For developers – A checklist of key legal and policy changes

This year saw a significant shake-up of planning within government, with a new Secretary of State for the rebranded Department of Levelling Up, Housing and Communities. It also saw the introduction of several legal and policy changes which increase the requirements on developers when submitting planning applications.

These changes have the potential to increase time and cost for developers, especially if they are not considered at the initial design stage. Here, we provide a checklist of the new considerations and reflect on how developers might need to adapt their approach to designing development as a result.

• Do you need a fire safety assessment?

Since August 2021, if you are proposing the construction of a building which is over 18 metres or seven storeys in height and contains two or more dwellings or education accommodation, a fire safety statement must be submitted with the planning application.

The fire safety statement must be provided in a set form and include information about the principles and approach to fire safety in each building, the site layout, access for emergency vehicles and location of water supplies for firefighters.

It should also detail any consultation relating to the development and how responses have shaped the development, as well as any relevant local plan and supplementary guidance policies. The Health and Safety Executive (HSE) will then be consulted on the planning application.

Certain types of application are exempt, such as a variation to an existing planning permission or an outline application. That said, the requirements would apply to reserved matters approvals.

Although the fire safety statements are an additional burden for developers at the planning application stage, we advise engaging with the HSE and local authority at the outset. The HSE’s requirements are far more easily accommodated at the design stage than after the application is submitted. The fire safety statement will also be an additional consideration for objectors trying to prevent development from going ahead so the statement should be as detailed and as accurate as possible.

The introduction of the fire safety assessment is part of the package of measures being introduced by the government as a response to the Grenfell tower fire in 2017. More information on the full extent of the measures is discussed in an article from our construction team.

• Are you achieving 10% biodiversity net gain?

Developers will also need to consider the introduction of biodiversity net gain requirements following the Environmental Bill finally receiving royal assent in November 2021.

Although the requirements are unlikely to take legal effect for another two years, they will have the potential to impact upon design, landscaping and planting as well as requiring a more in-depth approach to ecological assessment.  Two of our articles provide further information.

On a practical level for developers, right from the initial design phase, greater thought is likely to need to be given to how a development can enhance biodiversity in contrast to previous approaches which may have been geared towards the avoidance of harm.

• Are you achieving outstanding and beautiful design?

The revised National Planning Policy Framework (NPPF), published on 20 July 2021 contains a shift in emphasis towards policies which further ‘beautiful’ design and accord with local design guides. Paragraph 74, for example, seeks a “variety of well-designed and beautiful homes to meet the needs of different groups”. Along with this, significant weight will be given to development which is of “outstanding and innovative design”, as mentioned within paragraph 134.

Development is therefore required to go beyond being functional, safe and architecturally sound. However, given that there is no guidance as to what might constitute beautiful design it remains to be seen whether bolder designs will be rewarded, or the relatively conventional.

The concept appears to jar with traditional approaches to decision making. These attempt to look at various material considerations objectively and then apply discretion in the weighing up of these factors, because the concept of beauty is not objective.

In the recent appeal dismissal for the ‘Tulip’ building in London the inspector confirmed that: “It is evident, for all the reasons that they set out, that the appellant and its supporters consider that the scheme would be beautiful while objectors think it would not. While I certainly accept that innovative designs can be beautiful, in other regards I consider that the concept of beauty…is in the eye of the beholder and…further discussion is unlikely to be helpful”.

As more decisions and legal challenges come through, it will be interesting to see the approach taken by other decision makers but it is likely that new developments will have to demonstrate a more considered approach to design and developers will need to justify the choices they make.

• How will the new Secretary of State level us up?

As for Michael Gove, our new Secretary of State, we still aren’t entirely sure what levelling up really means in the wake of the shelving of the north eastern branch of the HS2 line. His impact on the planning process remains to be seen but we may see a policy shift in appeals and recovered decisions more generally as we move through 2022 – watch this space!