Planning for the future

Last year was a bumper year for planning reform, some of which have now been implemented - not least the adoption of the National Planning Policy Framework (“NPPF”). Here we round up some of the most significant proposals that are still at Bill, consultation or announcement stage and what to expect in 2013.

The Growth and Infrastructure Bill

The Growth and Infrastructure Bill was introduced in October, the main aim of which is to reduce red tape. Its planning reforms cover many disparate areas including:

•Permitting developers to apply directly to the Planning Inspectorate (“PINS”) if a Local Planning Authority (“LPA”) is designated as consistently poorly performing. A parallel Communities and Local Government (“CLG”) consultation on “Planning performance and the planning guarantee”, which was published in November, goes into detail on how LPA performance might be measured – essentially in terms of speed and quality of decision taking.
•Implementing a new 26-week overall timeframe for determination of planning applications. The above referred consultation also deals with this (the March 2011 Budget had set out a proposal for a 12 month guarantee for processing applications, including appeals).
•Providing PINS with more powers to award costs in planning appeal and compulsory purchase proceedings.
•Limiting an LPA’s powers to require information to that which is reasonable having regard to the nature and scale of the proposed development and which it is reasonable to think will be a material consideration. Separately, draft amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2010 were published on 17 December, proposing relaxation of information requirements for outline applications where layout and scale are reserved. Also, on 27 December, the Government published its response to the July consultation on “Streamlining information requirements for planning applications”, which included a proposal to reduce the nationally prescribed information for outline planning applications.
•Permitting developers to apply to LPAs for modification to or replacement or removal of affordable housing s106 planning obligations where they render a development economically unviable; guidance is to follow on how LPAs should consider viability.
•Permitting landowners to deposit a statement and map with the Commons Registration Authority to bring to an end any period of use that could otherwise have been relied on to register land as a town or village green and automatically preventing registrations if a trigger event, such as a planning application, has occurred.
•Extending the definition of nationally significant infrastructure to include certain business and commercial developments to allow these applications to proceed faster. This is the subject of the CLG consultation published in November on “Nationally significant infrastructure planning: extending the regime to business and commercial projects” (alongside this, CLG is also consulting on “Nationally significant infrastructure planning: expanding and improving the ‘one stop shop’ approach for consents”).
•Permitting applications for stopping up orders to be made at the same time as a planning application.

Enterprise and Regulatory Reform Bill

Introduced in May, the Enterprise and Regulatory Reform Bill includes a number of proposed changes to streamline listed building and conservation area processes. These include:

•Removing the requirement for a separate conservation area consent for demolition of an unlisted building in a conservation area and amending the planning control regime to deal with this instead.
•Enabling the Heritage List for England to identify the elements of a listed building which require protection and those which can be changed without consent.
•Allowing an application for a certificate of immunity from listing to be made at any time rather than just when a planning application is submitted.
•Introducing a new “Heritage Partnership Agreement” allowing the owner of a listed building and the LPA to agree listed building consent for specific works, specify general works that would not affect the character and therefore would not require consent, and make general provisions regarding maintenance and preservation.

Planning appeals

In November, the Government followed up its 2011 Autumn Statement commitment to review the planning appeals procedure with a consultation containing the following proposals: * Requiring the appellant to submit its full appeal statement of case as part of the grounds of appeal on submission of the appeal. * Requiring LPA notification of an appeal to interested parties within one week after receipt of a valid appeal, which would be at the same time as the appeal questionnaire. * Agreeing statements of common ground earlier (starting hearings and inquiries sooner in order to produce quicker decisions). * Introducing an expedited commercial appeals procedure so that smaller commercial developments can follow a shorter and quicker process. * Exploring opportunities for aligning other planning related appeal processes. * Issuing one comprehensive guide to planning appeal procedures.

Permitted Development Rights and Change of Use

In July the Government published a consultation on permitted development rights. The Government is proposing action in four areas:

•To provide C1 (hotels, boarding and guest houses) permitted development rights to convert to C3 (dwellinghouses) without the need for planning permission.
•To increase the thresholds for permitted development rights for change of use between B1 (business/office) and B8 (warehouse) classes and from B2 (industry) to B1 and B8.
•To introduce a permitted development right allowing a temporary alternative use for two years where the use is low impact, without needing planning permission.
•To create permitted development rights for existing agricultural buildings to assist change of use to uses supporting rural growth.

In November, the Government consulted separately on “Extending permitted development rights for homeowners and businesses”, which includes a proposal to increase the size limits for new industrial buildings within the curtilage of existing industrial premises to 200m2, in non-protected areas, for a period of three years.

The Government is also still considering proposals to “introduce permitted development rights to enable change of use from commercial to residential purposes, while providing the opportunity for authorities to seek a local exemption where they believe there will be an adverse economic impact” as announced in the September Ministerial Statement on Housing and Growth.

Taylor review

The Government initiated a review of planning practice guidance in October led by former MP Lord Taylor. Lord Taylor published his report on 21 December. The report concludes that the current system was no longer fit for purpose and was not in a form that could be effectively managed or updated by Government. The report recommends that that there is one up-to-date web-based “Government Planning Practice Guidance”. The most urgent cancellation of guidance should be completed by 28 March 2013, with the majority of the rest of the work done by July 2013. The report makes 18 recommendations including:

•All planning guidance must be clear, up-to-date, coherent and easily accessible. It must provide essential information but not repeat legislation and should exclude best practice examples which are better provided by practitioners.
•The website should be actively managed, including being reviewed annually as a minimum
•PINS guidance on appeals and the examination system should be included on the website and PINS should be involved as a formal adviser on the maintenance of the guidance.
•The website should signpost organisations providing best practice guidance but not endorse specific guidance documents produced by outside organisations or practitioners.

