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.

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