Introduction

The Levelling-Up and Regeneration Act 2023 (LURA 2023) received royal assent on 26 October 2023. Burges Salmon reviewed the changes introduced in 2024 in a December 2024 webinar entitled “Levelling-Up and Regeneration Act 2023: A year on from Royal Assent”, as part of our Planning and Compulsory Purchase webinar series.

Several provisions of the LURA 2023 are awaiting further Regulations or secondary legislation to bring them into force. In 2024, we saw changes introduced which aimed to speed up the planning system, reduce delays and encourage further development. This post provides an overview of some of the key changes that we expect to see in 2025 and beyond, albeit that we would note that there is a considerable amount of uncertainty as to specifically which provisions the Labour Government intend to implement, and where implementation falls in the legislative calendar.

Section 73B Town and Country Planning Act 1990: varying planning permissions

In the course of 2025 we are expecting to see section 73B of the Town and Country Planning Act 1990 (TCPA) brought into force via section 110 of the LURA 2023. Once in force, developers will have the option to apply for variations of the description and conditions of an existing planning permission, provided that the varied development is not “substantially different” to the existing development.

The pre-existing power to make variations under section 73 only provides for changes which do not “fundamentally alter” the permission, and section 93A applications are limited to non-material changes. In practice, the “substantially different” test in section 73B would allow for a broader range of variations to be made to existing permissions.

A further advantage of the new route is the flexibility afforded to developers whereby they will be able to choose between the existing planning permission, which will remain valid, and the new planning permission granted under section 73B. 

The new section 73B power cannot vary every element of a planning permission; section 73B will not enable extensions of time, the disapplication of Biodiversity Net Gain requirements or the disapplication of conditions requiring the submission of an annual development progress report.

Exactly how broad the “substantially different” test will be remains to be seen. There is some ambiguity around the definition, with no test set out in the existing legislation. The previous Government’s consultation on an accelerated planning system provides some indication as to the intended scope of the power, suggesting that decisions will depend on the scale of changes required in the context of the existing permission. Factors to be considered include location, the scope of existing permissions on the site and the nature of the proposed changes. The decision made by the local authority will likely be context-specific and a matter of planning judgment, based on the individual circumstances of the case and local planning impacts. 

Subject to clarification of this point and the final scope of the power, this provision would be welcomed by developers and local planning authorities. Additionally, it may provide a solution to issues caused by the decision in Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868, which clarified that section 73 could not be used to amend the description of development on a consent. The Government consultation also suggested this would also be a solution to issues caused by overlapping permissions which make it physically impossible to comply with earlier permissions, as seen in the 2022 Supreme Court case of Hillside Parks Limited v Snowdonia National Park Authority [2022] UKSC 30.

When this provision will be brought into force is unclear. In November 2024, Baroness Taylor confirmed that the Government was in the process of “considering which provisions from the Levelling-Up and Regeneration Act 2023 [that the Government] will implement and will present more detail on these in due course”.

Part 6: Environmental Outcome Reports

A further potential change is the publication of Regulations for Environmental Outcome Reports (“EORs”) under Part 6 of the LURA 2023, which will replace the existing EU-derived system of Environmental Impact Assessments and Strategic Environmental Assessments. The aim is that this will result in a more ‘streamlined’ system that places greater emphasis on national environmental targets such as climate change and national commitments to achieving net zero. 

While Part 6 is in force as of 26 December 2023, the relevant authorities need to make EOR regulations before the provisions have any substantive effect. Key provisions of Part 6 include sections 152-155 and 160-162, which provide powers to specify environmental outcomes and require EORs. The intention is for reports to assess the impact of ‘relevant plans’ and ‘relevant consents’, the steps required to avoid, mitigate or compensate the effects identified within the report and monitor proposals.

Several criticisms have been raised against EORs, including the significant gaps in the EOR provisions such as when they are required and the details regarding monitoring, reporting and enforcement, which the introduction of Regulations should help to address.  Some commentators are of the view that the existing systems should have been refined rather than abolished, so there remains a degree of uncertainty across the development industry about whether this new system will be introduced.

