In the 2016 Queen’s Speech, Her Majesty announced the proposed Neighbourhood Planning and Infrastructure Bill with its key objective: “To support the economic recovery, and to create jobs and more apprenticeships, legislation will be introduced to ensure Britain has the infrastructure that businesses need to grow”. The purpose of the Bill was then to support the Government’s ambition to deliver one million new homes, deliver the homes and infrastructure we need and transform the way we plan for major infrastructure projects in the country. The absence of the word “infrastructure” in the actual Bill’s name tells one story – there are no provisions dealing with infrastructure in the Bill. However, will the Bill meet the lofty objective set out by the Queen?
The Bill contains four main areas:
The Government’s manifesto commitment was to "encourage communities engaged in neighbourhood planning to complete the process and to assist others to draw up their own plans". The Bill is intended to strengthen neighbourhood planning by ensuring that planning decision-makers take account of well-advanced neighbourhood development plans and by giving neighbourhood development plans full legal effect at an earlier stage. The Bill will introduce a proportionate process for modifying neighbourhood development orders and plans and facilitate the modification of neighbourhood areas where a neighbourhood development order or plan has already been made in relation to that area. The Bill also makes the duty on local planning authorities to support neighbourhood planning groups more transparent and improves community involvement in the early stages of plan-making.
On the whole these proposals are to be welcomed as a result of the clarity they bring for applicants and decision makers. Although we can be frequently cynical about what enhanced neighbourhood planning can mean in delaying decisions to grant planning permission, the reverse is equally true – effective community engagement can lead to positive planning decisions and delivery of important schemes which secure local support and buy-in. That can lead to the early grant of permissions and schemes which better serve community needs. Neighbourhood planning can lead to Neighbourhood Plans which support development although not necessarily in the most sustainable locations.
Pre-commencement conditions which prevent any development authorised by a planning permission from taking place until detailed aspects of the development have been approved have been consistently problematic for developers. Commencing work without discharging such conditions may mean that the development is unauthorised and could lead to enforcement action. Discharge of such conditions always causes delay. Whilst there is currently a “deemed discharge” procedure whereby certain conditions are deemed to be discharged if details are not approved by the Local Planning Authority within a certain time, its application is extremely limited to only a few types of condition and developments not subject to Environmental Impact Assessment.
The Bill will provide that pre-commencement planning conditions are only used by local planning authorities where they have the written agreement of the developer. The Bill also includes a power to allow the Secretary of State to make regulations which prescribe the circumstances where certain conditions may or may not be imposed and descriptions of such conditions for the purpose of ensuring that conditions meet national policy tests.
Alongside the Bill, the Government are also carrying out a consultation between 7 September 2016 to 2 November 2016 on how to improve the use of planning conditions and the potential for wider legislation to prohibit conditions in “targeted circumstances”. It is anticipated that the results of this consultation shall be carried through into the implementation of the Bill.
The clauses in the Bill will not restrict the ability of local planning authorities to seek to impose conditions that are necessary to achieve sustainable development, in line with the National Planning Policy Framework. It is intended that the process of agreeing pre-commencement conditions before a decision is issued should become a routine part of the dialogue between the applicant and the local planning authority. In the event that an applicant refuses to accept a necessary pre-commencement condition proposed by a local planning authority, the authority can refuse planning permission. This seeks to maintain appropriate protections for important matters such as heritage, the natural environment, green spaces, and measures to mitigate the risk of flooding.
The provisions to clarify when pre-commencements conditions can or should be imposed are welcome. Despite the introduction of a requirement to justify pre-commencement conditions and deemed approval provisions in respect of some matters, they are still used too often and can unnecessarily delay development. However, we are surprised at the Government’s decision to require such conditions to be approved by applicants as in our experience this is already almost always done before a planning permission is issued particularly on large, important and complex schemes. The challenge is what happens when a local planning authority insists on such conditions and in those circumstances the Bill offers nothing of any comfort, reinforcing the ability of a local planning authority to refuse planning permission with the only option of the developer being to appeal.
Currently, if an appeal is submitted in connection with a condition, the whole permission is potentially in jeopardy on appeal. It would have been helpful if the Bill had made it clear that in such circumstances, the decision-maker can only consider the condition the subject of the appeal. Developers are therefore faced with having to agree to such a pre-commencement condition to “bank” their planning permission, before submitting a section 73 application to vary that condition and potentially also appealing a refusal of this application by the local planning authority. This all causes further delays and cost. Provisions making it clear that the dispute resolution procedure applicable to Section 106 Obligations set out in the Housing and Planning Act 2016 could equally apply to pre-commencement condition disputes would also have been helpful.
The Government’s view is that permitted development rights for change of use to residential use, introduced in recent years, are contributing to housing delivery. The Bill will allow the Secretary of State to require local planning authorities to record prior approvals for permitted development rights on the planning register, as is the case for applications for planning permission. This will enable the collection of information on the number of new homes permitted through permitted development, so that the contribution these measures are making to achieve the ambition of building one million new homes by the end of this Parliament can be more accurately recorded.
This does not seem a provision which will make any difference to housing delivery but is instead just being used as a tool to capture information which the Government can use to justify the introduction of the permitted development rights. It may also justify the extension of current, or introduction of new rights in the future.
Following the reforms introduced by the Housing and Planning Act 2016, the Bill makes further changes to the law on compulsory purchase. It will seek to do this by clarifying the statutory framework for compensation, which will not affect the fundamental principles on which it is assessed. The Bill will also make further technical changes, such as introducing a general power to obtain temporary possession of land (which will have some use but would still require lengthy compulsory purchase procedures to be pursued and implemented) and a requirement to bring compulsory purchase orders into operation within a set period of time. There will be an attempt to provide statutory clarification to concepts which are well-known to those involved in settling compensation claims such as what is meant by the “no scheme world” and what planning assumptions should be applied in those circumstances. There are additional technical changes designed to bring compensation for disturbance for minor and unprotected tenancies in line with licensees and secure tenancies.
It is not clear at this stage why the Government thinks that these provisions will make any fundamental difference to the effective compulsory acquisition of land, provide clarity on compensation entitlements or speed up the delivery of regeneration. Attempts to provide clarity have historically led to a raft of case law.
Overall, the provisions in the Bill appear to us to be uninspiring and unlikely to make any fundamental contribution to the Government’s commitment to deliver one million new homes in this Parliament. This is a particularly disappointing opportunity missed, particularly following the economic uncertainty caused by the Brexit referendum. It might have been more helpful for secondary legislation to support the Housing and Planning Act 2016 to be introduced first – that seems to us at this stage to be a more important priority. The absence of any specific provisions on infrastructure may indicate that further legislation is planned but will be the focus of a separate Bill. The delivery of infrastructure to help deliver growth must remain a key objective of Government.