SPECIAL FEATURE: Planning Bill - in a nutshell

The Planning and Reform Bill, currently under detailed scrutiny by a Commons committee, is one of three pieces of legislation which are central to the Government's aspirations.

Alongside the Bills on climate change (already published) and energy (due this month) it represents one of the pillars of the current legislative programme.

Its importance rests pre-eminently on the fact that it sets out a new single regime for handling key infrastructure projects – power stations, reservoirs, airports, railways, wind farms, waste projects and so on – and establishes a new body, called the Infrastructure Planning Commission.

Crucially, the Bill also provides the enabling powers to establish the Community Infrastructure Levy which will give local authorities the ability to "charge" developers to help fund new infrastructure provision. At this stage the Bill contains enabling clauses and more detail on exactly how the new charging regime will work will be set out in due course.

In the past a "planning charge" and until recently a "planning gain supplement", had been considered. These are now superseded by CIL whose revenue importantly will not be collected centrally.

There are a number of other elements in the rest of the Bill. Some are "tidying up measures" following the last major example of planning legislation, the Planning and Compulsory Purchase Act 2004.

The Bill, for instance, gives local planning authorities more flexibility over the preparation of the new-look local development plans. And it places a duty on local planning authorities when preparing their development plan documents to include policies in relation to the development and use of land which have the effect of mitigating and adapting to climate change.

It also sets out changes to the appeals system – including for the first time the setting of fees to cover the cost of appeals.

An altogether new procedure is set out whereby applications frequently delegated to officers could be reviewed by members but critically with no right of appeal to the Planning Inspectorate. This would involve the establishment of Local Member Review Bodies (LMRBs).

In summary on the appeals front the bill enables the Planning Inspectorate (on behalf of the Secretary of State) to determine the appeal method; introduce an appeal fee and provide for the establishment of LMRBs.

The Government is also considering introducing further measures to:

• enable the SoS or her inspectors to correct minor errors in appeal decisions without obtaining the consent of the applicant/landowner(s)
• progress the changes earlier proposed to improve the lawful development certificate and enforcement appeals processes.
  Secondary legislation is anticipated so that the Government can:
• fast-track householder and tree preservation order (TPO) appeals
• prescribe in more detail the nature and content of appeal documents
• strengthen the power of the SoS and her inspectors to refuse to consider  new material at appeal
• strengthen the ability of the Planning Inspectorate to fix hearing and inquiry dates
• shift the submission of the Statement of Common Ground to an earlier stage in the appeal process
• remove the nine-week comment stage for hearings and inquiries
• reduce the time limit for appealing against a planning decision where there is an enforcement notice relating to the same development so that appeals can be linked.

Secondary legislation will also be required to give full effect to many of the provisions on the face of the Bill. This may involve revisions to the Town and Country Planning (General Development Procedure Order 1995); revisions to existing rules and regulations; new regulations (e.g. for appeal fees and LMRBs and fast-tracking householder and TPO appeals); and a revised Award of Costs Circular.

With the exception of the secondary legislation for LMRBs and an appeal fee, the Government is currently hoping to implement all the Bill's measures by October 2008. Consultation on the regulations for appeal fees and LMRBs is anticipated in late 2008. The secondary legislation needed for these measures could follow in April 2009. Ministers would like to establish LMRBs across the country by 2010.

As indicated earlier, central to the Bill is a new regime for the approval of major infrastructure projects which are described as having "national significance".

Currently most of these projects are decided by a Secretary of State under eight different acts, separate from the town and country planning regime.

Traditionally these have involved a public inquiry, chaired by an inspector (sometimes a top legal figure) the preparation of a report and recommendations which are sent to the SoS who determines the application, not necessarily in line with the recommendations.

Under the proposed procedures set out in the Bill the regime would be radically different and, ministers hope, faster.

In a nutshell the regime would work like this. The Government would issue national policy statements in the relevant policy areas. This would be after public consultation and Parliamentary scrutiny (the expectation is that a new Parliamentary Select Committee would be formed specifically for this purpose).

Subsequently the application for development consent would be decided by the Infrastructure Planning Commission (IPC), a panel of experts who would hear the evidence as well as taking the final decision.

There would be no right of appeal against the decision of the IPC, except by judicial review in the High Court. These new arrangements would cover projects in the fields of energy, transport, water, waste water and waste. The SoS, rather than the IPC, would be able to decide on an application only in exceptional and very proscribed circumstances.

There would be a time limit of nine months from the end of the preliminary meeting, between the promoter and the IPC, to the decision by the IPC (unless the commission specifically varied it and notified the SoS). However, promoters would be expected to do more preparation on their applications than often is the case at present before submitting them to the IPC. This would include a comprehensive programme of public consultation.

The Bill's remit only extends to England and Wales, except in the case of an oil or gas pipeline crossing into Scotland, when it also applies to Scotland.

Ministers are under no illusion that the measures will have an easy Parliamentary ride. The Conservatives have complained that the Bill will see powers taken away from local communities to unaccountable "and unsackable bureaucrats".

Eric Pickles MP said: "Any fool can see the planning system needs reform – but the voice of local communities must be preserved and a democratic, accountable process must be maintained. We will strongly oppose plans for a new central planning quango."

The Liberal Democrats are also uneasy. Tom Brake MP commented: "There's a real risk that this Bill, in its search for faster planning decisions, will allow local residents' concerns to be bulldozed out of the way. We need to guard against a planning commission whose decisions will be less democratic, less transparent and less representative of local communities' views."

Ministers have repeatedly insisted that the new proposals come laden with opportunities for public consultation and industry, businesses and the planning profession are generally supportive of the reforms.

Communities Secretary Hazel Blears has said: "Through quicker and high quality decisions our Planning Bill will help deliver on the Government's long-term vision for Britain in relation to housing, climate change, energy security, transport provision, and prosperity and quality of life for all.

"The new measures show that it is possible to deliver not only a faster and more efficient planning system, but high quality decisions with greater community involvement.

"There will always be controversial projects that stir opinion and require difficult judgements to be made. However, having a stronger system will ensure all opinions – particularly those of the public are heard sooner. Making good judgements in less time is of benefit to everyone. Long-lasting stalemates that finally stagger to a conclusion are no good for anyone."

However, a coalition of conservation, environmental and civic organisations (supported by five million people and including the Campaign to Protect Rural England, the Civic Trust, Friends of the Earth, The Wildlife Trusts, the National Trust and the Royal Society for the Protection of Birds) have yet to be persuaded that the new commission and regime is the way forward.

Read the Communities and Local Government briefing on the Planning Bill

Roger Milne

10 January 2008