Matt Gilks examines a recent Government consultation on improving the use of planning conditions and looks at the Law Society’s response.
The Neighbourhood Planning Bill has now completed its committee stage and is awaiting its report stage on the floor of the House of Commons, and will be sent for scrutiny by the House of Lords in the New Year. The Bill deals with three areas; neighbourhood planning, the use of conditions and compulsory purchase.
It modifies planning decision making powers to ensure decision takers must take account of a post-examination neighbourhood development plan when dealing with an application for planning permission. It introduces new procedures in connection with neighbourhood plans to enable a more proportionate procedure for plan modifications.
For planning conditions, there would be a new section of the Town and Country Planning Act 1990 that means that a planning authority cannot grant planning permission subject to any pre-commencement conditions, without first obtaining the applicant’s written agreement to their terms. The Bill would enable the Secretary of State to make regulations about the sort of conditions that may or may not be imposed on a grant of planning permission.
There are some interesting and positive proposals relating to compulsory purchase, including ensuring the legal considerations applying to determining the ‘no scheme world’ is on a statutory footing. The Bill does not include provisions to put the National Infrastructure Commission on a statutory footing and to enable the privatisation of Land Registry.
Of all the proposals, those connected with the use of planning conditions will have the most impact but offer the potential for challenges in implementation. The Law Society's Planning and Environmental Law Committee recent commentary on the proposals is commendable.
The Committee points out the present difficulties in persuading planning departments to negotiate planning conditions prior to the grant of planning permission, and proposes some solutions. It is important that there is an acceptance by the government that a ‘last minute’ culture has been forced upon local authorities because funding for planning resources have been cut to the bone.
The Committee’s call for a legislative clarification or reversal of the Whiteley principle would be welcomed by developers and planning lawyers alike. It is unhelpful that while specific exceptions apply, the position is that without reform, serious legal uncertainties will continue to arise about the valid implementation of development where there is a failure to comply with pre-commencement planning conditions.
The Committee’s response includes the proposal that financial payments by developers to local authorities should be permitted by condition in cases where the applicant agrees. It is a superficially attractive option, but the Government’s preference is to ensure that the passing of cash to local authorities for the mitigation of development flows from specific statutory authority. Government policy and the legislation means that the passing of consideration remains tied to publicly available contractual agreements or undertakings that are required to meet minimum standards of information. It is difficult to see how the introduction of financial planning conditions will provide greater certainty, accountability or flexibility than planning obligations.
The main advantage, or perhaps the only advantage, of the legislative scheme at present is the relative clarity in terms case law about their application, legal boundaries and modification. At times that means the planning obligation negotiation process is frustrating, unhelpful and unwieldy. Delay is a problem, but advocates of a replacement must also consider the broad consequences of change in addition to a ‘quick win’ of speedy delivery.
One only has to consider the grief and tribulation caused by the introduction of the Community Infrastructure Levy (CIL) since 2010, to understand precisely why more tinkering with financial contributions could result in far more legal heat than light. The Government envisaged CIL would speed up the planning process by streamlining financial payments. It is inevitable that any new system linked to planning conditions would require a great deal of time and guidance before it would become a sensible and certain basis for making payments.
The making of financial payments through attaching a specific planning condition would have to be consistent with the need to ensure transparency, public confidence and business sense. For example, how would developers react to being told that they were unable to enforce a planning condition in cases where a financial contribution was not translated into school improvements or playing fields upgrades at the right time and in the right place? Is the Magistrates’ Court or the planning inquiry the place to deal with the disputes about whether or not financial conditions have been discharged?
Much of the delay in the negotiation of planning obligations is associated with planning obligations that among other things aim to ensure delivery of mitigation other than financial contributions. If this non-financial mitigation is a factor in the level of financial contribution in any event then there may still be a delay in sorting out the details of the planning obligation and hence the release of the notice of planning permission.
The reform of financial contributions by the use of planning conditions is a longstanding ambition of many; the delivery of faster planning permissions is a laudable objective. If that policy is to be successful then serious homework is needed before the Government makes the change advocated by the Committee. A move towards a new ‘financial planning condition’ could result in a false dawn. Were it to be hastily introduced as a single measure without comprehensive consideration it might herald unwelcome side effects; a risk of complex litigation and law around planning conditions; a failure to resolve other causes for delays to the processing of planning applications; result in the disassociation of a balance between financial contributions and other mitigation; and a diminution in the scope for accountability and enforceability.