There are many changes to planning law in the pipeline and our comments on Government consultation and draft legislation are included in this bulletin for your information.

1. Review of Call in Directions

The Department of Communities and Local Government has published a consultation paper with its proposals to reduce the number of planning applications that have to be referred to the Secretary of State in England.

The Government intends to withdraw all the existing Call-in Directions and replace them with one new Direction which will retain some of the current requirements. No legislation will be needed and the changes will be introduced in Departmental Circulars.

In future the following types of application would have to be referred:

  • Green belt –applications involving inappropriate development in the green belt where  the LPA does not propose to refuse, including proposals for buildings of more than 1,000 square metres and any other development that would have a significant impact on the openness of the green belt because of the scale, nature or location of the development
  • Playing fields – applications must be referred if Sport England objects due to inadequate  provision of playing fields
  • Flooding – All applications for major development in a flood risk area where the LPA is  minded to grant permission against the Environment Agency’s advice
  • Applications above certain thresholds – applications for more than 5,000 square metres  of gross retail, leisure, office or mixed commercial floor space – but only relating to sites in edge or out of centre locations which are not in accordance with an up to date development plan document.
  • World Heritage Sites – applications where an LPA is minded to grant consent and English  Heritage has objected on the grounds that the proposed development could have an adverse effect on a World Heritage Site.

Responses to the consultation paper are required by 31 March 2008 and the Department for Communities and Local Government has signalled that the revised Call-in regime won’t be implemented until April 2008 at the earliest.

2. Planning Reform Bill

The Planning Reform Bill is one of the three key pieces of legislation central to the Government’s current legislative programme. The Bill is currently under detailed scrutiny by a Commons Committee and the Government is hoping to implement all of the Bill’s measures by October 2008, with any necessary secondary legislation to follow in April 2009.

The Bill amends the planning system to provide a single consent regime for infrastructure projects, which includes the establishment of a new body called the Infrastructure Planning Commission. Under the new system, development consents will be introduced for nationally significant infrastructure projects in order to reduce the number of applications and permits required. In a nutshell, the proposed regime would work like this:

  • Following public consultation and Parliamentary scrutiny, the Government will issue  national policy statements in the relevant policy areas.
  • The new Infrastructure Planning Commission will examine applications, and will decide  applications when there is in force a relevant national policy statement.
  • Where there is no relevant national policy statement the Secretary of State will decide  applications.
  • Once development consent is given, other consents such as planning permission, listed  building consent etc., will not be required.
  • Greater use of written representations is intended, with less reliance on oral  representations, and the examination procedure will be no longer than 6 months.
  • There would be no right of appeal against the decision of the IPC, except by Judicial  Review in the High Court

The Bill also introduces the new Community Infrastructure Levy (CIL), following the announcement by the Government that it will not introduce the previously proposed Planning Gain Supplement. The Secretary of State will have the power to make regulations to impose the levy in order to help fund the provision of new infrastructure development and to ensure that such costs are met at least in part by the land owners that benefit from that development. Importantly the CIL will not be collected centrally. At this stage the Bill contains enabling clauses and more detail on the new charging regime will be set out in due course. Other changes proposed by the Planning Reform Bill include:

  • More flexibility for local planning authorities over the preparation of the new-look  development plan documents. A duty will be placed on local planning authorities when preparing their development plan documents to include policies in relation to the development and use of land which have the effect of mitigating and adapting to climate change.
  • Certain planning applications which are frequently delegated to officers could be reviewed by members, but importantly there would be no right of appeal to the Planning Inspectorate. This would involve the establishment of Local Member Review Bodies (LMRBs). Ministers would like to establish LMRBs by 2010.
  • In relation to appeals the Bill enables the Planning Inspectorate (on behalf of the Secretary of  State) to determine the appeal method and introduce an appeal fee.
  • Fast-track householder and tree preservation order appeals 
  • Strengthened powers for the Secretary of State and her inspectors to refuse to consider new material at appeal
  • Shifting the submission of the Statement of Common Ground to an earlier stage in the appeal process
  • Removing the nine-week comment stage for hearings and inquiries

3. Permitted Rights for Householders and Householder Microgeneration

Responses to the two consultation papers were published in November 2007 and it seems likely that new permitted development rights will be introduced this year. The papers propose to reform the system governing what householders can do to their own property without planning permission. An impact-based approach is proposed on the basis that the planning system should not regulate development which has no impact beyond the host property.

Permitted development rights will be introduced for specific types of microgeneration, including solar panels, heat pumps, wind turbines and biomass fuels, subject to specific limits and conditions, to ensure there is no impact on others (and with additional restrictions for World Heritage Sites and Conservation Areas).

Restrictions will cover matters including height, width and noise. Where heat pumps and wind turbines are concerned new standards will be set in relation to noise.

In relation to householder permitted development rights, the Government is proposing a separate Householder Permitted Development Order. No change is proposed to the permitted development rights in Part 2 of the GPDO, but substantial amendments are proposed to those types of development in Part 1.

The proposed changes will include:

  • A complete change of permitted development rights for extensions, as the Government proposes to move away from the current limits set in terms of volume, depending on the location and type of the house.
  • Similarly in respect of roof extensions, the Government proposes to move away from the  current volume-based approach and proposes new limits aimed at reducing the visual impact on neighbours, particularly in relation to box dormers.
  • In relation to roof alterations the Government proposes that there should not be a limit on the  percentage of roof coverage, except in designated areas.
  • Substantial amendments to curtilage developments are proposed, including a requirement  that garages and outbuildings are single storey only, and the maximum ground coverage of all garages and outbuildings must not exceed 30 sq m if the private garden exceeds 100 sq m, or 20 sq m if the private garden is less than 100 sq m.

