This is entry number 201, first published on 5 January 2011, of a blog on the Planning Act 2008 infrastructure planning and authorisation regime. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.
Today's entry reports on the non-Planning Act planning provisions in the Localism Bill.
A previous blog entry looked at the specific provisions of the Localism Bill affecting the regime for planning and authorising nationally significant infrastructure projects under the Planning Act 2008. Today's entry looks at how the other planning provisions of the Bill may affect infrastructure planning. A final entry will look at the non-planning provisions of the Bill.
The planning provisions of the Bill are something of a random assortment, both in terms of their signficance and their subject-matter. The theme of 'localism' means that there are opportunities for active communities to have a more direct effect on planning in their areas, which may cause difficulties for promoters of nationally significant infrastructure projects, which often have adverse local impacts.
Regional strategies are to be abolished, as has been well advertised and inexpertly pre-empted by the government. There is currently a window of opportunity that will run until around April 2012, when the provision is likely to come into force, for planning applications that are in line with regional strategies to be made and decided.
Duty to co-operate
There is to be a duty to co-operate on the planning of sustainable development. This is narrower than what was originally expected to be a general duty for local authorities to co-operate with each other, but wider in that it can be extended to bodies other than local authorities, which could include infrastructure providers. This duty will mostly entail responding to requests for information and comments. Public bodies that already do this should not be affected significantly.
Development of development plans
The regime for developing local authorities' planning policies reformed in 2004 is tweaked yet again. Inspectors will no longer have an absolute say on development plan documents - local authorities will be able to make modifications to their recommendations but only if they do not materially affect the policies in the development plan (so presumably mainly to the supporting text). Documents will also be able to be withdrawn before adoption, when they couldn't be previously.
Community Infrastructure Levy
The community infrastructure levy (CIL), which is to be an optional tariff that local authorities can impose when granting planning permission to spend on infrastructure, is retained, This is despite earlier suggestions that it would be replaced, but it is to be modified a bit. As with development plan documents, the report of an examiner into how a local authority's 'charging schedule' (how much it proposes to charge and on what) should be amended is no longer fully binding, although the examiner can reject the charging schedule altogether. The use of CIL is clarified (to include capital and maintenance payments) and a power is introduced for the government to require CIL to be passed onto others to spend, the idea being that when neighbourhood forums come into existence they will receive some CIL (joined-up thinking!).
Enforcement
The Bill seeks to stamp out the practice of defending enforcement action and making a new application at the same time - local authorities need not consider the latter. It also relaxes time limits for enforcement action, to deal with the recent spate of court cases where homeowners hid new buildings behind hay bales and inside barns.
Neighbourhood planning
The most significant planning change is the introduction of 'neighbourhood planning' - a level of plan-making and permission-granting below that of a local authority.
The local authority decides 'neighbourhood areas', but it does not have absolute discretion over what neighbourhood areas there can be. If a parish council exists, then the 'neighbourhood' is the parish and the neighbourhood forum must be the parish council. If there is no parish council, which is generally the case in urban areas, a neighbourhood could be any size and the forum could be any number of people from a minimum of a mere three who apply to the local authority. As a household of four, I am thinking of creating a neighbourhood area for my home address.
Membership must be open to those who live, or want to live, in the area. I am a little dubious as to how you define people who 'want to live' somewhere - I can see Daily Mail headlines about enfranchising asylum seekers. Also, the neighbourhood forum does not need to consist solely of residents (or wannabe residents) - it need only 'include' them, so could be a much larger body targeting several areas around the country. The Bill does not say if membership has to be free.
There are two main new concepts - neighbourhood development orders (NDOs) and neighbourhood development plans (NDPs), the latter being more radical than the former.
Neighbourhood development orders
NDOs are like permitted development - they can grant planning permission in advance for the types of development they specify. They cannot refuse permission and so are not a NIMBYs' charter (NDPs have more potential for being used in that way). Any type of development can be included except matters decided by county councils, development that definitely requires environmental impact assessment (i.e Schedule 1 EIA development for the technically-minded), and nationally significant infrastructure projects (i.e. NDOs can't touch the Planning Act regime).
NDOs are subject to examination similar to a local plan inquiry, although the presumption is that this will be done by written representations only. If it is to go ahead, the NDO must be approved in a referendum, which could just be the voters in the neighbourhood area, or the local authority could extend it to neighbouring areas (even outside the authority area) as well if it sees fit.
Neighbourhood development plans
NDPs are mini-development plans containing policies like those of local authorities but for neighbourhood areas. This time they could contain policies discouraging types of development, although the same list of types of development as for NDOs is excluded from their reach. Nevertheless if an NDP says that only, say, allotments were allowed to be built on some land, does that mean that a schedule 1 EIA development such as a large pig farm could not be built there? The NDP does not refer to the 'excluded development', but might still have the effect of preventing it.
Again, there is an examination into an NDP, as for an NDO, and there must be a referendum on it for it to be approved. The Bill does not say at present what happens if the policies in an NDP conflict with the policies in the local authority's development plan. Localism suggests the former prevails, but this may cause difficulties of knowing what the plan policies for a local authority's area actually are, if they are all over the place.
Pre-application consultation extended
Finally, there is a new power to require pre-application consultation on certain larger developments, a concept with which blog readers will be familiar. In other words the pre-application consultation duty in the Planning Act will be extended to some types of ordinary planning applications. The scope of this power (i.e. which applications it will apply to) will be set out in later regulations, but the consultation duty appears to be less onerous than the Planning Act regime. It requires the applicant to bring the application to the attention of a majority of those living in the vicinity and give them an opportunity to comment on it. Being of a devious mind, it occurs to me that reference to 'the majority' could allow a promoter to leave out any particularly vociferous opponents from its consultation quite legitimately.
Those are the provisions, which along with the Planning Act regime provisions discussed previously, come under the 'Planning' part of the Bill. Here are some provisions that were expected at some point to be included but weren't in the end:
- third party rights of appeal (i.e. the ability to appeal against the grant of planning permission rather than just the refusal);
- a presumption in favour of sustainable development;
- any reference to a national planning policy framework; and
- the ability for developers to pay off objectors to an application.
The next blog entry will consider the non-planning parts of the Bill that could affect infrastructure planning.
Competition answers and winner
Finally, here are the answers to the last entry's competition and the winner.
- How many applications has the Infrastructure Planning Commission accepted so far? 1 (Rookery South)
- What is the only number of commissioners that cannot consider an application? 2 (a Panel must have at least three)
- How many nominated sites for nuclear power stations are not in the latest nuclear power NPS draft? 3 (Dungeness, Braystones, Kirksanton)
- How many National Policy Statements have had one or more drafts published so far? 8 (six energy, Ports, Waste Water)
- The Planning Act regime applies to how many different types of project? 16 (listed in section 14 of the Planning Act)
- How many IPC commissioners are there? 39 (according to IPC websiite)
- How many projects are currently listed on the IPC project list (including withdrawn applications)? 55 (ditto)
- Which clause of the Localism Bill abolishes the IPC? 107
- How many representations were received on the first application to the IPC? 1004 (1027 including rejected representations - both answers accepted)
- In which year is the IPC expected to be abolished? 2012 (when Localism Bill expected to come into force)
I have decided to give champagne to the only three all-correct entries: Adam Goodwin, a student at the College of Estate Management in Reading, James Stewart-Evans of the Health Protection Agency, and Catherine Timson of the Waterfront Conference Company and Adams Hendry Consulting. None of the solicitors (from other firms) who entered got all the answers right - hah!
Previous entry 200: two NPSs may be dropped, other news and a Christmas champagne competition!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
