Environmental Law News Update

Policies for Planning – Stephen Hockman KC

Everyone knows that the new Labour government has economic growth as its primary policy aim. The purpose of this note is to discuss some of the ways in which such growth is intended to be achieved, and in particular some of the ways in which the planning system might contribute.

The planning system, of course, is a statutory scheme through which the state controls land use and building development. Self-evidently the grant of planning permission does not guarantee that such development and growth will occur, but it is often a necessary pre-condition.

A particular aspect of the problem relates to the location of development, in other words there are some parts of the country, such as London and the Southeast, where growth can occur readily, investors being naturally keen to focus on those areas. There are other parts of the country where growth is unlikely to occur without specific encouragement. It is also in these areas where growth is likely to be needed, in view of the relative lack of prosperity which is to be found.  This policy approach used to be called levelling-up, though that term is now somewhat unfashionable.

Much of the emphasis of current planning policy is on housing development, but it is worth starting with policies which may promote industrial/commercial development as sources of growth and employment. One reason why these policies are so important is that in some areas of the country at least, industrial/commercial development is bound to be a necessary pre-condition for other forms of development including housing which might not otherwise occur.

Summarising briefly, therefore, a few of Labour’s plans with regard to industry and employment it can be observed that, before the election, Labour stated that it would enhance the role of the Industrial Strategy Council putting it on a statutory footing. It has now launched its industrial strategy and appointed a chair of a new Industrial Strategy Advisory Council, Clare Barclay, CEO of Microsoft UK.

In addition, Labour have said that they wish to streamline the process for consenting for nationally significant infrastructure projects (a process comparable to the grant of planning permission), and they have published some recommendations on this by Lord Banner KC (appointed under the last government) together with a call for evidence. They have also set up the National Infrastructure and Service Transformation Authority to promote successful infrastructure projects, especially those relating to green energy.

Aligned to those strategic developments is the setting up of the new publicly owned corporate entity Great British Energy.

Turning to the need for housing, it is well known that Labour plans to achieve 1.5 million new homes in the course of the Parliament, many but not all of which will presumably involve the grant of new planning permissions.

To that end there is an ongoing consultation relating to changes to the National Planning Policy Framework, restoring the primacy of housing targets and enhancing the requirement for affordable housing. Comments on that consultation closed at the end of September. In that connection it is worth mentioning that, as in the past, disputes will continue to arise as the viability of projected development with a significant affordable component, and there is an interesting suggestion from the Planning Bar of a national viability unit to advise and assist local planning authorities in resisting, where appropriate, claims by developers as to non-viability.

Over and above the NPPF changes, Labour is arguing in favour of an increasingly strategic approach, involving increased collaboration between local planning authorities and through combined authorities. There has also been talk of revival of the “new town” concept, albeit there has been little public discussion to date of the legal or other mechanisms by which decisions as to new towns would be pursued.  The terms of reference for the New Towns Taskforce remain broadly drawn.

Two further changes have been flagged up in ministerial remarks. Firstly, greater use of compulsory purchase powers, for which some encouragement already exists in the form of provisions in the Levelling-up and Re-generation Act 2023 passed under the previous government, such provisions restricting the opportunity for landowners to rely on hope value as an element in compensation. There has also been talk of reform of the powers of local planning authorities to require planning gain, presumably under an amended version of section 106 of the Town and County Planning Act 1990.

What is clear from the Budget of 30 October 2024 is that reform of the planning system is still seen as a central engine of growth. Rachel Reeves promised “over £5bn of government investment to deliver our plans on housing next year”, including “We will provide £3bn of support in guarantees… to boost the supply of homes and support our small housebuilders” and the hiring of “hundreds” of planning officers.[1]

The above summary, which is deliberately framed in outline terms, shows the range of interventions which are planned to facilitate increased development and growth, though it is worth re-emphasising that, even if all of the above can be put in place, it remains essentially for the private sector to have the confidence to participate and invest to an extent hitherto unknown.

[1] https://www.gov.uk/government/speeches/autumn-budget-2024-speech

Water (Special Measures) Bill – Strengthening Regulation and Accountability – Dr Michael Bowes

The Water (Special Measures) Bill, introduced on 4 September 2024, aims to strengthen regulatory oversight within the UK water industry. Currently at committee stage in the House of Lords, the Bill proposes amendments to key legislation, enhancing powers of regulators such as Ofwat, the Environment Agency (EA), and the Natural Resources Body for Wales (NRBW).

Key Provisions

Governance and Remuneration
Ofwat will gain authority to regulate water company governance and executive pay, particularly if companies fail to meet environmental or consumer standards. It can prohibit performance-based pay, mandate “fitness and propriety” standards for senior roles, and ensure consumer representation in key decision-making. Ofwat will consult widely before implementing these new rules to ensure they address consumer, environmental, and financial priorities.

Sewage Discharges and Reporting
The Bill mandates annual Pollution Incident Reduction Plans from sewerage undertakers in England, with penalties for non-compliance. It also requires real-time reporting of emergency overflow discharges within an hour of occurrence, providing location and duration details to improve transparency and prompt responses.

Enhanced Sanctions
The Bill increases sanctions for obstructing regulatory investigations, allowing imprisonment for senior officers found complicit. It also lowers the burden of proof for certain offences from “beyond reasonable doubt” to “on the balance of probabilities,” enabling the EA and NRBW to act more swiftly against environmental breaches.

Abstraction and Impounding
The Bill amends the Water Resources Act 1991, allowing the Secretary of State and Welsh Ministers to impose conditions on water abstraction and impounding licences, focusing on sustainable water management, especially in drought-prone areas.

Special Administration Orders
The Bill grants powers to modify water companies’ appointment conditions during special administration, including recovering government support through increased consumer charges, to safeguard public finances.

Industry Reactions and Cost Recovery

The Bill has received broad support from Ofwat and environmental groups such as the Angling Trust and the Marine Conservation Society, with calls for further enforcement amendments. Additionally, the Bill allows regulators to recover enforcement costs from water companies, ensuring these expenses do not fall on taxpayers.

Conclusion

The Water (Special Measures) Bill represents a significant reform in UK water industry regulation, promoting greater accountability and environmental responsibility. Enhanced powers for regulators aim to drive meaningful changes, prioritising consumer interests and sustainable practices across the sector.

*Dr Michael James Bowes recently co-authored an article with Amy Taylor on this topic: https://www.lexisnexis.co.uk/legal/news/the-implications-of-the-water-special-measures-bill