Legislation – Levelling-up and Regeneration Act 2023

In section 122 of the Localism Act 2011 (consultation before applying for planning permission in England), omit subsections (3) and (4) (which provide for the expiry of sections 61W to 61Y of TCPA 1990).

123Duty in relation to self-build and custom housebuilding

(1)

In section 2A of the Self-build and Custom Housebuilding Act 2015 (duty to grant planning permissions etc)—

(a)

in subsection (2)—

(i)

omit “suitable”;

(ii)

for “in respect of enough serviced plots” substitute “for the carrying out of self-build and custom housebuilding on enough serviced plots”;

(iii)

for “arising in” substitute “in respect of”;

(b)

after subsection (5) insert—

“(5A)

Regulations may make provision specifying descriptions of planning permissions or permissions in principle that are, or are not, to be treated as development permission for the carrying out of self-build and custom housebuilding for the purposes of this section.”;

(c)

in subsection (6), for paragraph (a) substitute—

“(a)

the demand for self-build and custom housebuilding in an authority’s area in respect of a base period is the aggregate of—

(i)

the demand for self-build and custom housebuilding arising in the authority’s area in the base period; and

(ii)

any demand for self-build and custom housebuilding that arose in the authority’s area in an earlier base period and in relation to which—

(A)

the time allowed for complying with the duty in subsection (2) expired during the base period in question, and

(B)

the duty in subsection (2) has not been met;

(aa)

the demand for self-build and custom housebuilding arising in an authority’s area in a base period is evidenced by the number of entries added during that period to the register under section 1 kept by the authority;”;

(d)

omit subsection (6)(c);

(e)

in subsection (9)(b), for “arising in” substitute “in respect of”.

(2)

In section 4 of the Self-build and Custom Housebuilding Act 2015 (regulations), in subsection (2), before paragraph (za) insert—

“(zza)

section 2A(5A),”.

124Powers as to form and content of planning applications

(1)

Before section 327A of TCPA 1990 insert—

“327ZAPlanning applications in England: powers as to form and content

(1)

Subsections (2) to (3) apply to a relevant power to make provision about—

(a)

the form or manner in which a planning application is to be made, or

(b)

the form or manner in which an associated document is to be provided.

(2)

The power includes power to make provision requiring or allowing the application to be made, or the associated document to be provided—

(a)

by particular electronic means, or

(b)

by electronic means that satisfy particular technical standards or specifications.

(3)

The power includes power to make provision requiring or allowing the authority to which a planning application is (or is to be) made to waive a requirement of a sort described in subsection (2).

(4)

Subsection (5) applies to a relevant power to make provision about the content of a planning application or associated document.

(5)

The power includes power to make provision requiring the application or associated document, or any particular content of it, to be prepared or endorsed by a person with particular qualifications or experience.

(6)

Subsection (7) applies to any power within subsection (1) or (4).

(7)

The power may be exercised by making provision referring (and giving effect) to such material of a particular description as is published from time to time by the Secretary of State on a government website together with a statement that it has effect for the purposes of the provision in question.

(8)

Provision that may be made by virtue of subsection (7) includes, for example, provision requiring or allowing a planning application to be made (or an associated document to be provided) using such a form, or in accordance with such specifications, as are published from time to time as mentioned in that subsection.

(9)

In this section, a “relevant power to make provision” about a certain matter is a power of the Secretary of State under this Act to make subordinate provision about that matter, if and so far as the power is exercisable in relation to England.

(10)

It is irrelevant for the purposes of subsection (9) in what terms a power is conferred (and, in particular, whether it relates specifically to the matter in question or is a more general power capable of exercise in relation to that matter).

(11)

In this section—

“associated document” means any document or other material that—

(a)

accompanies, relates to, or is or is to be subject of, a planning application, and

(b)

is required by or under this Act to be provided by or on behalf of the person making the application;

“planning application” means—

(a)

an application under, or for the purposes of, any provision of Part 3 or 8 of this Act or any subordinate provision made under that Part, or

(b)

an application under section 191 or 192,

but does not include an application made in legal proceedings;

“provided” includes prepared, submitted, issued, served, notified and published;

“subordinate provision” means provision in an order or in regulations.”

(2)

In section 62(2A) of TCPA 1990 (powers relating to applications for planning permission to include certain applications under conditions), before paragraph (a) insert—

“(za)

applications for any consent, agreement or approval required by a condition under section 61C(1)(b),”.

