Legal Briefing

New government consultation papers on the planning system

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Real estate | 01 March 2010

On 21 December 2009 the Department of Communities and Local Government (DCLG) published two new consultations as part of the government’s response to the Killian Pretty Review.

Improving the use and discharge of planning conditions

The first consultation proposes changes to the use of planning conditions and the processes for discharging planning conditions. Discharging planning conditions can be a particularly problematic stage in the planning application process due to inconsistencies in the scope and use of conditions, the absence of a clear system for discharging conditions, and an increasing number of pre-commencement conditions, all of which can cause delay.

DCLG has also proposed an updated list of the model conditions currently contained in Circular 11/95 and supplementary note. In addition, the current policy on the fees that local authorities can charge for the discharging of conditions has been replaced, to clarify the current position, which is that local planning authorities (LPAs) can charge fees for:

  1. written confirmation of consent, agreement or approval required by a condition attached to a planning application (ie for the discharge of conditions); and/or
  2. written confirmation that one or more of the conditions imposed on a grant of planning permission have been complied with (ie for confirmation of the discharge of conditions).

The consultation proposes to replace Circular 11/95 with a new policy, which retains the six tests for planning conditions (to be necessary, relevant to planning, relevant to the development to be permitted, enforceable, precise and reasonable in all other respects), but reinforces the need to use conditions carefully. It suggests that certain types of conditions should be avoided altogether – for example conditions requiring a payment or other consideration in return for a grant of planning permission – and advises on the need to proceed with caution in relation to others, such as those that withdraw permitted development rights.

The review of Circular 11/95 provides an opportunity to clarify the government’s approach to the use of conditions granting permission contingent on the completion of a section 106 agreement under the Town and Country Planning Act 1990. This is a mechanism that has been widely used over the years to deliver the redevelopment of sites in which the applicant does not own all interests. It has been called into question in recent appeal proceedings but as yet there is no judicial ruling that prevents its use. The consultation acknowledges that in the current economic climate, major development projects should not be put at risk just because it is not possible to complete a section 106 obligation, binding all of the relevant parts of the application site at the time of the grant of planning permission. It advises that it may therefore be appropriate to use such a condition precedent in exceptional circumstances, provided that the six tests are satisfied.

Proposals to improve the discharge of conditions include:

  • a discussion of conditions to be a key component of pre-application engagement;
  • structuring decision notices to list conditions in the order in which they need to be complied with or discharged;
  • the use of conditions listing the plans that form the approved scheme;
  • sharing draft decision notices for major applications with applicants before decisions are taken;
  • shortening the time limits for LPAs to determine applications made for approval required by a condition (and reducing the timescales for return of fees accordingly);
  • a planning services key performance indicator to include the use and discharging of conditions;
  • a fast-track conditions appeals service;
  • a requirement for the developer to notify the LPA prior to starting development, to ensure that all requirements of their planning consent have been met and necessary conditions have been discharged;
  • an obligation on developers to post on site, and on public display, a copy of the relevant planning permission and all pre-commencement approvals required by condition; and
  • the introduction of a procedure where consent, agreement or approval required by a condition is deemed granted, by default, if the LPA does not respond to an application within a certain time period.

If the proposals are approved, the new rules may speed up the planning application process, but the value of the adapted system will also depend on the approach of the developers and authorities, who may take time to adjust to the new requirements. These changes offer potential for making the discharging of conditions clearer, fairer and more efficient for all parties.

Development Management: Proactive Planning from Pre-Application to Delivery

This consultation seeks views on a new draft of the Planning Policy Statement (PPS) on development management, and on draft policy annexes on pre-application and determination.

‘Development management’ means the local authority’s consideration, determination and deliverance of development proposals. Proposals in the draft PPS are aimed at encouraging LPAs to take a positive and proactive approach to planning, through the implementation of planning policy, front loading, taking a proportionate approach, effective engagement, proactive delivery, and the need to regularly monitor and review development management. The measures are designed to help deliver projects quickly and reduce costs during the economic recovery.

The draft PPS sets out the government’s proposed overarching objectives and policies for development management. It aims to allow flexibility for individual authorities to choose the most appropriate local approach, tailored to each area’s circumstances and available resources.

Over time, annexes to the PPS will provide detailed policy on specific stages and procedures involved in the handling of a development proposal. It is envisaged that these annexes will be within eight themes:

  1. pre-application;
  2. application;
  3. consultation;
  4. determination;
  5. appeals;
  6. delivery;
  7. monitoring; and
  8. special consent regimes.

The PPS and its annexes will form the basis of a wider development management framework comprising:

  • the wider national planning policy framework (this PPS fits within the context of PPS1, and alongside PPS12 and other national planning policies);
  • the legal framework, mainly provided by the Town and Country Planning General Development Procedure Order 1995, which will be amended as necessary; and
  • national guidance on some aspects of development management.

The government hopes that implementing these objectives will compel local development management services to be more proactive and delivery-focused, and to manage their strategic functions – including plan-making – more efficiently, which should increase their potential to deliver regional and national objectives. This in turn should help authorities to meet local area agreement targets and perform well under comprehensive area assessments. However, commentators have pointed out that although the implementation of these proposals should be fairly straightforward for those LPAs that have already adopted aspects of development management in their planning services, for those that have not, the transition may require a fundamental culture change across the authority.

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These proposals will undoubtedly have an effect on the way that local authorities manage their workloads. However, it remains to be seen whether the new consultations will have the intended effect sought by the government. The consultations close on 19 March 2010.