Spring is going to be a busy time for the planning system, as the Government starts to implement the new regime for infrastructure planning, and brings in a range of other changes to the planning system. This bulletin summarises those changes and predicts what else might be in store in 2009.

New regime for Infrastructure Planning

The new regime is founded on new kind of policy document – the National Policy Statement or "NPS". The relevant parts of the 2008 Act will be in force from 6th April and consultation has already started on the list of bodies that must be consulted before any NPS is adopted. This consultation will end on April 20th and the relevant regulations are likely to be in force by the summer.

For developments that come within the definition of Nationally Significant Infrastructure Projects or "NSIPs" the usual raft of consents will be replaced by a single Development Consent determined by an Infrastructure Planning Commission ("IPC"). Sir Michael Pitt has just been announced as the Chair of the IPC and the next package of draft regulations and guidance is due to be published soon, covering pre-application consultations and the detailed requirements for submitting applications.

Other changes to the Planning System

From 6th April, a number of other changes will be made:

  • The power to decline to determine overlapping applications is brought in. These are the changes proposed originally in the 2004 Act, and amended by the 2008 Act that allow local authorities to refuse, in certain circumstances, applications which are "similar" to those submitted previously.
  • Section 237 of the 1990 Act overrides easements and covenants which prevent the carrying out of construction, alteration or maintenance of buildings on land which has been acquired or appropriated for planning purposes by a local authority. This is a useful power because it applies not only to situations where the local authority carry out the works, but also where they are carried out by a person deriving title from the authority (such as a developer). However, section 237 does not extend to overriding restrictive covenants which prevent a particular use of land which has been acquired or appropriated for planning purposes by a local authority. From 6th April, this anomaly is put right and the section 237 power will apply to restrictive user covenants as well as easements and covenants preventing building works. Equivalent powers in other acts such as the New Towns Act 1981 and the Housing Act 1988 are similarly amended.  
  • A number of changes will be made to the appeals system. Changes brought in by the 2008 Act will allow the Secretary of State to prescribe how any planning or enforcement appeal is to be dealt with. In addition, it looks as though there will be further regulations removing the 9 week comment stage, and requiring the Statement of Common Ground to be produced within 6 weeks of the start date.  
  • Local authorities entitled to charge Community Infrastructure Levy or CIL can start "preparatory work" on a charging schedule.  
  • It will be easier to produce Supplementary Planning Documents and there will be more flexibility for judges to make alterations to development plans post-adoption. A new duty is introduced to include policies on climate change in all development plan documents and (in England) to have regard to achieving good design;  
  • The government has indicated that there will be a new Call in Direction and Circular, replacing the existing Directions with one document and a new Costs Circular that will allow costs to be applied for in appeals dealt with by written representations as well as inquiries. Both of these proposals have been the subject of previous consultation.  

Later this year…

If the government sticks to its own "routemap" for implementing the new infrastructure regime, the next package of regulations should be in place by October, and are likely to include pre-application processes, prescribed forms for applications and relevant EIA requirements. The Independent Planning Commission is likely to be up and running by October too with the aim of being "ready to receive applications" in the first half of 2010. The first National Policy Statements - on non-nuclear energy and ports – are due out for consultation in the summer, followed by a draft NPS on Nuclear in the autumn.

October is also likely to bring new regulations on Tree Preservation Orders regulations adding detail to the current legislation on the Community Infrastructure Levy and, possibly, new regulations on planning fees. It looks like being a very busy year!