UK: Growth And Infrastructure Act 2013

Last Updated: 15 May 2013
Article by Anne Bennett

The Government's latest attempt to reform the planning system to kick start economic growth became law on 25 April in the form of the Growth and Infrastructure Planning Act 2013. The Act contains a number of controversial measures, several of which have hit the headlines over recent months. Defeats in the Lords and revolts by back benchers have resulted in significant amendment to the provisions originally proposed in the original Government Bill. The following are in our view the most noteworthy provisions:

Poor performing Planning Authorities in Special Measures

The Act provides an option for developers to submit planning applications directly to the Planning Inspectorate where the local planning authority has a poor record of performance. The provision now only applies to major applications.

There has been much debate over recent months as to how the performance of the planning authority should be assessed. The Act gives wide powers to the Secretary of State. A recent consultation paper indicates that Councils will be designated for at least a year at a time and will be adjudged as poor performers if they have determined 30% or fewer major applications within 13 weeks or where more than 20% of major applications have been overturned at appeal. The consultation paper also suggests that Councils will continue to deal with the administrative tasks and section 106 agreements even though they are not determining the application.

It is anticipated that, in order to avoid being designated as 'a poor performer', Councils may make increasing use of planning performance agreements to deal with complex applications which would take such applications outside the statistics.

Homeowners extensions

The Government's original proposal was to amend permitted development rights to enable homeowners to extend their dwellings by up to 8 metres without any requirements for planning permission or formal notification. In response to considerable opposition the Communities Secretary was forced to introduce a "new light touch neighbours consultation scheme". This will require homeowners to notify the Council of the proposal which will in turn will notify immediate neighbours.

In the event that the neighbours do not object 'within a set period' the development can go ahead. If there are objections the Council will have to consider whether the development proposed will have an unacceptable impact upon neighbour's amenity. This compromise has triggered many other criticisms in particular, since there will be no "application" fee, it is unclear how the additional work required of planning authorities is to be funded. The extensions will no longer be routinely be assessed against objective development plan policy, leading to concerns that, so long as the immediate neighbours do not object, the measures will allow poor development to proceed to the detriment of good planning, the wider neighbourhood and future occupiers. These extended PD rights will not apply in conservation areas or AONB.

Speeding up the planning process

The Act removes the need for the Communities Secretary to approve local development orders (LDO) by which planning authorities relax planning requirements in specific areas. Councils will no longer have to report annually on the effectiveness of the LDO. Although LDOs are increasingly being used by Councils, particularly in enterprise zones, there are doubts whether these marginal changes will encourage any greater use of LDOs.

The Act restricts the information that can be required by Councils to support planning applications. Information requests by local authorities "should be reasonable having regard to the nature and scale of the proposed development" and "should relate to matters that it is reasonable to think will be a material consideration in the determination of the application".

The consultation document "Streamlining the Planning process" which sought views on measures to streamline the planning application process suggested that Design and Access statements (DAS) should only be required for major applications and for proposed development in Conservation Areas, World Heritage sites and for listed buildings.

It also suggested that more flexibility should be applied to the content of DAS enabling applicants to provide such details as are relevant to the case and "reduce the level of national prescription in favour of a more proportionate and locally specific approach" The Government's response to the public consultation is still awaited.

Small developers particularly will welcome any changes that reduce the amount of information to be submitted with applications. Providing professional reports up front on small scale development has become costly and is a source of delay.

Discharge of Affordable Housing Obligations

The Act introduces a new application and appeal procedure for the review of planning obligations to secure affordable housing. The existing law allows developers to apply for a discharge or modification of a Section 106 obligation - this may be agreed at any time on a voluntary basis by the Council but in the absence of agreement the developer does not have any right of appeal until the S106 obligation is at least 5 years old.

The new provisions set up a new application and appeal procedure, enabling developers to apply for modification of or discharge of the affordable housing elements of section 106 agreements in order to make developments viable. The procedure only relates to affordable housing obligations and this does not include agreements associated with rural exception sites. DCLG expects the changes to "unblock 75,000 stalled homes".

CLG has also published policy guidance on the purpose and scope of the new measures entitled "Section 106 affordable housing requirements: Review and appeal" which 'provides an overview of what evidence may be required to support applications and appeals'. The guidance explains that to take advantage, the developer must demonstrate that the obligation makes his scheme unviable in the current market conditions. To be viable the evidence must indicate that the current cost of building out the entire site (at today's prices) is at a level that would enable the developer to sell all the market units on the site (in today's market) at a rate of build out evidenced by the developer, and make a competitive return to a willing developer and a willing landowner.

Any modification to the section 106 obligation must make the maximum provision and provide for the optimum mix consistent with the site's viability. This is likely to involve reconsidering the tenure mix as well as phasing of delivery. The revised affordable housing requirements "may not exceed the overall level of obligation required under the original agreement". Modifications must also meet the statutory and policy tests for Section 106s.

Because the purpose of the provisions is to address the problem of sites stalled due to the current economic conditions, the operation of the clause will cease on 30 April 2016 (when the Government expects investment in housing to have 'stabilised'!). Modifications will only be valid for 3 years if a development has not completed within the 3 year period the original unmodified obligation will apply to those parts of the development that have not completed.

In our experience planning authorities are already willing to renegotiate planning obligations on a voluntary basis where this will unlock housing sites. This is particularly the case where authorities are at risk of unwanted development due to a lack of a 5 year housing land supply. But for those that have been reluctant the measures in the Act are welcome.

Town and Village Greens

The Act also contains a number of provisions which reform legislation on town and village greens, generally giving more powers to landowners and making the registration procedure more restrictive whilst at the same time retaining "the strong protection for registered greens" unchanged.

There are a number of other measures in the Act, such as the removal of overlapping consent processes relating to the stopping up of highways, all of which according to Planning Minister Nick Boles are designed to "reform our economy so that it can boost investment, growth and jobs by streamlining a lot of confusing and overlapping red tape that all too often gets in the way of people's everyday lives".

Whilst changes to the system that will simplify and speed up the planning process are to be welcomed, it remains to be seen whether the proposed changes will have a significant impact in promoting growth.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Anne Bennett
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.