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More changes for planning following technical consultation reports

Planning documents Print publication

17/02/2015

Following our recent insight into Environmental Impact Assessment thresholds and Neighbourhood Plan regime, we provide a more comprehensive and updated summary of the changes below.

Background

As part of continuing attempts to ensure greater efficiency and streamlined processes, the Department for Communities and Local Government (DCLG) launched its technical consultation on proposed planning reforms on 31 July 2014 (the Consultation). The Consultation highlighted plans to:

  • improve the use of planning conditions
  • introduce new environmental impact assessment (EIA) thresholds
  • extend certain permitted development rights
  • refine the determination process for nationally significant infrastructure projects (NSIPs)
  • alter the neighbourhood planning regime.

In November 2014, DCLG announced changes to the process for discharging planning conditions and relating to NSIP Development Consent Orders. Following further consideration of the feedback, DCLG has issued its latest responses (the Response) confirming the other proposals to be implemented.

EIA thresholds

European Directive 2011/92/EU requires projects likely to have a significant effect on the environment to undergo an EIA. The EIA procedures go beyond those normally required for a planning application, bringing heightened time and cost implications. Responding to concerns that projects unlikely to cause significant environmental effects were unnecessarily subject to EIAs, DCLG proposed to raise the thresholds for certain types of development. Projects below the threshold are deemed not to require screening for an EIA.

As a result, there is now to be an increase from the previous 0.5 hectare threshold for urban development projects involving housing. In addition, the proposal for large housing schemes forming part of urban or industrial estate developments has been modified to make reference to the number of residential units involved. Now projects will not be screened by the local planning authority (the LPA) to determine whether they should be subject to an EIA up to the following thresholds:

  • for residential development (including where there is up to one hectare of non-residential urban development) – five hectares or up to 150 units
  • for other urban development – one hectare
  • for industrial estate development – five hectares.

The change is intended to cater for situations where a purely hectare-based threshold (and the national average of 30 dwelling-units per hectare) is ineffective in reflecting a project’s potential environmental impact. For example, in areas of high housing density and urban locations with tower-block developments.

The National Planning Practice Guidance already appears to have been updated to reflect the above. The Government intends to bring the changes into effect shortly.

It is hoped the raised threshold will reduce the number of projects unnecessarily screened, where they are evidently unlikely to have significant environmental effects. While acknowledging that smaller-scale developments can bring adverse environmental impacts (either alone or in combination), these are unlikely to be significant – which is what the Directive aims to ‘tackle’. In any event, the safeguard remains that that the Secretary of State can (with or without a third party request) issue a screening direction for any project regardless of the thresholds. Interested parties are also still able to make representations on projects’ environmental effects and planning applications will be subject to the broader-scale, existing environmental protection provisions. Whether the thresholds will increase the number of requests to the Secretary of State for screening directions, at least in the short-term, remains to be seen.

Neighbourhood plans

Approximately 31 neighbourhood plans are currently in force and used to determine planning applications across the country.  In addition, over 1,100 areas have already been designated as neighbourhood areas (NAs) following applications to LPAs. Even more communities are now likely to follow suit, with the Consultation’s changes aiming to make it easier for residents and businesses to jointly produce a neighbourhood plan or development order.

Rather than the current average of 19 weeks, LPAs will now have to determine a community’s application to create a NA within:

  • eight weeks – where the proposed NA follows a parish boundary
  • 20 weeks – if applications ‘straddle’ more than one LPA area
  • 13 weeks – for all other applications.

Time will start to ‘run’ from the date immediately following that on which the application was first publicised, to allow sufficient time for effective publicity arrangements. No new or specific publicity requirements have been imposed, so that local flexibility and proportionate consultation are ensured.

Correspondingly, no time-limits are being introduced at other stages of the neighbourhood planning process. Planning guidance is being used simply to reinforce that LPAs should “make every effort to conclude each stage of the neighbourhood planning process promptly”. It will be interesting to see whether this results in a smoother, faster decision-making process in reality. Current funding arrangements are being retained, with £12 million available to LPAs in 2015/16 to undertake neighbourhood planning responsibilities. In addition, the £22.5 million promised in October 2014 will remain from 2015 to 2018 for providing community groups with advice, grant funding and technical assistance in production of their neighbourhood plans. While the Response states that LPAs will therefore experience no additional demands on expenditure or resources, some heightened administrative burdens seem inevitable.

Limited changes have been made to the information that must be submitted with a neighbourhood plan, to ensure compliance with the requirement that any land-use programme is compatible with Strategic Environmental Assessment (SEA) obligations. Any neighbourhood plan proposal lodged with an LPA will have to be accompanied by:

  • a statement of reasons why the proposals are unlikely to have significant environmental effects (and accordingly do not require an SEA); or
  • an SEA report; or
  • an explanation of why the plan is not subject to the SEA Directive’s requirements.

Third party consultation

Section 4 of the Consultation proposed:

  • a change to the thresholds for statutory consultee involvement, to ensure a more proportionate and streamlined process when consulting on planning applications
  • the requirement for railway infrastructure managers (RIMs) to be notified of planning applications where development is to take place near railways
  • consolidation of various elements of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (DMPO 2010), both to bring about the changes above and improve measurement of the overall planning process.

