Speeding up the planning process
Richard Harwood QC discusses proposals made by the Neighbourhood Planning Bill and whether they will achieve the aim of streamlining the planning system
The Neighbourhood Planning Bill received an unopposed second reading in the House of Commons on 10 October in what is likely to be a quick passage through parliament. It covers neighbourhood plans, planning conditions, compulsory purchase, and compensation in England.
One concern of ministers is the time taken before neighbourhood plans are effective. The Bill proposes that they be a statutory material consideration following the examiner’s report and become part of the development plan if supported by residents and businesses at a referendum. There would still be a delay of up to eight weeks between the vote and the making of the plan by the local planning authority. The housing and planning minister, Gavin Barwell MP, is considering a proposal by Bob Neill MP for neighbourhood plans to be made by the referendum vote, so eliminating this extra period.
Two shorter mechanisms for making revisions to neighbourhood plans are proposed.
In the debate, many MPs voiced concerns about the imposition of unnecessary or premature planning conditions. While reassuring the house that policy on conditions is unchanged – and so any need for archaeological or nature conservation conditions will remain – the government is bringing forward two changes. Any conditions which require steps to be taken before the commencement of development will have to be agreed with the applicant. Of course, refusal may follow a failure to agree.
Second, regulations would be able to prohibit certain conditions which fail the long-standing policy requirements. Ministers are also considering a backbench suggestion that an appeal against the grant of planning permission subject to conditions should solely consider the conditions and not put at risk the whole planning permission, as happens at present. Currently, developers either make a further application under section 73 of the Town and Country Planning Act 1990, with a view to appealing that, or just accept conditions which would not pass a planning inspector. The simplified appeal procedure for householder and minor commercial developments could be used for conditions-only appeals.
The bewildering nature of compulsory purchase was recognised by the communities secretary, Sajid Javid. For the first time, the Bill would provide a power to acquire land temporarily, so avoiding the need to permanently acquire work sites, parking areas, and residential property which would be vacated for a short period because of construction works. On compensation, Javid rightly said the ‘no-scheme world is a mixture of obscurely worded statute and over 100 years of sometimes conflicting case law’.
While the basic principle of the no-scheme world can be simply stated – that valuation of land which is compulsorily acquired should not be increased or depressed by the prospect of the compulsory purchase scheme, so that the landowner does not benefit from the creation of a ransom nor lose out because of blight – its application in practice proves to be extremely difficult. The Bill makes a serious attempt to resolve the valuation assumptions.
Other changes may be added as the Bill proceeds. The Local Plans Expert Group had reported in March 2016 on a comprehensive set of reforms to local plan making. Javid said he agreed ‘with the central thrust of the Local Plans Expert Group’s recommendations in this area. We need more co-operation and joint planning. The requirement to have a plan should not be in doubt, and the process for putting a plan in place needs to be streamlined. As the expert group set out, most of those changes can and should be made through national policy and guidance, rather than through primary legislation. Should primary legislation be required, I look to use this Bill as the vehicle for it.’
A number of other proposals were floated by MPs. Bob Neill sensibly suggested that the historic environment record, kept by local authorities to record heritage and archaeological information, should be put on a statutory footing as has been done by the Historic Environment (Wales) Act 2016. He also proposed that local planning authorities be empowered to enter into planning obligations on their own land.
This simple suggestion, which was first raised by Stephen Hammond MP on the previous Housing and Planning Bill, would enable councils to obtain planning permission for their sites prior to disposal. While there are several ‘workarounds’ for this problem, usually involving negotiating sales agreements for sites, these cause expense, delay, take up time, and are less transparent. Development would proceed more quickly and cost to the public purse would be avoided.
Gavin Barwell concluded the debate by saying that the government was determined to build a housing market that works for everyone.
Richard Harwood OBE QC is a barrister specialising in planning, environmental, and public law at 39 Essex Chambers and a member of the Local Plans Expert Group