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PLANNING BILL ON THE RIGHT LINES BUT HAS TOO MANY LOOPHOLES SAYS POS

Date: 8/1/2008

The Planning Officers Society has welcomed the direction of travel of the new Planning Bill, however, it is concerned that not all of the implications of the proposed changes have been thoroughly thought through.

John Silvester, for the Society, said “For planners, most of the devil will be in the detail of the Regulations that follow the Bill; but from a preliminary examination there are a number of points that raise concerns.”

  •  National Policy Statements: POS presumes that PPSs will still exist alongside them; it would be useful to have greater clarification of the relationship between the two, and of the kinds of topics that will covered by each.
  • Consultation on publicity requirements: POS is concerned that this appears to be restricted to those local authorities in which a piece of infrastructure will be physically located. This ought to be extended to include local authorities that will be materially affected by the item of infrastructure (for example, as a result of increased over-flying or traffic generation, or of material impacts on housing or labour markets).
  • paragraph 8 of this section is the first of several places in the Bill that a “local authority” is defined, and where it is not entirely clear that the definition includes unitary authorities (the Bill refers to “county councils where there are no district councils” – the terminology needs to be clarified.
  • Pre-commencement statements of policy: This provides that statements issued by the Secretary of State before commencement day of the future Act can be designated as national policy statements. POS is keen that the ramifications of this should be thought through. Would they, for example, have to have been subject to a process of consultation equivalent to that of a National Policy Statement? The Bill allows for any earlier consultation (when the statement may have had a very different status) to be “taken into account” – the meaning of this is not clear.
  • Legal challenges: POS is concerned that whilst this section explains in detail the circumstances in which a legal challenge to national policy statements can be made, it does not say what the consequences of a successful challenge are. Is it simply the case that the statement would be referred back to the Secretary of State for further consideration, as in the case of a successful challenge to a Secretary of State planning decision? 
  • Nationally significant infrastructure projects: POS is concerned that the Bill gives a lot of space to quantifying criteria for what constitutes a nationally significant piece of infrastructure, but does not explain in any generic way what makes those thresholds the dividing line between nationally and, say, regionally significant. Inevitably circumstances will arise that have not been anticipated by the Act, and it would be helpful in resolving whether or not a development is nationally significant to have some kind of generic guidance. The list of projects in paragraph 13 does not fulfil this function, since it covers both very big and very small construction projects. This point is particularly important, given that the Bill would give the Secretary of State powers to extend the list of nationally significant projects without further primary legislation.
  • Register of Applications:  this provides for the Commission to maintain a register of applications received; this would presumably be held centrally. POS maintains that where site-specific proposals are concerned, specific provision should also be made for the applications to be recorded on the registers of the Local Planning Authority(ies) concerned. This would give the public comprehensive information in one place about the range of development proposals affecting an are
  • Hearings: General Provisions: The Act provides that, exceptionally, witnesses giving evidence to them may be cross-examined by an interested party. POS is of the view that the exceptional nature of this provision needs to be emphasised, to avoid a situation such as has arisen in some EIPs, where QCs appointed by interested parties effectively take over the proceedings and conduct lengthy cross-examinations along the lines of those seen in a conventional planning appeal.
  • Timetable: POS is concerned that the Bill sets a 90-day limit for the Examining Authority to determine an application, but does not say what would happen if, exceptionally (and possibly through no fault of their own) that time limit were not met. Does their jurisdiction fall and, if so, to whom does the decision fall? If, on the other hand, there is the possibility of an extension of time, is this subject to any provisos or criteria?
  • Compulsory acquisition of Common Land: Allows for development to take place if replacement land is provided. POS considers that it needs to be made clear that any replacement land should be of equal value, in terms of size, location and quality.
  • Local Development Documents: The Bill proposes a range of consequential changes to the 2004 Planning and Compulsory Purchase Act in relation to LDDs. POS is generally supportive since they echo many of the points the Society has already raised with CLG. It will be making separate representations on the proposed amendments to PPS12.
  • Determination of planning applications by officers: This section provides for delegated decisions to be subject to review at the request of the applicant. This proposal has attracted widespread opposition from local planning authorities and POS is of the firm view that it will put at risk all the efficiency gains of recent years, increase local authorities planning costs, bog down planning authorities with unnecessary administration, undermine Member-Officer relationships and the credibility of Officer advice to the public, and give applicants no place other than the High Court to go if aggrieved by the local authority’s decision. This could in turn lead to an increase in referrals to the Ombudsman.
  • Community Infrastructure Levy (CIL
  • Liability: This section makes CIL payable at the time of commencement of development, and the obligation of the landowner at that time. POS is of the view that this presents two potential timing problems – from the local authority’s viewpoint, that it may not allow sufficient time to put essential infrastructure in place before a development is completed and begins to impact on its surroundings; from the developer’s point of view, it may be regarded as too early, in that it becomes payable (in some cases) years before a development begins to generate income, and therefore puts an undue strain on cash flow. With regard to the first of these, some form of revolving fund, from which infrastructure costs can be borrowed in such cases, and repaid when the CIL is received, may be a solution.

There may also be a transitional problem, as developers seek to bring forward land acquired at a time (and cost) when CIL and its consequences could not have been anticipated. The Bill also allows for the possibility of CIL being payable whether or not planning permission has produced an uplift in the value of land, which may present particular viability problems.

  • More generally, the Bill itself does not make clear the relationship between CIL and whatever residual provisions of Section 106 remain, and what will be used to pay for what. It is hoped this will emerge through the Regulations; however, it makes it difficult to comment sensibly on much of this part of the Bill.   

 POS has the opportunity to make these and other points in oral evidence on 8th January to the House of Commons Public Bill Committee on provisions of the Planning Bill.

Steve Quartermain, President of POS, commented “We are broadly supportive of the direction of travel and are pressing CLG to be involved in the ongoing discussions on the detail”.

 

Notes:

1.                   POS is accompanying the LGA to the Public Bill Committee on 8th January. The LGA has issued its own briefing on the Planning Bill (see http://www.lga.gov.uk/Documents/Briefing/Planning_Reform_Bill_LGA%20Response.pdf ); and many of the points it raises the POS would wish to be associated with, although POS does not endorse it in its entirety.

 

 

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