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Key changes to the planning regime come into force from 1 October 2013

crane on a construction site Print publication

13/09/2013

Important legislation introduced at the end of May 2013 saw the relaxation of rules relating to when planning permission is required for certain changes of use.  Part of the Department for Communities and Local Government’s (DCLG) ‘town centre first approach’, this was closely followed by the launch of a consultation on further extending permitted development rights.  However, 1 October 2013 heralds the coming into force of even more far-reaching and diverse legislation, intended to simplify planning regulation and streamline the application and appeals procedures.  But what impact do the changes have in practice?  Are they likely to be effective?

Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act (ERRA) received Royal Assent on 25 April 2013.  Its main purpose is to encourage long-term growth and simplify regulation, including via the introduction of changes to the conservation area and listed building regimes in England.

Conservation areas

The ERRA abolishes conservation area consent as currently applicable to buildings in conservation areas, meaning a full planning permission application under the Town and Country Planning Act 1990 is required.  Under the ERRA (Abolition of Conservation Area Consent) (England) Order 2013, taking effect from 1 October, proposals to demolish certain unlisted buildings in conservation areas will be considered as part of the mainstream planning process, rather than automatically ‘permitted development’ as previously under the General Permitted Development Order 1995.  ERRA also makes it an offence to fail to obtain permission to demolish affected buildings or not comply with any conditions attached to a permission.  No time-limit exists in which enforcement action must be taken.

The most recent Order is a further step towards the long-standing aim for abolition of conservation area consent and streamlining of the heritage protection system.  Whilst demolition of unlisted buildings in conservation areas will now be protected via the mainstream planning regime, the level of protection for such buildings in conservation areas remains unaltered.

Listed buildings

ERRA changes the current approach, so objects or structures fixed to a building or within its curtilege that will not be treated as part of the listing can be recorded.  A listing can now also specifically state features not considered of special historic or architectural interest.

In relation to carrying out works on listed buildings, ERRA now allows the Secretary of State or a local planning authority to make national/local ‘listed building consent orders’, automatically granting consent for alterations or extensions to a listed building.  Whilst the orders cannot provide for demolition taking place, ERRA has introduced the concept of a ‘certificate of lawfulness’ for proposed works to a listed building.  Anyone wishing to do so, can apply for a certificate from the local planning authority to ascertain whether proposed works for altering or extending the building would be lawful.  Going forward it will also be possible for a ‘certificate of immunity’ (COI) to be sought at any time where changes are planned, rather than simply when a planning application has been made or permission granted.  The COI provides a legal guarantee that a building will not be listed for five years from the date of issue.  Both forms of certification will give purchasers and developers clarification and comfort vis-a-vis- any work they are intending to undertake, particularly considering the criminal sanctions that can be imposed where unauthorised works have been undertaken.

A key development under ERRA is the concept of ‘heritage partnership agreements’.  The intention is that these will include provisions granting automatic listed building consent for works specified in the attached terms and conditions, reducing the need for repeated applications where owners want to carry out certain alterations.  This element is not yet in force and, again, does not remove the need for full permission or consent for demolition.

However, the Town and Country Planning (General Permitted Development) (Amendment) Order 2013 – also taking effect from 1 October – further eases the procedures for individuals seeking approval to demolish a listed building or scheduled monument.  The amendment introduced here will provide that the demolition of such a structure will not require the authority’s prior approval, instead ensuring permitted development rights currently existing in relation to these are unconditional.  This recognises that the current listed building and scheduled monument consent regimes already sufficiently cater for such situations and avoids unnecessary duplication.

Growth and Infrastructure Act 2013

From 1 October 2013, various provisions of the Growth and Infrastructure Act 2013 (GIA) come into force.  This is largely amending legislation, taking forward recommendations from the Penfold Review and measures announced in September 2012, intending to boost economic growth by streamlining the planning system.

GIA will insert new sections 62A to 62C into the Town and Country Planning Act 1990.  This will allow certain planning applications, applications for reserved matters consent and particular connected applications (including listed building consent and conservation area consent) for major development to be made direct to the Planning Inspectorate rather than the local planning authority – where the authority has been ‘designated’ due to its poor performance record.  In essence, when an authority has therefore been ‘designated’, a person seeking permission for major development has a choice.  They can submit their application in the normal way or submit it to the Secretary of State/Inspectorate.  An Order, Rules, Regulations and Commencement Order supporting implementation of this take effect from 1 October, although the new approach only applies to so-called ‘connected applications’ from 2014.  Section 62B of the GIA provides the conditions to be satisfied before a planning authority will be ‘designated’.  Further criteria was also published in early June, indicating the circumstances in which a local planning authority will be considered to be inadequately performing its functions.

