UK: Two Planning Act Consultations Launched As Certification Reduced

Last Updated: 4 December 2012
Article by Angus Walker

Today's entry reports on two consultations to amend the Planning Act and secondary legislation launched yesterday.

Yesterday the government launched two Planning Act related consultations - one on combining and managing consents other than the main development consent, and the other on the business and commmercial field that is to be added to the Planning Act regime, while amending the Growth and Infrastructure Bill to amend the Planning Act to remove some certification requirements.

One stop shop consultation

The first consultation is on the 'one stop shop', i.e. reducing the need to obtain lots of different consents for the same project.  The consultation document can be found here. There are four elements to the changes.

Removing certification requirements

The first category of consents are in the Planning Act itself and are not the subject of consultation, but are simply being removed.

Having spent some time last week at a Planning Act hearing arguing about certificates under sections 127 and 138 of the Planning Act, I am nevertheless pleased to see that the government is going to remove the separate need for certificates under those and other sections.

This is being done through amendments to the Growth and Infrastructure Bill tabled yesterday (the full list of sections being 127, 131, 132, 137 and 138). The government has now tabled 26 amendments to the bill - do keep up!

These amendments can be found as new clause 3 (NC3) on page 60 of this list.  The tests for taking land remain (without needing separate certificates) and are thus rolled into the conideration of the main application.

These changes are welcome and remove an unnecessary strand of procedure for project promoters.

Consents to be managed better

The next category of consents are not going to be altered in legal terms, but 'bespoke consent management arrangements within the Planning Inspectorate' are going to be introduced.  This will apply to 12 of the separate consents listed in regulations - or presumably fewer or more depending on the results of the consultation.

Consultees are asked whether these arrangements will make the consents process efficient, without, it has to be said, much detail on what the arrangements will actually be.  The proposals could be promising, however, as long as they have some integration with the main consent process and timetable.

'Consent for consents' to be slimmed down

The third category of consents are to be removed from the legislation that requires the original consenting body to agree that they can be included in a Development Consent Order under the Planning Act instead of being applied for directly.
The ones that are being removed, however, are only those that are out of date or unlikely to be needed for a Planning Act project (a deer licence, anyone?).  This slimming down will not have much practical effect, it would therefore seem.  It is currently proposed to remove 18 consents in this category.

The consultation lists 14 remaining consents which are to stay in the regulations and aren't going to have bespoke arrangements.  I don't quite see what the rationale is for not introducing consent management arrangements for these as well.  I think it is that they are too important and specialised for the Planning Inspectorate to get a look in.

Those three lists add up to 44 consents, although the 'consent for consent' regulations only have 42 consents in England listed - not sure why the difference, and life's too short to compare the lists.

Reducing consultees

The list of statutory consultees for pre-application consultation is a long one and many such consultees have rarely or never responded or have positively asked not to be consulted (which of course applicants cannot accede to as the law stands).

The government proposes to reduce the list in two ways: by striking out 21 of the entries (although adding one - the Ministry of Defence), and by removing some words from the definition of 'relevant' consultees that have caused some head-scratching as to what they mean, namely 'or the body which has responsibility for an area which neighbours that location.'

All good stuff but I am feeling like a hurdler who has jumped over hurdles only to find them being removed for the competitors behind him.

Business and commercial field consultation

The second consultation is on the new field of business and commercial projects that are able to benefit from the Planning Act regime on a voluntary basis.  The consultation document can be found here. The government estimates that 10-20 projects will do this per year.

The field will only apply to projects in England, and the Secretary of State for Communities and Local Government will make the decisions on them.  If the projects are in London, they are to need the Mayor's consent before they can use the Planning Act regime.  Will Boris yield to Eric?

Aside from the categories and thresholds themselves, consultees are asked whether retail developments should be included (the government thinks not, although the published list of project types includes mixed-use development that is not predominantly retail) and whether one or more National Policy Statements should be produced (the government thinks not).

Housing is not to be included, no questions asked.  I do feel that could rule out some genuinely nationally significant development just because it had a flat above a pub or something.

So here are the seven categories and thresholds that are proposed:

  • Offices and research and development facilities - over 40,000m2 gross internal floorspace (gif),
  • Manufacturing and processing proposals over 40,000m2 gif,
  • Warehousing, storage and distribution over 40,000m2 gif,
  • Conference and exhibition centres - over 40,000m2 gif,
  • Leisure, tourism and sports stadia - over 100 hectares or over 40,000 seats (a bum corresponds to a metre squared, it would seem),
  • Extractive industries - all coal mining, 500 tonnes per day of petroleum, extraction, 500,000 cubic metres for gas extraction, and over 100 hectares for other mining and quarrying, and
  • Mixed-use developments (excludng housing or where retail is a main use) - 100,000m2 floorspace.

It's not enough to be above the thresholds, though - the government has to consider that the project is nationally significant as well, and the consultation includes a question about six criteria for deciding that, paraphrased as follows:

  • scale,
  • impacts,
  • location, if it gives rise to cross-boundary or national controversy,
  • economic impact, if significant,
  • rarity and importance of a mineral being extracted, and
  • national security or foreign government involvement.

A criterion that I have been suggesting be added, although not really a test of national significance but a factor that might affect growth, is whether the complexity of land assembly and the consenting process without using the Planning Act regime would affect the viability of the project.

I'm not quite sure why there need to be thresholds and a test of national significance on top.  The Planning Act currently has just thresholds, or for projects below the threshold, just a test of national significance.  One of the consultation questions is whether to have thresholds at all.

Both consultations close on 7 January 2013.

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.

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