In a written statement to Parliament at the beginning of September, Eric Pickles signalled the prospect of yet more changes to the planning system in order to boost the supply of land for new residential and commercial development. True to its intent the Government wasted no time in bringing forward the Growth and infrastructure Bill. Even though the Bill also introduces a number of other economic measures such as the postponement of the rating revaluation until 2017 and provisions for employee shareholding, the main target of the Bill is the English planning system
From the start it is clear that the Bill is aimed at lessening the ability of local planning authorities to place obstacles in the way of new development. To an extent it could be seen as the antithesis of localism as it relies heavily on the use of sanctions to bring reluctant authorities into line. It is arguable that the Bill is a thinly disguised recognition that the localism agenda has gone too far and that a tactical retreat is required in order to satisfy the growth agenda.
Clause 1 sets the scene. It inserts section 62A into the Planning Act 1990 and it will enable applicants making “relevant applications” for planning permission to apply directly to the Secretary of State if the local planning authority has been designated. This is intended to happen where the authority has a record of very poor performance. It will also be possible for the applicant to apply to the Secretary of State in relation to certain “connected applications” e.g a listed building application that is connected to the main application for planning permission. If the Secretary of State determines that the “connected application” is not connected to the relevant application he can refer the connected application to the local planning authority for determination. Clause 1(8) sets out a bare framework for designation and the all-important criteria governing designation is left for later publication. Schedule 1 contains further details regarding these relevant applications and also enables the application to be determined by planning inspectors. It remains to be seen how tightly drawn the designation criteria will be but an obvious inference is that this provision is designed to enable the Government to whip unwilling local planning authorities into line. Whether planning inspectors will be happy to assume this new role also is uncertain.
The planning appeal costs regime has undergone a subtle but significant change in recent years. Long gone are the days when the possibility of an adverse costs award arose in only the most exceptional of cases. The current costs circular 03/2009 marked a more disciplined approach to planning appeals by widening the circumstances where costs awards could be made. To an extent this has enabled some to use the costs regime as a tactical weapon. Clause 2 builds on this by widening the power of the Secretary of State to award costs between the parties at planning appeals and other planning proceedings and to recover the Secretary of State’s own costs from the parties. It is not yet clear whether this new power will be used sparingly or routinely. Similarly clause 3 inserts sub-section (4) into section 5 of the Acquisition of Land Act 1981 to allow the Secretary of State to award costs between the parties at compulsory purchase inquiries where the inquiry is cancelled or where a party does not appear that the inquiry. The Government has stated that this is to introduce a measure of consistency with the 1990 Act but there is a world of difference between planning appeals and situations where the State is seeking to take a landowner’s property in the public interest. One consequence of this may be to discourage last minute settlements so it has the potential to be counterproductive.
In the last thirty years the planning application process has gone from being a simple form filling exercise with a red line drawing and no application fee to a complex and expensive exercise involving pre-application discussions and consultation, design and access statement, planning statements, large centrally prescribed application fees and plenty of scope for disputes between applicants and planning officers over just what information needs to be supplied in order for the application to progress. The introduction of targets for the timely determination of applications has also had the perverse consequence of seeing many applications either prematurely or inappropriately refused or “withdrawn” by the applicant. Clause 4 aims to address some of these problems by introducing section 62 (4A) into the 1990 Act which stipulates that local planning authorities power to require the inclusion of particulars and evidence in a planning application must be reasonable having regard, in particular, to the nature and scale of the proposed development and only if the matter will be a material consideration in the determination of the application. It is tempting to suggest that much of the good fortune of the legal profession is owed to the use of words such as “reasonable” and “material” so – applying the law of unintended consequences - this provision may introduce new areas of dispute into the process.
It is generally accepted that many housing developments have stalled because of problems related to viability. One particular area of challenge concerns affordable housing provision. Clause 5 seeks to address this by inserting two new sections into the Planning Act 1990. Section 106BA enables an application to be made to vary an “affordable housing requirement” in a planning obligation. This is defined as “a requirement relating to the provision of housing that is or is to be made available for people whose needs are not adequately served by the commercial housing market (and it is immaterial for this purpose where or by whom the housing is or is to be provided).” Special provisions apply to the first application. If the affordable housing requirement makes the development of the site “not economically viable” the authority is obliged to modify or remove the requirement so as to make the development viable. Unhelpfully but not unsurprisingly “not economically viable” is not defined so clearly there is potential for disagreement. The authority cannot make the revised obligation more onerous than the original obligation. More flexibility is given to authorities on second and subsequent applications but any amended requirement must not make the development “economically unviable”. Guidance is to be issued by the Secretary of State which sub-section (8) obliges the authority to have regard to it but it does not go so far as to obliging it to follow it. However section 106BB provides a new avenue of appeal to the Secretary of State in relation to applications under section 106BA. Where a determination is made on appeal under this section, the modified obligation must require a further agreement on the affordable housing requirement within 3 years if the development will continue beyond this period. Obviously this provides the developer with an incentive to get the development started and completed in a timely fashion so, to that extent, these provisions provide the Secretary of State with both a stick to beat the authority with and a carrot to dangle in front of the developer.
Other provisions in the Bill include amendments to the Commons Act 2006 to curb the use of town or village green applications and to the existing provisions in the Planning Act 1990 relating to the stopping up and diversion of highways and public paths. Clause 21, however, contains a potentially far reaching proposal. It replaces section 35 of the Planning Act 2008 and inserts a new section 35ZA. It will enable the Secretary of State to direct that certain commercial and business development can be dealt with under the nationally significant infrastructure regime although sub-section (5) prevents the Secretary of State from prescribing projects that “includes the construction of one or more dwellings”.