(3)

In paragraph 14 of Schedule 7A to TCPA 1990 (biodiversity gain plans) at the end insert—

“(4)

Section 327ZA applies to the power conferred by sub-paragraph (3) as if a biodiversity gain plan were an “associated document” within the meaning of that section.”

(4)

In section 17 of the Listed Buildings Act (conditions of listed building consent), after subsection (3) insert—

“(4)

Regulations under this Act in relation to England may, in relation to applications made pursuant to a condition attached to listed building consent, make any provision corresponding to provision that may be made in relation to applications for such consent under section 10(3).”

(5)

In section 89 of the Listed Buildings Act (application of general provisions of TCPA 1990)—

(a)

in subsection (1), after the entry for section 323A insert—

“section 327ZA (powers as to form and content of applications in England);”;

(b)

before subsection (1A) insert—

“(1ZC)

In section 327ZA of the principal Act as applied by this section, references to a planning application are to be read as references to an application under, or for the purposes of, any provision of Chapter 2 of Part 1 of this Act or any subordinate provision made under that Chapter (but are not to be read as including an application made in legal proceedings).”

(6)

In section 10 of the Hazardous Substances Act (conditions of hazardous substance consent), after subsection (3) insert—

“(4)

Regulations in relation to England may, in relation to applications made pursuant to a condition attached to hazardous substance consent, make any provision corresponding to provision that may be made in relation to applications for such consent under section 7.”

(7)

In section 37 of the Hazardous Substances Act (application of general provisions of TCPA 1990)—

(a)

in subsection (2), after the entry for section 323A insert—

“section 327ZA (powers as to form and content of applications in England);”;

(b)

at the end insert—

“(5)

In section 327ZA of the principal Act as applied by this section, references to a planning application are to be read as references to an application under, or for the purposes of, any provision of this Act or any subordinate provision made under this Act (but are not to be read as including an application made in legal proceedings).”

125Additional powers in relation to planning obligations

In section 106A of TCPA 1990 (modification and discharge of planning obligations), after subsection (9) insert—

“(9A)

Regulations may make provision for, or in connection with—

(a)

requirements which must be met in order for a planning obligation in respect of land in England to be modified or discharged; and

(b)

circumstances in which a planning obligation in respect of land in England may not be modified or discharged.”

126Fees for certain services in relation to nationally significant infrastructure projects

(1)

After section 54 of the Planning Act 2008 (rights of entry: Crown land) insert—

“Chapter 4Fees

54APower to provide for fees for certain services in relation to nationally significant infrastructure projects

(1)

The Secretary of State may make regulations for and in connection with the charging of fees by prescribed public authorities in relation to the provision of relevant services.

(2)

A “relevant service” means any advice, information or other assistance (including a response to a consultation) provided in connection with—

(a)

an application or proposed application—

(i)

for an order granting development consent, or

(ii)

to make a change to, or revoke, such an order, or

(b)

any other prescribed matter relating to nationally significant infrastructure projects.

(3)

The regulations under subsection (1) may in particular make provision—

(a)

about when a fee (including a supplementary fee) may, and may not, be charged;

(b)

about the amount which may be charged;

(c)

about what may, and may not, be taken into account in calculating the amount charged;

(d)

about who is liable to pay a fee charged;

(e)

about when a fee charged is payable;

(f)

about the recovery of fees charged;

(g)

about waiver, reduction or repayment of fees;

(h)

about the effect of paying or failing to pay fees charged (including provision permitting a public authority prescribed under subsection (1) to withhold a relevant service that they would otherwise be required to provide under an enactment until any outstanding fees for that service are paid);

(i)

for the supply of information for any purpose of the regulations;

(j)

conferring a function, including a function involving the exercise of a discretion, on any person.

(4)

A public authority prescribed under subsection (1) must have regard to any guidance published by the Secretary of State in relation to the exercise of its functions under the regulations.

(5)

In this section, “public authority” means any person certain of whose functions are of a public nature.”

(1)

Section 98 of the Planning Act 2008 (timetable for examining, and reporting on, application for development consent order) is amended as follows.

(2)

After subsection (4) insert—

“(4A)

The Secretary of State may set a date for a deadline under subsection (1) that is earlier than the date for the time being set.”

(3)

In subsection (6), after “subsection (4)” insert “or (4A)”.

In paragraph 2 of Schedule 6 to the Planning Act 2008 (non-material changes), after sub-paragraph (1) insert—

“(1A)

The Secretary of State may by regulations make provision about—

(a)

the decision-making process in relation to the exercise of the power conferred by sub-paragraph (1);

(b)

the making of the decision as to whether to exercise that power;

(c)

the effect of a decision to exercise that power.

