Local Planning under the Levelling Up and Regeneration Act 2023

The Levelling Up and Regeneration Act 2023 (LURA) contains detailed provisions for plan-making. These cover what local planning authorities (LPAs) must bear in mind when creating plans such as joint spatial development strategies, local and joint plans, minerals and waste plans and supplementary plans (together the Development Plans). This note considers some of what we believe to be the more important provisions for plan-making.

Joint Spatial Development Strategies

A Joint Spatial Development Strategies (JSDSs) is a spatial development strategy prepared by two or more "eligible" LPAs, as defined by LURA.

What does the LURA say about the contents of JSDSs?

When drawing up a JSDS, LPAs must include a statement of policies relating to the development and use of the land in the joint strategy area, which are of strategic importance to the area and designed to achieve objectives that relate to the characteristics of the area.

In relation to the provision of infrastructure, the JSDS may specify infrastructure that the LPA considers of strategic importance for any of supporting/facilitating development; mitigating/adapting to climate change; or promoting economic, social, or environmental well-being of the area. Similarly, a JSDS may specify affordable housing where it is considered by the relevant LPAs to be of strategic importance.

A matter is of strategic importance in a JSDS where more than one of the participating LPAs consider it to be so. It does not need to affect the entire area covered by the JSDS.

Under the LURA, the Secretary of State (SoS) has the power to prescribe further matters to be dealt with under a JSDS. This could require, amongst other things, further diagrams or illustrations relating to the contents of a JSDS.  

Importantly, the JSDS may make different provisions for specific areas within the joint strategy area and, further, they must be designed to secure that the use and development of land in that area contributes to the mitigation of and adaptation to climate change.

A JSDS may not include anything that is not permitted or required by LURA, specify particular sites where development should take place or be inconsistent with or repeat any national development management policy.

Public examination of JSDS

Before it is adopted by participating LPAs, a JSDS must be subject to public examination, unless the SoS directs otherwise. Such public examination is to be conducted by a person appointed by the SoS for that purpose. This person will also decide the matters to be considered, and following the public examination, will make a report to the participating LPAs.

It should be noted that there is no automatic right for any affected person to be heard unless they are a participating LPA or are invited by the person conducting the examination.

Does the SoS have specific powers in relation to the adoption of a JSDS?

SoS can issue a direction to participating LPAs not to adopt a JSDS, except in a modified form of the proposed JSDS as set out in any such direction. The SoS can give such a direction, if the SoS considers it expedient to do so, to avoid inconsistencies with national policies or any detriment to the interests of areas outside the joint strategy area.

What does the LURA say about an LPA's review and monitoring duties in relation to JSDSs?

Participating authorities must periodically review matters expected to affect the development, the planning of the development or other matters relevant to the content of the joint strategy area. In their review, participating authorities must consult relevant LPAs insofar as those matters affect the area within their authority.

Local plan timetables

The LURA requires each LPA to prepare and maintain a local plan timetable, which should include, inter alia, matters to be dealt with in the LPA's local plans, the geographical area covered, whether the local plan will be a joint one and which other LPAs are involved, and a timetable for the LPA's local and other plans. Once created, the LPA must publish the timetable and comply with it.

Notable is the fact that the SoS has the power to prescribe the form and content of the local plan timetable to be followed by LPAs, as well as the power to direct amendments be made to local plan timetables. Where a timetable is not produced, the SoS may create one and direct the LPA to implement it. Finally, the SoS can regulate on when and in which circumstances an LPA must revise their local plan timetable.

Paragraph 15B deals specifically with local plan timetables in the London area. Similar to the SoS's powers to create a local plan timetable and direct LPAs to implement it, so can the Mayor of London (MoL) when it comes to London boroughs. The MoL also has the power to direct that timetables be amended. Crucially, any such directions must be sent to the SoS and the SoS may then approve it or otherwise tell the LPA to disregard it, giving reasons for such an instruction. As such, it will still be the SoS having the final say on local plan timetables, even in the London area.

What does the LURA tell us about local plans?

Unsurprisingly, LPAs must prepare a local plan which sets out the LPA's policies in relation to development in their area. These plans can include policies on land use, infrastructure requirements and design aspects relating to development. The SoS has the power to prescribe matters that may and/or must be dealt with in an LPA's local plan.

The local plan should be designed so that use and development of land contributes to the mitigation of and adaption to climate change. Notably, local plans must not be inconsistent with national development management policies or otherwise repeat such policies. The local plan must be in general conformity with the spatial development strategy if one is operative in relation to the area of the local planning authority.

