The Planning Act 2008 - The Stings in the Tail |
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The Planning Act 2008 – The Stings in the Tail
The Act’s headline grabbing sections concern: the establishment of the Infrastructure Planning Commission; the preparation of National Policy Statements relating to the provision of nationally significant infrastructure; and the creation of a new consenting regime for nationally significant infrastructure projects. However lurking towards the backend of the Act there are some “stings in the tail” for those involved with day to day developments rather than major infrastructure projects. However lurking towards the backend of the Act there are some “stings in the tail” for those involved with day to day developments rather than major infrastructure projects. Some of the provisions of the 2008 Act will take immediate effect while others require secondary legislation (Statutory Instruments) to be made by Parliament before they can be fully enacted. The delivery of Nationally Significant Infrastructure
The Government wishes to avoid a repeat of long winded cases such as Heathrow’s Terminal 5 (its public inquiry sat for in excess of 500 days spread across 4 years and cost £80 million). Any new wave of power stations would for example be progressed through the new system. The Government through the publication of National Policy Statements will establish a policy regime for the determining the scale and general location of major infrastructure projects (power stations and transmission lines; gas receipt, storage and transmission facilities; road; airports; railways and freight interchanges; dams and reservoirs; and hazardous waste facilities.
Removing the determination of applications for significant infrastructure projects from the operation of the day to day planning system should free up Local Authority time and resources to deal with planning applications for “bread and butter” development.
The Stings in the Tail of the Planning Act 2008 Addressing Climate Change
Sections 181 and 182 of the Act introduce a statutory requirement for policies addressing climate change to be included within Regional Spatial Strategies (RSS - regional plans) and Local Development Frameworks (LDFs). The climate change implications of new development will therefore be a material consideration at the levels of national, regional and local planning policy which will have to be addressed when submitting planning applications. Achieving Good Design
Section 183 of the Act requires policies aimed at achieving “Good Design” to be included within RSSs and LDFs as part of the process of securing sustainable development. This provision requires secondary legislation before it becomes operative. The design of development, like climate change considerations, will therefore be put on a statutory footing. This legislative change is more of a tidying up exercise because the issue of design is a well established material consideration at all levels of planning policy. None the less this change will strengthen local planning authorities’ hands when requesting design details or seeking amendments when planning applications are being determined.
Power to Decline to Determine Twin Tracked Applications
Under the provisions of Section 187 local planning authorities will have the discretionary power to decline to determine an application when:
1) submitted on either the same day as another similar application or; 2) a previously submitted similar application is still in time to be determined by the authority or is awaiting determination by the Secretary of State (SoS) either on Appeal of following a “Call-in”. This change will therefore bring to an end the practice of twin tracking applications, where one application is submitted with the purpose of being appealed, if the parallel application is expected to encounter (or is experiencing) delays in its determination. Applicants will no longer be able in effect to play 2 cards at once in terms of seeing which route, the local planning authority or Appeal, will deliver the quickest decision. Applicants will potentially have to make difficult judgement calls between persevering with planning authorities in the hope that a decision is made sooner rather than later or lodging non-determination Appeals in the expectation that they yield a quicker decision. Secondary legislation is required before this provision will become operative.
Selection of the Procedure for the Determination of Appeals
The Government is concerned that too many appeals are dealt with disproportionately by way of hearings or inquiries, as opposed to using the written representations procedure, slowing down the appeal process and adding to its cost.
The Planning Inspectorate will now be able to select the procedure to be used, in line with ministerially approved criteria. The Government has stated that appellants and local authorities will be given the opportunity to make a case to the Planning Inspectorate about why a particular procedure should be used before the Inspectorate makes its final decision. Inspectors will also be able to use their discretion if they consider the procedure should be changed.