This is subject to sub-paragraph (2).

(1B)

The power to make regulations under sub-paragraph (1A) includes power to allow a person to exercise a discretion.”

In section 62A of TCPA 1990 (when application may be made directly to the Secretary of State), in subsection (3)(a)—

(a)

in sub-paragraph (i) omit “or”;

(b)

after that sub-paragraph insert—

“(ia)

an application for hazardous substances consent under the Planning (Hazardous Substances) Act 1990, or”.

130Regulations and orders under the Planning Acts

(1)

In section 333 of TCPA 1990 (regulations and orders)—

(a)

after subsection (2A) insert—

“(2B)

Regulations made under this Act may make consequential, supplementary, incidental, transitional, transitory or saving provision.”;

(b)

after subsection (7) insert—

“(8)

Orders made under this Act by statutory instrument may make consequential, supplementary, incidental, transitional, transitory or saving provision.”

(2)

In section 238 of TCPA 1990 (consecrated land), in subsection (5)(c), for the words from “contain” to the end substitute “in particular by virtue of section 333(2B) include provision as to the closing of registers”.

(3)

In TCPA 1990, omit the following—

(a)

section 61Z2(3);

(b)

section 106ZB(2)(a);

(c)

in section 116(2), the words “and incidental or supplementary provision”;

(d)

section 202G(4);

(e)

section 303(6)(a);

(f)

section 303ZA(4)(a);

(g)

section 319A(10)(a);

(h)

section 319B(10)(a);

(i)

in Schedule 4D, paragraph 1(3).

(4)

In section 93 of the Listed Buildings Act (regulations and orders), for subsection (6) substitute—

“(6)

Regulations made under this Act and orders made under this Act by statutory instrument may make consequential, supplementary, incidental, transitional, transitory or saving provision.”

(5)

In the Listed Buildings Act, omit the following—

(a)

section 88D(9)(a);

(b)

section 88E(9)(a).

(6)

In section 40 of the Hazardous Substances Act (regulations)—

(a)

in the heading, after “Regulations” insert “and orders”;

(b)

after subsection (4) insert—

“(5)

Regulations made under this Act and orders made under this Act by statutory instrument may make consequential, supplementary, incidental, transitional, transitory or saving provision.”

(7)

In section 5 of the Hazardous Substances Act (power to prescribe hazardous substances), in subsection (3), for “to make such transitional provision” substitute “under section 40(5) for regulations under this section to make transitional provision”.

(8)

In the Hazardous Substances Act, omit the following—

(a)

section 21A(9)(a);

(b)

section 21B(9)(a).

131Power for appointees to vary determinations as to procedure

In paragraph 2 of Schedule 6 to TCPA 1990 (powers and duties of appointed persons), in sub-paragraph (10)—

(a)

for “does not apply” substitute “applies”;

(b)

at the end insert “only for the purposes of subsection (4) of that section”.

132Pre-consolidation amendment of planning, development and compulsory purchase legislation

(1)

The Secretary of State may by regulations make such amendments and modifications of the relevant enactments as in the Secretary of State’s opinion facilitate, or are otherwise desirable in connection with, the consolidation of some or all of those enactments.

(2)

“Relevant enactments” means—

(a)

the enactments listed in subsection (3), and

(b)

any other enactments, whenever passed or made, so far as relating to—

(i)

planning or development, or

(ii)

the compulsory purchase of land (including compensation for such purchases).

(3)

The enactments referred to in subsection (2)(a) are—

the Land Clauses Consolidation Act 1845;
the Railway Clauses Consolidation Act 1845;
sections 9, 13, 76 and 77 of the National Parks and Access to the Countryside Act 1949;
the Land Compensation Act 1961;
the Compulsory Purchase Act 1965;
the Agriculture Act 1967;
the Civic Amenities Act 1967;
the Land Compensation Act 1973;
sections 13 to 16 of (and Schedule 1 to) the Local Government (Miscellaneous Provisions) Act 1976;
Parts 13, 14, 16 and 18 of the Local Government, Planning and Land Act 1980;
the Compulsory Purchase (Vesting Declarations) Act 1981;
the Acquisition of Land Act 1981;
the New Towns Act 1981;
Part 3 of the Housing Act 1988;
TCPA 1990;
the Listed Buildings Act;
the Hazardous Substances Act;
the Planning and Compensation Act 1991;
Part 3 and section 96 of (and Schedule 14 to) the Environment Act 1995;
GLAA 1999;
PCPA 2004;
the Planning Act 2008;
the Planning and Energy Act 2008;
Chapter 3 of Part 5, Part 6 and Chapter 2 of Part 8 of the Localism Act 2011;
Parts 6 and 7 of the Housing and Planning Act 2016;
section 15 of the Neighbourhood Planning Act 2017;
Parts 3 to 9 of this Act.

