Today's entry reports on the government's response to consultation on extending the Planning Act regime to business and commercial projects.
Background
On 6 September last year the government announced that it was bringing forward a number of measures to boost growth. The Growth and Infrastructure Bill was duly introduced the following month and one of its provisions was to allow certain 'business and commercial' projects (i.e. not infrastructure per se) to use the Planning Act consenting regime. The idea was that projects that were likely to get bogged down for whatever reason if using the conventional planning system could have an alternative route to approval, (a) which would be available to use and (b) whose existence might sharpen up the conventional planning route.
The Bill duly became an Act on 25 April and the section that extends the regime to 'b & c' projects came into force on that day. That didn't, however, mean that any could actually use it, since regulations are needed to specify which types of project are covered.
Accordingly, in parallel with the passage of the Bill, the government launched a short festive consultation that ran between 26 November and 7 January on what b & c projects should be covered and how it should be decided whether they should be allowed to use the regime. The consultation document is here.
On Friday 21 June, the government issued its response to the consultation and set out what its proposals are. The actual regulations to implement the proposals aren't going to be issued until after the summer ('by October'), so the ability to use the regime is not going to kick in until later in the year.
The response document is here. Here is an analysis of the proposals.
Analysis
The government has decided that six types of project should be able to use the Planning Act regime, as follows:
- Offices and research and development
- Manufacturing and processing
- Warehousing, storage and distribution
- Conference and exhibition centres
- Leisure, tourism and sports and recreation
- Aggregate and industrial minerals
That is a subset of the list that was offered in the consultation - no categories have been added, but deep mined coal, onshore oil and gas extraction and mixed use developments have been removed. That last category has only been removed because it is considered to be covered already by the other categories, in most cases.
The other most significant change is that the consultation document suggested numerical size thresholds below which a project couldn't even be the subject of an application, but the government has decided to drop these from the regulations, and include them in a 'policy document' instead. Having said that, the response says that 'the Secretary of State will not generally expect to receive requests for a direction for development below the indicative thresholds'.
The government confirmed its view that there should not be a National Policy Statement for b & c projects either as a whole or any of the individual types, and the National Planning Policy Framework (NPPF) is likely to be 'important and relevant' in these cases.
The government is going to revise the criteria for deciding whether a b & c project is nationally significant, but that will appear later in the policy document - the only change made known now is that references to the interests of foreign governments will be removed. I suppose that would have made the project internationally, rather than nationally, significant.
As in the consultation, 'retail-led' schemes will not be able to use the regime, but those with a subsidiary amount of retail will. No housing will be able to be included, as before.
There was an interesting submission from the Noise Abatement Society that b & c projects could be immune from nuisance proceedings if they used the Planning Act regime. The government has responded to say that it will consider whether the defence of statutory authority should be disapplied for such applications when it is examining them. Another additional point was the application of the Århus convention, but the government considered that using the Planning Act wouldn't affect that issue.
The headlines in other publications have been to the effect that the government has decided that 'fracking' (the main method of onshore gas extraction) should not use the Planning Act for now, although it is issuing guidance next month, but I disagree (with the headlines, and the government). As fracking is in the field of energy, it is already an infrastructure project where a developer can apply to use the regime.
Wouldn't the government just refuse all applications, I hear you ask? Maybe, but they would have to demonstrate that the project was not of national significance, which isn't quite the same test as 'we don't want it to use the Planning Act regime'. It might be possible to turn an application down even if it was considered to be of national significance, but that would be difficult and subject to legal challenge.
Use
Will any developers of the projects now to be covered actually use the regime? In most cases, developments in the proposed categories will be welcomed by local authorities since they will bring jobs and other knock-on benefits. Local authorities will want to process planning applications quickly and positively.
On the other hand, I can see situations where the Planning Act regime might be attractive. Here are three examples.
- Some of the project types might not be so popular locally and might therefore take less time and have a greater chance of success if considered by the Planning Inspectorate rather than the local authority, what with the time taken to appeal a refusal.
- The Planning Act regime brings with it the availability of compulsory purchase powers, which developers would not otherwise have, normally relying on the local authority to obtain these. Even if the local authority were in favour of the development, objections to compulsory purchase and a resultant public inquiry might lengthen the process beyond the time a Planning Act application would take. If the local authority weren't so keen, then the project might not get off the ground at all if using the conventional planning system, but could do so under the Planning Act.
- Although not a true 'one stop shop', the Planning Act regime does allow most consents to be combined into a single application, and these days assistance is available to shepherd through even those that can't. Thus if a project would require a number of different consents from different bodies under different regimes it could well be simpler and quicker to use the Planning Act and consider them all at once.
I have had some interest expressed to me already, but we'll only really know when the regime is up and running. Here is a more user-friendly briefing on the news that you may find useful.
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