On the 18th February 2016 DCLG published a 64 page “Technical Consultation on implementation of planning changes“. The proposals relate to England only and the Consultation closes on 15 April 2016.
The Consultation states that it is seeking:
“..views on the proposed approach to implementation of measures in the Housing and Planning Bill, and some other planning measures. Responses to the consultation will inform the detail of the secondary legislation which will be prepared once the Bill gains Royal Assent.”
The Consultation then sets out 12 chapters of planning proposals and raises 77 consultation questions. Additionally, a 13th chapter raises 2 questions relating to the Equality Act 2010. A summary of some of the main elements of each of chapters 1-12 of the Consultation are set out below.
Planning Fees (Chapter 1)
Planning fees are set nationally. They were last revised, in line with inflation, in 2012. The Government proposes to increase fees on an annual basis linking that increase both to inflation and performance whereby under-performing authorities would not obtain the fee increase or only those in the top 75% of performance (based on speed and quality of decisions) would benefit from the increase. Consideration is also being given to setting fees at a local level in exchange for a fast track service or where there is competition in application processing (see further in Chapter 8).
Permission in Principle (Chapter 2)
The Housing and Planning Bill introduced the concept of a Permission in Principle and a Technical Details Consent (see blog post of 16 October 2015) which together will comprise planning permission for a site. The Bill sets out that Permission in Principle would be granted:
- on allocation in a locally supported qualifying document that identifies sites as having Permission in Principle and which contains “prescribed particulars” (the core “in principle” matters that will form the basis of the Permission in Principle); or
- on application to the local planning authority.
It is not until Technical Details Consent stage that conditions can be imposed by the local planning authority and s.106 obligations and CIL will apply.
Whilst the Bill sets out the framework for Permission in Principle, details will be set out in a Development Order. The Consultation seeks views on 8 areas of detail including which locally supported qualifying documents can grant Permission in Principle on allocation. The proposal is for future local plans, future neighbourhood plans and brownfield registers to be the relevant qualifying documents. Interestingly the Government is considering expanding the form of development which can benefit from Permission in Principle to include “major” development. It had previously stated in the accompanying notes to the Bill that it would apply to minor housing development involving the creation of fewer than 10 units.
It is proposed that “in principle” matters only would be determined in relation to a Permission in Principle, these matters being:
(i) location (a red line site plan including parameters (details of the proposed parameters are not specified in the Consultation)),
(ii) uses (housing led development, not simply housing development), and
(iii) amount of development (a minimum and maximum level of residential development that is acceptable and the amount of non-residential development will not have to be specified).
Anything other than the above would be determined at the later Technical Details Consent stage. Appeal mechanisms will be brought in in relation to Permission in Principle applications and Technical Details Consents.
The consultation notes that the requirements of the EIA Directive and the Habitats Directive will still need to be adhered to.
The Consultation proposes timescales for determination of Permission in Principle applications and Technical Details Consents as well as proposed durations of a Permission in Principle (on allocation and separately on application) and the Technical Details Consent.
Brownfield Register (Chapter 3)
Brownfield Registers are proposed to be one of the qualifying documents to grant Permission in Principle. Brownfield registers are to comprise a list of brownfield sites that are suitable for housing, this is to include housing-led schemes where the housing element is the predominant use. The register should be available at Council offices and on-line and the Consultation proposes that the register should include:
- site reference
- site name and address
- grid reference
- size (in hectares)
- an estimate of the number of homes (in a range of provision) that the site would be likely to support
- planning status
In order to identify suitable sites for brownfield registers, the Consultation proposes that an up-to-date Strategic Housing Land Availability Assessment (“SHLAA”) should form the starting point as well as other relevant sources. Regulations are proposed which will set out criteria for establishing whether a site should be regarded as suitable for housing. The criteria are that the site is available, capable of supporting five or more dwellings or more than 0.25 hectares and capable of development.
In assessing progress towards the Government’s target of 90% of sustainable brownfield sites having planning permission by 2020, measures could be put in place that would mean that LPAs that fail to make sufficient progress towards the brownfield objective would be “unable to claim the existence of an up-to-date five year housing land supply when considering applications for brownfield development, and therefore the presumption in favour of sustainable development would apply.”
Small Sites Register (Chapter 4)
The Housing and Planning Bill contains a power to make regulations requiring local planning authorities in England to keep and publish a register of particular types of land in the authority’s area. The Consultation proposes the establishment of small sites registers for sites of 1-4 plots in size. The Government’s aim is to assist self-build and custom housebuilding. The sites would not have been assessed for their suitability for development. The register would simply include details of the location of the site, approximate size and owner contact details.
