Legislative update

Growth and Infrastructure Act 2013

The Growth and Infrastructure Act 2013 (the Act) was given Royal Assent on 25 April 2013. It follows the Localism Act 2011 and the National Planning Policy Framework (2012) as a further step in the Coalition Government’s reform of the planning regime.

The Act’s measures are wide ranging and include (but are not limited to):

  • the option to make a planning application directly to the Secretary of State if the local planning authority is “designated” as underperforming;
  • restrictions on the power to require information to support planning applications; and
  • the ability to make a stopping up order application concurrently with a planning application.

Further provisions relating to affordable housing, nationally significant infrastructure projects and the registration of town and village greens are considered in more detail below:

Affordable Housing

New provisions to be inserted into the Town and Country Planning Act 1990 (sections 106BA, 106BB and 106BC) and to last only until 20 April 2016 will enable applicants to apply to modify, replace, remove or discharge section 106 affordable housing obligations if the affordable housing requirement means that the development is not economically viable.

The provisions also allow applicants to appeal to the Secretary of State if the authority does not modify the obligation or fails to determine the application within the specified period of time (which is currently 28 days from the date the application is made).

In reaching its decision, the local planning authority must have regard to guidance issued by the Secretary of State. The Department for Communities and Local Government recently published this guidance (click here to view) which sets out the test for viability and the form of viability evidence required. If the evidence illustrates that the requirement to provide affordable housing makes the scheme unviable in the current market conditions then a viable alternative provision should be proposed.

Nationally Significant Infrastructure Projects

The Act will insert a new section (section 237A) into the Planning Act 2008 which has retrospective effect from 1 March 2010 and will mean that a Development Consent Order (DCO) is not required for a variation of or a replacement to a permission granted (and where the application for the permission was made) before 1 March 2010.

So where permission was granted or applied for before 1 March 2010, holders of permissions for a Nationally Significant Infrastructure Project (NSIP) will be able to make an application under section 73 of the Town and Country Planning Act 1990 to modify that permission without having to worry about whether or not an application for a DCO should be made.

The Act also revises the Special Parliamentary Procedure (SPP) in the Planning Act 2008 by removing the ability of statutory undertakers and local authorities to require a SPP by maintaining an objection to the compulsory acquisition of land required for an NSIP.

Town & Village Greens

There have been a few changes to the procedures for Town and Village Greens (TVGs) brought about by the Act. These have been largely in response to a consultation exercise. This same exercise proposed a character test for proposed TVG land to ensure that some land (ie golf courses, beaches, etc.) which did not meet the tests would not be registered as TVGs.

Land can be registered as a TVG if it has been used for recreational purposes for the preceding 20 years. Once registered, it can be used by local people for recreational purposes and this public use must not be interfered with by a landowner.

The new provisions under the Act will prevent TVG applications from being lodged where an application for planning permission has been made or granted, or when land has been allocated for development by the local authority as part of a Local or Neighbourhood Plan. This includes situations where the draft of a relevant Plan has been published.

At some future date there will also be changes to ensure that landowners who wish to allow some public use of their land will be able to do so without risking its future development potential. They will be able to deposit a statutory “landowner’s statement” detailing their future intentions with the Commons Registration Authority. This is a change to the previous practice in which landowners had to challenge or take steps to prevent public use in order to be able to prevent local residents claiming 20 years’ recreational use “as of right”.

Public Land Initiative

Appointments to the London Development Panel (LDP) were announced late last month. The LDP is a developer procurement panel established by the Greater London Authority (GLA) to accelerate the delivery of housing in London. The LDP forms part of the Mayor’s wider housing policy and both local and central governments are championing the cause to build more homes in London.

It is anticipated that the LDP will largely follow the format of the Public Land Initiative (PLI) which allowed the Government to follow a novel procurement process and provide public land to approved developers on a Delivery Partner Panel (DPP). The Homes and Communities Agency (HCA) has now announced DPP2, which is the next list of panel developers taking forward PLI for the HCA. DPP and DPP2 are nationwide initiatives separated out by region, as opposed to GLA’s panel, which is purely for London.

In addition to the HCA and GLA forming their own panels, Westminster Council (and perhaps other London boroughs in the future) have also formed its own panel as it is well placed (and ultimately responsible) for the delivery of housing in its area.

Greenwich Square

RPC advised Hadley Mace Limited on the development of Greenwich Square, the largest and most complex project approved under PLI and DPP. In addition to 645 residential units, the development includes a public square, NHS health centre, library, retail and restaurant facilities and a leisure centre. Greenwich Square was also one of the first projects to sign a development agreement under PLI, giving RPC a unique understanding of how PLI is implemented.