The report specifically lists:

•Guidance that requires immediate cancellation
•Policy areas that need to be covered in future guidance but do not require existing guidance to be kept in the meantime
•Guidance that needs to be kept until replacement guidance is produced
•Policy areas where there are gaps in current guidance.

There are also recommended priorities for the production of new and updated guidance such as on viability and Strategic Housing Market Assessment (SHMA); Strategic Housing Land Availability Assessment (SHLAA) and Environmental Impact Assessment.

Judicial review

In his speech in November to the CBI conference, the Prime Minister announced Government plans to overhaul judicial review procedure. On 13 December the Ministry of Justice announced a consultation on the following proposals:

•In planning cases, reducing the time within which a judicial review claim can be lodged from three months to six weeks, to match the time limit for challenges to the High Court on planning matters.
•Scrapping oral renewals of applications for permission to bring a claim for any case which has already had a hearing before a judge on substantially the same matter
•Scrapping oral renewals for any case where the application for permission has been ruled to be totally without merit by a judge on the papers; and
•Introducing a new fee for an oral renewal of £215 but potentially rising to £235.

Renegotiation of Section 106 planning obligations

The Government consulted between August and October on a proposal contained in the November 2011 Housing Strategy to allow reconsideration of planning obligations agreed in more buoyant market conditions.

The proposal would allow those bound by section 106 planning obligations entered into on or prior to 6 April 2010 to apply to the LPA to modify or discharge the obligations. Any amended obligation will still be required to meet the current statutory requirements introduced by the Community Infrastructure Levy Regulations 2010. The existing tests in s106A of the Town and County Planning Act 1990 regarding modification and discharge of planning obligations will also remain in place in that, if an obligation is to be deleted, it must no longer serve a useful purpose and, if modified, it continues to serve a useful purpose equally well.

The consultation document anticipated Regulations coming into force “later” in 2012. The current status is that Government is still analysing responses.

Environment Impact Assessment (“EIA”)

The Government confirmed in the 2012 Autumn Statement that it will consult on updated guidance on EIA by Budget 2013, and will consult on raising screening thresholds.

On 26 October, the European Commission adopted a proposal for a revised EIA Directive. The proposed revisions include:

•Adjusting procedure to ensure that only projects with significant environmental impacts are subject to EIA.
•Strengthening rules to ensure better decision-making and avoid environmental damage, including requiring a more systematic consideration of alternative proposals and a clearer explanation of the reasons behind decisions.
•Streamlining the various stages of the EIA process, by introducing timeframes and easing the process when several assessments are required and several authorities involved.

Habitats and Wild Birds Directives

In August Defra published draft guidance and a consultation document and sought views on the application of article 6(4) tests of the Habitats Directive: alternative solutions, imperative reasons of overriding public interest (IROPI) and compensatory measures. A summary of responses was published on 17 December.

On 11 December Defra sought views on the rationalisation of existing guidance and draft overarching guidance on the implementation of both Directives.

What next in 2013?

All of the reforms detailed above are yet to be implemented. Therefore, we can expect more change in 2013. In particular:

•The Growth and Infrastructure Bill will begin its second reading in the House of Lords on 8 January
•Consultation on “Planning performance and the planning guarantee” will end on 17 January
•Consultations on “Nationally significant infrastructure planning: extending the regime to business and commercial projects” and “Nationally significant infrastructure planning: expanding and improving the ‘one stop shop’ approach for consents” both end today (7 January)
•The Enterprise and Regulatory Reform Bill will continue in the House of Lords Committee on 9 January
•Consultations relating to permitted development and changes to the appeals procedures both concluded in 2012 and the Government’s response is now awaited
•Changes to permitted development rights to enable change of use from commercial to residential purposes are awaited;
•The Taylor review set an ambitious timetable for reform of planning guidance and it remains to be seen whether the review recommendations will be accepted and implemented by the Government. A short consultation on Lord’s Taylor’s proposals ends on 15 February
•The Government consultation on Judicial Review will close on 24 January 2013
•Regulations to allow applications for section 106 planning obligations entered into on or prior to 6 April 2010 to be modified or discharged are expected in early 2013
•The proposed measures in the revised EIA Directive will be considered by the European Parliament and the Council. Once agreed, it will become EU law;
•The Defra consultation on IROPI has closed and the consultation on simplifying Habitats and Birds Directive guidance closes on 5 February. Overarching guidance on the Directives is expected to be published in March;
•The revocation of Regional Strategies – the first Order revoking a Regional Strategy, the East of England Regional Strategy, was made on 3 January 2013;
•The requirement for pre-application consultation for certain types of proposed development – the relevant section of the Localism Act 2011 has not yet come into effect.
•The Government has hinted at further regulatory reform to CIL (new guidance was produced and amendment Regulations dealing with the unintended consequence of a s73 permission giving rise to CIL liability came into being in December and November 2012 respectively).

It is clear then that the mood of change which has been so prevalent in 2012 will continue in 2013.

This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, click here