2024 GENERAL ELECTION – IMPACT ON DEVELOPERS OF THE PRE-ELECTION PERIOD OF SENSITIVITY

Many were taken by surprise when the Prime Minister announced that the long anticipated general election will be held earlier rather than later in the second half of 2024 – perhaps not least DLUHC itself. The department has been pro-actively pushing through the government's planning reforms pursuant to the Levelling Up and Regeneration Act (LURA) 2023. Just last month they announced that they would shortly consult on steps to implement provisions in the Act incentivising build-out. They also published the terms of reference for Lord Banner KC's review into speeding up the infrastructure planning system.

At 00:01 on Saturday 25 May, the pre-election period of sensitivity began, pausing certain types of government activity prior to the potential change in political leadership. The pre-election period of sensitivity is also referred to as the pre-election period of "heightened sensitivity" and was previously known as "purdah" – in this post, we will refer to it from now on as the "pre-election period".

We have written before about what the pre-election period means – in short, for the next six weeks there will be no new legislation, consultations, or announcements about consultation results or new policy. However, the difference between this election and the last is where we are with planning reform. The industry is in desperate need of certainty and stability but it will now be a little while before we see how this might be achieved. It is widely expected that the election will deliver a change in administration and therefore a different approach to reforming the planning system. Even if the Conservative Party retains control, Michael Gove's announcement on 24 May that he will be standing down at the election means that there will be a new Secretary of State for Levelling Up, Housing and Communities come what may, which (on the past few years' experience at least) likely means a new direction of travel.

After a quick recap of what is and is not allowed during a pre-election period, here we take a look at which of the government's current proposals for reform are likely to be impacted by the timing of this election.

Pre-election period rules for conduct

On the same day that the Prime Minister announced the general election, the House of Commons Library published a research briefing providing a useful overview of the pre-election period of sensitivity. As the briefing notes, "It is a time when governments, ministers and civil servants will exercise caution in making announcements or decisions that might have an effect on the election campaign."

The "rules" concerning what may and may not take place during the pre-election period are set out in different places according to the organisations/individuals concerned:

• ministers must follow the Ministerial Code of Conduct;
• civil servants must follow UK Government guidance for civil servants; and
• local authorities must follow statutory guidance in the Code of Recommended Practice on Local Authority Publicity. The Local Government Association (LGA) has also published guidance in its short guide to publicity during the pre-election period.

Rules applying to central government and civil servants

On 23 May 2024, the Cabinet Office and Civil Service published guidance which government and civil servants must follow during the 2024 pre-election period. This applies to "all UK civil servants, and the board members and staff of Non-Departmental Public Bodies (NDPBs) and other arms’ length bodies" and therefore includes the Planning Inspectorate (PINS).

The general principles are:

• Once Parliament is dissolved the government will continue to govern, "Ministers remain in charge of their departments" and essential business will continue. However, by custom (rather than by law), Ministers should "observe discretion in initiating any new action of a continuing or long-term character", and (unless detrimental to the national interest) postpone policy decisions until after the election.
• "Departmental and Non-departmental Public Body (NDPB) activity should not be seen to compete with the election campaign for public attention." This means that announcements will be kept to a minimum.
• When Parliament is dissolved, membership of House of Commons Select Committees lapses and work on their inquiries ceases, although departments will continue work on any outstanding evidence or outstanding government responses to committee reports (which will need to be approved by the new administration). The new committees will decide whether to continue with inquiries and whether to publish government responses to predecessors' reports. Cabinet committees are not expected to meet during the election period.
• The government shouldn't launch new public consultations, nor make commencement orders for secondary legislation. Existing consultations can continue, although they shouldn't be publicised and ongoing consultation periods may therefore need to be extended. Departments can, however, analyse consultation responses for the new administration to consider.

Local authorities

The Local Government Association's "A short guide to publicity during the pre-election period provides that local authorities shouldn't publicise potentially politically controversial issues or provide publicity for candidates, and should give careful consideration before launching any new consultations or publishing consultation reports which could be politically sensitive, or running local election campaigns.

However, local authorities are expressly allowed to "continue to discharge normal council business (including budget consultations or determining planning applications, even if they are controversial [our emphasis])."

Impact on current proposals for planning reform

LURA 2023

From a planning point of view, the main impact of the pre-election period is that the government cannot publish further regulations implementing the LURA 2023, launch any new consultations, nor announce responses to the various consultations that have closed over the past 18 months. DLUHC's civil servants can, however, work on processing consultation responses ready for review by the new administration.

Where does this leave those parts of the LURA 2023 which have not yet been implemented?

• The new Infrastructure Levy is at risk. The government held a Technical consultation held in March 2023 but has not yet published its response, and the Labour Party have stated publicly that they do not support it.
• Under the timetable published last year in Plan-making reforms: consultation on implementation, the necessary legislation and guidance to implement a new, faster local plan making system were expected by autumn this year. It is not clear from Labour Party announcements so far whether they will support these changes or propose others. Until the parties publish their manifestos, the many planning authorities who have paused plan-making are unlikely to pick up tools and others may join them.
• New Environmental Outcomes Reports – following the March 2023 consultation, to which the government's response is still awaited, it will be for the new administration to decide whether and how to replace the existing environmental assessment regimes.
• As mentioned above, only last month the government announced its intention to consult on implementing the build out measures in the LURA 2023, including commencement notices, development progress reports, new powers for planning authorities to decline to determine applications and development commencement notices. The next administration will decide whether to progress with this.

Recent consultations

Three significant consultations closed relatively recently: Strengthening planning policy for brownfield development; Changes to various permitted development rights: consultation; and, somewhat controversially, An accelerated planning system. Whether to progress these proposals - in whole, in part or at all – is up to the next administration.

National Planning Policy Framework (NPPF)

Despite December 2023's revised NPPF we have still not had the fundamental review of national planning policy promised as part of the 2020 Planning White Paper. Given the importance that both main parties are placing on planning reform, the question is not whether the fundamental review will take place but when and with what aim in mind.

Infrastructure planning reforms

The government has made progress towards revising the nationally significant infrastructure planning regime, although there is much yet to be done and several routes that could be taken (see our sister blog Energy and Infrastructure Consenting Notes for further commentary). Lord Banner's report (which he submitted on 24 May 2024), particularly his conclusions on how legal challenges might slow the system down, are likely to be interesting to whichever administration takes the helm.

What next?

After months of responding to consultations and, for many, lobbying both the main parties, we must now wait to for the parties' manifestos to see if they have more detail on their plans for future planning reform. Given the upheaval of recent years, some certainty and stability would be very welcome.