HSF Kramer TCPA Update - November 2025

Introduction

Welcome to our regular overview and analysis of recent legal developments in town and country planning law. We have refreshed the format of this newsletter, picking up where the last Monthly TCPA Newsletter left off. With the summer Parliamentary recess and autumn party conferences, recent months may have seemed relatively quiet on the planning news front, but there is still a lot to report.

In early July, MHCLG published the English Devolution and Community Empowerment Bill 2024-25. We take a look at the key provisions of the Bill and its potential effects on local governance and planning. We also provide an update on progress with the Planning and Infrastructure Bill (P&I Bill), touching on Wild Justice's judicial review and celebrating the appointment of our own Catherine Howard as an advisor to the Chancellor of the Exchequer.

The government has also now published the final report of the New Towns Taskforce, alongside its own response to the report. The report demonstrates how the many strands of planning reform are intended to come together to enable large-scale housing delivery across England. The government will issue its final conclusions on the Taskforce's recommendations in spring 2026 once it has undertaken further assessments. The House of Commons Housing, Communities and Local Government Committee have commented on this report in their own Land Value Capture Inquiry Report, with recommendations on immediate actions that the government should take to protect land required for new town development alongside recommendations for changes to the existing developer contributions system and to increase planning team resourcing.

We highlight four cases. In CG Fry & Son Limited v Secretary of State for Housing, Communities and Local Government and another, the Supreme Court clarified important questions about when an appropriate assessment can be required under the Habitats Regulations, whether Ramsar sites should be treated in the same way, and the protection granted by an outline consent against revisiting the need for an appropriate assessment at the reserved matters or discharge of conditions stage. In this decision, the Supreme Court has provided useful clarification for developers about the extent to which local planning authorities can reopen the principle of development once outline consent has been granted. The High Court case of Cooper v Ludgate House Ltd and Powell v Ludgate House Ltd is interesting for the Court's approach to rights of light and the implications for developers. We look at Westminster City Council v Gems House Residences Chiltern Street Ltd for its insights into the interpretation of mortgagee exclusion clauses in section 106 agreements. Finally, R (on the application of Chidswell Action Group) v Kirklees Council is worth noting for what it tells us about when a local planning authority should publish a draft section 106 agreement.

Last but not least, in our general round-up we cover a variety of topics including the updated flood risk PPG, news that an agreement between the Environment Agency and Southern Water has unblocked development stalled by water neutrality issues, the request by Universal Studios for planning permission by way of a Special Development Order (SDO), work on using AI to speed up decision making, and updates from the August 2025 issue of the Chief Planner's newsletter on the local plan making system, statutory consultees and design codes.

As for what's to come, we're expecting a very busy few months ahead: the government is reportedly aiming for the P&I Bill to be enacted before the Autumn Budget on 26 November 2025; Matthew Pennycook has indicated that we can expect consultations on the new National Development Management Policies and updated NPPF towards the end of the year; we are expecting draft primary and secondary legislation to implement the new local plan making system; and we are expecting the consultation on statutory consultees. This is in addition to updated guidance on Viability and the use of section 73 of the Town and Country Planning Act (TCPA) 1990 to vary planning obligations, as well as implementation of section 73B of the TCPA 1990 to enable material variations to planning permissions. We also await further news on whether Environmental Outcomes Reports pursuant to the Levelling Up and Regeneration Act (LURA) 2023 will be brought forward, and the government's response to its consultation on biodiversity net gain (BNG). And finally, if reports are to be believed, we may also see the government introduce further reforms to the planning system, although it's not clear how or whether these may be brought forward.

1. ENGLISH DEVOLUTION AND COMMUNITY EMPOWERMENT BILL 2024-25

1.1 Summary

The government published the English Devolution and Community Empowerment Bill on 10 July 2025. The purpose of the Bill is "to transfer power out of Westminster, by giving local leaders the tools to deliver growth, fixing the foundations of local government, and empowering communities"1.

In addition to bringing forward changes to local government, the Bill has implications for planning reform:

• The Bill introduces a new level of strategic governance in the form of Strategic Authorities (SAs) which will be responsible for producing Spatial Development Strategies (SDSs) pursuant to the P&I Bill.
• The new system of local governance and additional layer of strategic planning under the Bill will likely disrupt development planning and management in the short to medium term.
• Should the government be so minded, it is possible that strategic planning and devolution as proposed in the Bill could facilitate a move towards a flexible zoning regime, which commentators such as Centre for Cities say is necessary to achieve the desired increase in housebuilding and economic development.

