Smoke and mirrors prevail at launch of new Growth and Infrastructure Bill

The Prime Minister announced the introduction of the new Growth and Infrastructure Bill yesterday by way of a No 10 Press Release saying that:

“We are slashing unnecessary bureaucracy, giving business the confidence to invest, unlocking big infrastructure projects and supporting hardworking people to realise their dreams.

The Bill we are publishing today is all about helping our country compete in the global race and building an aspiration nation where we back those who want to get on life.

We are slashing unnecessary bureaucracy, giving business the confidence to invest, unlocking big infrastructure projects and supporting hardworking people to realise their dreams.

Already the changes we are making to the planning system are having an impact, with Land Securities giving the go-ahead to a major multi-million pound investment, supporting thousands of jobs in our construction industry.

No one should be in any doubt about our determination to make sure Britain, and the British people, rise in the 21st century.”

The reference to the Land Securities scheme is a little surprising given that this is almost certainly due, at least in part, to measures introduced earlier in the week in respect of the draft Regulations amending the Community Infrastructure Levy (CIL) Regulations to remove the potential for double charging of CIL on the proposal (see also here).

The Press Release goes on to deal with various measures within the Bill.

However when talking about “Reforming planning to unlock infrastructure” this turns out to be an amendment to the Electricity Act to allow developers, when changing their projects, to in most cases only need to undertake a three month consultation rather than going through the whole process of applying for consent again.

The Government also talks about removing an ambiguity to the Gas Act which has prevented Ofgem from launching an innovation competition to attract additional investment into the gas network coupled with reforms it is proposing to the electricity market to be published in the forthcoming Energy Bill.

In so far as the Press Release deals with specific planning issues it makes the following points:

• Stalled housing site projects are a problem, however, allowing the reconsideration of economically unrealistic s106 agreements, whilst guaranteeing existing affordable housing commitments, could get these projects moving again. 
• Cutting back the volume of paperwork which applicants have to submit with a planning application, which go over and above what is reasonably needed to inform planners about the proposed development.Stopping misuse of legislation to slow down agreed developments, whilst protecting its use to safeguard cherished community spaces.
• Implementing the recommendations from the Penfold review to remove other over-lapping development consent regimes, where multiple state permissions are needed on top of planning permission.
• Speeding up the planning system for large scale business and commercial projects. Where developers choose the fast-track route, decisions will be taken in twelve months. Existing requirements to consult local communities are retained.

It is however necessary to look at some of the precise terms of the bill itself.

Special Measures

In s1 there is inserted into the Town and Country Planning Act 1990 a new s62A the effect of which is to allow an applicant to submit a relevant application that would otherwise have to be made to the local planning authority to the Secretary of State instead where the local planning authority concerned is designated by the Secretary of State for the purposes of this section; and the development to which the application relates is of a description prescribed by the Secretary of State. There is concurrent provision to include other relevant connected applications with the main relevant application.

There is power in the Secretary of State where it is considered that the connected application is not connected with the relevant application concerned to refer the connected application to the local planning authority, or hazardous substances authority, to whom it would otherwise have been made, and direct that the connected application is to be treated as having been made to that authority, and is to be determined by that authority accordingly.

The Secretary of State may give directions requiring a local planning authority to do things in relation to an application made to the Secretary of State under this section that would otherwise have been made to the authority; and directions under this subsection may relate to a particular application or to applications more generally; and may be given to a particular authority or to authorities more generally.

The decision of the Secretary of State on an application made to the Secretary of State under this section shall be final.

The Homes and Communities Agency, the Mayor of London, a Mayoral development corporation or an urban development corporation may not be designated for the purposes of this section and the Secretary of State must publish the criteria that are to be applied in deciding whether to designate an authority for the purposes of this section; the criteria that are to be applied in deciding whether to revoke such a designation; any designation of an authority for the purposes of this section; and any revocation of such a designation. Schedule 1 contains amendments related to applications made under the new section 62A, including provision for such applications to be determined by a person appointed for the purpose unless the Secretary of State otherwise directs) and is to have effect.

I anticipate that this will be a contentious proposal.

Costs

Ss 2 and 3 deal with costs issues in respective of Planning proceedings and Compulsory purchase inquiries respectively.

Application supporting information

S4 limits the power of local planning authorities to require information with planning applications to that which is “reasonable having regard, in particular, to the nature and scale of the proposed development; and may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application.”

I anticipate that this change will be generally well regarded.

Affordable Housing obligations

S5 deals with the modification or discharge of affordable housing requirements and inserts a new 106BA into the 1990 Planning Act.

