The Planning Act 2008

The Planning Act 2008 builds on the Planning White Paper, which in turn

followed on from Kate Barker's report on making the planning system more efficient, particularly in respect of large-scale infrastructure projects. Briefly, the Act facilitates three key objectives; summarised as follows:

• putting in place a specific procedure to speed up the determination of planning applications relating to major infrastructure projects;
• creating a funding source for essential infrastructure in respect of development generally, but with particular regard to the scale of housing delivery necessitated by the regional spatial strategies; and
• fine tuning and expediting certain aspects of the existing planning system.

There is a particular focus on responding to the challenge of climate change and specific policy statements to be known as national policy statements (NPS) will be published by the government to deal with sectors such as energy, waste, water etc. Where those projects exceed certain thresholds, they will be decided through a newly formed determining body to be known as the Infrastructure Planning Committee. The government is looking at the new Act to expedite certain major infrastructure projects, particularly in respect of renewable energy.

It is important, however, that a proper balance is struck to ensure that effective mechanisms exist to enable any legitimate third-party concerns to be taken into consideration in the decision-making process. Some commentators argue that the Act fails to achieve this balance and this article will explore this issue in more detail.

The new community infrastructure levy (CIL), which replaces the government's previous attempt to capture an element of the development gain realised on the grant of planning permission through a planning gain supplement, attracted substantial opposition. How CIL will work in practice and how it will interact with planning obligations remains unclear.

The Act was granted Royal Assent on 26 November 2008, but most of its provisions are coming into force by way of commencement orders. It is therefore always essential to check whether a particular provision is yet in force at the material time.

Part One: Infrastructure Planning Commission

The Infrastructure Planning Commission (IPC) will be responsible for determining planning applications in respect of major infrastructure projects by reference to NPSs. Where no NPS is in place, the IPC will examine the project and report on it with a recommendation for decision by the secretary of state.

The major infrastructure projects to be determined by the IPC are set out at section 14(1) of the Act, and are subject to certain qualifying criteria contained in sections 15-29 of the Act. A wide range of projects are included:

• construction or extension of a generating station;
• installation of an electric line above ground;
• development relating to underground gas storage facilities;
• construction or alteration of a liquid natural gas facility;
• construction or alteration of a gas reception facility;
• construction of pipelines;
• certain highway-related development (including construction of motorways, trunk roads or Department of Transport projects requiring environmental impact assessments);
• construction of airports with a proposed throughput of ten million passengers per year or an extension of an existing airport to exceed that threshold;
• construction or alteration of harbour facilities;
• construction or alteration of a railway or a rail freight interchange;
• construction or alteration of a dam, reservoir or waste water treatment plant or development relating to the transfer of water resources;
• construction or alteration of a hazardous waste facility.

Details of the procedures to be followed by the IPC are set out in secondary legislation and the recently published consultation document sets out procedures that are being proposed in respect of such projects.

Section 90 of the Act makes clear that examination of applications is to take the form of written representations rather than a hearing unless one of a limited number of exceptions applies. Those exceptions are set out in sections 91-93 of the Act and provide that hearings may take place where it is necessary to determine specific issues, where the application relates to a compulsory acquisition, or where an interested party notifies the examination authority of its wish to be heard; in which case the examination authority must call for an 'open floor' hearing to be held.

However, if a hearing is held it will be for the examination authority to decide how that hearing is to be conducted and whether a person at that hearing may be questioned by another person. The examination authority must apply the principle that any oral questioning of a person making representations at the hearing should be undertaken by the examination authority, except where the examination authority thinks that oral questioning by another person is necessary to ensure adequate testing of any representations or that a person has a fair chance to put its case.

The intention is clearly that most applications will be decided by way of written representations and, even where there is a hearing, any opportunity for cross-examination will be limited. This is a bold step given the scale and potentially contentious nature of these projects which often involve evidence which is in dispute, particularly expert opinion which may need to be tested through cross-examination.

National policy statement (NPS)

The IPC will determine applications in accordance with NPSs as set out in part 2 of the Act. An NPS may set out:

• a description of the development by reference to the amount, type or size of development of that description which is appropriate either nationally or for a specified area;
• criteria to be applied in the decision- making process as to the suitability of a location for a specified description of a development;
• the relevant weight to be attached to specified criteria;
• the circumstances where it is appropriate to take any specified type of action to mitigate the impact of specific descriptions of development;
• potential locations which are suitable for the specified class of development or those locations which are unsuitable or potentially unsuitable for such specific descriptions of the development; and
• statutory undertakers who are appropriate to carry out a specified description of development.

