Update: planning

The Community Infrastructure Levy Regulations 2010 came into effect on 6 April 2010. While charging of CIL on new qualifying developments remains optional for local planning authorities '“ and the signs are the uptake by LPAs will be limited '“ the regulations do raise some significant, and immediate, concerns.

In particular, the regulations put onto a statutory footing the policy tests for section 106 agreements, which were previously set out in 'Circular 5/05: Planning Obligations'. Any planning permission granted after taking into account a planning obligation which offended the now statutory test could be potentially unlawful by way of judicial review. This may prove inconvenient for developers and local authorities, as borderline cases which were nodded through by both sides in the past may need to be dealt with outside the section 106 regime to reduce legal challenge risk. At appeal, planning inspectors will also consider the point.

A related new draft circular on planning obligations states that these should not be used to secure community benefits from developments. Community benefit schemes are seen as a means of capturing benefits of a development for the local community, and are commonly used in wind farm developments and other schemes. LPAs, developers and local communities will have to consider other means of securing these agreements, most probably outwith the planning regime.

Although the regulations may restrict the benefits LPAs can expect to obtain from new developments in their area, there is a lack of enthusiasm for the CIL. For the time being at least, affordable housing obligations will still be delivered by planning obligations, as will mitigation of site-specific impacts. With a general election looming and the Conservative Party threatening to scrap CIL, it is too soon to certify the death of planning obligations but the landscape is certainly changing.

Conservatives' proposed planning reforms

In February, the Conservatives published their long-awaited Green Paper on planning reform: 'Open Source Planning'. If elected, the wide range of proposals will mean the planning system will have another five years of change on top of the seemingly neverending changes of the last ten years.

In addition to the already announced abolition of regional government, the Green Paper proposes a complete change in the creation of local plans '“ with the introduction of a 'bottom up' system, neighbourhood by neighbourhood, with the final say at local level, not with the planning inspectorate. The current English local plan system has been a failure and was an obvious mistake when first proposed. Unfortunately, it is very hard to see how a 'bottom up' approach will produce a timely, complete and workable new system '“ the elusive holy grail of development planning. Furthermore, the loss of housing targets and renewable energy targets, currently contained in regional plans, will remove key drivers from those sectors.

Government policy and priorities will be set at a national level through the creation of a national planning framework (NPF), to be approved by Parliament. This is a new approach, promoted by the RTPI. How important it is will depend on how much substantive content it contains as opposed to the normal platitudes contained in such high-level documents.

The Green Paper proposes a very simplistic change to the planning appeals system which would effectively remove material considerations from the appeal process, and place even greater emphasis on the local plan. It is hard to see this proposal withstanding much scrutiny as a balance must always be struck where plans are out of date, not in place, or have been overtaken by national policy or other events. It is also proposed to introduce a third party right of appeal, which is an unwelcome proposal to developers with the huge need for new housing and other development over the next few years.

The Conservative policies have received a mixed reaction from industry, and there is a concern that a planning system driven by a localism agenda will result in fewerconsents being issued and much greater delay and expense. There is a lot of devil in the detail, which is likely to mean the proposals will have to change significantly as they progress to legislation '“ if the Conservatives are elected.

Infrastructure Planning Commission

The Infrastructure Planning Commission, created under the Planning Act 2008, is now open for energy and transport applications. Its website already lists a wide range of projects in the pipeline for applications in due course. It appears the first application will be for a large energy from waste facility in Bedfordshire. Developers have been getting to grips with the new regime. Two emerging issues are that the system appears to have hard-wired an excessive amount of superfluous pre-application consultation of particular technical consultees, and the challenge of deciding what level of detail should be consulted on at the pre-application stage to meet the somewhat conflicting requirements of the regulations and guidance.

On top of the teething problems of any new regime, there is the threat of abolition by the Conservatives if elected. The uncertainty created by this has meant that a number of developers have reduced the scale of their schemes to stay below the IPC threshold. While there is an assurance that no applicant will have to reapply under a revised system, there will inevitably be some impact of transitional arrangements.

