Planning changes – ministerial statement

First we have ‘government by press release’, which was what we were getting yesterday morning. The next stage is ‘government by ministerial statement’, a slightly more detailed explanation of the government’s intentions but still full of self-congratulatory hyperbole and short on detail, but slightly more reliable as an indication of what is proposed than the spin doctors’ initial briefings and the resulting news stories, some of which were quite misleading as to what is actually in prospect. The Secretary of State made a statement in the Commons yesterday afternoon. But the real meat will only emerge when drafts of the new primary and subordinate legislation and ministerial policy guidance are published over the coming days and weeks.

In the meantime, the following is a brief précis of selected parts of the ministerial statement Pickles made to the Commons on Thursday 6 September, together with some initial comments.

Reducing planning delays

Pickles said that local planning authorities (and local communities) have a responsibility to meet the need for development and growth, and to deal quickly and effectively with proposals that will deliver homes, jobs and facilities.

The government proposes to to legislate “to allow applications to be decided by the Planning Inspectorate, if the local authority has a track record of consistently poor performance in the speed or quality of its decisions”. Precisely what criteria will trigger this is as yet unclear. The justification, however, is that Planning is a quasi-judicial process, and that justice delayed is justice denied; it is unfair to all parties for local planning authorities simply to fail to make timely decisions on a planning application – creating uncertainty both for applicants and local residents.

The government will also require more transparent reporting of council performance on planning, and (through the Local Government Association) wants to increase the use of Planning Performance Agreements for major schemes – which commit both applicants and planning authorities to a clear timetable for determining proposals.

In addition, the government intends to give Planning Inspectors more power “to initiate an award of costs in planning appeal proceedings”, where it is clear that an application has not been handled as it should have been with due process. The circumstances in which this power would be invoked is as yet unclear. I have long argued that a straightforward financial discipline would be imposed on both sides in an appeal if costs were normally to follow the event (i.e. loser pays the winner’s costs). It would be simpler from every point of view.

The government believes that swift determination of appeals by the Planning Inspectorate is also of critical importance, so they will consult shortly on options to speed up planning appeals – and for a new fast-track procedure for some small commercial appeals. Pickles has also instructed the Planning Inspectorate with immediate effect to divert resources to prioritise all major economic and housing related appeals, to ensure applicants receive a response in the quickest possible time. (So it’s hard luck if your pending appeal doesn’t happen to come into one of those categories.)

Pickles has also extended a measure that allows developers the chance to seek additional time to implement a planning permission before it expires, for an additional year.

The government intends to review the thresholds for some of the existing categories in the major infrastructure approvals regime, and also to bring new categories of commercial and business development into this regime – making it possible for such schemes, where they are of sufficient significance, to be considered and determined at a national level. As I mentioned yesterday, this means that certain developments which are not for the provision of infrastructure as such (e.g. some major housing schemes) will be dealt with as though they were major infrastructure projects. It also means that some important decisions will thus be taken out of the hands of LPAs altogether. What price ‘localism’ now?

The government is also hoping to extend the principle of a one-stop-shop for non-planning consents for major infrastructure, and to amend the Special Parliamentary procedures which apply to major infrastructure.

Reducing the cumulative burden of red tape

Some slightly wide-of-the-mark reporting in the past couple of days has given the impression that the requirement to provide affordable housing is to be removed altogether. This is not what Pickles has actually announced. What is proposed is amending legislation, to be effective in early 2013, which will allow any developers of sites which are unviable because of the number of affordable homes, to appeal with immediate effect. The Planning Inspectorate will be instructed to assess how many affordable homes would need to be removed from the Section 106 agreement for the site to be viable in current economic conditions. The Planning Inspectorate would then, as necessary, set aside the existing Section 106 agreement for a three-year period, in favour of a new agreement with fewer affordable homes. In the meantime, the government is seeking to encourage councils to take the opportunity before the legislation comes into effect to seek negotiated solutions where possible.

