Monday, 3 October 2016

Neighbourhood Planning Bill

Readers are no doubt aware by now that the Neighbourhood Planning Bill was introduced in the House of Commons on 7 September. The Second Reading is due to take place on 10 October. I don’t propose to attempt to examine the Bill in detail, but the Bill’s provisions are of much wider application than the ‘neighbourhood planning’ of the title. There are two provisions in the Bill which will be of particular importance in day-to-day planning practice.

Up to now, applications for, and grants of, prior approval required by the Second Schedule to the GPDO have not been included in the planning register maintained by each LPA under section 69 of the 1990 Act. The Neighbourhood Planning Bill will add section 69A to the 1990 Act, which will provide that in future the planning register kept by a local planning authority under section 69 must (in addition to the information already included in the register) also contain information [to be prescribed in a development order] as to prior approval applications (and prior notifications) made in connection with planning permission granted by a development order, and the manner in which such applications have been dealt with by the authority (or any actions taken by the authority following a prior notification).

It should be clearly understood, however, that the introduction of this requirement for prior approval applications to be registered in future will not mean that prior approval applications must be registered or ‘validated’ before they can be treated as having been duly made for the purposes of the 56-day rule. Registration of a prior approval application will be a purely administrative task for the LPA which will not affect the processing and determination of the prior approval application in any way. Any LPA that delays the processing of the prior approval application until it has been registered will risk running out of time under the 56-day rule.

The second of these new provisions relates to the use of conditions in planning permissions (and in other forms of consent). The Neighbourhood Planning Bill will add section 100ZA to the 1990 Act, which will give the Secretary of State power to make regulations prohibiting the imposition of conditions in respect of certain types of consent, prohibiting certain conditions generally, and restricting the circumstances in which certain conditions can be imposed.

The purpose of these regulations will be to ensure that any condition imposed on a grant of planning permission is necessary to make the development acceptable in planning terms, relevant to the development and to planning considerations generally, sufficiently precise to make it capable of being complied with and enforced, and reasonable in all other respects. This means that statutory teeth will at last be given to long-standing, but widely ignored, ministerial policy on the use of conditions (currently contained in the online PPG, and previously set out in Circular 11/95). (However, the new section will have effect only in relation to conditions on a grant or modification of planning permission that occurs after the coming into force of this section.)

The references in section 100ZA to “a grant of planning permission” are to any grant of permission under Part III of the 1990 Act, including where permission is granted by an order made under Part III. This therefore includes the permission granted by Article 3 of the GPDO, and so will govern conditions imposed on prior approvals under the Second Schedule to the GPDO. Section 60 will be amended to refer to this.

Section 100ZA(5) will provide that planning permission for the development of the land may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition (although this requirement may not apply in certain circumstances that may be prescribed by the Secretary of State). A pre-commencement condition in the case of a change of use means a condition that must be complied with before the change of use is begun.

The government has launched a consultation on the way in which the restriction on pre-commencement conditions would work in practice, and whether the subordinate legislation, when it is introduced, should prohibit the use of certain types of condition altogether.

There are two significant omissions from the Bill. The proposed privatisation of the Land Registry has been shelved, after widespread opposition. The government claims only to have postponed this proposal, but it remains to be seen whether it will ever resurface. The other surprise is the absence from the Bill of the expected provisions to place the National Infrastructure Commission on a statutory footing.


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