Planning and Infrastructure Bill heralds ‘top-down State control’
I’ve just been reading the Planning and Infrastructure Bill, prompted to do so by what I’d picked up from the Planning Reform Working Paper on Development and Nature Recovery. Yes, I really do know how to enjoy myself.
https://archive.is/NNqg5#selection-2675.0-2957.138
My attention was particularly drawn to the proposal in the working paper that developers in future will not be required to carry out environmental mitigation on site, but will pay a sum of money to a “delivery body” to carry out “strategic” works somewhere else.
The paper asserted that the government would make development easier, but still protect the environment.
It said that site-specific actions “may be effective in addressing the specific impact of a proposal, [but] by not taking a strategic view, we may miss opportunities to support wider objectives for the environment, land use, and public amenity”.
The words “strategic” and “strategically” were used many times, and the intention explicitly stated: “moving more responsibility for planning and implementing these strategic actions onto the state”.
Joy Bowes, a former solicitor, divides her time between Suffolk and her partner’s 223ha Lake District hill farm. It is home to a herd of Galloway cattle. Higher Level Stewardship conservation work has been carried out, with plans for more trees under Countryside Stewardship.
It was obvious that “somewhere else” will mean “on someone else’s land” and, having read the bill, I now know that Natural England will be authorised to compulsorily purchase farmland, or indeed any sort of open land, including allotments, to carry out environmental works.
This may explain why, in a recent interview, Natural England’s chair Tony Juniper seemed strangely unperturbed by the curtailing of site-specific environmental protection.
In brief, the bill says Natural England will draw up and consult on an Environmental Delivery Plan (EDP) for an area, setting out what environmental features need protection, what conservation measures are needed, and a schedule of the levies to pay for them.
Once the EDP is in place, any development which will affect a protected feature will be subject to the levy.
The developer pays the levy and builds its development, Natural England does something strategic with the money, the public gets the houses, factories or whatever, and nature doesn’t suffer at all. What could go wrong?
Well, during my years in local government, I saw how hard it could be to agree with developers’ payment for things such as highway improvements. And I can’t imagine that agreeing the levy will be much easier.
Local people may not be happy to lose an established woodland on the promise of new woodland five miles away.
Habitats or wildlife lost from a site surely can’t just be replaced or relocated elsewhere.
Then there is the matter of making sure the off-site mitigation is actually carried out in a timely fashion so we don’t end up with lots of development yet no compensatory benefit to the environment.
I am also uneasy that so much power will be devolved to Natural England. Not only will it determine, through EDPs, what environmental works are needed, it will also decide what land it requires to achieve this.
The bill even provides for a second go if the first mitigation is ineffective. I worry that this will allow a state-sponsored body to appropriate as much land as it can, to the detriment of affected landowners.
The government argues that, at present, it is too easy for bats, newts and human “blockers” to hold up essential development.
The bill opens the door to too much top-down state control and a complete disregard for the people who have to live with the consequences.
Compulsory purchase reform ahead – what’s planned?
A planning and infrastructure bill is due to be introduced early this year.
Suzie Horne 16 January 2025
https://www.fwi.co.uk/business/business-management/compulsory-purchase-reform-ahead-whats-planned
https://www.fwi.co.uk/business/business-management/compulsory-purchase-reform-ahead-whats-planned
Alongside other planning reforms, it is proposed to include wider compulsory purchase (CP) powers and restrict compensation to landowners.
A consultation published on 19 December 2024 sets out reforms that expand on provisions in the Levelling Up and Regeneration Act 2023.
These allow “hope value” to be removed in circumstances where social and affordable housing is being built, also for educational and NHS purposes, providing there is justification in the public interest.
What is proposed?
A key proposal is to extend this ability to disapply hope value to include CP orders made on behalf of parish, town or community councils by local authorities under section 125 of the Local Government Act 1972.
This would apply where the schemes involved are providing affordable or social housing.
“It’s unusual for town and community councils to be considering compulsory purchase because of the risks involved, unless they are in a joint venture with a developer,” says planning lawyer Fergus Charlton, a partner with Michelmores.
“This is pushing in the direction for the delivery of more housing and makes it more likely that a landowner will be served with a compulsory purchase order,” he says.
The consultation refers to the government’s desire that landowners should get a “fair” rather than “elevated” value for land taken by CP. However, “fair” in this instance simply means agricultural value.
Henry Church is a senior director with CBRE UK, a commercial real estate service and investment company.
