Wednesday, 30 November 2011

Osborne’s Autumn Statement

For the second time this year (the first occasion being the Budget Statement in late March) the Chancellor of the Exchequer has stolen Uncle Eric’s thunder by announcing important planning reforms.

I don’t propose to list everything in the statement, which has already been summarised elsewhere, but there are certain elements of the package which presage significant changes in planning law and practice.

The costs regime in planning appeals is to be amended in the summer of next year in order to ensure that there is a more effective mechanism for applicants to obtain an award of costs in a case where a statutory consultee has acted unreasonably. At present, it is the LPA which is likely to cop the costs order in this sort of case, so it is unlikely to make a lot of difference from the appellant’s point of view. What would have been far more useful would have been a change to the costs regime so that it would be the normal practice in future for appeal costs to follow the event, whilst leaving a measure of discretion to the inspector where the justice of the case requires some other outcome – in other words the same practice which applies in the civil courts. But once again the opportunity has been missed.

Some tweaking of the new major infrastructure planning process can be expected by the summer of next year, particularly in the pre-application phase, apparently in response to comments from applicants.

The government may have to steer a delicate course in their avowed intent to ensure that compliance with the Habitats and Wild Birds Directives does not lead to unnecessary costs and delays to development, without provoking legal challenges alleging failure to follow the directive or to transpose it correctly into our domestic law. This will involve a review of these two Directives as currently implemented in England, to be completed by next Spring, in an effort to find a way of preventing delays to developments where compliance is particularly complex or has large impacts. This is what Sir Humphrey might describe as a ‘brave’ initiative. Members of the planning bar will no doubt be on stand-by for the judicial review applications which could ensue.

Incidentally, the review of the two European directives has been entrusted to DEFRA, rather than to De-CLoG. If I were Uncle Eric, I would be getting worried about the way his department seems to keep getting bypassed. Various planning-related tasks are repeatedly being handed out to the Treasury, the Business Department, DEFRA, Uncle Tom Cobbleigh and all, but seemingly not to Uncle Eric’s merry crew. Is someone trying to tell them something?

Further planning reforms which have been flagged up include a review of planning appeal procedures, with the intention of making the process faster and more transparent, improving consistency and increasing the certainty of decision timescales. These proposals are expected to be implemented in the summer of next year. I have drawn attention on a number of occasions to the government’s long-held ambition to emasculate the appeals system, but does this latest announcement indicate a change of tack, and an acceptance that the appeals system must be improved rather than hobbled, as the government originally intended? If there are dark forces within De-CLoG who still harbour ambitions to make it more difficult to appeal against adverse planning decisions, one hopes that they will now finally be banished by the over-riding need to ensure that the planning system (including the appeals system) responds to the need to enable development wherever possible.

As we already knew, pre-April 2010 section 106 agreements will be up for re-negotiation. All this needs is a ministerial order varying the period prior to which an application under s.106A need not currently be entertained by a local planning authority. There does not seem to be much for the government to consult over on this subject.

Another possibility which is being canvassed is a variation of the General Permitted Development Order to enable existing agricultural buildings to be used for other business purposes - such as offices, leisure and retail space. This may meet with some resistance from the likes of the CPRE, but it will no doubt be widely welcomed by farmers and rural businesses.

Buried in one of the appendices is a statement that the government will support new development, which could include modern garden cities, urban and village extensions. The Government intends to invite proposals from developers and local authorities for new developments which have clear local support. Local support for this type of development seems rather improbable, and if support is not forthcoming the government might be tempted to go ahead with these developments anyway. This could be a future battleground for CPRE, the National Trust and their friends at the Daily Torygraph.

Finally, the government intends to introduce new permitted development rights for non-domestic ‘micro-generation’ of electricity. They hope this will incentivise the take-up of small scale renewable and low carbon energy technologies. It could also lead to some dissatisfaction among neighbours of these ‘micro-generation’ projects.

It looks as though 2012 could see some significant changes on the planning front, when the proposals listed in the Chancellor’s Autumn Statement are added to final publication of the NPPF and, of course, the gradual implementation of the Localism Act, not to mention certain other changes which the government has been canvassing.

Interesting times.


1 comment:

  1. For an interesting comment on the review which is to be conducted by DEFRA into the implementation in this country of the two European directives mentioned in the Autumn Statement, see the item posted today in my colleague David Brock's blog (to which there is a direct link in the left-hand side bar on my home page).