Alongside this, the Government is also consulting on legislation that would allow developers to renegotiate non-viable Section 106 agreements entered into prior to April 2010. Thus it is not being proposed that new developments now coming forward for permission will be exempted from affordable housing requirements or that the government is going to bring about any general relaxation of the requirement to provide an element of affordable housing. What we have instead is a rather weak and wishy-washy proposal for a ‘review’ led by Government, working with interested parties, to ‘rationalise’ the levels of affordable housing, which are currently very variable as between one part of the country and another. The hope is that this review will lead to some sort of ‘plan of action’ by next spring, including possible legislation if a significant rationalisation cannot be agreed.

[Under the heading of ‘rationalising red tape’ there is total silence on the need to simplify and streamline the planning application process, by removing the requirement for design and access statements and scrapping or considerably reducing information requirements in local validation checklists. There is an urgent need to sort out the problems so often encountered in getting planning applications registered, and this would do more than any other reform to dispel the current dissatisfaction with the development management process.]

[UPDATE: In writing this, I overlooked the fact that there is an ongoing consultation on suggested changes to the DMPO which will to some extent address this issue. However, it is not proposed to scrap D&A statements, nor are local validation checklists to be significantly trimmed. The consultation ruled out further primary legislation, but that was before the current proposal for a new bill emerged. There is an urgent need to revise section 62(3) of the 1990 Act and Artcle 29 of the DMPO so that the LPA is no longer the sole arbiter of whether a planning application is valid. The right to appeal to the Planning Inspectorate where the LPA is holding up an application due to not having been provided with all the information demanded should be restored.]

Supporting locally-led development

The government has previously made clear the importance they attach to delivering new large-scale settlements. Pickles has therefore signalled a greater use of call-ins and the recovery of appeals for ministerial decision for major new settlements with larger than local impacts. This seems to be the opposite of locally-led development and would seem to presage large-scale development being forced on reluctant LPAs by ministerial diktat.

On the other hand, further bribes are to be offered to LPAs to get them to accept more development in their own back yard. This includes the New Homes Bonus, Community Infrastructure Levy contributions towards local infrastructure, business rates discounts and business rates retention from April 2013 (i.e. more of the same).

Pickles made a point of reiterating the government’s commitment to safeguarding Green Belt and other environmental designations, in accordance with the NPPF, but he points out that councils can review local designations to promote growth. The government wants to encourage councils to use the flexibilities set out in the NPPF to tailor the extent of Green Belt land in their areas to reflect local circumstances. Where Green Belt is considered in reviewing or drawing up Local Plans, the government “will support councils to move quickly through the process by prioritising their Local Plan examinations” (whatever that means). There is considerable previously developed land in many Green Belt areas, which could be put to more productive use. The government wants to encourage Councils to make best use of this land, whilst protecting the openness of the Green Belt in line with the requirements in the NPPF. This is a slightly more convoluted explanation of the suggestion put forward by George Osborne last Sunday which caused such a fuss at the time.

The government clearly recognises the need to do something about the Green Belt, which needs reviewing on a much more flexible basis, but they are clearly running scared of the hornets’ nest they could stir up if this is perceived to be an ‘attack’ on the Green Belt.

Helping homeowners improve their homes

This is the bit that caused the greatest amount of excitement in the press yesterday. De-CLoG will consult shortly on changes to increase existing permitted development rights for extensions to homes and business premises in non protected areas but only for a three-year period. Some details have already been revealed, but the full consultation document is still awaited.

Re-use of office space

The government is going to introduce permitted development rights to enable change of use from commercial to residential, but will provide the opportunity for authorities to seek a local exemption where they believe there will be an adverse economic impact. This is in effect a revival of the previous proposal, abandoned in July in face of widespread opposition from LPAs. It seems the government is now prepared to return to the fray, hoping to draw off opposition by giving LPAs the possibility of an opt-out.
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Even this ministerial statement does not cover all the changes that are in the pipeline, and mixed messages are emerging about the timetable for the promised legislation. We were led to believe a few days ago that this was going to be introduced within the next week or two and would be rushed through parliament before the end of October. Now it seems that this the Bill may be several weeks away, and the glib talk about ‘fast-tracking’ it though parliament has strangely abated.

© MARTIN H GOODALL