An NPS must contain reasons for the policy set out in the NPS, and these reasons must (in particular) include an explanation of how the policy set out in the statement takes account of government policy relating to the mitigation of, and adaptation to, climate change.

The secretary of state is under a duty when producing an NPS to:

• carry out a sustainability appraisal prior to the issue of an NPS and when reviewing one;
• consult and publicise the NPS and to have regard to responses obtained in the consultation exercise; and
• review NPSs when appropriate to do so.

The IPC must decide an application for a major infrastructure project in accordance with any relevant NPS, unless:

• it would result in the United Kingdom being in breach of its international obligations;
• it would result in the examination authority being in breach of any duty imposed upon it by any enactment;
• it would be unlawful by virtue of any enactment;
• a condition has been prescribed (in regulations made by the secretary of state) for deciding an application otherwise than in accordance with an NPS; or
• the adverse impact of the proposed development would outweigh its benefits.

It is likely that the last ground will be the most contentious area as, unless evidence is properly tested, it will be difficult for the IPC properly to assess whether any adverse impact of the proposed development would outweigh its benefits. This could lead to the IPC making a planning judgement based on evidence which has not been adequately scrutinised and, although the final decision could be challenged by way of judicial review, it is a well-established principle that the courts will not interfere with a decision based on a planning judgement unless that judgement is manifestly perverse, irrational or unreasonable.

As there will be limited scope as to how third parties can present their case to the examination authority, any disgruntled third parties will be left having to decide whether there are sufficient grounds to challenge the final decision by way of judicial review. Therefore, those advising applicants will need to be vigilant to ensure that all the procedural stages have been fully adhered to and that applicants have fully and fairly complied with the required consultation procedures to avoid these aspects becoming a real feeding ground for challenge.

In cases where it is considered that third parties have not had an opportunity to present their case it might be harder for the judiciary to close its eyes completely to the planning merits of the decision (subject to the normal public law principles).

Development consent order (DCO)

The procedure for applying for a DCO in accordance with an application for a major infrastructure project is set out in part 5 of the Act, although further detail will be set out in secondary legislation. The Implementation Route Map 2009 sets out the government's anticipated timescales for this legislation.

In any application for a DCO there is a duty on the applicant to:

• consult with certain categories of people (for example, local authorities or persons with rights over land) with a deadline for responses not less than 28 days from receipt of the consultation documentation;
• notify the IPC;
• consult with the local community before preparing a statement setting out its proposed consultation arrangements and then to consult with the local community in accordance with that statement;
• publicise the application; and
• take account of responses.

The application must specify the development to which it relates, be made in the prescribed form and be accompanied by a consultation report as well as other prescribed documentation.

The IPC must maintain a register of applications for DCOs and may only accept an application if it complies with the criteria for the type of development proposed and with the pre-application procedures. A DCO application can be determined by either a panel or by a single commissioner. The procedure is to be determined by the chairman of the commission having regard to any secretary of state guidance and having consulted with the commission council, with any other commissioners not on the council who the chairman thinks are appropriate and with the chief executive officer of the commission.

Under the single commissioner procedure, the commissioner will report to the commission council comprising not less than five members who will decide the application by a majority decision. Under the panel procedure, three or more commissioners will be appointed to a particular panel with the decision to be made by a majority agreement.

The secretary of state has intervention powers in the decision process, including the power to direct suspension of consideration of a matter while an NPS is reviewed or to require a DCO application to be referred to the secretary of state in certain specified circumstances for a decision. The decision on a DCO must be either to grant or to refuse the application, and must contain a statement of reasons for that decision. Any such decision can then only be challenged by way of judicial review within six weeks of:

• the DCO being made;
• the statement of reasons for refusal being published;
• the notification that the IPC has not accepted an application for a DCO.

A DCO may impose requirements in connection with the development similar to planning conditions and may include ancillary matters and authorise, for example, the:

• compulsory acquisition of land;
• extinguishment of rights over land;
• abrogation/modification of agreements relating to the land; and
• carrying out of specified operations.

DCOs will have effect for a specified period and are required to be begun within that period.

