In July 2014 the Government published a consultation document entitled “Technical Consultation on Planning”. The consultation contains proposals on the following subjects:

  • Neighbourhood planning 
  • Reducing planning regulations to support housing, high streets and growth
  • Improving the use of planning conditions
  • Planning application process improvements
  • Environmental Impact Assessment Thresholds
  • Improving the nationally significant infrastructure planning regime

The closing date for comments on the proposals in the document is 26 September 2014. This is our third and final note on the consultation. It covers proposed improvements to the planning application process and important changes to the use and discharge of conditions in planning permissions. Separate notes cover changes to permitted development rights and the system for approving nationally significant infrastructure projects.

Changes to the Use and Discharge of Planning Conditions

The Government is concerned that too many conditions are attached to planning permissions; that, of those imposed, too many require the submission for approval of further details before development can be commenced (“pre-commencement conditions”); and that too many local planning authorities take too long to approve details submitted pursuant to pre-commencement conditions, leading to unnecessary delay and expense to developers.

To address these concerns, the Government is proposing significant changes to the way conditions are imposed, the main proposals being to require local planning authorities to justify the use of pre-commencement conditions and to share with the applicant draft conditions before granting permission. The consultation paper suggests that the latter might be required to take place either 5 days or 10 days before planning permission is proposed to be granted.

Comment: Whilst we welcome the principle, our view is that the required time for sharing draft conditions should, where the decision is one for a member Committee, be a period (5 or 10 days does not seem unreasonable) before the agenda for the committee is issued (which is normally about a week before the meeting). It can often be much more difficult for changes to be accepted after the agenda is in the public domain. The proposal to link the period to the issue of permission also fails to take account of the fact that, where a s106 obligation is required, permission is only issued on completion of that obligation – often weeks or even months after the committee date. Our experience is that, once members have approved a set of conditions, changing them is an uphill struggle and even minor changes result in the case being reported back to committee for approval leading to further delay. Much better all round, in our view for a set of conditions to be shared, and hopefully agreed before the agenda goes out. A number of authorities do this routinely in any event and it seems to help smooth the process.

A more radical change is proposed to the way in which conditions are discharged in that details submitted pursuant to most pre-commencement conditions (excluding reserved matters conditions and those relating to matters such as  environmental and safety issues) could be deemed to be approved if the local planning authority fails to deal with the submission within a fixed period. The consultation suggests that this procedure would be at the option of the applicant. If the authority had not issued a decision 6 weeks after submission of details, the applicant would be able to serve a notice effectively saying “if you do not issue a decision within 2 weeks, the details we have submitted will be deemed to be approved”. Regulations would also be amended to require the return of the application fee after 8 weeks if the matter is not determined (reducing from the current 12 weeks).

Comment: We are sure a majority of developers, like ourselves, will welcome the deemed approval proposal. Our concern, however, is that making the operation of the deemed approval the choice of the developer could impair its effectiveness. The serving of a notice risks being seen as hostile by the planning authority when most developers wish to remain on good terms with the authority – not least because they may have other development proposals in the pipeline. From this point of view, we think it may be preferable for the deemed approval to be automatic after 8 weeks, thus providing certainty to all parties without a souring of relations.  

Changes to requirements to consult statutory consultees

The consultation proposes changes to the requirement for planning authorities to consult government bodies on certain types of application. The most significant are limiting the requirement to consult English Heritage on applications affecting a listed building or its setting to those affecting a Grade I or Grade II* building unless the application proposes demolition, in which case EH must be consulted whatever the grade of the building. The opportunity is also taken to make the consultation requirements in Greater London the same as for the rest of England (for historical reasons they have hitherto been different in that EH in London has had to be consulted on proposals relating to all grades of listed building and has had the power to direct refusal). EH would also only be notified of developments affecting the character of a conservation area if the proposals involve 1,000 sq m or more of floor space. In addition the requirement to notify Natural England of applications within 2 km of a SSI is removed as is the requirement to consult the Highways Agency on “minor development” which is likely to result in an increase in traffic entering or leaving a trunk road. It is also proposed that statutory consultees would be empowered to waive their right to be consulted where any concerns they have were overcome in pre-application discussions.

Comment: The requirement to consult various bodies can slow down the processing of planning applications. Notwithstanding that these bodies are under a statutory duty to comment within 21 days, there is no effective remedy if they do not, and, in any event, the local authority is likely, quite rightly, to take the view that it needs the comments of the body (especially where there are environmental concerns) and cannot simply bypass them because they have not commented in 21 days. These proposals are limited, but any proposal to reduce consultation requirements is to be welcomed. We are also pleased to see that he consultation requirements inside and outside Greater London are proposed to be the same in future. The Greater London powers of the old GLC Historic Buildings Department have been retained since it was absorbed within EH in the 1980s and have never served any great purpose other than to cause confusion.   

Changes to the Requirement for an Environmental Statement

Finally, the consultation proposes changes to the threshold size above which certain schedule 2 developments need to be screened for Environmental Impact Assessment purposes. Industrial estates and urban development projects would only require a screening opinion from the LPA if they involve development of more than 5 hectares – a significant increase from the current 0.5 hectares. This means that developments of that type below 5 hectares would not need to be accompanied by an environmental statement.

Comment: The existing thresholds, as the consultation paper notes, catch pretty much all developments of these types as few proposals of less than 0.5 hectares are likely to come forward. If such developments, which are major generators of new jobs, can come forward more quickly without the need to jump through the often time-consuming EIA process, that can only be good for the economy.