any of the matters discussed above or any other planning matter, please contact the team.