· local planning authorities will risk having costs awarded against them if they fail to provide evidence to justify its decision from minor cases upwards;
· appellants will run the risk of having costs awarded against them when at the time the Appeal was submitted there was no realistic prospect of permission being allowed. An example might be a scheme within the Green Belt where no evidence of “very special circumstances” to justify the proposal is presented allowing the local planning authority to argue that it should not have been required to spend time or money defending its decision at Appeal. The possibility of costs being awarded in written representation cases may serve as some deterrent to overtly political decisions being made by local planning authorities. However set against this advantage there is the increased likelihood of local planning authorities pursuing cost applications in the case of vexatious Appeals. Although Section 196 came into force on 26 November 2008 the Planning Inspectorate is unlikely to start using its power to decide the procedure for Appeals until the mechanism for making Costs Applications for written representations cases is in place. Early indications from the Planning Inspectorate are that these changes will be introduced in April 2009. Fees for Submitting Appeals
Currently there is no fee for submitting Appeals to the Planning Inspectorate. However Section 200 of the 2008 Act introduces a charging provision for lodging Appeals. As part of the Planning White Paper consultation exercise the Government consulted on 2 charging options, a flat rate administrative charge and a proportionate fee to be levied on a sliding scale as a % of planning application fees. Early indications from the Planning Inspectorate are that fees for Appeals will be introduced in October 2009 once the required Regulations are in place. The Government has suggested that fees will be charged on a proportionate basis. The payment of an Appeal fee, is something that will need to be factored into financial appraisals for developments. The Community Infrastructure Levy Part 11 (Sections 205 to 225) of the Act relates to the introduction of the Community Infrastructure Levy (CIL). Under the terms of Section 205 the Secretary of State “may” introduce the CIL, but only with the “consent” of the Treasury. Although the wording of the Act suggests a degree of discretion about whether or not the CIL will be introduced, there seems little doubt that the Government will this provision, given it was subject to considerable debate and amendment when the Act went through its Parliamentary stages. [Please see separate briefing note concerning the CIL.] Read more
 Section 216 of the Act identifies a non-exhaustive list of items that constitute infrastructure that can be funded by the CIL. The listed items of infrastructure are: · roads and transport facilities; · flood defences; · schools and other educational facilities; · sporting and recreational facilities; · open spaces; and · affordable housing. The inclusion of affordable housing in the above list is somewhat surprising given that the Government stated in its policy statement of August 2008 that its preference was for the provision of affordable housing to continue to be secured by negotiated Section 106 Agreements. Early indications are that the Government will consult on draft Regulations during Spring 2009, with a view to the Regulations becoming operative in October 2009. The setting of a CIL by Local Planning Authority will be interlinked with the evolution of its Local Development Framework (LDF). With the adoption of LDF documents the scale of new infrastructure (roads, healthcare facilities and schools etc) required to service new development will become apparent, enabling its provision to be costed and enabling a levy within a particular area to be set. It is likely to be some time before CILs are widely introduced because of the connection with the preparation of LDFs. Before a charging authority can collect its CIL, its levy must be subject to independent examination and approved for use. In the short term Section 106 Agreements will continue to be the means by which local planning authorities seek to secure the provision of new infrastructure and it remains to be seen how many authorities decide to introduce the CIL bearing in mind that its use is discretionary. Authorities expecting significant amounts of development in their areas are more likely to introduce the CIL.
· roads and transport facilities; · flood defences; · schools and other educational facilities; · sporting and recreational facilities; · open spaces; and · affordable housing. The inclusion of affordable housing in the above list is somewhat surprising given that the Government stated in its policy statement of August 2008 that its preference was for the provision of affordable housing to continue to be secured by negotiated Section 106 Agreements. Early indications are that the Government will consult on draft Regulations during Spring 2009, with a view to the Regulations becoming operative in October 2009. The setting of a CIL by Local Planning Authority will be interlinked with the evolution of its Local Development Framework (LDF). With the adoption of LDF documents the scale of new infrastructure (roads, healthcare facilities and schools etc) required to service new development will become apparent, enabling its provision to be costed and enabling a levy within a particular area to be set. It is likely to be some time before CILs are widely introduced because of the connection with the preparation of LDFs. Before a charging authority can collect its CIL, its levy must be subject to independent examination and approved for use. In the short term Section 106 Agreements will continue to be the means by which local planning authorities seek to secure the provision of new infrastructure and it remains to be seen how many authorities decide to introduce the CIL bearing in mind that its use is discretionary. Authorities expecting significant amounts of development in their areas are more likely to introduce the CIL.
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Section 196 of the 2008 Act gives the SoS (in practice the Planning Inspectorate) the power to decide the means by which all Appeals will be processed. 
To counter the loss of the automatic right to be heard, the Government has confirmed that it intends to make it possible for appellants and local planning authorities to make “Cost Applications” for cases dealt with by way of written representations, as well as for inquiries and hearings. Costs will continue only to be awarded when the party seeking the recovery of its costs can show that the other side has acted unreasonably during the course of the Appeal. In the future under the written representations procedure: 