NEW PLANNING REGIME 2004

The new system brought in under the provisions of the Planning and Compulsory Purchase Act 2004 is said by the Government to be more user friendly and engage the public more directly in the decision making process, Planning Sanity perceive that to be a fallacy, whilst there are some good cherries in the pie, all in all there are more bad cherries, plus a more complex process of public involvement, that in our view the public will totally fail to understand, as well as putting in place a totally unnecessary tier to the plan process.

The new Act in the main amends some existing sections, and adds new sections to the Town and Country Planning Act 1990 and other Acts, it is not a replacement Act, albeit the amendments are far reaching. However, at the time of writing this briefing paper not all of the Regulations have been published, we therefore are still unsure of the full extent of the eventual scheme. We shall therefore raise those issues that we consider of importance to local communities, and expand upon the system as further regulations are published. It should be noted that many of the provisions will not fully come into force until those regulations have been published, and until the Secretary of State issues a statutory instrument bringing them into force in some cases this might not be for many years.

The statutory development plan will now consist of: regional spatial strategies (RSS) prepared by regional planning bodies (RPB) (or in London the spatial development strategy (SDS) prepared by the Mayor of London), and development plan documents (DPD) prepared by district councils, unitary authorities and in the case of minerals and waste only, prepared by county councils structure plans will be abolished existing local plans, structure plans and unitary development plans where adopted will be saved for 3 years from the commencement of the Act.

Regional planning bodies and LPAs will have a statutory duty when preparing the RSS and LDD to exercise their functions with the objective of contributing to the achievement of sustainable development. Sustainability appraisals must be carried out and a report on the findings of the appraisal must be prepared on draft policies when revising the RSS or LDD.

The Regional Spatial Strategy (RSS) will set out the SofS's policies for the development and use of land in the regions. For the time being, existing Regional Planning Policy Guidance (RPG) will become the strategy for the region. Going forward, the regional spatial strategy will be prepared by regional planning bodies, to be made up of members from county councils and LPAs from that region. LDD (Regulations on the make up and content are yet to be published) will set out the LPA s policies for the development and use of land in its area. Transitional arrangements enable existing local, structure and unitary development plans to continue for three years.

The Government put the view across that the new system of development plans will be less cumbersome than the old system for adopting a development plan, enabling new plans to be prepared quickly and revisions to be made more easily to ensure plans are kept up to date. They say that greater public participation will be encouraged in the preparation of development plans by the requirement for a statement of community involvement to be produced by the regional planning body and the LPA for the area, setting out arrangements for involvement of the community in the preparation and continuing review of the development plan and in significant development control decisions. Planning Sanity wait to see if this will be the truth in practice, but like all the other provisions until we see the Regulations, and in this case the finished products the truth of the matter will not be known.

LPA's are given the power to make local development orders, which effectively mean that they will be able to extend permitted development rights within their jurisdiction in order to implement policies in their development plan documents. Planning Sanity believe this is very much one of the bad cherries. Many of the present planning system problems relate to the ease in which developers can obtain certain permissions through the development order procedures. To give this power to local authorities could encourage some authorities to grant development rights to certain types of developments in some sort of competition to attract investment without any consideration for the need for planning control. Although in some areas of minor development control this may prove to be a useful local means of reducing unnecessary control. The most worrying aspect of the proposals are the potential wide remit that the provisions give, there is no restriction set out of the type of development that can be included within the Orders, but regulations might alter that, this could therefore in theory, although might not prove to be the case, see full scale developments being approved on the nod with little input by the public.

Local Development Documents (LDD) can either be Development Plan documents or supplementary planning documents. The intention is to provide a folder of local development documents providing a framework for delivering the spatial planning strategy for the area. LDD will include a core strategy, site-specific allocations and policies, area action plans and a proposals map.

Supplementary Planning Guidance - The Local Planning Authorities own Planning Policy Guidance

Any good planning procedure must be based on good policies,the Government attempts to do this by putting in place first national guidance to back up legislation, then 'Local frameworks' (the effective local plan replacement), which whilst drafted locally, are though likely to be controlled by the regions and central government. Supplementary Planning Policy (SPG) will effectively allow Local Planning Authorities (LPA) to put the icing on the cake, they will have some freedom to set topic based policies, although they have had the ability to do this for a number of years, until now SPG has had no legal basis, other than being indicative of how an LPA might deal with certain planning types, or procedures. That has changed now SPG will be statutory, and will be afforded the same, or similar weight to that of the present Planning Policy Guidance PPG), although PPG's are to be phased out to be replaced by Planning Policy Statements some of which have already been implemented.

SPG can allow local planners if they put in place good sound policies can bring back some real control over the local plan process, although far too many of the SPG already introduced does no more than rubber stamp central government policies. Planning Sanity as time permits intents to write briefings on a range of potential SPG, we have started this process with the publication of our draft Telecoms SPG.