During the eight-week consultation period, DCLG received 389 responses relating to the Section 4 changes. The majority of the proposals are to be implemented going forward. It seems likely alterations to the DMPO 2010 to effect the changes will occur before May’s General Election.

Consulting Natural England
  • Currently, Natural England (NE) must be consulted on “development within an area that has been notified to the local planning authority by Natural England and, which is within 2 kilometres of a site of special scientific interest”.
  • This rule is to be removed. It is hoped this will limit unnecessary consultation, while giving LPAs flexibility to decide when (and in relation to what) consultation is undertaken.
  • NE must still be consulted on developments “in or likely to affect a site of special scientific interest”.
  • The change does risk uncertainties arising, both for LPAs and developers, as to when exactly NE should be consulted. However, the Report suggests that NE’s on-line tool should be used by LPAs when deciding whether or not to consult. This facility maps Impact Risk Zones around SSSIs.
Consulting the Highways Agency
  • At the moment, the Highways Agency (HA) must be consulted where development is “likely to result in a material increase in the volume or a material change in the character of traffic entering or leaving a trunk road”.
  • This is to be changed. HA will need to be consulted where development “other than minor development” is “likely to result in an adverse impact on the safety of, or queuing on, a trunk road”.
  • The alteration is again aimed at avoiding unnecessary consultation and ensuring clarity.
  • DCLG intends to undertake further work to decide whether additional arrangements should be put in place, so the HA is also consulted when a new development could potentially impact on emissions levels and so the need to monitor emissions arises.
Consulting and notifying English Heritage
  • The requirements currently in place for consulting and notifying English Heritage (EH) regarding planning permission (PP) applications and listed building consent (LBC) are complex and time-consuming. The changes outlined in the consultation are therefore going ahead.
  • Now, EH will need to be:
    • consulted before PP is granted for development affecting Grade I and II* listed buildings, Grade I and II* registered parks and gardens, scheduled monuments and registered battlefields
    • notified of applications for PP for development affecting Grade I and II* listed buildings’ setting;
    • notified of applications for PP for development affecting a conservation area’s character or appearance, where the development involves a new building being erected or extension of an existing building when the subject-land is more than 1000 square metres
    • notified of LPAs’ own applications for PP for relevant demolition in conservation areas
    • notified of all LBC applications and decisions on works affecting Grade I and II* listed buildings;
    • notified of all LBC applications and decisions for works affecting Grade II listed buildings, where certain types of demolition are involved
    • consulted on applications for PP when the development is likely to affect certain strategically important views in London
    • notified of instances where consent is to be granted for certain works in Greater London.
  • The aim is to reduce the burden on LPAs and limit excessive consultation, while apparently ensuring that EH’s resources are expended on the most important cases.
  • Some concerns were raised during the consultation as to whether the changes would undermine long-term protection for the historic environment. Only time will tell whether any adverse impact will result, albeit EH does still need to be consulted in a large number of instances.
  • Alongside the above, EH’s power to direct the decision of LPAs in Greater London is to be removed.
  • It remains to be seen how these changes will take effect ‘on the ground’, particularly once EH is split into two separate entities from 1 April 2015.
Notifying and referring to the Secretary of State
  • Arrangements for London will be altered, bringing it in to line with the rest of England (as far as possible) in terms of the requirements for notifying and referring applications to the Secretary of State when applications are handled by EH and LPAs.
  • In addition, LPAs will have the power to determine their own and EH’s applications.
  • This will notably reduce the current requirement whereby all EH’s applications and all LPA applications are sent to DCLG for determination.
Other heritage-related consultations
  • Two minor changes were proposed, looking to:
    • clarify situations when the National Amenity Societies must be notified of LBC applications, so this would only be needed for demolition of a “substantial” part of a building
    • move the requirement to consult the Garden History Society into the DMPO, rather than relying on a Secretary of State’s direction.
  • However, there will not be the proposed revision to the wording outlined as the first change. The addition of the term “substantial” was seen to increase uncertainty and risk bringing about delays.
  • The current notification requirement for National Amenity Societies therefore remains unchanged.
  • The current Garden History Society consultation requirement though, will be moved into the DMPO.
Notifying railway infrastructure managers
  • LPAs will have to notify RIMs of all planning applications where any part of the development is within 10 metres of a railway. The term “operational railway land” is to be used, with 10 metres from the boundary of operational railway land being the measured distance.
  • RIMs are seen as best placed to then decide how to respond to a notification – if they indeed feel the need to do so at all. The Report states that a response “will not be in every instance”.
  • RIMs will be able to voluntarily opt out of notification vis-a-vis specific types of development or for development in specific areas, so that there is not unnecessary notification.
  • DCLG is to issue guidance for RIMs, particularly encouraging them to issue accurate and prompt mapping information to assist LPAs.

For more information on the possible impact of the changes contact the Planning team at Walker Morris.

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