The Planning and Compulsory Purchase Bill: Proposed Changes to the Development Control Regime

The Planning and Compulsory Purchase Bill had its second reading in Parliament just before Christmas and the Committee stage is to commence imminently. Heralded as the biggest change to the planning system in 50 years, the Bill proposes significant alterations to some parts of the planning system but leaves others (such as enforcement) unchanged. Minor changes to CPO law are also included in the Bill, although the Government has decided to await the Law Commission’s report before wholesale reform of that area of law is pursued.

In this and a subsequent article we provide commentary on the major proposed changes (as they apply to England). This article concentrates on the changes to the development control process, whilst the second article will look at regional strategies and development plans.

The Government’s aim is to speed up the development control process and stamp out what it perceives abuses of the development control system. It views proposals on local development orders, statements of development principles and simplified planning zones as instruments that will make it easier to develop land quicker. Repeat applications and twin tracking are seen as the principal abuses of the current development control process.

Local development orders and simplified planning zones

The proposed local development orders (LDO) will operate as permitted development orders within the area of a local planning authority (LPA). An LPA may make a LDO to implement policies contained within its development plan. The LDO may grant permission for either specified developments or developments within a specified class. The LDO can include all land within an LPA’s administrative area, or any part. It may also be site specific.

A new schedule 4A to the 1990 Act will allow the Secretary of State to prescribe the procedure for making a LDO. It also requires that an annual report is given to the Secretary of State by LPAs on the extent to which LDO are achieving their purposes. The Secretary of State may call in a proposed LDO for consideration. This will freeze the LDO process until the Secretary of State has given his decision.

The effect of a LDO may be that permission for development is granted either unconditionally or subject to conditions specified in the order. Particular classes of development may be excluded from the LDO. An LPA may at any time to revise the LDO and the Secretary of State may direct such a revision.

The simplified planning zone (SPZ) proposals are the Government’s fleshing out of its proposals to introduce business planning zones. Instead of wholesale reform, current legislation regarding SPZs will be adapted. A LPA may create an SPZ if it considers such a designation to be desirable. The designation must be supported by regional policy. It is intended a scheme setting the planning requirements for the SPZ is drawn up by the LPA. This is likely to be the subject of environmental assessment. Once adopted, an SPZ lasts for a maximum of 10 years.

Comments on LDOs and SPZs

In certain situations, (for instance allowing redundant office space in London to be used for residential purposes) the LDO powers may speed up the development process. However, their usefulness must be limited to minor changes of use or low-impact development supported by the development plan. There is clear conflict with the environmental assessment process, and the Government have already recognised this by indicating that any changes requiring EIA would be excluded from the LDO process.

In regard to SPZs, the Government believe the effect will be to allow innovative companies to establish low environmental impact development with a reduced need for express planning permission. Most of the detail is likely to be contained in Guidance to be issued by the Office of the Deputy Prime Minister. It is surprising that a key part of the Government’s proposed reform is to be achieved by relatively minor tinkering with the existing statute. It must be asked whether this was what the development industry had been led to expect. Dependence on regional strategy and proactive LPAs, as well as the restrictions imposed by the environmental assessment regime, means that in practice the Government’s aims of SPZs removing delay in the system may not be met.

Statements of Development Principles

The Bill proposes that LPAs may issue Statements of Development Principles (SDP) in relation to a proposed development. In doing so the LPA must have regard to the development plan and any other material consideration. In providing the SDP it must indicate whether it disagrees or agrees with the principle of the proposed development and whether this is in whole or in part.

The SDP will be a material consideration for the determination of any subsequent planning application. Any application relying on the SDP must be a full application – outline planning permission for development may not be granted during the lifetime of the SDP. SDPs will last for three years starting from issue by the LPA, unless otherwise stated. Once the SDP is issued no further applications for such statements for similar development may be made within two years.

The Secretary of State will have the power to make secondary legislation prescribing the procedure for an application and what should be contained within SDPs, as well as requirements for consultation on an application.

Commentary

If an application for a SDP is part of a long term strategy for which a series of detailed applications will be forthcoming over a number of years, then the new process may have some practical advantage. Outline permissions are now often constrained by condition to fall within an environmental statement and subject to specific phasing requirements. SDPs might allow for increased flexibility in implementation of development strategy whilst providing some element of certainty for developers purchasing land. However, developers could be as well served obtaining a site-specific allocation in local development documents, especially because of the restrictions on subsequent applications. Further, outline permissions have proved to be a very useful procedure for securing the principle of development (and hence funding). Their loss could prove to be detrimental to major development projects, particularly as funders are unlikely accept SDPs amount to a sufficient guarantee that a proposal has been accepted in principle by the LPA.

Schedule 4 to the Bill clearly allows the whole of the outline planning permission section in the 1990 Act to be repealed; yet clause 46(2) makes amendments to that section. It is to be presumed that the repeal will not take place at first but will be considered again once the SDP procedure has been available for some time and its usefulness assessed.

Significant Changes to process for applications for planning permission

Fees and charges

The Bill proposes the Secretary of State will have power to prepare a statutory instrument allowing LPAs to charge in respect of performing “any function they have”. Regulations may prescribe who pays the fee and how it is calculated. The change is required to allow LPAs to avoid the current restrictions imposed by case law on their ability to charge. Given the proposed ban on repeat applications, it is likely applicants will wish to spend more time consulting before submitting proposals. The regulations will allow LPAs to charge for such consultations.

Commentary

Without the detail of the regulations it is not possible to ascertain exactly what is envisaged. The biggest single problem with the current planning system is the limited resources available to LPAs. As long as charges are appropriately tailored, targeted to specific applications, and drafted to make for a more efficient system, they may not be resisted by the development industry, despite the extra costs potentially involved.

