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”.