1.2 Key points

• Part 1 of the Bill introduces three levels of SAs: (i) foundation SAs; (ii) mayoral SAs (MSAs); and (iii) established MSAs. The government wants each SA eventually to have a mayor, with standardised powers and the ability to raise revenue, including through mayoral CIL.
• Part 2 of the Bill sets out the intended functions of SAs, as well as voting and governance arrangements.
• Part 3 of the Bill is aimed at strengthening local government and communities. Chapter 1 of Part 3 includes measures to streamline local government into a single tier. The Bill mandates the cabinet model of governance "to provide more efficient, clear and consistent governance".
• Other elements of interest include:
  • a new community right to buy in Chapter 3 of Part 3. Communities will have first refusal on the sale of assets of community value, which will be expanded to include sports stadiums; and
  • the controversial and unexpected ban on upwards only rent reviews in Part 5 of the Bill. We discussed the implications of this in our blog post of 11 July 2025.
• The Bill was introduced to the House of Commons on 10 July 2025. Committee Stage started on 16 September 2025, where a Parliamentary Committee studied the Bill clause by clause and took evidence. This stage closed on 23 October and the Bill will now go to Report Stage in the House of Commons (date to be confirmed), where Parliament will consider the Bill as amended in Committee. Following a Third Reading in the House of Commons, the Bill will pass to the House of Lords for their review.
• More information on the Bill can be found in the House of Commons Library briefing here.

1.3 Further comment

The Bill aims to simplify and standardise the devolution framework in England and reform the local government sector. The proposals follow those in the December 2024 English Devolution White Paper which we covered in our December 2024/January 2025 newsletter.

The goal is for new SAs to cover every area of England, which will ultimately be responsible for producing the SDSs introduced by the P&I Bill, as summarised in section 1 of our March/April 2025 newsletter.

The impacts of the Bill are potentially far reaching. While the government outlined the intended benefits of the proposals in the English Devolution White Paper, there could be unintended impacts as the new system beds in:

• Although the government has made it clear that plan-making should continue, some local planning authorities have halted work on their local plans pending further information on the implications of the local government reorganisation and introduction of SAs.
• Overstretched and under resourced LPAs may struggle to implement the reforms, impacting their capacity to provide development management services efficiently and effectively.
• Developers will need to consider mayoral CIL in their viability assessments, potentially increasing overall project costs whilst existing local authority CIL rates adjust.
• There may be overlap and conflict between local plan and SDS policies, as well as potential conflict between local plans and NDMPs once introduced.

However, there could also be wider long term benefits for the planning system as a whole, depending on how the government takes forward the reforms.

To increase housebuilding and speed up economic growth, Centre for Cities has encouraged the government to move away from England's existing discretionary planning regime towards a flexible zoning regime similar to those in France, Germany and Japan. Their July 2025 report "Planorama: how the English planning system can learn from abroad" proposes two approaches:

1. Incremental approach – expanding strategic planning across England to provide guidance for local planning and overcome the local politics of housebuilding. The SDSs, which will be the responsibility of SAs pursuant to this Bill, could be a step towards this.
2. Comprehensive approach – increasing the fiscal autonomy of local and strategic authorities to strengthen incentives for development. The government's June 2025 "Integrated settlement: policy document" outlines principles for Integrated Settlements fund local priorities, potentially contributing to increased fiscal autonomy.

For each route, other factors would need to be satisfied:

• The incremental approach requires a more spatial and rules-based planning system, including: (i) up-to-date local plans and stronger disincentives for councils that fail to update them; (ii) more up-front detail for allocated sites in local plans; (iii) delegation of decisions regarding allocated sites; and (iii) greater use of Local Development Orders (LDOs), Mayoral Development Orders (MDOs), and supplementary planning documents. Of these, only (ii) and (iii) are not anticipated by current planning reforms but could be easily implemented, for example in the awaited further reforms to the NPPF or in future changes to the national scheme of delegation. To implement the incremental approach, it will also need to be "easier for the public sector to intervene in large-scale and complex development". Again, the current reforms work towards this – the government has committed to activate the compulsory purchase order reforms in the Levelling Up and Regeneration Act 2023, and Part 4 of the P&I Bill standardises development corporation powers to help with public land assembly.
• The comprehensive approach requires a national framework to cover everywhere with clear rules and "maximise the frontloading of discretion". NDMPs have the capacity to fulfil this requirement – see Centre for Cities' February 2025 "A Zoning System for England" – although we wait to see what these will entail.

The ongoing reforms could therefore go further than most expect towards changing the planning system in England from the current discretionary model towards the flexible zoning model identified by Centre for Cities as essential for growth, although much depends on how committed the government is to bringing forward fundamental changes to the current system.

2. NEW TOWNS TASKFORCE – FINAL REPORT AND INITIAL GOVERNMENT RESPONSE

2.1 Summary

MHCLG published the New Towns Taskforce's final report on 28 September 2025, and at the same time published the government's initial response to the report.

The New Towns Taskforce has recommended 12 sites as potential new towns of 10,000 homes or more. The recommended locations span a range of settlement types, including standalone settlements on greenfield sites, urban extensions, and city centre regeneration projects. The report also proposes that the new towns should be delivered in accordance with ten "placemaking principles", and has made recommendations regarding appropriate delivery vehicles and changes to the planning system.

The government will now undertake a Strategic Environmental Assessment (SEA) and other assessments (including appropriate assessments under the Habitats Regulations) into the proposed sites, and will publish its final response in spring 2026.