The Government does not propose to place a national restriction on hard surfaces at the front of the property, so householders will be able to continue to pave over their front gardens. Instead, local planning authorities will need to use their powers to make an Article 4 Direction where necessary.

The Government is also considering a prior approval mechanism for certain, larger scale permitted development. The procedure would require a much lower level of information to be provided and a planning authority would have to object to the proposals within a certain period of time to prevent development proceeding.

It is expected that the changes will deliver a more permissive regime than exists at the moment and should result in a decrease in workload for local planning authorities. However, savings in terms of time handling householder planning applications will be offset somewhat by an increase in requests for lawful development certificates.

4. Housing and Planning Delivery Grant

Local planning authority performance has been incentivised through Planning Delivery Grant, which apart from being an incentive, has provided the recipient authorities with additional resources to invest in change and improvements. Planning Delivery Grant will end in 2008.

In October 2007 a consultation paper was published on proposals to reform Planning Delivery Grant and to introduce Housing and Planning Delivery Grant (HPDG). The proposed allocation mechanism comprises two elements: housing delivery and planning. The housing delivery element of HPDG will be available to all local authorities delivering housing at a level of at least 0.75% of existing stock in the particular local authority’s area. The amount of the grant will depend on how much more housing is delivered over and above the base line of 0.75% of existing stock for the area. To calculate the amount of the grant, the average delivery over a three year period will be taken.

The planning element of the HPDG will be available to all planning authorities and will be a reward for progress against delivery of sound plans and the delivery of land for housing. The planning element will be split across three components:

  • 40%: assessment and delivery of land for housing over a five and fifteen year timescale. The intention is to reward local authorities that maintain on an annual basis a five year supply of deliverable sites for housing in line with PPS3. Enhanced levels of grant will be available if the local planning authority can identify a supply of housing land for a 15 year period.
  • 50%: delivery of “sound” Development Plan Documents (DPDs) Local planning authorities will be able to claim for each of the eligible DPD that commenced in the relevant year and for each of the stages completed by an eligible DPD in accordance with a given table of requirements. Reductions will be made in the grant where there are delays in the delivery of DPDs.
  • 40%: delivery of “sound” DPDs and Strategic Housing Market Assessments Local planning authorities that choose to work together to prepare joint planning documents will be rewarded. Additional rewards will be given to local planning authorities that work together to publish Strategic Housing Market Assessments by March 2009.

In addition to the above proposals, the Government has invited comments on proposals for HPDG to provide an opportunity to improve standards in housing design as well as quantity of housing. The Government also wants to explore how to incentivise local authorities to bring empty homes back into use. At the current stage the Government has indicated that it will require authorities to have in place an effective empty homes strategy before it can be eligible for HPDG. Further, in order to be eligible for HPDG local authorities will have to register their surplus public sector land (only land that is proposed to be marketed, not land that is simply unused) on the Register of Surplus Public Sector Land. This is to encourage the release of surplus public sector land for housing purposes.

The Government’s aim is that the housing incentive element would be awarded to local planning authorities and urban development corporations and paid starting in 2008 when the existing PDG regime is due to end.

5. Changes to planning fees

A consultation paper Planning Fees In England: Proposals for Change was issued in May 2007 on proposals to increase fees to address the fact that planning fees do not cover the costs local authorities incur in determining planning applications, particularly in respect of large applications.

The changes will be made by statutory instrument to amend the 1989 Regulations, which will be put to both Houses in January 2008. It is proposed that most planning fees will be increased by 25% in April 2008, with a maximum 11% increase for householder fees.

New performance standards will be published to ensure performance improves in line with the increase in fees.

The maximum fee cap for full applications has been increased to £250k, and for outline applications to £125k (it was originally proposed that the cap be removed entirely).

An additional fee will be charged for confirmation that conditions attached to planning permission have been met.

Proposals to deregulate planning fees in the longer term to allow local authorities to set their own fees have been dropped following consultation.

6. Heritage Protection White Paper

Published in March 2007, the Heritage Protection for the 21st Century White Paper proposed a unified, more efficient heritage protection system. The Heritage Protection Reform Bill was mentioned in the Queen’s speech in the Autumn and a draft Bill is planned for publication in the 2007-2008 session.

It is proposed that listed building consent and scheduled monument consent be merged into one system. In addition, it is proposed that conservation area consent be merged with planning permission.

7. PPS 4: Planning for Sustainable Economic Development

This consultation paper was published on 17 December 2007 and consultation ends on 17 March 2008.

The new PPS 4 is intended to replace PPG 4: Industrial and Commercial Development and Small Firms, and will put in place a national planning policy framework for economic development at regional, sub-regional and local levels for urban and rural areas.

The main policy objectives of the new PPS 4 will be:

  • Positive plan-making recognising the needs of business and supported by evidence, including  market information.
  • Ensuring a good supply of economic land in suitable locations which is used effectively  including:
    • (i) encouraging mixed-use development and regeneration
    • (ii) requiring a positive approach towards re-use of heritage and listed buildings for economic development
    • (iii) requiring a positive approach to changes of use where no likelihood of demonstrable harm
    • (iv) making parking policies specific to locality rather than simply mirroring national policies
  • Promoting joint working across local authorities.
  • Requiring new development to be of high quality and sustainable design.
  • Promoting a positive and constructive approach to development control, including requiring  local planning authorities to consider planning applications favourably unless there is good reason to refuse them.