In a period of serial consultations, proposals and changes, it is fair to say that the planning system is undergoing a considerable shift. Whether these changes make a lasting impact and achieve the aim of assisting in the growth of the economy remains to be seen.

Community Infrastructure Levy

Amendment Regulations came into force on 29 November. One of the main changes is the anticipated removal of the application of the Community Infrastructure Levy (CIL) to planning permissions granted under s73 of the Town and Country Planning Act.

S73 allows applications to be made for permission to carry out development without complying with one or more conditions previously imposed. These are commonly known as variation permissions. A permission under s73 forms a new, stand-alone permission. Difficulties arose when an original permission was granted before the introduction of CIL but a s73 permission for the same development but with different conditions was granted after the introduction of CIL.

The regulations allow for a reduction in CIL payable under the s73 permission by the amount of CIL which would have been payable under the original permission, had the CIL regime been in force at the date on which that permission could have been implemented.

Where social housing relief was granted in relation to CIL and the same development is the subject of a s73 permission, and as a result the amount of CIL would be different, the chargeable development for which CIL is payable will be the most recently commenced or re-commenced development.

In a separate amendment, the formula for the calculation of the chargeable amount has changed to allow for a reduction to take account of the floorspace of any existing buildings which will be demolished as part of the development. A similar change has been made to the formula for the calculation of social housing relief.

Community Infrastructure Levy (Amendment) Regulations 2012

Planning Performance and the Planning Guarantee - consultation

The Department for Communities and Local Government has published a consultation entitled "Planning Performance and the Planning Guarantee".

The Growth and Infrastructure Bill, which is currently being debated, aims to provide tools which will aid the stimulation of the economy. It includes a proposal to allow applicants for planning permission to apply directly to the planning inspectorate, where the local planning authority (LPA) has been designated as "poorly performing".

The consultation seeks views as to the criteria by which the LPA's performance might be assessed, the thresholds used to judge performance, the procedures which would apply to a direct application and the basis on which the designation would end. It is proposed that performance would be judged on a percentage of decisions being made within the time required.

One point which does arise is that applicants for permission to the LPA have the right of appeal to the planning inspectorate in the event of a refusal or non-determination within the relevant time period for that application. However, if an application is made directly, the only appeal would be by way of High Court statutory challenge.

This is a costly exercise and one that would cause long delays to the development. It remains to be seen how developers view this proposal and whether there is in fact any stimulation of the economy which would result from it.

The consultation ends on 17 January.

Nationally Significant Infrastructure Planning - extending the regime - consultation

The Department for Communities and Local Government has published a consultation entitled "Nationally Significant Infrastructure Planning - extending the regime".

The Growth and Infrastructure Bill proposes a power to bring new business and commercial projects within the Nationally Significant Infrastructure Planning (NSIP) regime. The consultation seeks views on the secondary legislation which would support such a power and in particular the types of project which would be prescribed.

The NSIP process was introduced under the Planning Act 2008 for NSIP relating to energy, transport, water, waste and waste water infrastructure. Above certain thresholds applications are to be made under a unified consent regime.

An application for development consent is made to the planning inspectorate. If the inspectorate considers that there has been sufficient pre-application consultation, it will accept the application and invite comments from interested parties. It will hold an examination and a decision should be issued within six months of acceptance of the application.

The types of development now proposed to be subject to this process instead of the normal planning application process are:

Click here to view table.

The consultation closes on 7 January 2013.

Growth and Infrastructure Bill

Variation of planning obligations

In addition to the proposals above, the bill also proposes amendments to s106 of the Town and Country Planning Act (planning obligations) which allows for modification or discharge of affordable housing requirements.

A person against whom the requirement is enforceable would be able to apply to the local planning authority for a modification of the requirement on the basis that the development is no economically viable.

Town or Village Greens (TVG)

The bill proposes to introduce a procedure which allows a landowner to deposit with the registration authority a statement which has the effect of bringing to an end any period during which people may have used land for "lawful sports and pastimes". This is similar to the process in relation to footpaths across land under s31 Highways Act 1980.

Perhaps more usefully, the bill also proposes to restrict land which could be registered as a TVG. This would include:

  • land which is the subject of a planning application;
  • land identified in a development plan for potential development (or a draft plan which is published for consultation);
  • land identified in a neighbourhood plan for potential development (or a draft plan which is published for consultation);
  • land which is the subject of an application for development consent.