Neighbourhood Planning (Chapter 5)
Proposals are set out for restricting the ability of local planning authorities to amend the boundary of the neighbourhood area applied for, in limited circumstances; for setting various time periods for LPA decisions on neighbourhood planning and the procedures to be followed where the Secretary of State chooses to intervene in sending a plan or Order to a referendum. It is also proposed that existing Regulations will be amended to include designated neighbourhood forums as consultation bodies for the purpose of local plan preparation where it is considered that the forum may have an interest in the preparation of the local plan.
Local Plans (Chapter 6)
The Government proposes to prioritise intervention in local plan preparation where:
- there is under delivery of housing in areas of high housing pressure;
- the least progress in plan-making has been made;
- plans have not been kept up-to-date;
- intervention will have the greatest impact in accelerating local plan production.
LPAs will be able to cite exceptional circumstances which they consider make it unreasonable for Government intervention in the plan making process at that time. General “exceptional circumstances” tests are proposed.
Expanding the approach to planning performance (Chapter 7)
The Consultation seeks views on:
- the revised thresholds for assessing the quality of performance on applications for major development and new thresholds for non-major development for both speed and quality;
- the approach to designation and de-designation for non-major development; and
- which applications may be submitted to the Secretary of State in areas that are designated for their handling of non-major development.
The proposed thresholds for non-major development are:
- speed of decisions: where authorities fail to determine at least 60-70% of applications on time over the two year assessment period they would be at risk of designation;
- quality of decisions: where authorities have had more than 10-20% of their decisions on applications for non-major development overturned at appeal, they would be at risk of designation.
For major development, the speed of decisions threshold has been raised to 50% made on time and the Government confirms that this will be kept under review. In terms of the quality of decisions, this has remained at 20% since 2013. The Autumn Statement proposed a reduction to 10% of decisions on applications overturned on appeal and the Consultation seeks views on this.
Testing competition in the processing of planning applications (Chapter 8)
The Housing and Planning Bill contains powers to enable the testing of competition in the processing of planning applications. A pilot is proposed in a number of specific geographic areas, for a limited time, whereby a planning applicant would be able to apply either to the LPA or to an “approved provider” to have their planning application processed. Decisions would remain with the LPA but the processing of the application, consultation, s.106 negotiation, EIA screening and the issuing of a report with a recommendation to the LPA could be carried out by the approved provider. Fees could be self-set or operate within a range set by Government. The LPA would have to make a decision within 1-2 weeks of receipt of the approved provider’s report and recommendation.
Information about financial benefits (Chapter 9)
Planning Practice Guidance has been amended to make it clear that local finance considerations may be cited in reports to committee, even where they do not constitute a material planning consideration. However, Government remains concerned that potential financial benefits are still not being fully set out. The Housing and Planning Bill contains a clause which requires “local finance considerations” (section 70 Town and Country Planning Act 1990) to be listed in reports to committee. The Consultation notes that other financial benefits should also be listed in planning reports and the Bill enables Regulations to prescribe those other financial benefits. A consultation question also queries which other financial benefits should be listed that are paid to bodies other than the Council making the planning decision – for example, shale gas community benefit payments.
Section 106 dispute resolution (Chapter 10)
It is proposed that the dispute resolution procedure should apply to all planning applications where there are unresolved issues relating to section 106 agreements. It is proposed that the existing 8/13/16 week statutory timeframes should be the time limits before the dispute resolution process can be triggered by the applicant, the LPA or another party listed in regulations. The dispute resolution process would be undertaken by an independent body on behalf of the Secretary of State and there would be a 2 week cooling off period following a request to initiate the dispute resolution process. It is proposed that the costs of the process would be shared evenly between the LPA and the applicant unless one party fails to engage or otherwise acts unreasonably.
Permitted Development Rights for State Funded Schools (Chapter 11)
There is a Government commitment to open at least 500 new state-funded free schools during this Parliament. Increasing the current permitted development rights for new state-funded schools and the expansion of current schools is proposed to assist in this delivery. The proposals involve:
- extending from 1 to 2 academic years the existing temporary right to use any property within the use classes for a state-funded school;
- increasing from 100m² to 250m² the threshold for extensions to existing school buildings (but not exceeding 25% of the gross floorspace of the original building);
- allowing temporary buildings to be erected for up to three years on cleared sites where, had a building not been demolished, the existing permitted development right for permanent change of use of a building to a state funded school would have applied.
Changes to Statutory Consultation on planning applications (Chapter 12)
Statutory consultees are under a duty to respond to the LPA within 21 days (or a longer period if agreed with the LPA) and to provide a substantive response to the application concerned. Data obtained indicates that statutory consultees requested an extension of between 7-14 days to respond in 5-12% of cases. The Government is considering imposing a maximum period to any extension sought and that that period should be 14 days.
This is an extensive Consultation and the document merits a detailed review as there are a number of potentially far reaching proposals.