(4)

For the purposes of this section, “amend” includes repeal and revoke (and similar terms are to be read accordingly).

(5)

Subsection (6) applies where, in the Secretary of State’s opinion, an amendment or modification made by regulations under this section facilitates or is otherwise desirable in connection with the consolidation of certain relevant enactments.

(6)

The regulations must provide that the amendment or modification comes into force immediately before an Act consolidating those relevant enactments comes into force.

(7)

Regulations under this section must not make any provision which is within—

(a)

Scottish devolved legislative competence,

(b)

Welsh devolved legislative competence, or

(c)

Northern Ireland devolved legislative competence,

unless that provision is a restatement of provision or is merely incidental to, or consequential on, provision that would be outside that legislative competence.

(8)

For the purposes of subsection (7)—

(a)

provision is within “Scottish devolved legislative competence” where, if it were included in an Act of the Scottish Parliament, it would be within the legislative competence of that Parliament;

(b)

provision is within “Welsh devolved legislative competence” where, if it were included in an Act of Senedd Cymru, it would be within the legislative competence of the Senedd (including any provision that could be made only with the consent of a Minister of the Crown);

(c)

provision is within “Northern Ireland devolved legislative competence” where the provision—

(i)

would be within the legislative competence of the Northern Ireland Assembly, if it were included in an Act of that Assembly, and

(ii)

would not, if it were included in a Bill for an Act of the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State.

(9)

In this section “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975.

133Participation in certain proceedings conducted by, or on behalf of, the Secretary of State

(1)

The Secretary of State may, to the extent not otherwise able to do so, require or permit a person who takes part in relevant proceedings conducted by the Secretary of State to do so (wholly or partly) remotely.

(2)

The references in subsection (1) to the Secretary of State include references to a person appointed by the Secretary of State.

(3)

“Relevant proceedings” means any inquiry, hearing, examination, meeting or other proceedings under an Act (whenever passed or made) which relate to planning, development or the compulsory purchase of land.

(4)

Relevant proceedings include, in particular—

(a)

any proceedings to which section 319A of TCPA 1990 applies (see subsections (7) to (10) of that section);

(b)

any proceedings under section 20 of, or paragraph 6 of Schedule 3 to, the Listed Buildings Act;

(c)

any proceedings under section 21 of, or paragraph 6 of the Schedule to, the Hazardous Substances Act;

(d)

any proceedings under section 13A of, or paragraph 4A of Schedule 1 to, the Acquisition of Land Act 1981;

(e)

any proceedings under Part 10A or Part 11 of the Planning Act 2008;

(f)

an examination under Part 2 of PCPA 2004;

(g)

an examination under Chapter 2 or 3 of Part 6 of the Planning Act 2008 (including any meetings under Chapter 4 of that Part) in relation to an application for an order granting development consent;

(h)

an examination under Schedule 4B to the TCPA 1990 in relation to a draft neighbourhood development order.

(5)

For the purposes of this section a person takes part in relevant proceedings remotely if they take part through—

(a)

a live telephone link,

(b)

a live television link, or

(c)

any other arrangement which does not involve the person attending the proceedings in person.

134Power of certain bodies to charge fees for advice in relation to applications under the Planning Acts

After section 303ZA of the TCPA 1990 (fees for appeals) insert—

“303ZBPower of certain bodies to charge fees for advice in relation to applications under the planning Acts

(1)

A prescribed body may charge fees for the provision of advice, information or assistance (including the provision of a response to a consultation) in connection with an application within subsection (2) that relates to land in England.

(2)

An application is within this subsection if it is an application, proposed application or proposal for a permission, approval or consent under, or for the purposes of, the planning Acts.

(3)

A prescribed body may not charge fees under subsection (1) in respect of—

(a)

a response to a consultation that a qualifying neighbourhood body is required to carry out under an enactment;

(b)

the provision of prescribed advice, information or assistance or advice, information or assistance of a prescribed description.

(4)

In subsection (3)(a), a “qualifying neighbourhood body” means—

(a)

a qualifying body within the meaning given by section 61E(6) (and includes a community organisation which is to be regarded as such a qualifying body by virtue of paragraph 4(2) of Schedule 4C), or

(b)

a qualifying body within the meaning given by section 38A(12) of the Planning and Compulsory Purchase Act 2004.