Whilst this change does not remove any powers from under-performing authorities, it introduces safeguards where it is felt a local planning service is not delivering effectively and local communities are being disadvantaged.  However, the threat of ‘designation’ seems somewhat unfair for authorities that may, for example:

  • be experiencing a temporary, negative impact on resources due to the economic downturn or
  • have positively altered their focus from speed of performance to proactive negotiation of successful outcomes with applicants.

DCLG states that local consultation and hearings will still occur in most instances where the Secretary/Planning Inspectorate are determining applications, so local people can make their views known.  Yet it will be interesting to see how effective community engagement in planning decisions will be ensured in practice.  Although the Government apparently remains committed to devolving power and planning decisions being made locally, these changes may result in a wide-scale move to determination of more applications at a national level.

Streamlining of planning application process

Following a consultation between November and December 2012, various statutory instruments – including The Town and Country Planning (Hearings and Inquiries Procedure) (England) (Amendment) Rules 2013 and the Planning (Listed Buildings and Conservation Areas) (Amendment No. 2) (England) Regulations 2013 (Listed Buildings Regulations 2013) – will be effective from 1 October 2013.  The instruments’ overall purpose is to streamline the planning application procedure, particularly appeals relating to applications for planning permission, approval of matters related to conditional permission or permitted development, and for listed building and conservation area consent.

The changes include:

  • introduction of ‘common ground statements’ for hearings (not just inquiries as previously) and the need to submit these at the time of appeal
  • a mandatory requirement for all evidence to be provided prior to an inquiry, including a list of documents that parties intend to use to support their case
  • the need for a full statement of case to be submitted (including appeal statements and supporting documents) during the six-month ‘window’ in which appeals can be made
  • ability for the local authority to see the appellant’s full case before submitting their comments
  • a minor alteration to align the time-frames for submission of appeals relating to listed building, conservation area and advertisement consents
  • the requirement for appellants in relation to listed building, conservation area and advertisement consents to copy details of their appeal to the local planning authority
  • a requirement for local planning authorities to notify interested parties and submit questionnaires a week earlier than currently.
  •  Whilst the Government states that the new approach requires no production of additional documentation/evidence, the need for ‘statements of common ground’ for hearings and mandatory provision of all evidence prior to inquiry seems onerous.  The overall aim is for the appeals’ process to become more transparent and efficient, resulting in earlier decisions and determinations.  Appellant businesses, charities and voluntary bodies are likely to feel a positive impact, via (depending on the appeal’s outcome) resultant time-savings and earlier development/exit opportunities.  Yet the additional estimated costs of £0.1m per annum, alongside the need to reduce flexibility and meet stricter deadlines, may adversely impact the resources of the Planning Inspectorate.  There is also the concern that the need to submit a full case on appeal may lead appellants to focus on the appeal itself, rather than initially attempting to resolve matters with the authority.

Previous legislation provided an accelerated procedure for householders appealing in relation to less complex, small-scale cases.  This has now been expanded and applies to certain types of minor commercial situations.  For businesses appealing against refusal of planning permission for minor ground-floor development to commercial premises, this is welcome news.  It does, however, mean that – due to the restricted 12-week time-limit – there is no longer the opportunity for additional comments from interested parties or the main parties to comment on each others’ representations.  Representations made by interested parties at the application stage will be considered as part of the appeal.  Applying this to straightforward cases appears likely to be unproblematic, but it remains to be seen whether the expedited procedure is appropriate for those of greater complexity.

Changes to planning fees

The Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2013 will come into force, amending their 2012 predecessor to provide clarity regarding calculation and payment of fees.  In particular, no fee will now be required for applications to demolish certain unlisted buildings in conservation areas.  The fee for an application for prior approval under the General Permitted Development Order 1995, for development involving a material change of use to any buildings or other land, will be £80 going forward.  However, there is to be no such fee where a planning application is submitted for the same site, at the same time, by/on behalf of the same person.  Further, where a planning application or application for approval of reserved matters is not determined within 26 weeks of valid receipt, any fee paid must be refunded.

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