Development is defined under section 32 of the Act, and has the same meaning as under the Town and Country Planning Act 1990 Act (as amended) but with some further additions. These additions include the conversion of a generating station to use crude liquid petroleum; a petroleum product or natural gas resource; use of a cavity or strata for the underground storage of gas; and an increase in the permitted use of an airport. There are also works defined under section 32 (3) of the Act which constitute development (to the extent they would not otherwise) which include specific works to listed buildings and scheduled monuments as well as buildings in a conservation area.

Enforcement

Enforcement provisions are set out in part 8 of the Act. While it has always been the case that carrying out development without planning permission does not constitute a criminal offence, if the LPA enforces against a breach of planning control, any failure to comply with an enforcement notice which has come into effect or with a breach of condition notice is, subject to certain limited defences, a criminal offence.

Under sections 160 and 161 of the Act, however, it is a criminal offence either to carry out development for which a DCO is required at a time where no DCO is in force or (where a DCO is in place) to fail to comply with the terms of that order.

A person guilty of either of these offences is liable to a fine not exceeding £50,000 on summary conviction, or unlimited on indictment.

Under section 161, where a person has carried out development in breach of a DCO, it will be a defence if that person can show that the failure to comply occurred only because of an error or omission in the order or a correction notice specifying the error has been issued.

As under the 1990 Act, enforcement action under sections 160 and 161 is time limited. No person may be charged with an offence under section 160 at the end of the period of four years from when the development was substantially completed, unless an information notice has been served or an application for an injunction has been made within the relevant four-year period. In such a case, the period for taking action under sections 160 or 161 is extended to the end of a four-year period, following either the date of service of the information notice and/or the date of any application for an injunction.

The local planning authority (LPA) will be responsible for enforcing any breach under the Act, notwithstanding that it is not responsible for determining such projects. This may present LPAs with difficult challenges. As any approval of particular projects may be regarded as extremely controversial in certain quarters, and given that third parties may feel themselves prevented from presenting their case to their satisfaction prior to the grant of any DCO, this may result in more pressure on LPAs to take enforcement action where any breach is alleged to have occurred.

Under section 174, LPAs not the IPC will be responsible for negotiating planning obligations in respect of such projects. In such cases, while an applicant may try to agree the document with the LPA to avoid any objections, if there is an impasse it could bypass the LPA by providing it with a unilateral undertaking which it considers suitably delivers all the necessary obligations, and it will then be for the IPC or secretary of state to decide whether that undertaking is adequate; similar to the situation that sometimes arises in planning appeals.

Part Two: Community Infrastructure Levy

Part II of the the Act provides for the introduction of a Community Infrastructure Levy (CIL). The aim is to ensure that where infrastructure is to be provided to support development in an area, the cost of that infrastructure is borne (wholly or partially) by those landowners who benefit from the increase in value of the land when planning permission for development is granted.

CIL must be:

• determined at the point when planning permission is granted;
• paid whether or not the value of the land has increased; and
• applied to funding the required infrastructure.

The intention is for CIL to replace to a large extent, but not wholly, the matters currently negotiated and contained in individual section 106 planning obligations in relation to specific infrastructure proposals. Section 106 obligations are expected still to address site-specific infrastructure requirements and the provision of affordable housing.

The detailed operation of CIL is being introduced by secondary legislation and, while draft regulations have been published, the final regulations are not expected until early next year, with a target date for coming into effect of 6 April 2010.

CIL will be payable when development commences, and under the draft guidance the definition of development for the purposes of determining CIL will be taken from section 209 of the Act. That is anything done by way of, or for the purpose of, the creation of a new building or anything done to an existing building. This means that development such as roads, railways, pipelines, overhead cables and wind turbines would not be liable to pay CIL, even though such things are building operations for some planning purposes.

However, the government is intending to use the powers under section 209(2)(a) and (b) of the Act to provide a more detailed definition of development. There are also various exemptions that the government is intending to introduce; for example, a threshold of 100 square metres of gross internal floor space.

The guidance clarifies that calculation of CIL from the time when planning permission first permits the development under section 208 (6) of the Act should be based on full planning permission or approval of reserved matters, not outline permission. The government is intending to allow for phased payments in respect of outline consents as the amount payable will be triggered on commencement of development of each of the reserved matter approvals coming.

What is interesting is where there is no planning permission for a development.

Collection authorities can not pursue CIL charges on a site that remains unauthorised. However, the government makes clear that, in respect of unauthorised development, CIL will apply if that development becomes 'regularised'; i.e. it benefits from a retrospective planning consent, whether this is expressly under section 73A of the 1990 Act or deemed following any enforcement appeal under section 177 of the 1990 Act.