The section applies in relation to an English planning obligation that contains an affordable housing requirement and a person against whom the affordable housing requirement is enforceable may apply to the appropriate authority for the requirement to have effect subject to modifications, for the requirement to be replaced with a different affordable housing requirement, for the requirement to be removed from the planning obligation, or in a case where the planning obligation consists solely of one or more affordable housing requirements, for the planning obligation to be discharged.

Where an application is made to an authority and is the first such application in relation to the planning obligation if the affordable housing requirement means that the development is not economically viable, the authority must deal with the application in accordance with subsection (5) so that the development becomes economically viable, or if paragraph (a) does not apply, the authority must determine that the affordable housing requirement is to continue to have effect without modification or replacement.

Where an application is made to an authority under subsection (2) and as the second or a subsequent such application in relation to the planning obligation, the authority may deal with the application in accordance with subsection (5), or determine that the affordable housing requirement is to continue to have effect without modification or replacement.

Subsection (5) provides that the authority may determine that the requirement is to have effect subject to modifications, determine that the requirement is to be replaced with a different affordable housing requirement, determine that the planning obligation is to be modified to remove the requirement, or where the planning obligation consists solely of one or more affordable housing requirements, determine that the planning obligation is to be discharged.

Such a determination may provide for the planning obligation to be modified in accordance with the application or in some other way, may not have the effect that the obligation as modified is more onerous in its application to the applicant than in its unmodified form, and may not have the effect that an obligation is imposed on a person other than the applicant or that the obligation as modified is more onerous in its application to such a person than in its unmodified form. This provision does not however apply to a determination in response to the second or a subsequent application under this section in relation to the planning obligation; but such a determination may not have the effect that the development becomes economically unviable.

The authority must have regard to guidance issued by the Secretary of State and must give notice of their determination to the applicant within such period as may be prescribed by the Secretary of State.

Where an authority determine under this section that a planning obligation is to have effect subject to modifications, the obligation as modified is to be enforceable as it if has been entered into on the date on which notice of the determination was given to the applicant.

The Secretary of State has power by regulations to make provision with respect to the form and content of applications under subsection (2), and the notices to be given to applicants of determinations under subsection (9).

There are under s106BB provisions for appeals in relation to applications under section 106BA in circumstances where an authority other than the Secretary of State fail to give notice as mentioned in section 106BA(9), determine under section 106BA that a planning obligation is to continue to have effect without modification, or determine under that section that a planning obligation is to be modified otherwise than in accordance with an application under that section. The appeal is to the Secretary of State and must be made by notice served within such period and in such manner as may be prescribed by the Secretary of State. The Secretary of State must also determine that the planning obligation is to be modified so that it provides that, if the development has not been completed before the end of the relevant period (the period of three years beginning with the date when the applicant is notified of the determination on the appeal) the affordable housing requirement (if any) contained in the obligation as modified by the Secretary of State’s determination ceases to have effect, the development may not be completed unless the applicant has reached agreement with the appropriate authority about whether the planning obligation should contain an affordable housing requirement and, if so, about the requirement it should contain, and if the applicant and the appropriate authority reach agreement as to the affordable housing requirement the planning obligation should contain, it is to contain that requirement. The determination of an appeal by the Secretary of State under this section is to be final.

Schedule 2 (amendments relating to this section) has effect and the amendments made by this section and that Schedule apply in relation to planning obligations within the meaning of section 106 of the Town and Country Planning Act 1990 entered into before (as well as after) the coming into force of this section.

This section will no doubt cause problems in practice. Viability often gives rise to tortuous arguments at appeal and subsequent challenge and I see no difference here especially given the lack of a clear cut definition.

Disposals of land held for planning purposes

S6 amends s233 Town and Country Planning Act 1990 (disposal by local authorities of land held for planning purposes) so that the Secretary of State may give consent under subsection (3) (disposals at less than best consideration) in relation to any particular disposal or disposals, or in relation to a particular class of disposals, in relation to local authorities generally, or local authorities of a particular class, or to any particular local authority or authorities, and either unconditionally or subject to conditions (either generally, or in relation to any particular disposal or disposals or class of disposals).

There is also amendment of the exclusion of section 123 of the Local Government Act 1972) provision so that it now reads that the protection in Section 128(2) of the Local Government Act 1972 (which already gives protection to purchasers etc in respect of certain land transactions, including disposals under this section by certain authorities) applies in relation to every disposal of land under this section by a local authority for an area in England; and section 29 of the Town and Country Planning Act 1959 does not apply in relation to such a disposal.