In addition to a creative leasing structure and measures to mitigate sales risk, other key objectives of PLI were implemented at Greenwich Square including:

  • Mitigating sales risk through affordable housing options;
  • Establishing a mechanism for deferred payment of development sites;
  • Sharing risk between government and developers; and
  • Delivering high quality homes.

National infrastructure planning

Following the 2010 Penfold Review and the November 2012 consultation, on 12 March 2013 the Department for Communities and Local Government (DCLG) published its response to proposals to expand and improve the “one-stop shop” approach to obtaining non-planning consents for NSIPs under the Planning Act 2008.

The response explains that DCLG has/intends to implement the following changes:

  • DCLG has established a Consents Service Unit (CSU) within the Planning Inspectorate (which became operational from April 2013), to streamline and improve co-ordination and communication between the Planning Inspectorate, applicants and other consenting bodies. The CSU offers a bespoke service to developers, providing a lead contact “to co-ordinate a logical and systematic approach to the handling of 12 different consents which may be required in addition to development consent under the 2008 Act. These consents could be required durign the construction phase and/or the operational phase.” The aim is to ensure that, where possible, these are dealt with in parallel.
  • In response to comments about the complexity of particular consents, DCLG intends to streamline the list of non-planning consents that sit outside the Planning Act 2008 development consent process by removing 16 different consents from the Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 (SI 2010/105).
  • DCLG will update and streamline the list of prescribed statutory consultees in secondary legislation, reducing it by at least one-third.

A full review of the national infrastructure planning regime is planned for 2014.

Recent Planning Decisions

Westminster City Council v Secretary of State for Communities and Local Government and another 1

In Westminster City Council (WCC) v Secretary of State for Communities and Local Government (SSCLG) and another, the High Court quashed an appeal decision by SSCLG on the basis that the planning inspector concerned had mistaken a personal undertaking by a property owner for a valid planning obligation under section 106 of the Town and Country Planning Act 1990 (the TCP Act).

Facts

The subject property originally had two garages at ground floor level with accommodation above. Although the original owner had obtained planning permission to convert one of the garages into residential accommodation, the condition attached to the permission was that the remaining garage could only be used for storage of motor vehicles. This position reflected WCC’s policy of retaining off-street parking in order to relieve the strain on lawful on-street parking in the area.

A planning application was subsequently submitted to convert the remaining garage into a living room. WCC refused the application and the decision was appealed to SSCLG.

On appeal, the appellant (the current property owner) gave a unilateral undertaking:

  • not to apply to WCC for a parking permit;
  • to notify prospective purchasers that they would not be entitled to a parking permit; and
  • to impose a covenant in such terms in every lease granted, assigned, transferred or otherwise provided in respect of the property.

The unilateral undertaking was executed as a deed and stated that it was a planning obligation for the purposes of section 106 of the TCP Act.

The appeal was successful and the planning permission was granted.

WCC sought an order to quash the permission and submitted that the planning inspector concerned had:

  1. taken into account an irrelevant consideration as the appellant’s undertaking was not a valid planning obligation for the purposes of section 106 of the TCP Act; and
  2. failed to justify his decision that the conversion conformed with WCC’s policy of retaining off-street parking.

Decision

SSCLG’s permission was quashed.

The High Court held that the unilateral undertaking was a personal undertaking by the appellant, not a valid section 106 planning obligation. The obligation did not meet the requirements when tested against section 106(1)(a)-(d) of the TCP Act and the obligation therefore did not run with the land or bind future owners and occupiers of the land. The mere labelling of the document as a unilateral undertaking, executing it as a deed and stating that it was a planning obligation was not determinative for the purposes of meeting the requirements of section 106 of the TCP Act.

More communities vote in favour of neighbourhood plan

Following the approval of the first neighbourhood plan in Upper Eden, Cumbria in March 2013 (see RPC’s recent Blog Post), residents in St James, Exeter and Thame, Oxfordshire have recently voted in favour of adopting their own neighbourhood plans.

In Thame, residents voted for 775 new homes which will be linked into the town via new pedestrian, cycle and public transport routes. This vote is significant because it is the first plan to set out the precise sites the residents want to see homes built on in their area. The plan was passed by 76% of voters with a 40% turn out.

In St James, the neighbourhood plan was developed by a newly formed neighbourhood forum. The plan placed an emphasis on sustainable development and support for the local economy and is significant because it is the first plan to be voted on in a centrally located urban area. The plan was approved by 92% of voters with a 21% turnout.