Planning Act 2008

Strategic Planning and Housing Scrutiny Sub-Group

Wednesday 8 April 2009

Background

• Gained Royal Assent on 26 November 2008– Implementation of its provisions will be gradual

• Large parts of previous acts remain in place, e.g.– Town and Country Planning Act 1990– Planning and Compulsory Purchase Act 2004

Overview

• Key elements:– Nationally significant infrastructure projects (NSIPs)– Community Infrastructure Levy (CIL)

• Minor changes relating to:– Regional planning– Local planning policy– Climate change and design– Development management

NSIPs

• Covers major proposals relating to:– Electricity generation and transmission– Gas storage, reception and transport– Highways (where SoS is/would be the highway authority)– Airports– Ports– Railways and rail freight interchanges– Dams, reservoirs and water transfer– Waste water treatment– Hazardous waste facilities

NSIPs (2)

• Single development consent order replacing need for applications under various legislation

• Intended to create a “faster and fairer process for taking the big decisions that affect our national infrastructure” (Margaret Beckett)

• Application to decision expected to be less than 1 year• Reduce cost by c£5 million for nuclear application• NSIPs often cross local authority boundaries• Detailed regulations to come (Oct 2009 and Apr 2010)• Smaller infrastructure projects will continue to be

determined under current arrangements

NSIPs (3)

• Infrastructure Planning Commission (IPC):– NSIP applications will be made to and determined by the IPC– Will have powers to authorise compulsory purchase of land– Independent body of experts = non-departmental public body

operating at arms length from government– Sir Michael Pitt confirmed as chair– Will be established from October 2009, with an interim body

ahead of that– Will be based in Bristol– Won’t be ready to accept applications until April 2010

NSIPs (4)

• National Policy Statements (NPSs)– Will detail national infrastructure priorities on issues such as

energy, aviation, road and rail transport, water, and waste– NSIP applications must be determined in accordance with

NPSs• Cannot challenge the principle of the infrastructure at application

stage if it has been agreed through a National Policy Statement

• Focus when determining applications will therefore be on local impacts

– May specify locations for some infrastructure as well as general principles, scale and locational criteria

– Will be subject to public consultation– Consultation on first NPSs expected in Summer 2009 (non-

nuclear energy and ports)

NSIPs (5)

• Pre-application– Applicant consults with the relevant local authorities, local

communities and other key stakeholders– Applicant conducts an Environmental Assessment, if required– Applicant and the relevant local authorities prepare and

publish a statement explaining how the local community will be consulted after application made

– Regulations will provide more details of minimum consultation and pre-application requirements (draft published Mar 2009)

• Application– Local authority must produce a ‘local impact report’– Likely to require outside assistance– Who funds it?

NSIPs (6)

• Examination– IPC considers whether relevant adverse local consequences

outweigh the national interest identified in the NPS– All interested parties will have the right to be heard– But may be in an open forum and not to cross-examine– Extra funding for Planning Aid to assist local communities– Applications dealt with either by a Panel or a single

commissioner– Regulations will provide more detail on the examination

procedure

NSIPs (7)

• Decision– Secretary of State only makes the final decision if the

development is not covered by a National Policy Statement– SoS can also intervene if significant change in circumstances

since the relevant NPS was published– Otherwise all decisions made by the IPC not ministers– Local authorities responsible for enforcement of conditions– IPC responsible for applications to vary conditions

Community Infrastructure Levy

• Charge on most types of development to help fund new infrastructure

• Local authorities are empowered but not required to use it

• Cannot be used until Regulations are in place– Consultation expected in Summer 2009– Final version expected 1 October 2009

• Must have an up-to-date development plan

Community Infrastructure Levy (2)

• Charging schedule– Sets rates and/or other criteria for determining the amount of

CIL to be charged for each type of development– Must have regard to the expected costs of infrastructure, the

availability of other funding, and economic viability– Charge calculated at the time planning permission first permits

development– Payment on commencement?– Will be subject to consultation and an independent

examination by a planning inspector– Could be produced sub-regionally– Regional planning body could seek to call on part of the CIL

Community Infrastructure Levy (3)

• Relationship to ‘planning obligations’ (section 106 agreements)– Unlike s106, infrastructure funded by CIL does not need to be

directly related to the development paying it– CIL provides more certainty for developers– CIL can apply to a wider range of developments, including

single houses– No requirement to use CIL, so could continue to rely on s106

but narrower scope than CIL– S106 will continue to be used for affordable housing and site-

specific requirements– CIL is a requirement, whereas s106 is a negotiation

Other issues

• Allows for the regional planning body to allow the RDA to exercise any of its regional planning body functions

• Supplementary Planning Documents (SPDs) no longer need to be listed in the Local Development Scheme (LDS) or be subject to a sustainability appraisal

• Statement of Community Involvement no longer needs to be listed in the LDS or be subject to independent examination

• RSS and Local Development Documents must:– Contribute to the mitigation of, and adaptation to, climate

change– Have regard to the desirability of achieving good design

Other issues (2)

• Introduces power to make non-material changes to planning permissions– Currently treated as ‘working amendments’– Will require a formal application– Approval can be conditioned– Simpler process than amending permission under current

rules, but still needs to be consultation/publicity– Won’t be implemented before April 2010– Considering additional legislation relating to minor material

amendments to planning permissions (see Government response to the Killian-Pretty Review)

Planning and Energy Act 2008

• Allows local authorities to impose reasonable requirements in their development plans for:– A % of energy used in development to be from renewable

and/or low carbon energy sources in the locality– Development to comply with energy efficiency standards that

exceed the energy requirements of building regulations

• Gives legislative backing to approaches already being trialled by some local authorities

• No requirement to use such an approach• Must be ‘reasonable’, e.g. economic viability issues

Legal challenge?

• Both NSIP and CIL arrangements could result in a large number of legal challenges, e.g.– Human Rights implications of NSIP arrangements– Process followed for producing NPSs (see for example recent

legal challenge to Heathrow third runway)– Developers funding local impact reports– Can CIL be justified if local authority funds available?