Planning Sanity would urge all local communities concerned with planning policies, practices, and development issues to lobby for the introduction of SPG, and to attempt to influence its content. The argument for doing this is simple, if you start to oppose a development that policy dictates should be approved you will have a very hard time attempting to prevent it, but put in place good strong policies aimed at preventing the worst types of developments, or at the very least policies to ensure that the worst aspects of a development are filtered out. The new procedure specifically sets out that the public and amenity groups should be consulted on all new SPG that is affecting your area. This will be a lot more informal than the local plan process, as well as being a lot quicker (albeit the teeth of SPG will not be quite so sharp). If you need SPG introduced Planning Sanity might be able to help with the drafting.

The dreaded 'Twin Track' system is to some degree to be outlawed by the Act. This is a practice that up to now has allowed a developer (including telecoms Code System Operators) who are refused either prior approval or full planning permission, to lodge further applications. First the developer would lodge an appeal against the decision to refuse the permission, following it through with a new planning/prior approval application, arguing with the LPA that if they approve the second application the appeal will be withdrawn, thus saving the LPA the high cost of the inquiry. The new Act sets out at Section 43 a new Section 70A for the 1990 Act that provides that the LPA MAY decline to accept any planning (or prior approval - 70A(1) relevant application includes those developments set out in Section 60(2) of the 1990 Act which are all developments within development orders including telecom prior approval applications, you might need to point planning officers to the provisions of Section 60(2)) applications within two years of a similar application being determined on the same (or similar) land. The important word being MAY, that implies a discretion, which of course the LPA could exercise in favour of the developer.

This is a question of not determining the merits of the application but purely a policy decision as to whether such an application should be accepted. The decision should be exercised judicially, which means they cannot simply refuse to accept, or accept on the nod, but must determine on a case by case basis whether it is appropriate to exercise their discretion one way of the other. They could though strengthen a policy decision not to accept specific types of applications, or applications that fall within specific criteria by including within their policy structure topic headed 'Supplementary Planning Guidance' (SPG), such as telecoms, housing, contaminated land, tree preservation ........ Setting out within that SPG the specific criteria in which they would accept (or reject) second applications. It is important therefore that local campaigns lobby their LPA (elected members) in the first instance to incorporate good policies within any SPG, than leave it until after the event and then be forced to lobby to ensure that the second application is not accepted. Either way should ensure that it is a simpler job than attempting to justify an actual refusal against the background of threats of high costs of an inquiry.

First the process has to be set into two distinct groups, the first is the normal planning (and prior approval process) the other is applications that affect listed building consent (Section 81A and 81B). Thus an LPA can decline to determine an application, note the wording is power to decline to determine, as opposed to the term that in practice applies to refusing to accept an application. It should also be noted that a general power under the existing Section 70A enabled an LBA to refuse to determine an application which is the same or similar to one that has been determined in the previous two years and which has either been called in by the Secretary of State or been determined on appeal by an inspector, these new provisions go much further, and now specifically include prior approval developments.

Apart from the question of whether there has been a previous decision for a similar development proposal, that is in the words of Section 70A(8) "An application for planning permission is similar to another application if (and only if) the local planning authority think that the development and the land to which the application relate are the same or substantially the same". Thus providing the proposal occupies the same site in real terms (as opposed to another part of say the same land holding), and that there is no material difference to the proposed development, although in terms of what is substantially the same, it is open to argument that say a planning application for say a 25 metre telecoms mast that is refused is not substantially the same as a subsequent application for a 15 metre mast, similarly with an application for a 3 storey building might not be deemed to be substantially the same as a two storey building, although it is arguable that it is, it will be interesting to see what the courts make of that scenario. The criteria to be taken into account is the development plan (Local Development Documents (LDD)) so far as material to the application (thus it is important to ensure good policies are incorporated into SPG), and any other material considerations, which leaves wide open the issues that could be taken into account. Of course the LPA do not have to seek consultations with the public, or even the developer, although it is arguable that not to seek the views of the applicant would be contrary to the rights contained in Article 6.1 of the ECHR (yes even developers have human rights).

The time in which a full planning permission, listed building or conservation area consent can be implemented has been reduced from five to three years. Developers will have three years from the date of grant of the outline planning permission to apply for approval of the reserved matters and two years from the date of approval of the last of the reserved matters to implement the planning permission. In practice, this means that, unless the authority agrees otherwise, applicants will not be able to submit duplicate applications. The existing provisions that allow applications to be made to renew (extend the period before development takes place) planning permissions under section 73 of the 1990 Act by the present method of varying the conditions relating to time limits will no longer be possible.