2.2 Key points

• The report makes 44 recommendations covering a wide range of factors influencing new town delivery and subsequent management.
• New towns should be vision-led communities, designed with ambitious density targets to foster walkable neighbourhoods, well-integrated public transport, and high-quality public spaces. Each should demonstrate ten "placemaking principles":
  1. Vision-led – a clear long-term vision, masterplan and design code.
  2. Ambitious density – ambitious minimum densities to support amenities and sustainable travel.
  3. Affordable housing and balanced communities – a range of high quality housing types and tenures, with at least 40% affordable homes including half (20%) for social rent.
  4. Social infrastructure – early provision of social infrastructure such as schools and healthcare.
  5. Healthy and safe places – safe, and green environments.
  6. Environmental sustainability – environmental resilience and climate adaptation.
  7. Transport connectivity – transport connections to skills, jobs, services and amenities.
  8. Business creation and employment opportunities – supporting the government's economic growth mission.
  9. Stewardship – long-term, sustainable stewardship with clear governance and funding structures.
  10. Community engagement – in shaping the town and building cultural identity.
• The 12 recommended locations for new towns are set out at Appendix 1 to this newsletter. Site selection was based on a location's potential to deliver at least 10,000 homes, support economic growth and meet placemaking standards. The recommendations align with the government's ten-year infrastructure plan and Industrial Strategy, and with government initiatives to re-introduce long-term strategic planning (see the P&I Bill at section 3 and the English Devolution and Community Empowerment Bill at section 1).
• The government has "warmly welcomed" all twelve locations but has indicated particular interest in three sites – Tempsford in Bedfordshire, Crews Hill in Enfield and Leeds South Bank. The government wants to "get spades in the ground" on at least three new towns in this Parliament, but is prepared to take forward more if possible. It will take a final decision on locations once the results of the SEA and other assessments are available.

2.3 Further comment

One of the factors taken into consideration when choosing the potential new towns locations was the capacity for land value capture at each site. The Taskforce recommends early acquisition of land at new towns sites, to maximise the potential for land value capture to help fund later phases of development. Using development corporations as the delivery vehicle helps to increase land value capture by removing hope value from compensation calculations during compulsorily acquisition.

Recommended planning tools include new-town specific local plans prepared by the delivery body (which, if the delivery body is a development corporation, should also become the local planning authority for the development), alongside supplementary plans for targeted policies over specific areas. Planning permission could be granted through outline consents for large sites, LDOs granted by delivery bodies (or MDOs where appropriate), SDOs granted by the Secretary of State, or a hybrid of an SDO supplemented by an LDO (which the Task force recommends to secure key infrastructure, speed up delivery and secure investor confidence).

The Taskforce discusses interim measures that the government should put into effect:

• Interim delivery models should be used to progress planning and community engagement pending the establishment of the relevant development corporations.
• Interim planning policy should be put in place to protect new town locations and prevent other development coming forward which would jeopardise them. If necessary, government should call-in applications which threaten the proposed new towns development, and new town delivery bodies should use safeguarding directions to prevent inappropriate development.
• Interim approval of planning applications may be appropriate until new town local plans are in place to support early delivery of specific sites in accordance with wider masterplans.

What about the role of private developers and investors? The Taskforce strongly advocates development corporations as the preferred delivery vehicle for new towns, noting that "development corporations have consistently delivered higher build out rates than alternative models." The report notes the advantages that development corporations enjoy as regards land assembly, with access to tools such as compulsory purchase powers with "no-scheme" valuation rules and significant planning powers. However, the role of private partnerships, in particular joint ventures between the private and public sector, is discussed at length in the report and will clearly play an important role. Many of the proposed sites are already being progressed by private developers, often in partnership with the local authority. Whilst significant upfront government funding will be needed to get most new towns off the ground, potentially through long term loans and guarantees, close collaboration is encouraged across central and local government, agencies such as Homes England, and private investors, with joint ventures and public private partnerships being obvious vehicles in many cases.

Note that the Taskforce proposes that 40% of dwellings delivered within new towns should be affordable, of which half should be social rent. Whilst the reasons for this are clear, the impact on viability may need further consideration – the relaxation of affordable housing requirements in the new package of support for housebuilding in London (see section 4) is relevant to conversations about whether a blanket 40% target is realistic for all new town development.

Also of interest is that, on 28 October 2025, the Housing, Communities and Local Government Committee published its report on Land Value Capture – see section 9.3. The Committee has made several recommendations to the government in relation to new towns, including:

• in addition to the ability for SAs to raise revenue through Mayoral CIL (see section 1), local leaders should be given revenue raising powers to fund infrastructure and housing, eg Tax Increment Financing as used in London;
• to protect land value capture opportunities, the government should conduct an analysis of Existing Use Values on each of the 12 proposed sites, develope the appropriate mechanisms for land value capture on each site, including using compulsory purchase powers where appropriate, and put in place arrangements for purchasing new towns sites before the final announcement on location in spring 2026;
• development corporations should be enabled to use land value capture mechanisms to negotiate a higher contribution of Social Rent homes where financially viable;
• funding to establish development corporations should be confirmed at the Autumn 2025 Budget to enable land acquisition by spring 2026;
• the government must clarify how new towns housing delivery will interact with local authority housing targets; and
• the government's spring 2026 response must include a roadmap for delivery.

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