Introduction
This Summary of the Bill highlights the main provisions which relate in particular to reform of the planning system. The provisions relating to e.g. mayors, general powers of competence, community right to challenge to run local authority services and community right to buy, are not covered at this stage.
The key proposals relevant to the reform of the planning system are summarised in the Overview below. Then the Bill’s approach to these is then dealt with in a little more detail.
Overview
· The Bill was finally made public on the Parliament site late yesterday afternoon:
· It consists of 207 clauses (Vol. 1) and 24 Schedules (Vol.1). The Explanatory Notes do not appear to be available yet
· Part 5 of the Bill deals with Planning. This consists of some 30 clauses (89-119) and these have to be read together with schedules 9-13 in particular
· The planning reforms are brought about by a combination of adding to, amending and replacing the existing legislation (in particular the three principal Acts)
· Further, the full nature and extent of some of the provisions in the Bill will not be understood until various orders/regulations are made or existing ones amended
· Gone as expected are regional strategies (assuming that there is no SEA hurdle – it is not clear yet how or whether this aspect of the Cala Homes Judgment has been addressed) and the Infrastructure Planning Commission, but with the Development Consent system retained.
· Neighbourhood planning is provided for in the form of Neighbourhood Development Orders and Plans as well as collaborative planning and an increased duty to consult before an application is submitted.
· Enforcement powers are extended, particularly to cover breaches that are deliberately concealed from the planning authority
· CIL is retained but amended
· Limitation of the “predetermination” rule (clause 13)
· Abolition of the Standards Board, allowing Councils to use their own regimes to govern conduct of their members (clauses 14 & 15 and Schedule 4)
· Duty to disclose the pay of senior officers of an authority
· Duty to hold local referendums (Chapter 1, of Part 4 Community Empowerment)
· There is a major extension of powers available to the GLA (Part 7 of the Bill, cls.157-200)
· Although the Bill extends to England and Wales (with a few provisions also relating to Scotland in respect of the abolition of the IPC), many provisions of the Bill do not apply to Wales. The Government of Wales Act 2006 is to be amended with regard to what constitutes an Assembly Measure (see s. 94 of that Act) in respect of planning – clause 119 inserts Matter 18.4 into Part I of Schedule 5 to the 2006 Act
The Key Changes Relating to the Planning System
The Bill was preceded yesterday by the Decentralisation and the Localism Bill: an essential guide, which provides a useful overview:
The Bill achieves the changes to the planning system by amending the existing three central Acts – the Town and Country Planning Act 1990 (TCPA 1990), the Planning and Compulsory Purchase Act 2004 (CPA 2004) and the Planning Act 2008 (PA 2008).
Nationally Significant Infrastructure Projects (Clause 107- and Schedule 13)
· The Infrastructure Planning Commission will be abolished
· However, the separate development consent system for major infrastructure projects remains
· The Secretary of State will use a Panel or single appointed person (from within PINS) for considering such applications with Minsters making the decisions on major infrastructure projects.
· National Policy Statements have to comply with consultation, publicity and parliamentary requirements (clause 109 amending s.5 of the PA 2008). These requirements will be set out in amended section 6 and new ss. 6A, 6B.
· The Secretary of State’s power of direction in relation to projects of national significance is amended (clause 111 amending s. 35 of PA 2008 and inserting new s. 35A).
· There are also various other amendments in relation to development consents
Development Plan Framework
· Regional strategies are abolished (clause 89 and Schedule 8)
· The Bill does not replace the LDS system or examination of LDDs by an Inspector/s (see clause 91)
· Section 15 of the CPA 2004 is amended with regard to the requirements as to the preparation of LDSs
· The power of an Inspector examining an LDD has been amended (clause92). This gives much more flexibility to the plan making authority on how to deal with the Inspector’s recommendations, the basis of which is also prescribed in clause 92. An Inspector’s recommendations are no longer binding on the authority, as is currently the position
· Section 35 of the CPA 2004 is amended to bring in a requirement for monitoring reports, which must be made available to the public
· Neighbourhood Development Plans (see below) are proposed to be part of the development plan (by amending s. 38 of the PCPA 2004)
Neighbourhood Planning (Clauses 96-101 and Schedules. 9-12, inserting new Schedules 4A and 4B into the TCPA 1990)
· This of course is a fundamental plank of the Government’s localism agenda
· Provision is made for both Neighbourhood Development Orders and Neighbourhood Development Plans
· Any qualifying body (a Parish Council or an organisation or body designated as a neighbourhood forum and authorised for this purpose) is entitled to seek the making of a neighbourhood development order, which will grant planning permission in relation to a particular area (new s.61E of the TCPA 1990 and new Schedule 4B to that Act (as inserted by Schedule 9 of the Bill)
· A local authority MUST make a Neighbourhood Development Order if more than half of those voting in a referendum have voted in favour of the order. A similar requirement applies where those criteria are met in terms of a proposed Neighbourhood Development Plan.