Electronic communications code: the need to promote growth

S7 amends the provisions of s109(2) of the Communications Act 2003 (matters to which Secretary 20of State must have regard when making regulations about conditions and restrictions on application of electronic communications code), by including the need to promote economic growth in the United Kingdom. Thereafter there are further amendments to a number of other legislative provisions to exclude the application of provisions therein when being exercised by the Secretary of State under s109 if the power is exercised before 6 April 2018, and the resulting regulations are expressed to cease to have effect (other than for transitional purposes) before that date.

This provision is going to have huge implications for telecommunication masts particularly in the National Parks and Areas of Outstanding Natural Beauty and is going to cause a furor among the protectionist lobby.   

Review of mineral planning permissions

S8 deals with the periodic review of mineral planning permissions and Schedule 3 (periodic review of mineral planning permissions) has effect. The amendments made by that Schedule apply in relation to mineral permissions granted before (as well as after) its coming into force, subject to subsection (3) which provides that those amendments do not apply in relation to a periodic review under Schedule 14 to the Environment Act 1995 of the mineral permissions relating to a mining site which is begun but not completed before the coming into force of Schedule 3.

Stopping up and diversion of highways

S9 makes amendments to Section 253 of the Town and Country Planning Act 1990 (procedure in anticipation of planning permission) the effect of which at least in England is concerned is to broaden the circumstances in which the power to stop up or divert can be used.

Stopping up and diversion of public paths

S10 amends Part 10 of the Town and Country Planning Act 1990 (highways) so that in section 257 (footpaths, bridleways and restricted byways affected by other development: orders by other authorities), to allow, subject to section 259, a competent authority to authorise by order the stopping up or diversion in England of any footpath, bridleway or restricted byway if they are satisfied that an application for planning permission in respect of development has been made under Part 3, and if the application were granted it would be necessary to authorise the stopping up or diversion in order to enable the development to be carried out.”

In respect of the confirmation process in section 259 (confirmation of orders made by other authorities), an order under section 257(1A) may not be confirmed unless the Secretary of State or (as the case may be) the authority is satisfied that planning permission in respect of the development has been granted, and it is necessary to authorise the stopping up or diversion in order to enable the development to be carried out in accordance with the permission.

Declarations negativing intention to dedicate way as highway

S11 addresses s31 of the Highways Act 1980 (dedication of way as highway presumed after public use for 20 years) which is amended in respect of the technical requirements for the depositing of maps and statements and lodging of declarations by owner of land to negative presumed intention to dedicate.

There is a new subsection 6A where the land is in England which requires that the map deposited under subsection (6)(a) and a statement deposited under subsection (6)(b) must be in the prescribed form, a declaration is in valid form for the purposes of subsection (6) if it is in the prescribed form, and the relevant number of years for the purposes of sub-paragraphs (i) and (ii) of subsection (6) is 20 years.

Having deposited a map and statement or lodged a declaration, the appropriate council must take the prescribed steps in relation to the map and statement or (as the case may be) the declaration and do so in the prescribed manner and within the prescribed period (if any). The Secretary of State may make regulations for the purposes of the application of subsection (6) to land in England which make provision for a statement or declaration required for the purposes of subsection (6) to be combined with a statement required for the purposes of section 15A of the Commons Act 2006; as to the fees payable in relation to the depositing of a map and statement or the lodging of a declaration (including provision for a fee payable under the regulations to be determined by the appropriate council).

Registration of town or village green: statement by owner

S12 amends the Commons Act 2006, by inserting a new s15A which provides that where the owner of any land in England to which this Part applies deposits with the commons registration authority a statement in the prescribed form, the statement is to be regarded, for the purposes of s15, as bringing to an end any period during which persons have indulged as of right in lawful sports and pastimes on the land to which the statement relates.

Subsection (1) does not prevent a new period commencing and any statement under subsection (1) must be accompanied by a map in the prescribed form identifying the land to which the statement relates.

An owner of land may deposit more than one statement under subsection (1) in respect of the same land and where more than one statement is deposited in respect of the same land, a later statement (whether or not made by the same person) may refer to the map which accompanied an earlier statement and that map is to be treated, for the purposes of this section, as also accompanying the later statement.

Where a statement is deposited under subsection (1), the commons registration authority must take the prescribed steps in relation to the statement and accompanying map and do so in the prescribed manner and within the prescribed period (if any).