(5)

A prescribed body may charge fees under subsection (1) only in accordance with a statement published on its website which—

(a)

describes the advice, information or assistance in respect of which fees are charged,

(b)

sets out the fees (or, if applicable, the method by which the fees are to be calculated), and

(c)

refers to any provision in an enactment pursuant to which the advice, information or assistance is provided.

(6)

Subsections (7) and (8) apply where a prescribed body decides to charge fees under subsection (1) for advice, information or assistance which the body provides pursuant to a provision in an enactment.

(7)

If a person fails to pay the fee charged under subsection (1), the prescribed body may, notwithstanding any requirement to provide the advice, information or assistance, withhold the advice, information or assistance until the fee is paid.

(8)

The prescribed body must secure that, taking one financial year with another, the income from the fees charged under subsection (1) does not exceed the cost of providing the advice, information or assistance.

(9)

A financial year is the period of 12 months beginning with 1 April.

(10)

Before making regulations under this section, the Secretary of State must consult—

(a)

any body likely to be affected by the regulations, and

(b)

such other persons as the Secretary of State considers appropriate.

(11)

In this section, “fees” include charges (however described).”

135Biodiversity net gain: pre-development biodiversity value and habitat enhancement

In Schedule 7A to the TCPA 1990 (biodiversity gain in England)—

(a)

in paragraph 5(4), after “6” insert “, 6A, 6B”;

(b)

after paragraph 6 insert—

“6A

If—

(a)

a person carries on activities on land on or after 25 August 2023 in accordance with a planning permission (other than the planning permission referred to in paragraph 5(1)),

(b)

on the relevant date, development for which that other planning permission was granted—

(i)

has not been begun, or

(ii)

has been begun but has not been completed, and

(c)

as a result of the activities the biodiversity value of the onsite habitat referred to in paragraph 5(1) is lower on the relevant date than it would otherwise have been,

the pre-development biodiversity value of the onsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.

6B

(1)

This paragraph applies where there is insufficient evidence of the biodiversity value of an onsite habitat immediately before the carrying on of the activities referred to in paragraph 6 or 6A.

(2)

The biodiversity value of the onsite habitat immediately before the carrying on of the activities referred to in paragraph 6 or 6A is to be taken to be the highest biodiversity value of the onsite habitat which is reasonably supported by any available evidence relating to the onsite habitat.”;

(c)

in paragraph 10—

(i)

in sub-paragraph (1), after “habitat enhancement” insert “of an offsite habitat”;

(ii)

after sub-paragraph (1) insert—

“(1A)

For the purposes of sub-paragraph (1) (and without prejudice to paragraphs 3 and 4(1)), a habitat enhancement is calculated as the amount by which the projected value of the offsite habitat as at the end of the maintenance period referred to in section 100(2)(b) of the Environment Act 2021 exceeds its pre-enhancement biodiversity value.

(1B)

The pre-enhancement biodiversity value of an offsite habitat is the biodiversity value of the offsite habitat on the relevant date.

(1C)

The relevant date is—

(a)

the date on which the application is made to register the land subject to the habitat enhancement in the biodiversity gain site register, or

(b)

such other date as may be specified in the conservation covenant or planning obligation.

(1D)

But if—

(a)

a person carries on activities on an offsite habitat on or after 25 August 2023 otherwise than in accordance with—

(i)

planning permission, or

(ii)

any other permission of a kind specified by the Secretary of State by regulations, and

(b)

as a result of the activities the biodiversity value of the offsite habitat is lower on the relevant date than it would otherwise have been,

the pre-enhancement biodiversity value of the offsite habitat is to be taken to be its biodiversity value immediately before the carrying on of the activities.”;

(d)

in paragraph 12(1), after the definition of “onsite habitat” insert—

““offsite habitat” means habitat which is not onsite habitat.”

136Development affecting ancient woodland

(1)

Before the end of the period of three months beginning with the day on which this Act is passed, the Secretary of State must vary the Town and Country Planning (Consultation) (England) Direction 2021 (“the 2021 Direction”) so that it applies in relation to applications for planning permission for development affecting ancient woodland.

(2)

In subsection (1) “ancient woodland” means an area in England which has been continuously wooded since at least the end of the year 1600 A.D.

(3)

This section does not affect whether or how the Secretary of State may withdraw or vary the 2021 Direction after it has been varied as mentioned in subsection (1).