· There is provision for the making of regulations for the holding of an examination where the authority consider that making of such an Order would breach or otherwise be incompatible with any EU obligation or any of the Convention Rights
· Development that is excluded from this procedure (e.g. county matters) would be defined in section 61I of the TCPA
· S. 61O and Schedule 4C (as will be added by Schedule 11 of the Bill to the TCPA 1990) make provision in relation to a particular type of neighbourhood development order – known as a Community Right to Build Order. This is a proposal by a Community Organisation which is a established for the express purpose of furthering the social, economic and environmental well-being of individuals living or wanting to live in a particular area
· With the consent of the Treasury the Secretary of State may make regulations providing for the imposition of charges for the purpose of meeting expenses incurred (or expected to be incurred) by local planning authorities relating to the exercise of their neighbourhood planning functions (as defined in clause 97(2)). This would allow authorities to charge the owner or developer of land where planning permission is granted by a neighbourhood development order made under what would be the s.61E of the TCPA 1990 and development commenced. Clause 100 (curiously in italics in the Bill) empowers the Secretary of State to provide or facilitate financial assistance in relation to neighbourhood planning
Community Infrastructure Levy (Clauses 94-95)
· Clause 94 amends the provisions in the PA 2008 relating to approval of charging schedules
· Clause 95 is a very significant provision allowing for CIL regulations to require that CIL is passed to a person other than the charging authority
· The Bill introduces three changes to the Community Infrastructure Levy. Firstly, the Bill includes provisions to make regulations requiring some of these funds to be passed to neighbourhoods where the development has taken place. Secondly, it makes clear that funds can be spent on the ongoing costs of infrastructure, as well as the initial costs of new infrastructure. Lastly, it gives local authorities greater control over setting their charging levels – while independent examiners will still consider whether the charging schedule is unreasonable, it will be for the authority to decide how to make it reasonable.
Consultation (Clause 102 inserting ss. 61W-61Y into the TCPA 1990)
· Chapter 4 of Part 5 imposes a legal requirement for pre-application consultation by introducing new elements to section 61 of the TCPA 1990
· There is an express duty for the applicant to take into account any consultation responses when deciding on the terms of the application to be submitted
· There is power (in proposed s.61Y of the TCPA 1990) for a development order to make provision with regard to the nature of the consultation to allow for the “collaborative design” approach foreshadowed in the Conservatives Green Paper, Open Source Planning (March 2010)
Enforcement (Clauses 103- 106)
· Power for authorities to decline to determine a retrospective planning application is introduced (would be by a new s.70C in the TCPA 1990) where enforcement action has been taken
· The right of appeal under ground (a) of s.174(2) would also be likewise curtailed in certain circumstances (clause 103(4))
· There is also a new power (clause 104 inserting a new s.171BA into the TCPA 1990) regarding situations of full or partial concealment of an apparent breach of planning control (the comments of the CA in R. (on the application of Welwyn Hatfield Council) v Secretary of State for Communities and Local Government Court of Appeal (Civil Division), [2010] EWCA Civ 26 are of course very relevant to this proposal). This allows an authority to apply to a magistrates court for an “planning enforcement order”. The time limit for the making of an application by the authority to the magistrates court is 6 months based on when evidence of the apparent breach came to the authority’s knowledge. The court is required to have regard to whether it considers that it is just to make the order having regard to all the circumstances
· The maximum penalties for planning offences are increased for England and time limits specified (clause105 amending ss. 187A(12), 210 (tree preservation regulations control) and 224 (advertisement control)of the TCPA 1990). There is also new powers (would be s.225A inserted by clause 106) relating to unauthorised advertisements and defacement of premises; remedying persistent problems with unauthorised advertisements (new ss. 225B-D of the TCPA 1990)
· There are new powers (with a right of appeal against their use to the magistrates court) relating to the defacement of premises and also covers post boxes, bus shelters and other street furniture (new ss. 225E-225I)
Predetermination and Standards
· The scope of predetermination as a basis for alleging bias is narrowed (clause 13)
· A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind just because they had previously done anything that directly or indirectly indicated what view the decision-maker took, or might take
· This applies only if the decision-maker is a member (whether elected or not) of the relevant authority or a co-opted member of that authority.
· The Standards Board is to be abolished – see Chapter 5 of Part I and Schedule 4 to the Bill.
· A relevant authority (as defined in clause 26(1)) is required to promote and maintain high standards of conduct by members and co-opted members (clause 15). Such an authority may adopt a code of conduct of its members
· There is also a requirement for making public an authority’s remuneration to its chief officers (clause 21)
London
· There will be devolution of executive powers over housing investment from the Homes and Communities Agency to the Greater London Authority;
· London Development Agency will be abolished, with its city-wide roles on regeneration and management of European funding to be transferred to the Greater London Authority so that the Mayor is directly accountable. (The Government has already announced the end of the Government Office including London and the Regional Development Agencies)
· New powers for the Mayor of London to create Mayoral Development Corporations to focus regeneration where it's needed most
· Boroughs will be given control over more of the major local planning decisions that affect their local communities. The Mayor will only consider the largest planning applications in future;
· Streamlining consultation on Mayoral strategies, so there is a single environmental strategy.
· The Assembly will also gain a new power to reject the Mayor's final strategies by a two-thirds majority.
(See Press notice at: http://www.communities.gov.uk/news/newsroom/1785519)
We all need further time to digest the detail of the Bill. However, it is hoped that the above has given at least a broad indication of the main changes to the planning system proposed at this stage. No doubt, as always, study of the detail will reveal little “devils” and unexpected consequences, which will occupy and worry many of us for a while. Happy Christmas!!
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