The timetable for the introduction of EORs is not clear. The previous Government consulted on a timetable for implementation in March 2023, and in January 2024 commented that they would “bring the regulations for [EORs] forward from 2025 onwards”. The Labour Government confirmed in December 2024 an intention to implement these proposals, but no more specific detail on timing is available.

Section 111: Development Commencement Notices

A further section which is awaiting Regulations before it can be brought into force is the new procedure for notices under section 111, which requires a Development Commencement Notice to be served by a landowner or developer.

The requirements for Development Commencement Notices are similar to the structure of notifying an authority prior to commencement found in section 106 agreements: they must be served on the local planning authority before development begins and state the intended date for commencement. Amendments to the Notice can be made via an updated notice which must be issued prior to the previous stated date of commencement. 

Where developers or landowners fail to provide a commencement notice, they face fines of up to £1,000. The responsibility however lies with the local planning authority to make the applicant aware of the requirement to serve a Development Commencement Notice, with the defence of ‘reasonable excuse’ being available to the developer/landowner.

The practical effect of this change is that local planning authorities will be provided with clearer information and detail at the outset of the scheme of development, whether or not the proposal required a section 106 agreement. Regulations are required to bring section 111 of the LURA 2023 fully into force, and at the time of writing there is no firm timetable for implementation. 

Section 112: Completion Notices

A Completion Notice can be served by the planning authority in situations where development has begun but the authority believes it will not be completed by the date for expiry of the permission or consent or within a reasonable time. 

The LURA 2023 changes will update the pre-existing power to issue a Completion Notice, removing the need for the Secretary of State’s confirmation before a Notice has effect. The proposed changes require further Regulations to bring into force. 

From a specified date after the service of a Completion Notice, the permission will no longer be valid and new permission would be required to complete the development. This situation is likely to carry significant cost implications and could require a new planning application to be submitted.

The Completion Notice must state the date on which the permission will become invalid, and must be at least 12 months after the date contained within the Notice. However, the planning authority need not wait until the expiry of the permission. The Notice can be served at any point after development has begun. The intention is for this to strengthen the powers of the planning authority and encourage development to be completed without delay and to a more specific timeframe.

Developers and landowners have a right to appeal to the Secretary of State on the basis that the development will be complete within a reasonable time, or that the date provided in the Completion Notice is unreasonable. 

The ability to issue Completion Notices will not be restricted to planning permissions granted after the effective date of this section. This means that any landowner or developer who has been granted permission but their development has not been completed may be at risk of receiving a Completion Notice.

The practical effect of these changes will be to give local planning authorities the ability to better manage and control the delivery of development. We expect that in practice that Completion Notices are likely to be a measure of last resort, as developers have the recourse of appealing to the Secretary of State if local planning authorities use the power unreasonably. 

The Government has not provided a timetable for the implementation of these changes, and as a result we cannot be certain of when this power will be available to authorities.

Section 113: Powers to Decline to Determine (re. Non-Earlier Implementation etc)

Under section 113, a local planning authority can refuse to determine a planning application where an earlier planning permission has either not begun or been substantially completed, and where that development is being carried out ‘unreasonably slowly’. In considering whether this is the case, the authority must consider the dates and timescales provided in any Commencement Notice or Completion Notice if served. 

This power, together with Completion Notices and revised Commencement Notices, would provide authorities with a further lever by which to manage the throughput of delivery, attempting to tackle the perceived issue of land banking. The introduction of this measure will be subject to the perspective of the Labour Government and it remains to be seen when or whether it will be introduced.

Conclusion

The changes anticipated to come into force in 2025 may still be subject to change; the Labour Government’s intended timetable for implementation of these changes is not clear, so we will continue to track their progress and update you later in the year. If you have any queries, please contact senior associates Matthew Tucker or Liz Paraskeva in our Planning & Compulsory Purchase team.