This Planning Update covers three topics

  1. More flexible Community Infrastructure Levy ("CIL") now in force: new CIL amendment regulations came into force yesterday which aim to make the CIL regime more flexible. We highlight some of the new provisions which will be most useful for developers.
  2. 'One Stop Shop' consents for large business and commercial projects: regulations extending the Planning Act 2008 regime to certain large business and commercial projects came into force on 18 December 2013. We explain the categories and guideline thresholds which apply and circumstances when this regime might be useful.
  3. New Planning Court announced by the Ministry of Justice: a new Planning Court is expected to be established by Summer 2014, as a separate part of the High Court, to be supervised by a specialist planning judge. We outline the proposals for this new court.
  1. More flexible Community Infrastructure Levy now in force

The government has again amended the Community Infrastructure Levy ("CIL") Regulations which require property developers to pay an up front levy on new development over 100 sq m or comprising more than one dwelling. The amendments, which follow from a detailed review and consultation, aim to make the regime more flexible and to remove some unintended consequences of the regulations. The new amendments came into force yesterday (24 February 2014) and apply to relevant property development which is granted planning permission after this date where a CIL charging schedule is in force. The regulations were published alongside updated and consolidated CIL guidance (which is to form part of the National Planning Practice Guidance, to be published by DCLG 'shortly').

Highlights of the new amendments include:

  • allowing CIL to be paid in phases where a full, hybrid or outline planning permission allows phasing, enabling developers to spread out payments for large projects.
  • a new CIL abatement provision to avoid a double CIL charge where a new planning permission is granted for design changes to schemes after CIL has already been paid on an earlier permission. allowing deductions for a building which is in use for six months in
  • the previous three years (rather than one year).
  • allowing a recalculation of CIL where the affordable housing obligations have been renegotiated.
  • allowing payments in kind to include infrastructure.
  • giving the local authority the option to set differential rates of CIL for development of different scales.
  • limiting the pooling of planning obligations after April 2015 (instead of April 2014), to allow more local authorities to get their CIL charging schedules up and running.

Click here to read the CIL Amendment Regulations 2014.

Click here to read the new 2014 CIL Guidance published by DCLG. 

  1.  'One Stop Shop' consents for large business and commercial projects

Regulations extending the Planning Act 2008 regime to certain business and commercial projects came into force on 18 December 2013, giving developers the option to apply for a 'one stop shop' consent for the largest and most complex business and commercial projects which would otherwise require multiple consents and permissions.

The Growth and Infrastructure Act 2013 amended the Planning Act 2008, enabling certain business or commercial projects to be determined under the Planning Act 2008 regime for Nationally Significant Infrastructure Projects (or NSIPs) if the project falls within the categories outlined in the regulations and if the Secretary of State gives a direction under that section. The Secretary of State can only make such a direction if he/she considers the project to be of 'national significance'.

The broad categories of project outlined in the regulations are: office use, research and development of products or processes, industrial processes, storage or distribution of goods, conferences, exhibitions, sport, leisure and tourism. Residential development including 'dwellings' is specifically excluded. While retail-led schemes will not be considered, schemes containing an element of retail may be included. The winning and working of minerals can also be determined under the Planning Act 2008 regime, but not the winning and working of peat, coal, oil or gas.

Size is not the determining factor in considering projects of 'national significance', but the Secretary of State would not expect to receive

applications for projects where the gross internal floorspace to be created is less than 40,000 sqm; nor for leisure, tourism and sports facilities where the area to be developed is less than 100 hectares; nor for sports stadia where the seating capacity is less than 40,000 seats. Further guidance is contained in the policy statement as to what the Secretary of State will take into account when considering whether a project is of 'national significance' including its economic impact, whether it is important for driving economic growth, whether its impact is felt across a wider area than a single local authority area and whether the project is important to the delivery of NSIPs or other significant development.

The Planning Act 2008 regime is intended to be a quicker and more efficient way of obtaining consent for the largest business and commercial projects but is yet to be tested in this regard. The regime is likely to be useful in circumstances such as:

  • Where a project would otherwise require a number of different consents from different bodies under different regimes (and powers of compulsory purchase can be included in the development consent order, obviating the need for a separate compulsory purchase inquiry).
  • If a project faces significant local opposition or a hostile local planning authority and is therefore likely to be refused at the local level, but using the Planning Act 2008 would be considered by the Secretary of State.
  • If a project is controversial or involves issues of more than local importance, so that it is at high risk of being called-in by the Secretary of State and determined at the national level in any case.
  • Where a project straddles two or more local authorities, leading to a risk of different decisions being made by different authorities, or applications proceeding according to different timetables.

Click here to read the regulations.

Click here to read the DCLG policy statement.

  1. New Planning Court announced by the Ministry of Justice

The Ministry of Justice has confirmed plans for a new Planning Court to be established by Summer 2014. This court will be a separate part of the High Court and will be supervised by a specialist judge with planning law expertise, the intention being to reduce delays in the overburdened courts system and support growth and infrastructure in the UK. The government outlined proposals for the new court in a consultation on judicial review reforms in Autumn 2013 and recently confirmed the plans in its response to the consultation.

The new court will build on the fast-track procedure for planning cases in the Administrative Court and the shortened judicial review period of six weeks for challenging decisions made under the planning acts (measures which came into force in July 2013).

The government has also confirmed that it will introduce a permissions filter for statutory challenges under section 288 of the Town and Country Planning Act 1990. This will provide consistency with the

judicial review procedure and aims to filter out weak claims early on, again to ease the burden on the courts and reduce delays.

The current planning judicial review and appeals systems can delay the progression of development to the construction stage, so the new court and related reforms aim to make the system more efficient and encourage growth in the UK.