Planning aspects of the Neighbourhood Planning Bill

Brian Hurwitz, Sharpe Pritchard

The Neighbourhood Planning Bill was introduced in the House of Commons on 7 September 2016. Originally, the government envisaged a Neighbourhood Planning and Infrastructure Bill, but the proposals to put the National Infrastructure Commission on a statutory footing, together with the proposal to privatise the Land Registry, do not appear to have found favour with the new Prime Minister. Instead, the National Infrastructure Commission has been established as a non-statutory agency.

The Bill has been amended significantly at committee stage by adding clauses dealing with local development documents.

This article describes the neighbourhood planning aspects of the legislation, the proposals concerning planning conditions and pre-commencement conditions, and the additions on local development documents.

Neighbourhood planning

The main aim of the Bill is to strengthen the process of establishing a neighbourhood development plan by ensuring that decision makers take account of advanced neighbourhood plans when determining planning applications and also by giving neighbourhood plans full force as soon as they have passed referendum.

To achieve this aim, the Bill extends the scope of section 70 of the Town and Country Planning Act 1990 (TCPA 1990). When determining a planning application, a local planning authority will also have to have regard to a post-examination draft neighbourhood development plan, so far as this is material to the application. A draft neighbourhood development plan will be a ‘postexamination development plan’ if the local authority intends to hold a referendum on the draft plan or the Secretary of State has directed that a referendum should be held.

By amending section 38 of the Planning and Compulsory Purchase Act 2004 (PCPA 2004), the Bill gives the post-examination draft plan statutory status as part of the development plan for the area if it has been approved in a referendum. There are some limited circumstances in which a local authority may decide not to make the draft plan, in which case it will cease to be part of the development plan for the area.

The government issued a consultation document on the neighbourhood planning provisions on 7 September 2016. The consultation ended on 19 October 2016 and we understand that the responses received are currently being reviewed.

Planning conditions

The Bill proposes to insert a new clause into TCPA 1990 to prevent local authorities from granting planning permission subject to pre-commencement conditions, unless they have first obtained the applicant’s written agreement to the terms of those conditions or else regulations provide otherwise. This does not apply to outline planning permission.

A ‘pre-commencement condition’ is defined as a condition imposed when planning permission is granted and which must be either:

  • in the case of a building or other operation, complied with before any building or operation comprised in the development is begun; or
  • where the development consists of a material change in the use of any buildings or other land, complied with before the change of use is begun.

The Bill also allows the Secretary of State to make regulations about what kind of conditions generally may be imposed on the grant of planning permission and in what circumstances. Such regulations must only be made if the Secretary of State is satisfied that they are appropriate so as to ensure that any conditions imposed by local authorities are:

  • necessary to make the development acceptable in planning terms;
  • relevant to the development and planning considerations generally;
  • sufficiently precise to make them capable of being complied with and enforced; and
  • reasonable in all other aspects.

This is broadly in line with the policy on conditions in the National Planning Policy Framework (NPPF).

The regulations can make provision for three things:

  • that conditions of a prescribed description may not be imposed in any circumstances;
  • that conditions of a prescribed description may be imposed only in circumstances of a prescribed description; and
  • that no conditions may be imposed in circumstances of a prescribed description.

As with the neighbourhood planning provisions, the government has already issued a consultation document on the planning conditions provisions. The consultation period ran from 7 September until 2 November 2016 and the responses received are currently being reviewed.

The consultation document was fairly detailed and delved into the circumstances in which the agreement of an applicant to the imposition of pre-commencement conditions would not be required. For instance, such agreement would not be necessary in respect of any pre-commencement conditions that a local authority deemed to be necessary.

Examples given of what might amount to ‘necessary’ pre-conditions include where the conditions relate to archaeological investigations or wildlife surveys. Where pre-commencement conditions are to be imposed, the consultation makes clear that applicants will be given the opportunity to challenge any conditions they consider to be unnecessary, such as where they believe the conditions in question are capable in planning terms of being discharged later in the development process.

The government anticipates that local planning authorities and applicants will enter into dialogue with a view to agreeing what pre-commencement conditions are appropriate. In the absence of agreement, the local planning authority could of course refuse the application for planning permission and in turn the applicant would be entitled to appeal. This means that planning authorities will need to be confident about the reasonableness of including pre-commencement conditions which have not been agreed.

The consultation document also reminds the reader of the existing list of planning conditions which should not be used, as set out in the National Planning Practice Guidance in the section on use of planning conditions. An example given is a condition which is positively worded so as to require the payment of money. The consultation document states that this would fail two of the tests for conditions, namely necessity and reasonableness.

Whether a planning condition complies with the government’s policy is a matter of policy and judgment for the planning authority, but the consultation document seems to suggest a significant departure from this. It asks respondents whether the conditions referred to in the consultation document should be expressly prohibited in legislation. It also asks whether any other types of conditions other than those listed should be prohibited.

It is curious that the government seems to be proposing to put this important part of its planning policy into a legal framework. It would appear that concerns have been raised in response to the consultation by organisations such as the Law Society and the British Property Federation and the Planning Officers Society, who have made joint submissions. The latter recommend that the NPPF and the Planning Practice Guidance should set out a clear appeal process dealing with ‘proportionate and appropriate use of planning conditions.’ No doubt, the government will consider these responses carefully before deciding whether to include these prohibitions in the regulations.

Local development documents

These provisions will amend the PCPA 2004 in various respects. This will enable the Secretary of State to direct two or more local planning authorities to prepare a joint development plan document. County councils will also be given default powers in relation to such documents.

Significantly, if the Secretary of State thinks that a district council is failing or omitting to take necessary steps for the preparation, revision or adoption of the document, he may invite the county council for that district to prepare or revise it.

As is usual with primary legislation, much is pushed down to regulations, in relation to both neighbourhood planning and planning conditions. So as usual, the devil will be in the detail.

If you would like an update on the progress of the Neighbourhood Planning Bill, please contact Brian Hurwitz at bhurwitz@sharpepritchard.co.uk.

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