Consultees’ duty to respond

Statutory consultees required to be consulted by an LPA on an application will also be required to respond to pre-application requests for consultation from intended applicants within a specified period. This period will be set in secondary legislation, as will details of what must be included within the response. No indication of any power of the consultees to charge is given.

It is to be hoped that the secondary legislation will place an appropriate time constraint on consultees to respond. It may be that, for the system to work, a penalty for the failure to respond is required. We do not know if the Government considered this. It would be difficult to find an appropriate penalty mechanism, but without one it is hard to see what practical compulsion will be placed on consultees to respond.

Repeat Applications

LPAs will still be able to refuse to consider applications for permission if the Secretary of State has, within the two years ending on the receipt of the new application, refused a relevant similar application on a call-in or appeal against a refusal or non-determination by the LPA. They will now also be able to refuse to consider an application if in a two year period the LPA have refused a similar application and this decision was not appealed.

A relevant application is one for the development of any land. The LPA is entitled to consider an application as similar if it believes the development and the land to which the two applications relate are the same or substantially the same and the considerations relevant to the consideration of the application have not changed in that time. The LPA is the sole judge of what is similar.

Twin Tracking

LPAs will be allowed to decline to make a determination if a similar application is under consideration by it and the eight week determination period has not yet expired. This would also apply if a similar application has been called in or is subject to a section 78 appeal. The LPA may also decline to consider an application if at that time a similar application has been granted, has been refused or is still awaiting determination and the time for a section 78 appeal has not yet expired. It is for the LPA to determine if an application is similar.

Appeals – Dual Jurisdiction

A short period of dual jurisdiction between the Secretary of State and the LPA on a non-determination appeal is proposed. Currently, as soon as a non-determination appeal is made jurisdiction passes to the Secretary of State and the LPA may not determine the application, even though it will usually consider whether or not it would have granted permission.

Under the proposed changes, an LPA could issue a permission within a prescribed “additional period” (this will be set by statutory instrument) after an appeal is made. The non-determination appeal must have been commenced within 7 days of the end of the relevant period for consideration of the application by the LPA. If the LPA decide to grant permission then the appeal may still proceed against conditions imposed, the appeal grounds may be revised or the appeal withdrawn. If the LPA decides to refuse the application then the appeal against non-determination becomes an appeal against refusal and the appellant may change the grounds (or withdraw the appeal).

Comments

Twin tracking has long been seen to be controversial by central and local government and has been highlighted as an “abuse of the system”. However, little substance to the allegation is ever provided. Twin tracking is a symptom rather than a cause of the current system’s failings. LPAs often delay for reasons other than planning reasons. The threat of a non-determination appeal often galvanises LPAs to make a determination on the application still before them, to avoid an award of costs. The loss of twin tracking results in a significant shift of power to the benefit of LPAs. The proposals regarding dual jurisdiction are not enough to reduce this significant imbalance in power that will result if twin tracking is prevented.

The extended ban on repeat applications may encourage applicants to consult with LPAs more extensively before applications are submitted. This is desirable but, unless sufficient resources are made available to LPAs for such discussions, this could become both a significant burden on officer time and another cause of delay in the system. It must be questioned whether the ban on repeat applications is the best way to force applicants into such discussions.

Duration of permissions

The normal life of a planning permission will be 3 years rather than 5, although the power would remain open to LPAs to issue permissions for a longer or shorter period.

Section 73 consents will not be available to extend the time for the start of development or the submission of reserved matters.

Call-in, inquiries and appeals

The Bill sets out powers for the Secretary of State to prescribe a timetable for call-in inquiries and Section 78 appeals.

If the Secretary of State himself fails to take a step in accordance with his set timetable, he must give his written reasons for doing so. The Secretary of State must provide an annual report to Parliament on compliance with the timetables.

In relation to major infrastructure inquiries, the previous idea to have a parliamentary stage in the application process had already been shelved before the Bill was published. The Bill now principally deals with the power to hold concurrent inquiries. This is seen by the Government to be of benefit in relation to costs and time saving.

Commentary

Whilst the practical effect of these proposals cannot yet be ascertained, the duty of the Secretary of State to report to parliament and give written reasons to those involved in inquiries when the timetable slips is sound. Provided the decision-making process is given an appropriate timetable then this can be a very welcome reform.

There could be significant legal and procedural issues arising out of concurrent inquiries. The Regulations will have to be carefully drafted to ensure a consistency in the conduct and conclusions of separate inspectors holding concurrent inquiries. Yet again the Bill is permissive in that it leaves detail to secondary legislation.

Conclusions on changes to the development control system

The changes to development control processes now proposed are in part significant (such as the ban on twin tracking) and in part tinkering with the existing system (such as with SPZs). Little attention appears to have been paid to the comments of industry in the drafting of the Bill despite the significant number of responses received during the consultation process.

There remains ample room for delay and confusion in the proposed development control system. Greater power will lie with LPAs and, more especially, is reserved to the Secretary of State. The degree to which detail is reserved to statutory instruments mean that we still have little clear idea of just what the changes will mean. Whilst it is hoped the system will become cheaper and faster, By providing an incomplete picture and leaving so much to a succession of statutory instruments the Government’s approach to reform can only create uncertainty, then possibly lead to a regime just as complex (and susceptible to third party challenge) as the system it aims to simplify.

For further information please contact Richard Guyatt at [email protected] or on +44 (0)20 7367 3545

This article was first published in Planning Law Journal, 10 February 2003.

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