Behind the “big picture” topics of the Infrastructure Planning Commission, national policy statements and the community infrastructure levy, the Planning Act 2008 makes some other interesting changes to the development control system in England and Wales, which councils in particular will need to be aware of. The first of the changes brought about by the 2008 Act is the introduction of the varied planning permission. Section 73 of the Town and Country Planning Act 1990 seemed to provide for a variation to a planning permission – but only so that one did not have to comply with certain of its conditions. In other words, the “variation” tag is a bit of a misnomer as the original permission is not varied – simply a new planning permission arises for the same development with (hopefully) all but the problematic conditions recited.
As a result of the 2008 Act, actual variations of planning permissions will be permitted – but only where the effect is to make a non-material amendment. Whether this makes the game of achieving a variation worth the candle remains to be seen – but it must be likely that purchasers of land as well as lenders will want to see such non-material variations documented instead of (as happens at the moment – although less frequently) just informally agreed with officers. Curiously, the requirement to consult and publicise also appears under the variation provisions, which we think surely ought not to be necessary if the effect of the amendment really is non-material. What we can be certain of is that there must be more work in prospect for development control officers arising out of this provision – most problematically over the question of what is and is not a material amendment.
Turning to planning appeals, the 2008 Act empowers the Secretary of State to allocate a procedure for the hearing of appeals – written representations, hearing or full inquiry. This is a change from the slightly woolly situation that exists at present whereby the appellant specifies his preferred route of appeal and the council then has its say. We can be fairly sure that this provision will lead to an increase in the number of appeals dealt with using the written representation method.
Still on appeals, another interesting area of change brought about by the Act is the introduction of fees for making appeals. It is only the principle of payment that is covered here – the method of calculation of the fee, payment date and so on are left to be set out in secondary legislation. But it is worth hazarding what a regime of appeal fees is likely to signify for local authorities. Currently many smaller developers tend to regard a hearing or written representations as being “worth a punt”. There has been no fee to appeal and the application can be reworked into a statement of case at minimal cost with at least some chance of success before the Secretary of State.
If you add something akin to a planning application fee to the mix, many developers will think much harder about making a fresh application instead (which may be free for them). Those that do persist in appealing will presumably spend a good deal more money in ensuring that a compelling case is assembled. So we anticipate that this might make appeals less common but more closely fought and better thought through where they do occur. At the lower end of the scale (in terms of value) appeals might significantly reduce in number.
So what do we think of these lesser-known provisions of the Planning Act 2008? Despite the opposition of developers, we think a system of fees for appeals will benefit the decision-making process – helping to focus the Planning Inspectorate on the task in hand as well as implying the need for a deeper level of preparedness in the would-be appellant. The power to allocate an appeal procedure may not make a great deal of difference to appeals of any size but, for the majority, may lead to an increase in written representations. As for the non-material amendments, the success of this will depend to a large extent on the work of the accompanying guidance.
Please note, however, that none of the provisions of the Act referred to here have yet been brought into force so these are only issues to have on your radar at present.
- Non-material amendments to planning permissions
- Allocation of appeal method to be at the discretion of PINS
- Introduction of fees for planning appeals