Notably, the LPA must seek observations or advice in relation to a proposed local plan from a person appointed by the SoS, if the SoS so prescribes. The SoS may require the LPA reimburse the SoS for any expenditure incurred in connection with this appointment or pay the appointed person's fees and expenses. Any observations or advice received from the appointed person must be published as soon as is reasonably practicable.

What does LURA tell us about joint local plans?

Under Paragraph 15I of LURA, the SoS may direct two or more local authorities to prepare a joint local plan for their combined areas, irrespective of whether or not the authority's local plan timetables specify that their local plan for their area is to be joint. The SoS may also specify the timetable for preparation of the joint local plan and that the respective authorities amend their local plan timetables to take account of the direction.

However, the SoS may only give a joint local plan direction if the SoS considers that it will facilitate more effective planning for development and use of land in one or more of the LPAs in question.

The SoS may modify or withdraw a joint local plan direction by notice in writing to the authorities to which the initial direction was given. When modifying or withdrawing such a direction, the SoS is required to give the reasons for the modification or withdrawal.

What factors must the LPA take into account when preparing a local plan?

Under Paragraph 15CA (6) of Schedule 7 of LURA, in preparing the local plan, the LPA must have regard to:

• Any observations or advice received from the appointed person.
• Any responses to a consultation in connection with the preparation of the local plan.
• national development management policies.
• Other national policies and advice contained in guidance issued by the SoS.
• The National Planning Framework for Scotland or Wales, if any parts of the authority's area adjoins these respective areas.
• Any other part of the development plan for the authority's area which has effect.
• Any neighbourhood priorities statement which has effect for part of the authority's area and to which the authority has not already had regard in preparing another local plan previously adopted or approved.
• Any other matters as the SoS prescribes.

The LURA provides that the SoS may issue regulations to prescribe, inter alia:

• The form and content of the local plan, including making provision as to any further documents that the LPA must prepare in connection with the local plan.
• The nature of the observations or advice which must be sought from the appointed person.
• Documents or information that must be provided by the LPA to the appointed person.
• The form and content of the observations provided by the appointed person.
• When, or in what circumstances, a new local plan is to be prepared to replace the existing one.

Supplementary plans

What are supplementary plans?

Under paragraph 15CC of Schedule 7 of LURA each relevant plan-making authority may prepare one or more documents, each of which is known as a "supplementary plan".

A supplementary plan prepared by an LPA may include:

• Policies in relation to the amount, type, and location of, or timetable for, development at a specific site in their area or at two or more specific sites in their area which the authority considers to be nearby to each other.
• Other policies in relation to the use or development of land in the LPA's area designed to achieve objectives relating to the particular characteristics or circumstances of a site in their area or two or more specific sites in their area which the authority considers to be nearby to each other.
• Details of any infrastructure requirements, or requirements for affordable housing, arising from development under those policies.
• Requirements with respect to design that relate to development, or development of a particular description, throughout the LPA's area or at one or more specific site in the LPA's area, which the LPA consider should be met for the development to be granted.

In London, a supplementary plan is prepared by the MoL and may include requirements with respect to design that relate to development, or development of a particular description, throughout Greater London, which the MoL considers should be met for planning permission for the development to be granted.

What factors do supplementary plans need to consider?

Supplementary plans must be in general conformity with the spatial development strategy if one is operative in relation to the area or a site to which the plan relates. They must also not be inconsistent with or (in substance) repeat any national development management policy.

In preparing a supplementary plan, the relevant plan-making authority must have regard to any other part of the development plan which has effect for the area or a site to which the plan relates. Importantly, so far as the relevant plan-making authority considers appropriate having regard to the subject matter of the supplementary plan, the plan must be designed to secure that the development and use of the land in the authority's area contribute to the mitigation of, and adaption to, climate change.

What powers does the SoS have in relation to supplementary plans?

The SoS may prescribe further matters which a supplementary plan may include. The SoS may also make provision about the preparation, withdrawal, or revision of supplementary plans. Any SoS regulations made in respect of supplementary plans must require a proposed supplementary plan to be the subject of consultation with the public.

Design codes

An LPA must ensure that for every part of their area, the development plan includes requirements with respect to design that relate to development, or development of a particular description, which the authority consider should be met for planning development to be granted. However, this is a high-level note rather than a detailed process map.

Comment

The new JSDS framework is designed to encourage regional collaboration between authorities on shared issues. Local authorities, separately or together, can make supplementary plans in accordance with the JSDS, to address the specifics of policies and how these will be carried out. The JSDS will be subject to public consultation and scrutiny, not least by examination, and so it may be some time before we can measure the impact of these provisions.