He also has a long-standing relationship with the Compulsory Purchase Association, an independent organisation promoting best practice in the field.
Speaking in a personal capacity as a CP practitioner, Henry takes issue with the words “fair” and “elevated”.
“What this is seeking is for there to be payment for existing use value, ignoring any potentiality in the land,” he says.
“This approach goes against the principle of equivalence, which says that those subject to compulsory purchase should be put in no worse a position as a result of the process.”
Like many others, he thinks that the move could reduce the amount of land coming forward for housing, as those promoting it may fear spending to do so only to have it subsequently taken from them by CP.
“By disapplying hope value, you’re not getting rid of that value, you’re giving it to someone else.
“You need to be responsible about what you do with that value. So who does it go to – the local authority or the developer?
The cost of land is a factor in development, but disapplying hope value as a means of addressing the rate of housebuilding is too simplistic and risks land not being brought forward, says Henry.
Other measures
The consultation goes further in seeking to allow land to be compulsorily purchased without hope value.
The government is considering a general power to enable the secretary of state in England or the ministers in Wales to make a direction to remove hope value from compensation for a specific category of sites where this is justified in the public interest.
It suggests this could include land allocated for residential development in an adopted plan but which has not come forward for development.
This could bring a much wider range of farmland into the net of CP with no hope value, while some commentators have interpreted it as being aimed at those holding potential development land but not yet developing it – often referred to as land banking.
Land costs and development
The Country Land and Business Association (CLA) has long argued that land costs are a relatively small part of total development costs.
Compulsory purchase compensation aims to put those affected in the same position as if their land had not been taken.
However, this is rarely the outcome, says CLA chief surveyor Andrew Shirley.
The ability to remove hope value was introduced by the previous government and criticised by him as singling out land value as if that was going to solve the problem.
“A key consideration for the valuation process is what the land might be worth if sold on the open market by a willing seller,” he says, also criticising the planning process for delays and the recent revision of the National Planning Policy Framework for offering nothing to the rural economy.
“Hope value is real value, not a made-up value,” says Andrew.
“If a developer were to buy a field they would pay a value to reflect its development potential. Removing hope value [from the CP process] means the only person not making money from it is the landowner.”
Opportunity to develop before new laws
The planning and infrastructure bill may take one to two years to become law.
In the meantime, the CLA’s message is that is if someone feels they have development potential on their land, they should promote it, submit it for planning and/or sell or develop it, says Andrew.
If the proposals become law, it is expected that one result will be more joint ventures between local planning authorities and developers, whereby the developers fund or part-fund the compulsory purchase process in order to access the development land subject to the CP order.
Compulsory purchase powers
Compulsory purchase (CP) is a legal process by which land can be taken without the consent of the owner.
These powers are granted to local authorities, government departments and to other public and private bodies by legislation.
This includes mayoral combined authorities and other public bodies, including Homes England.
CP powers can only be used if it is deemed that there is a compelling case in the public interest to do so – for example, for infrastructure projects such as railways, roads, energy, electricity infrastructure, schools, hospitals, housing, and urban regeneration.
The government says that the proposed changes to the CP regime aim to speed up decision-making, reduce the cost of the process and ensure the compensation paid to landowners is fair.
Other changes in the government’s consultation
Where a CP is proposed and a direction to remove hope value is sought and opposed, the government wants the decision to be made by a planning inspector rather than the secretary of state or a minister.
Also, where a “no hope value” CP order has been made but there are no objections to the order, the government then the acquiring authority would have the power to confirm the decision, rather than the secretary of state or minister.
This would require an amendment to the Acquisition of Land Act 1981.
Law Commission compulsory purchase review
At the same time as the government’s consultation on compulsory purchase, the Law Commission of England and Wales is reviewing the system and also launched a consultation on 20 December 2024.
This work began in February 2023 and will suggest how to consolidate, modernise and simplify compulsory purchase legislation, with a resulting draft bill proposing technical changes to compulsory purchase procedure and compensation.
There have been frequent calls for reform of the complex and dated CP legislation, some of which dates back to 1845.
How to respond to the consultation
The consultation document was available online.
Responses can also be made online or by emailing CompulsoryPurchaseConsultation@communities.gov.uk
or by post addressed to:
Compulsory Purchase Consultation Team
Planning – Development Management Division
Ministry of Housing, Communities and Local Government
Floor 3, Fry Building
2 Marsham Street
London SW1P 4DF