Most of you by now would have received the unsolicited gift of the updated Levelling-up and Regeneration Bill (LURB) along with the explanatory notes. Unfortunately, this gift does not come with a return receipt, and you cannot blame Santa! The recent amendments aim to provide further details of the publicised new proposals and changed proposals for the Bill. One of these potential changes is the ability for an application to be refused based on a developer’s past behaviour.
Section 105 of the LURB proposes to introduce a discretionary power for authorities to decline to determine a planning application where development has been authorised on the same land and has either not begun or has not taken place at a ‘satisfactory pace’ or has not yet been completed.
The power will only be available where the applicant is a person who has applied for an earlier permission or is ‘connected to’ an earlier planning permission. The local planning authority will also consider the details in the development commencement notice (which is also to be a new requirement of the LURB) and whether a completion notice has been served.
The authority may serve a notice requesting an applicant to provide information in connection with the use of the power. Failure to respond within 21 days will allow the local planning authority to also decline to determine the application. In addition, providing false or misleading statements in response to this notice will be a criminal offence.
The power will not apply to s73 applications, retrospective planning applications or applications to make minor variations to planning permission under section 73B of the TCPA 1990 (being introduced in the LURB).
The Government has proposed this amendment as a mechanism to force developers to complete developments. As well as aiming to make developers more accountable, ensuring developments are implemented and completed in time too.
Nevertheless, given the economic uncertainty the country faces, this new power may not speed up the process of developments being completed. It may do the opposite, not only deterring smaller developers from applying for planning permission but also lead to further delays in obtaining planning permission due to the lack of resources/funds local planning authorities will have.
This proposal is yet to be consulted on and is likely to be resisted by developers on the grounds of fairness and practicality due to the ample number of reasons a development can fail to be built out, many of which are outside developers’ control. There is also a wider sense check – the Letwin Review did not find any evidence that speculative land banking is a structural phenomenon or that it is a driver of slow build out rates. An alternative approach would be to adopt measures to ensure that more land is allocated for development so that the available supply of sustainable sites from which to drive delivery increases (because if the lapse rate remains the same, absolute delivery will be higher).
This proposal is one to keep an eye on, due to the burden it will impose on developers to avoid being on the LPA’s naughty list and managing the demand for yet more information in the planning process.