The flurry of planning changes proposed in recent months has sent the planning world into a spin. Jessica Hickson provides a whirlwind tour of the proposals.

Growth and Infrastructure Bill

The Government’s latest reform initiative, the Growth and Infrastructure Bill, continues its journey through Parliament. We expect it to come into force shortly.

The Bill has proved somewhat controversial and has attracted allegations that it undermines the Government’s localism policy. Whilst many welcome changes to a planning system beset with avoidable delays and unnecessary bureaucracy, there are still a number of concerns which remain unresolved.

Bypassing badly performing LPAs

One of the more eye-catching aspects of the Bill is the proposal to allow applicants the option to bypass underperforming local planning authorities and have planning applications determined by the Secretary of State (acting by the Planning Inspectorate).

Of key importance is the appropriate basis on which to judge the quality and speed of LPAs’ decision-making. Following formal consultation, the proposal is that:

  • in terms of speed, LPAs are to be judged by the extent to which applications for major development are determined within 13 weeks (averaged over a two year period); and
  • concerning quality, LPAs should be assessed by the proportion of all major decisions that are overturned at appeal (again averaged over two years).

The Government has indicated that only very poor performance would result in designation. The proposed designation thresholds would be reached where:

  • 30% or fewer major applications are determined within the statutory period; or
  • more than 20% of decisions on major applications are overturned on appeal.

Designation of poor performers is likely to take place annually and automatically on publication of data showing that either threshold has been breached. Criteria and initial thresholds for designation are anticipated to be confirmed in April 2013 and performance data indicating which authorities are liable for designation should be available in July 2013. Removal of designation would be a matter for the Department for Communities and Local Government following a positive assessment after a minimum of one year.

The principle behind these proposals is to be welcomed and providing developers with a direct route to the Planning Inspectorate appears to be an attractive solution to hopefully bypass slow and poor quality decision-making by LPAs.

Speeding up delivery of major commercial and business projects

The Bill also includes provisions to amend the scope of the planning regime for nationally significant infrastructure projects to include significant commercial and business development. The aim is to speed up delivery of major projects. The Government has consulted on this and its response sets out details of its proposals for the different sized categories which will benefit. For offices, the development would need to be at least 40,000m2 whilst other categories, such as mixed-use developments, would need to be more than 100,000m2 floorspace. The Government’s initial analysis is that between 10 and 20 proposals per year will be caught by the new rules, meaning the majority of applications will be unaffected.

The new rules will not apply to schemes involving residential development, so no truly mixed-use schemes will benefit. It appears the Government is keen to see residential development applications continuing to be determined at the local level. Furthermore, the Government’s current view is that solely retail schemes would not qualify, although the rationale behind this is not clear and some may query whether this represents a missed opportunity.

The ‘planning guarantee’

The Government has consulted on its proposals to introduce a ‘planning guarantee’: an undertaking that no planning application (including any appeal) should take more than one year to decide. This particular planning reform originated with the Conservative Party’s proposals published before the last election and had, until recently, appeared to have fallen off the agenda.

The intention is to provide a long stop date rather than affect existing statutory time limits. In practice, the aim is that no proposals should spend more than 26 weeks with the LPA or (in the case of appeals) with the Planning Inspectorate.

The guarantee will not cover the time before an application is submitted, after planning permission is granted or when any unsuccessful applicant is deciding whether to appeal. For applications covered by the guarantee that are undetermined for more than 26 weeks, the LPA in question must refund the application fee.

Delays in decision-making continue to be a problem for developers and therefore any initiative likely to expedite this should be welcomed. One matter which is not clear is the date on which the clock would start ticking. The current trend is for LPAs and the Planning Inspectorate to delay validation of applications and appeals in order to push back the ‘official’ start of the process. If the guarantee is to have any teeth, time must start running on the date the application or appeal is submitted (provided the validation requirements are met).

Communities to receive cil revenue

The Government announced plans in January for communities to receive a “cash boost for choosing development”. The proposals are designed to encourage neighbourhoods to be proactive in drawing up a neighbourhood development plan and securing the consent of local people. They would then win 25% of the revenues from CIL arising from development that they choose to accept. This will be paid direct to Parish and Town Councils and used to back the community’s priorities, for example, re-roofing the village hall. Neighbourhoods without a neighbourhood development plan but where CIL is charged will receive a capped 15% share of the revenue arising from development in their area.

This proposal is attention grabbing, but it prompts a fundamental question: surely the inevitable consequence of handing communities 15% or 25% of CIL revenue is an equivalent shortfall in infrastructure plan funding arrangements? It is not clear how such a shortfall would be made up or whether this 15% or 25% would result in an additional cost to developers. Current indications are that it is LPAs’ budgets that will suffer.

Other recent changes

Changes of use from commercial to residential without planning permission.

The Secretary of State announced plans to allow the change of use of buildings from commercial to residential without the grant of planning permission. This would be subject to a prior approval regime, the content of which has not been disclosed, but undoubtedly LPAs will be keen to use this as a means to control development that they do not support.

There is an exemption process. However, the indication from Government is that exemptions will be few and far between and LPAs were given an extremely tight deadline (one month) to apply for such exemptions. Changes are expected to take effect from Spring 2013.

Modifications to planning obligations

On 28 February 2013, amendments relating to applications to modify or discharge planning obligations came into force. Obligations may be modified or discharged once the “relevant period” has expired, which previously was a default period of five years from the date the obligation was entered into or “any period as may be prescribed”.

The default period of five years continues to remain in force, but following the amendments the relevant period for planning obligations entered into before 6 April 2010 will now be one month beginning from 28 February 2013, effectively bringing forward the date on which such an application can be made. The five year default period will continue to apply to planning obligations entered into after 6 April 2010.

Budget 2013

The Budget 2013 also confirmed a number of planning reforms for the future (some of which have been mooted for some time):

  • the publication of new and reduced planning guidance by this summer;
  • a reduction in time periods involved in judicial review proceedings along with further measures for streamlining the planning judicial review process to be announced this summer;
  • consultation on greater flexibility between use classes; and
  • asking local authorities to put ‘pro-growth’ planning policies in place.