Wide ranging planning changes potentially on the horizon

On 13 October, the Government announced a series of changes to the Planning and Infrastructure Bill to help promote the aim of building faster. The Bill has progressed through the House of Commons and recently concluded its passage through the committee stage in the House of Lords. It is due to return to the House of Lords next week for its Report Stage, with hearings set for 20, 22, 27 and 29 October. It will then have its third reading in the House of Lords before progressing to the final stages of the consideration of amendments and royal assent. This is currently anticipated for later this year.   

The proposed changes are therefore still subject to further scrutiny but it is worth considering the scope of these now, in the event they are introduced as they are wide ranging and could impact on the delivery or determination of a scheme. We have set out a summary of the key changes below. More details can be found in the Running List of Amendments tabled up to and including 13 October.

The new amendments (highlighted with a star in the running list):

• Remove the proposal to amend the acceptance test for development consent order (DCO) applications and allow the Planning Inspectorate (PINS) to require minor changes to applications rather than rejecting them;
• Require the Secretary of State to publish a statement of reasons for any decision not to accept an application under section 55 of the Planning Act 2008;
• Amend the Planning Act 2008 in relation to water projects to enable those projects to be carried out by third parties appointed by water undertakers, as well as undertakers themselves;
• Empower the Secretary of State to make new regulations relating to planning permissions for onshore wind projects that may affect the operation of seismic array systems used for defence purposes. The explanatory statement notes that there are no relevant arrays in Wales;
• Remove the application of clause 28 of the Bill (use of forestry estate for renewable electricity) to Wales;
• Introduce the ability to include deemed listed building consent or (in Wales) conservation area consent within Transport and Works Act Orders (TWAO);
• Extend the implementation time limits for planning permissions or listed building consents in the event of a legal challenge. There would be an extension of one year in all cases, with a further year where the case goes to the Court of Appeal and a further two years where the case goes to the Supreme Court;
• Allow ministers to issue ‘holding directions’ to stop Councils refusing planning permission while they consider using their ‘call-in’ powers (rather than only when they are approving them);
• Allow Natural England to refuse to respond to certain nature-related queries from local authorities;
• Allow the Nature Restoration Fund to support the delivery of marine development;
• Insert a new duty on the Secretary of State and local authorities to have special regard to climate change adaptation and mitigation in decision-making and preparation of plans and policies;
• Insert a requirement for a new “code of practice” for acquiring authorities exercising CPO powers;
• Provide statutory protection for Ramsar sites within the Habitats Regulations where they are affected by any plans or projects in England;
• Confer a power on the Secretary of State to make regulations affecting the operation, in connection with the effect of nutrients in water, of enactments concerned with the environment, planning or development in England.

There are also other amendments introduced earlier in the process which are worth noting. If introduced, their impact would be to: 

• Prohibit the application of the nationally significant infrastructure project (NSIP) regime to large scale solar developments located on the best and most versatile land so these are determined as planning applications by the local planning authority;
• Ensure affordable housing is actually delivered where this is the subject of planning consent, and the proportion of social rent housing is at least 20 per cent;
• Restrict appeals to the Court of Appeal if the High Court decides that an application for judicial review against various decisions under the Town and Country Planning Act 1990 (TCPA 1990), Planning (Listed Buildings and Conservation Areas) Act 1990 or Planning (Hazardous Substances) Act 1990 is totally without merit;
• Give a statutory basis to the sequential and exception tests to ensure that local planning authorities place due regard on them when preparing local plans and considering individual planning applications and require local planning authorities to keep Strategic Flood Risk Assessments up to date;
• Stop the clock for the purposes of the time limit for development to be commenced when the relevant planning permission is subject to judicial or statutory review;
• Introduce new provisions in relation to overlapping planning permissions under the TCPA 1990 to allow for permissions to remain lawful except as stated in the decision notice or associated planning agreement;
• Implement Schedule 3 of the Flood and Water Management Act 2010 to end the automatic right to connect surface water to the public sewerage system and provide a framework for the approval and adoption of sustainable drainage systems;
• Ensure that any landowner being approached is aware of whether it is just their land that is the subject of purchase/leasing or whether there are others being approached so that the total sum of the land obtained may result in application for designation as a NSIP.

If introduced, these changes could have significant impacts on the DCO, TWAO and TCPA consenting regimes as well as CPO. Our team has expertise across all areas so please do reach out to Alex Minhinick or Jen Ashwell if you have any queries.