Enforcement action is discretionary and should only be pursued if the LPA considers that it is expedient to remedy a particular breach of planning control. However, this could encourage some LPAs to take enforcement action knowing that, even where enforcement action is not upheld on appeal, the development which was subject to that action would benefit from a deemed consent under section 177 of the 1990 Act, and therefore give rise to a liability to pay CIL.

Under section 208(3), a person who assumes liability for CIL before commencement of development by serving an 'assumption of liability notice' becomes liable once that development is commenced in reliance upon a planning permission. Where liability is not assumed by the time of commencement, liability will rest with the owner/s of the land.

It is proposed that collection authorities must be notified of the anticipated date of commencement of the development by what is to be known as a 'commencement notice'. There will then be a 28-day

period before payment is due following submission of both the commencement notice and the assumption of liability notice.

The government is proposing to empower LPAs with the ability to serve a CIL stop notice which would require development on a site to cease until either payment of the CIL has been made or the notice is withdrawn. However, before LPAs could serve such a notice, it would first have to issue a warning notice to the parties that have assumed liability for payment as well as to landowners and anyone else that might be affected by the notice.

Under section 218 of the Act, regulations must include provisions about enforcement of CIL, including the consequences of late payment and failure to pay, and the government is likely to introduce surcharges for late payment of CIL.

CIL liabilities will be registered as local land charges and will bind successors in title.

The government is intending to introduce appeal procedures in relation to enforcement measures on grounds that where applicable no prior notification of the action was received; the party subject to the enforcement appeal is not a liable party (not applicable in respect of CIL stop notices); there has been no breach of the procedure in question either because that procedure (whether the submission of an information notice or a timely payment) has been followed correctly or commencement (and thus liability to pay CIL) has not happened.

Under section 211, a charging authority which proposes to charge CIL must issue a charging schedule following set criteria, but in broad terms it will need to identify what infrastructure is needed and how much it will cost and then work out what contribution each development should make to that cost.

The government is proposing that a CIL charging schedule should be embedded into the development plan system, and the regulations are proposing that once a charging schedule is ready for examination the charging authority is to publish the draft schedule and evidence and call for representations. The procedure will then follow substantially the same process as the other development plan documents that are to be adopted as part of the local development framework.

Given the long and difficult process for getting such documents adopted, and despite the target date for implementation of the regulations of April 2010, it is unlikely that charging authorities are going to be in a position to start to charge CIL in the near future.

Part Three: other changes to the planning system

Appeal process

Section 196 of the Act inserts a new section 319A into the 1990 Act under which the procedure for all appeals (written representations, hearings or public inquiries) will be decided by the planning inspectorate (by reference to a series of published criteria) thus removing the previous ability of either the appellant or the LPA to opt for a hearing or public inquiry. Subsequent regulations have revised some of the procedures of the appeal process and under the new cost circular an award of costs may be made in respect of an appeal determined by way of written representations instead of just where an appeal is determined by way of hearing or public inquiry.

Twin-tracking

It was not uncommon for an applicant to submit two applications for the same development. The perceived advantage here was that it enabled an applicant to continue discussions with the LPA in respect of one application while pursuing an appeal in respect of the other, a process known as twin-tracking.

Under section 187 of the Act, the LPA has the power to decline to determine any application that is made within two years of a decision on a deemed application under an enforcement appeal or a planning application, listed building or conservation consent application which is the same or substantially the same as an application already under consideration or received on the same day. This will end the ability to twin-track applications. This power will also apply where an appeal has previously been made but withdrawn before determination.

Non-material amendments to planning permissions

Section 190 has introduced a new section 96A into the 1990 Act, allowing LPAs to make a change to any planning permission relating to land in their area if they are satisfied that the change is not material. The question of whether a change is material will be a matter for the LPA to decide, but under this section of the Act it must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission as originally granted. This power allows the imposition of new as well as the removal or alteration of existing conditions.

Local development plan documents

Section 185 sets out provisions relating to the validity of strategies, plans and documents. This section extends section 113(7) of the 1990 Act such that the High Court now has the power to quash just part of a local development document. There is also the power to order that the plan is referred back to one of the earlier preparation stages.

Easements & other third-party rights

Section 194, interalia, clarifies section 237 of the 1990 Act where an LPA has acquired or appropriated land, to override easements or other third-party rights over land to enable it to be used in accordance with a planning permission.