Sections 106 to 106B of the 1990 Act (that relates to planning obligations) are also to be replaced with provisions enabling the Secretary of State (SofS) to make regulations enabling planning contributions to be made. This change will provide the option for developers to make an optional payment as an alternative too, or as well as, pursuing the negotiated agreement route. It is the view of Planning Sanity that this takes us effectively further down the road to allowing developers to 'purchase' development permissions, and will leave the door wide open to official corruption (as opposed to corruption by officials). That is the ability of the Government and local authorities to accept cash payments to approve developments, which will always beggar the question as to whether the developer with the largest cheque books will be the developers that get the most permissions. Although regulations have yet to be published, the process will allow a combination of options including the ability to make lump sum payments instead of providing facilities that might otherwise benefit the communities that the development is affecting, therefore in our view a clearly negative provision in respect of communities rights and benefits.

The definition of development is also to be amended to bring the creation of additional floor space within buildings by construction of mezzanine floors within planning control.

The Act ends the previous Crown immunity from planning control, the Crown will no longer be immune from planning control and will be required to apply for planning permission, requirement for planning permission and the types of development that require permission will be set out in new regulations.

This is a very worrying provision that grants power to a local authority may acquire land compulsorily for the purposes of assisting developers with site assembly for regeneration and major urban development projects. A local authority will be able to acquire land if it thinks that this will facilitate the carrying out of development, re-development or improvement of the land and is likely to contribute to the promotion or improvement of the economic, social or environmental well being of its area. Changes to the procedure for making compulsory purchase orders are also made, with the objective of making the procedure quicker and fairer. For example: the categories of persons with an interest in land who are entitled to receive notice of the order and to have objections heard is extended to include short term tenants and those with easements over the property to be compulsorily acquired. Orders may be confirmed in stages and local authorities may confirm unopposed orders. Objections to orders can be considered by way of written representations where the statutory objectors consent to this. A definition of the date on which the value of the land is to be assessed is introduced, and advance payments to mortgagees will be allowed. A draft circular on compulsory purchase orders giving guidance to local authorities intending to make orders that will be subject to the amended regime was issued for consultation on 18 May 2004.

Changes to the current Use Classes Order were also announced in a statement by the minister for housing and planning in November 2003 and will take effect at a date to be announced (expected to be during the summer this year). As a result, pubs, bars and takeaway establishments, which are currently A3 uses, will soon fall within two new use classes, A4 (which will cover pubs and bars) and A5 (takeaways). The new A3 use will be limited to restaurants and cafe's only. It will be possible to change from an A4 or A5 use to a A1, A2 or A3 use and from a A3 use to an A1 or A2 use without applying for planning permission. It will not, however, be possible to go from an A3 use to an A4 or A5 use without first obtaining planning permission. Nightclubs are also to be taken out of the current D2 use class, which also includes cinemas, bingo and dance halls and casinos, to form a new use class, D3 (late night leisure). Equally, when the changes take effect it will no longer be possible to change from, for example, a cinema to a nightclub.

There was much controversy over which process the Government should adopt for Major Infrastructure Projects (roads, airports, energy plants .....), in the end the Government adopted one of the less controversial proposals, whilst a step back from the previous scheme, which was very slow, the new process really is little different from the call-in powers of the Secretary of State, except that it incorporates the ability of a team of inspectors to look at different parts of the scheme and report on those aspects, with the Secretary of State then making his decision after consideration of the various reports. Though it could be implied that an inquiry must be held by the mere fact of the appointment of an inspector, the fact is that unlike other sections no such requirement is actually set out in the provision, we shall have to wait until the first cases are announced to see how the provisions will be applied.

Since the 1990 Act there has been the ability of local planning authorities to make simplified planning zones orders, which effectively grants planning permission for the type of development set out in the order. This is in the view of Planning Sanity an affront to good planning and discredits the system, effectively reducing the rights of those most affected by the development to right to comment. The new scheme extends the rights.

Where an applicant for planning permission appeals to the Secretary of State for failure to determine an application within the required period, the local planning authority may now make a determination as to whether they do or do not grant planning permission. Either way the applicant may then amend his appeal (or withdraw it) after the decision. This enables the local planning authority to enter the appeal process as an objector, and would be restricted to their grounds of refusal, as opposed to the past practice of them being able to choose what side of the fence they were on, and being able to argue any point at the inquiry. Whilst this will on the one hand reduce the number of such appeals,on the other it will again potentially have the effect of placing pressure on the LPA to grant permission to prevent the cost of an inquiry, the very reason for putting in place the ban on 'Twin Tracking' (see above). There was a provision in the Act to reduce the time limit for lodging an Appeal from 6 months to 3 months, that effectively lasted all of 3 months before being scrapped and we are back now with a 6 month time limit for lodging appeals.

A good cherry that has been introduced is that of the ability of an inspector (or the Secretary of State, but NOT the local planning authority) on appeal to correct errors, or more precisely correct 'correctable errors'. The power is set out in section 56 of the Act, a request to correct the error must be in writing, the error must be corrected within the statutory period for appeal to the High Court (currently 6 weeks) from the date of the decision letter to be corrected. But the negative aspect of the provision is that Inspector must obtain the permission of the applicant to the correction. The effect of the correction is that the decision notice is corrected as if that error had not been made.