Ashfords Solicitors - Planning Reform Bill - Changes to existing provisions

The Bill was introduced into the House of Commons at the end of December. Apparently the Government want to see the Bill on the statute book by this summer, although whether that timetable can be achieved remains to be seen. The Bill has already attracted a lot of interest: it is generally felt that while some of the proposals are likely to have a positive impact, some have commented that it demonstrates the Government's desire to build more infrastructure, particularly nuclear power plants and a continued determination to capture a share in the uplift of land values brought about by development.

Development Control – Reducing Rights of Appeal

There has been continuing criticism of the performance of local planning authorities in terms of speed of determination of applications and concerns about the quality of decision making. This has been coupled with Government initiatives to improve performance, in the shape of housing and planning delivery grant etc. The Bill seeks to alleviate some of the pressures on local planning authorities to "create space" for larger applications by delegating some of the functions of local planning authorities to planning officers.

This means that certain types of planning applications, certificates of lawfulness and listed building applications will all be determined in the first instance by officers. This is likely to include minor planning applications, Section 73 Applications and applications for consent or approvals under planning permissions and development orders. The right of appeal to the Secretary of State in respect of these officer decisions made under these provisions will be restricted: instead the right of appeal will instead be to the local planning authority itself who will have to appoint a board of members to determine these appeals.

It will still be possible to appeal to the Secretary of State under Section 78 in the usual way where the local planning authority has failed to determine or complete a review of the case within specified time limits. However where the authority deals with the review by a member board the only further means of challenge that decision will be by application to the High Court for Judicial Review.

There are obviously concerns raised by these new powers in terms of democracy and transparency. One of the main concerns is the creation of review panels. These are likely to consist of local councillors, whose task is to review decisions made by their authority's planning officers. The Law Society and many other bodies have raised concerns about impartiality and the perception of impartiality, bias and pre-determination. It is quite possible this will result in more judicial review challenges. Given the already over-burdened state of the Administrative Court, this is unlikely to achieve its aim of speeding up the planning system. It is also difficult to see how these changes will free up time for local planning authorities and reduce caseloads to create the "space" in the system the Government wants. However it will mean less appeals going to the Planning Inspectorate, with some estimates that these proposals would reduce their caseload by a quarter.

Development Control – Minor Variations

The Bill also introduces an express power for applicants to apply to local planning authorities to make changes to planning permissions if they are satisfied that the change is not material, without the need for applicants to make new full applications. This includes a power to impose new conditions and alter existing conditions. In determining whether a change is material the authority must have regard to the effect of the change, together with any changes which have previously been made under this provision on the planning permission as originally granted. This anticipates that it may be possible to make multiple changes over a period of time. This new power will be welcomed provided it does not involve all of the paperwork associated with a full planning application.

Tree Preservation Orders

Existing provisions relating to Tree Preservation Orders are also amended. Currently Tree Preservation Order legislation is complex and Orders may be subject to different provisions depending on when they were made, making them difficult to administer and understand. The Government in the White Paper proposed to introduce a single set of rules to govern all Tree Preservation Orders. However it appears that this may have missed the legislative boat, with the consequence that the Bill essentially provides for the transfer of the relevant provisions from the Town and Country Planning Act 1990 to new "Tree Preservation Regulations". These regulations will include the form of Tree Preservation Orders, procedure to be followed on making or confirming an Order, prohibited actions in relation to protected trees etc.

Changes to Section 237 (Power to override easements)

There have been concerns and indeed case law about whether Section 237 of the 1990 Planning Act, as currently drafted, allows for easements and other rights relating to the use of land to be overridden when land is acquired or appropriated for planning purposes. The power is currently worded so that rights can be overridden during development or where they relate to the carrying out of the development or execution of works on land but this does not necessarily extend to any subsequent use of the land.

Section 237 will be amended so that it authorises the use of land acquired or appropriated for planning purposes, even where this interferes with existing rights, interests and restrictions, or a breach of restriction as to user of the land arising by virtue of a contract, with the safeguard that this can only be used to override rights if the proposed use is in accordance with a planning permission. Compensation will be payable for interference with or breaches of rights under this provision.

Changes to Procedures on Appeal

Currently parties can currently choose their favoured planning appeal procedure, whether that is written representation, informal hearing or inquiries. The Planning Inspectorate can recommend a procedure but cannot make a binding recommendation. There have been concerns for a number of years about the length of time the Planning Inspectorate is taking to determine appeals, the number of cases going to hearing or inquiry rather than being dealt with by written representations and pressures on Inspectors. The proposed changes will enable the Planning Inspectorate on behalf of the Secretary of State to determine the appeal procedure for certain appeals including planning appeals enforcement notice appeals and Certificate of Lawfulness appeals

Fees for Planning Applications

Local planning authorities will have a new power to make regulations to charge for any of their functions including anything which is conducive to or incidental to that function. This comes on the back of the Government's consultation paper "planning fees in England – proposals for change" which stated that the Government felt that local authorities needed to be properly resourced to deal with planning applications. It will of course have the effect of increasing revenue into local authorities from non-central funds. There has been discussion for some time about paying fees, for example for pre-application discussions, and this amendment will put this on a statutory footing.

In terms of appeals a new provision will allow for the payment of a fee for planning appeals and listed building appeals. Again regulations will set out when the fee should be paid, how they will be calculated and the effect of paying or not paying a particular fee. This may serve to further reduce the number of appeals being made to the Planning Inspectorate.

Planning Policy Changes

Dealing next with changes to planning policy, there are various changes proposed in the Bill to the Local Development Framework process. This has been criticised for being inflexible; it has taken longer to produce plans than anticipated, and there been concerns that the system has failed to engage the community, despite this being one of the aims of the 2004 Planning and Compulsory Purchase Act.

Local Planning Authorities will no longer have to list supplementary planning documents in their local development scheme, they will not have to produce them in accordance with the local development scheme, or carry out sustainability appraisals on them. This is intended to make the production of SPDs quicker and easier. These are minor changes, planning authorities will still be required to go through the usual process of preparing, consulting on and revising SPDs.

The requirement for the examination in public of a statement of community involvement is also being removed. This is obviously intended to make the process of adopting the statement of community involvement faster, but is also likely to be criticised for having the effect of reducing engagement with the community and making the process less democratic.

Local planning authorities will have a new duty to include policies in their LDFs which take action on mitigating and adapting to climate change, and have regard to the new "Planning and climate change supplement" to PPS1.

The Bill will also amend the process by which DPDs etc can be challenged through the High Court. Presently if the Court upholds a challenge to a document, its only power is to quash the whole or part of the document concerned. The amendment will mean that the Court may instead send the document back to any stage in the production process by specifying which steps have been taken satisfactorily or give directions to action to be taken about the preparation/publication/adoption/approval of the document, which should make the process more flexible and reduce delays occasioned by taking a document back to first principles.

Conclusion

The Bill proposes wide-ranging changes. While it is apparent that the effect of some of these will be positive, such as the High Court's ability to specify which stages of the preparation of a document have been carried out lawfully, and will serve to improve and speed up the planning system, others, such as the establishment of Local Member Review Bodies are causing considerable concern about legitimacy and transparency of decision-making, and it will remain to be seen whether they will make it onto the statute book without significant amendment.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

27th March 2008

Key Contacts

Planning Reform Bill - Changes to existing provisions

Introduction