John Watson picks out the headline changes in the government’s latest planning legislation
In April and may 2013 a large tranche of the government’s promised planning reforms came into effect, notably through the Growth & Infrastructure Act 2013, and the coming into force on 30 May of the Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2013.
At this point, planning minister Nick Boles said he would shoot anyone who came up with fresh ideas for changing the planning system – there may be many in the planning profession who would be equally happy to pick up a gun. So, it is time to take stock of the changes so far.
Growth & Infrastructure Act 2013
The Growth & Infrastructure Act 2013 became law on 25 April, although not all provisions come into force at the same time. The Act takes forward several of the government’s planning commitments.
> Local planning authorities in special measures
Where an under-performing local planning authority (LPA) has been ‘designated’, Section 1 allows an applicant for a major development the choice of making a planning application direct to the secretary of state/Inspectorate. DCLG’s consultation paper of November 2012 proposed designating an LPA which has ‘consistently poor performance in the speed or quality of its decisions’: where 30% or fewer applications for major development are determined within 13 weeks (16 weeks for environmental impact assessment applications) or where more than 20% of major decisions are overturned at appeal – in both cases averaged over a two year period. Planning applications which are subject to Planning Performance Agreements would not be included in the statistics.
> Appeal costs
Sections 2 and 3 broaden the powers of the secretary of state and inspectors to award costs between parties and to recover their own costs at planning appeals and certain other planning proceedings, along with broader powers to award costs at compulsory purchase order inquiries. The powers would enable the secretary of state or inspector to award costs even where no party has applied for such.
> Less information required
Section 6 introduces a limit on the LPA’s power to require information with planning applications which should be proportionate and material to the application in question.
‘The secretary of state may direct that certain commercial and business development (but not housing) is of national significance and will thus be determined by the secretary of state’
> Renegotiating affordable housing
Section 7 provides for a three year period – during which an application can be made to vary affordable housing requirements contained in a planning obligation in order to make a development economically viable. Where the planning obligation makes a development economically unviable, the local planning authority must modify, replace or remove the obligation within 28 days (unless otherwise agreed or directed). It also allows an appeal to the secretary of state where the planning obligation is not modified as requested. This section came into force on the day the Act was passed but will be automatically repealed on 30 April 2016.
> Stopping up and diversion of highways
Section 11 enables a draft order for stopping up or diversion of highways to be published at planning application stage rather than have to wait until planning permission has been granted.
> Village greens
Among other things, Section 17 prevents town and village green registration from occurring when a number of ‘trigger’ events happen, such as a planning application or where the land is identified for potential development.
> National significance
Section 26 enables the secretary of state to direct that certain commercial and business development (but not housing) is of national significance that requires development consent as a nationally significant infrastructure project, and will thus be determined by the secretary of state. The direction would only be made at the request of the applicant or prospective applicant. The DCLG has published for consultation guidance on the types and forms of projects to be prescribed in the regulations. The types and sizes of projects suggested include: over 40,000m2 for offices, research and development, manufacturing, warehousing, conference and exhibition centres developments; over 100ha in area for tourism, leisure and sports and recreation developments; 40,000 seat sports stadia; and over 100,000m2 in major mixed use developments (excluding housing).
For three years permitted thresholds for single storey rear extendions will increase from 3m to 6m for semi-detached dwellings and from 4m to 8m for detached, subject to limitations.
Permitted Development Rights
The Town & Country Planning (General Permitted Development) (Amendment) (England) Order 2013 makes significant changes to permitted development rights, ie development that can be carried out without the need to apply for planning permission. Elements of this order are also set to revert in 2016 Here are some of the headline changes.
> Change of use from B1 office to C3 residential
The Order allows changes from Use Class B1(a) Office to C3 Residential without the need for permission. Before changing the use of the building, an application must be made to the LPA to determine whether its ‘prior approval’ is required in respect of: transport and highways, contamination and flood risk matters.
The LPA will consult technical experts and neighbours and may seek further information from the applicants before making a determination. The change cannot progress until: the LPA has given notice that its ‘prior approval’ is not required; the LPA has given notice that its ‘prior approval’ is granted; or 56 days have passed since the date the application was made without notice being given either way. If prior approval is refused the applicant may appeal to the secretary of state.
The change of use must occur within the three years to 30 May 2016.
Any works materially affecting the exterior of the building associated with the change of use will still require planning permission.
The above provisions exclude 17 areas, and do not apply to listed buildings or sites located within safety hazard or military explosive storage areas. Areas exempted include: London Central Activities Zone and Tech City; Royal Borough of Kensington and Chelsea; Isle of Dogs; Royal Docks Enterprise Zone; De Beauvoir and Mare Street, Hackney; Milton Park Enterprise Zone; Harwell Oxford Enterprise Zone; Manchester City Centre Core; Gunnells Wood Road, Stevenage; London Road, Sevenoaks; Westerham Trading Centre, Sevenoaks; Ashford Commercial Centre; and areas within East Hampshire District.
> Home extensions
For a period of three years in non-protected areas, permitted thresholds for single storey rear extensions will increase from 3m to 6m for semi-detached dwellings and from 4m to 8m for detached, subject to various limitations including a height limit of 4m and development to cover not more than 50% of the curtilage of the house. Before the works can progress, an application must be made to the LPA, which will write to the owners and occupiers of adjoining premises. If no objections are received within 21 days, its ‘prior approval’ will not be required.
However, if there are any objections raised to proposed extensions, then the ‘prior approval’ process is triggered. The authority will then assess the impact of the proposals upon the amenity of the adjoining premises.
Works cannot progress until the LPA has given notice that its ‘prior approval’ is not required; the LPA has given notice that its ‘prior approval’ is granted; or 42 days have passed since the date the application was made without notice being given either way.
The works must again be completed within the three years to 30 May 2016.
Business premises, hotels, residential institutions and assembly and leisure uses (such as churches, cinemas etc) can now be changed to a ‘state-funded school’ (and back again after) without need for planning permission. This is subject to a ‘prior approval’ process similar to that for the change of use from office to residential as set out above.
> Commercial extensions
For a period of three years in non-protected areas, permitted size limits for extensions to shops, professional/financial services and offices are increased to 50% or 100m2 (whichever is lower). Permitted size limit for industrial premises is increased to 50% or 200m2 (whichever is the lower).
Thresholds for changes between B1, B2 and B8 are raised. Permitted changes of use between Use Classes B1 and B8 and from B2 to B1/B8 see an increase of the floorspace limit from 235m2 to 500m2.
> Temporary two-year low impact uses
Proposed permitted temporary (two years) change of use of buildings up to 150m2 currently falling into use classes A, B1, D1 and D2 to convert to temporary flexible use within use classes A1, A2, A3 and B1. At the end of the two year period the site must revert to its lawful use.
Many of the changes introduced by the Act and the Order have got planning lawyers scratching their heads – and rubbing their hands. We have yet to see if they will have the intended effect of stimulating the development industry and the wider economy.
John Watson is head of planning (London) at Scott Brownrigg
Finally we have a government view of planning guidance, in response to a review by Matthew (Lord) Taylor,and a consultation. Yes, it likes most of what Taylor suggested on planning guidance. There will be a website just for planning guidance (said planning minister Nick Boles in January). Although he called it an ‘iterative’ process there will be specific dates for updating it. The website and alert system will be free. Existing guidance will be reformed and consolidated but that covering areas like best practice will be left to other bodies to produce. The website has been promised during July, in some form, but it is unclear how realistic that date is. Until then, at least, the existing guidance remains in place. EY