On 24 March 2015 the Town and Country Planning (Development Management Procedure) (England) Order 2015 (the DMPO) was laid before Parliament. On 15 April 2015 the DMPO will bring into force a number of the recent planning changes consulted upon, including deemed discharge of conditions, as well as consolidate the previous 2010 Order. Transitional provisions will apply for applications made prior to 15 April 2015, but for applications for certain development involving establishments where hazardous substances are held (and certain developments near those establishments), transitional provisions will apply for applications prior to 1 June 2015.
The main changes to planning procedure coming into force on 15 April include:
The procedure for deemed discharge of conditions
Our previous briefing on deemed discharge of planning conditions reported on the Government's intention to take forward these proposals as set out in its July 2014 consultation. The DMPO introduces a procedure to be followed by applicants in order to be able to treat conditions attached to planning permission as being discharged when the local planning authority (LPA) has failed to make a decision within the determination period.
The LPA is required to determine an application for approval of a condition within 8 weeks following receipt of the application (or a longer period if agreed between the LPA and the applicant). The DMPO also sets out the documents which must be submitted with a discharge application.
But before an applicant can rely on the deemed discharge provisions, the DMPO requires the applicant to serve a notice on the LPA. The notice cannot be served until at least 6 weeks has passed following the LPA's receipt of the discharge application (unless a shorter period has been agreed between the applicant and LPA). The deemed discharge notice must provide details of the discharge application and identify the condition to which it relates. Where the 8 week determination period has passed the notice must also confirm that no appeal against non-determination has been made. The notice must also specify the date on which it will take effect. The date specified must not be before the determination period expires or must be at least 14 days after receipt of the discharge notice by the LPA, whichever is later.
The condition is deemed to be discharged (and the deemed discharge takes effect) if the LPA does not then give notice of its determination by the date which the applicant specifies in the deemed discharge notice (or such later date agreed between the parties in writing).
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Types of conditions excluded
The DMPO lists the types of conditions to which the deemed discharge provisions will not apply, in summary conditions:
- attached to development that was subject to an Environmental Impact Assessment (EIA), or would have been had the condition not been imposed;
- attached to development that is likely to have a significant effect on a qualifying European site, or would have been had the condition not been imposed;
- intended to manage the risk of flood;
- attached to development that is likely to have a significant effect on Sites of Special Scientific Interest, or would have been had the condition not been imposed;
- relating to the assessment and remediation of contaminated land;
- relating to investigation of archaeological potential;
- requiring a Section 106 or Section 278 Agreement (or relating to access between the development and highway);
- attached to an outline planning permission requiring approval of reserved matters;
- attached to the grant of permission under a Development Order (Special Development Order, Local Development Order, Neighbourhood Development Order) or planning permission granted in relation to a Simplified Planning Zone or Enterprise Zone; and
- Crown development or government authorisation.
The applicant and the LPA can also agree in writing that the deemed discharge provisions will not apply to a particular condition.
The Government hopes that the provisions will have the effect of incentivising LPAs to give greater priority to discharge of conditions, so that applications should not reach the stage where the deemed discharge provisions could be activated.
New notification and consultation requirements
Back in July 2014, the Government consulted on how the planning process involved unnecessary bureaucracy for consultees reducing the efficiency and effectiveness of the planning application process.
It concluded that this resulted in 'over-consultation' and proposed to address this to allow consultees to focus their resources and technical expertise on strategic planning and on applications where they could add most value to the decision making process.
Changes have now been made in relation to the consultation requirements with Natural England, Highways England, Historic England, the Garden History Society, water and sewerage undertakers and lead local flood authorities.
The requirement to consult Natural England on development within two kilometres of a Site of Special Scientific Interest (SSSI), save where the proposed development is located in or “likely to affect” a SSSI has been removed as was proposed by the consultation.
For Historic England, this includes a new requirement to notify development affecting registered battlefields, or gardens or parks of special historic interest which are registered. The previous requirement to notify development affecting the demolition or material alteration of a listed building in Greater London is removed and replaced with a requirement to provide greater consistency inside and outside of London and across different types of heritage asset. Historic England must be notified of the demolition or material alteration of a listed building which is Grade I or Grade II*.
The previous requirement to notify in relation to development that would affect the setting of a listed building or the character or appearance of a conservation area was contained in separate regulations. These are also amended to reduce the requirement for a local authority to notify Historic England of an application for planning permission which they think would affect the setting of a listed building or the character or appearance of a conservation area with effect from 15 April 2015.
There is a new requirement to notify the Office for Nuclear Regulation in relation to certain development.
Also the requirements for consultation in relation to certain developments involving establishments where hazardous substances are held, and in relation to certain development near those establishments, have been updated to reflect changes being brought in by the Planning (Hazardous Substances) Regulations 2015. Transitional provisions will apply for applications made prior to 1 June 2015 in relation to these applications.
Amendments have been made to reflect the changes to the Highways Agency brought about by the Infrastructure Act 2015, with Highways England appointed as the strategic highway company for England from 1 April 2015.
Further, LPAs will now be required to consult on proposed development likely to result in an adverse impact on the safety of, or queuing on, a trunk road, development likely to prejudice the improvement or construction of a trunk road, and development which consists of or includes the construction, formation or laying out of access to or from a trunk road.
The “material increase/change” test still applies in relation to traffic using a level crossing over a railway.
Minor developments such as development within the curtilage of a dwelling house or a small extensions will be exempted.
A new requirement is introduced to make the Lead Local Flood authority a statutory consultee on major planning applications with surface water drainage implications.
To provide further public reassurance regarding consideration of water issues relating to shale development, water and sewerage undertakers are made statutory consultees in respect to planning applications for shale oil and gas.
The current statutory consultation requirements only require notification or consultation with the rail network where development materially affects the use of a level crossing, and not where development is in the vicinity of a railway or might affect the safe operation of the railway. The DMPO implements one of the recommendations of the Rail Accident Investigation Branch's final report of 13 February 2014 to introduce a requirement to notify any person who manages or maintains operational railway when development is situated within 10 metres of operational railway (or land authorised to be used for that purpose). This means that any person who manages or maintains operational railway will be able to make representations, but the provision does not place then under a duty to respond in every instance.
A requirement for the LPA to give reasons for attaching pre-commencement conditions
Where a condition is imposed on a planning permission (or approval of reserved matters) that requires a particular matter to be dealt with before development starts (a pre-commencement condition), the LPA must state clearly and precisely their full reasons for the condition being a pre-commencement condition. This requirement is in addition to the general justification that a LPA is already required to provide for imposing conditions.
Over recent years there has been a sharp increase in the number of pre-commencement conditions attached to permissions. In some cases pre-commencement conditions have been attached despite it not being strictly necessary to secure the matters to which they refer prior to commencement. The Government was concerned that this was causing unnecessary delay and increased cost in the implementation of planning permissions.
As well as reducing the number of pre-commencement conditions it is hoped that the new requirement may also help to establish whether a pre-commencement condition goes to the heart of the permission and therefore, if not complied with before development commences, is likely to result in non-implementation and expiry of the planning permission.