Regulations may make provision for a statement required for the purposes of this section to be combined with a statement or declaration required for the purposes of section 31(6) of the Highways Act 1980; for the requirement in subsection (3) to be satisfied by the statement referring to a map previously deposited under section 31(6) of the Highways Act 1980; (c) as to the fees payable in relation to the depositing of a statement under subsection (1) (including provision for a fee payable under the regulations to be determined by the commons registration authority); as to when a statement under subsection (1) is to be regarded as having been deposited with the commons registration authority.

Register of section 15A statements

The new s15B requires that each commons registration authority must keep, in such manner as may be prescribed, a register containing prescribed information about statements deposited under section 15A(1) and the maps accompanying those statements. The register kept under this section must be available for inspection free of charge at all reasonable hours. A commons registration authority may discharge its duty under subsection (1) by including the prescribed information in the register kept by it under section 31A of the Highways Act 1980 (register of maps and statements deposited and declarations lodged under section 31(6) of that Act).

Regulations may make provision where a commons registration authority discharges its duty under subsection (1) in the way described in subsection (3), for the creation of a new part of the register kept under section 31A of the Highways Act 1980 for that purpose; as to the circumstances in which an entry relating to a statement deposited under section 15A(1) or a map accompanying such a statement, or anything relating to the entry, is to be removed from the register kept under this section or (as the case may be) the register kept under section 31A of the Highways Act 1980.

Restrictions on right to register land as town or village green

S13 inserts a new s15C in the Commons Act 2006 which deals with the registration of greens and in particular exclusions. The right under s15(1) to apply to register land in England as a town or village green ceases to apply if an event specified in the first column of the Table set out in Schedule 1A has occurred in relation to the land (“a trigger event”). Where the right under s15(1) has ceased to apply because of the occurrence of a trigger event, it becomes exercisable again only if an event specified in the corresponding entry in the second column of the Table occurs in relation to the land (“a terminating event”). The Secretary of State may by order make provision as to when a trigger or a terminating event is to be treated as having occurred for the purposes of this section.

The Secretary of State may by order provide that subsection (1) does not apply in circumstances specified in the order and may by order amend Schedule 1A so as to specify additional trigger or terminating events; amend or omit any of the trigger or terminating events for the

time being specified in the Schedule. A trigger or terminating event specified by order under subsection (5)(a) must be an event related to the development (whether past, present or future) of the land.

For the purposes of determining whether an application under s15 is made within the period of two years mentioned in s15(3)(c), any period during which an application to register land as a town or village green may not be made by virtue of this section is to be disregarded.

Schedule 4 (which inserts the new Schedule 1A to the Commons Act 2006) has effect. For the purposes of the application of s15C of the Commons Act 2006 (as inserted by subsection (1)), it does not matter whether an event specified in the first column of Schedule 1A to that Act occurred before or on or after the commencement of this section. The amendment made by subsection (1) does not apply in relation to an application under s15(1) of the Commons Act 2006 which is sent before the day on which this section comes into force.

Applications to amend registers: modification of power to provide for fees

S14 make provision in section 24 of the Commons Act 2006 (regulations about making and determination of Part 1 applications) for regulations under subsection (1) made by the Secretary of State to make provision as to the fees payable in relation to an application (including provision for a fee payable under the regulations to be determined by the person to whom the application is made or (if different) the person by whom the application is to be determined).

Many will see these town or village green amendments as long overdue given the way in which the mechanism has been, they would say, abused in order to frustrate development.

Others will no doubt complain about the centralisation of the power and the removal of the ability to legitimately protect the rights of local communities to continue enjoying the access to open spaces that they have done.

Either way these amendments are likely to generate controversy and contentious debate.  

Special parliamentary procedure in cases under the Planning Act 2008

S19 would remove the rather silly special parliamentary procedure requirement under the 2008 act.

Bringing business and commercial projects within Planning Act 2008 regime

S21 would bring business and commercial development within the 2008 Act regime.  The Secretary of State would have the power to direct such business and commercial projects fall under the regime if they are deemed to be of national importance.  Dwellings are specifically excluded. Such applications would be treated like any other 2008 Act application which rather begs the question as to whether there will now be a National Policy Statement for nationally significant business and commercial development. I imagine that this proposal is likely to be highly contentious.

The Explanatory Notes to the Bill are not yet available but the CLG Background Notes can be found here.

In truth there are some good and some less good measures in the Bill.

What is beyond per adventure is that there is a great deal of centralisation in the Bill which hands much greater power to Eric Pickles (or whoever follows him as Secretary of State). As such, the Bill heralds the final death and burial of the once lauded Conservative mantra of Localism in the name of short term economic expediency.

The long term implications will, for all concerned, be much harder to live with.