Claimants' duty to act promptly in judicial review claims

The requirement for claimants to act promptly in issuing JR claims has again come to the fore, prompted by a decision of the ECJ in the case of Uniplex (UK) Limited v NHS Business Services Authority (Case C-406/08).

Although Uniplex was not a JR case, the court was asked to consider the lawfulness of regulation 47(7)(b) of the Public Contracts Regulations 2006 which states (so far as material): 'Proceedings under this regulation must not be brought unless '“ '¦ (b) [they] are brought promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose'¦"

The court made two important findings. First, it held that time starts to run from the date on which the claimant knew, or ought to have known, of the alleged infringement of the regulations. Second, it held that the requirement for claims to be brought 'promptly' is uncertain as it allows the court to dismiss an action for being out of time before the expiry of the three-month period if it decides the action has not been brought promptly.

The similarity in wording between regulation 47(7)(b) and the CPR rule 54.5 in JR claims (requiring claims to be filed '(a) promptly; and (b) in any event not later than three months after the grounds to make the claim first arose') is striking and begs the question as to whether we can expect to see the Administrative Court judges adopt this reasoning of the ECJ in JR claims. This would have a significant effect in the planning field, as there are many claims brought just within the three-month period which are refused permission to proceed as they have not been prompt.

PPS5 '“ Planning for the Historic Environment

On 23 March 2010, the government issued PPS5 '“ Planning for the Historic Environment. This PPS replaces PPG15 (Planning for the Historic Environment) and PPG16 (Archaeology and Planning).

The 2009 consultative draft of the PPS attracted widespread criticism with many of those who responded to the consultation arguing that the draft failed to give sufficient protection to heritage assets in favour of new development. The government has sought to address this criticism by significantly redrafting the document and reinserting the presumption in favour of protection of designated heritage assets (Policy HE9).

Prominence is also given to the issue of climate change, with an obligation on planning authorities to identify opportunities to mitigate the effects of climate change in development plan policies and when determining applications. While the potential tension between preserving heritage assets and addressing climate change is recognised, the PPS offers limited assistance and simply says that these two issues will require to be weighed against each other. The government in its response to the consultation referred to the draft PPS on climate change as providing further guidance on this point. However, the consultative draft of that document provides only limited guidance in relation to internationally or nationally designated sites,suggesting that addressing climate change will be given precedence over preserving heritage where conflicts arise.

The PPS represents an updating and streamlining of policy on this important issue. However, not all criticisms have been addressed and it remains to be seen whether it will enable appropriate protection to be given to heritage assets.

Right to connect to the sewerage network

In Barratt Homes Limited v Dwr Cymru Cyfyngedig (Welsh Water) [2009] UKSC 13, the Supreme Court upheld the Court of Appeal's decision that there is an absolute right in England and Wales to connect to the sewerage network under the Water Industry Act 1991.

It is well established that there is a right of connection to the sewerage network. However, this right is qualified by section 106(4) of the 1991 Act, which provides that a connection may be refused if the mode of construction of a new sewer does not meet the reasonable standards of the statutory undertaker or would be prejudicial to the sewerage network.

Welsh Water, relying on section 106(4), refused Barratt a connection to the sewerage network at the connection point requested by the developer on the basis there was no capacity in the network. Instead, they offered a connection at a point that would have required the developer to obtain third-party consent. The court held that section 106(4) related only to the mode of connection to the network and not the place of connection. Welsh Water did not, therefore, have the right to refuse Barratt's request for a connection and, furthermore, they were also required to provide the connection at their cost.

This surprising decision establishes that it is for planning authorities, and not sewerage undertakers, to ensure new development is not permitted to go ahead where there is a lack of capacity in the sewerage network.

In this instance, the planning authority had taken steps to control the situation by imposing a suspensive/Grampian condition preventing development commencing until a drainage scheme had been approved by the county council. However, and notwithstanding Welsh Water's concerns, it appears that such approval was obtained by the developers. This case means that planning authorities and statutory undertakers will need to ensure they liaise closely during not only the planning application process but also where suspensive conditions are being discharged.