Planning Act 2008

1. Planning Act 2008 Strategic Planning and Housing Scrutiny Sub-Group Wednesday 8 April 2009

2. Background • Gained Royal Assent on 26 November 2008 • Implementation of its provisions will be gradual • Large parts of previous acts remain in place, e.g. • Town and Country Planning Act 1990 • Planning and Compulsory Purchase Act 2004

3. Overview • Key elements: • Nationally significant infrastructure projects (NSIPs) • Community Infrastructure Levy (CIL) • Minor changes relating to: • Regional planning • Local planning policy • Climate change and design • Development management

4. NSIPs • Covers major proposals relating to: • Electricity generation and transmission • Gas storage, reception and transport • Highways (where SoS is/would be the highway authority) • Airports • Ports • Railways and rail freight interchanges • Dams, reservoirs and water transfer • Waste water treatment • Hazardous waste facilities

5. NSIPs (2) • Single development consent order replacing need for applications under various legislation • Intended to create a “faster and fairer process for taking the big decisions that affect our national infrastructure” (Margaret Beckett) • Application to decision expected to be less than 1 year • Reduce cost by c£5 million for nuclear application • NSIPs often cross local authority boundaries • Detailed regulations to come (Oct 2009 and Apr 2010) • Smaller infrastructure projects will continue to be determined under current arrangements

6. NSIPs (3) • Infrastructure Planning Commission (IPC): • NSIP applications will be made to and determined by the IPC • Will have powers to authorise compulsory purchase of land • Independent body of experts = non-departmental public body operating at arms length from government • Sir Michael Pitt confirmed as chair • Will be established from October 2009, with an interim body ahead of that • Will be based in Bristol • Won’t be ready to accept applications until April 2010

7. NSIPs (4) • National Policy Statements (NPSs) • Will detail national infrastructure priorities on issues such as energy, aviation, road and rail transport, water, and waste • NSIP applications must be determined in accordance with NPSs • Cannot challenge the principle of the infrastructure at application stage if it has been agreed through a National Policy Statement • Focus when determining applications will therefore be on local impacts • May specify locations for some infrastructure as well as general principles, scale and locational criteria • Will be subject to public consultation • Consultation on first NPSs expected in Summer 2009 (non-nuclear energy and ports)

8. NSIPs (5) • Pre-application • Applicant consults with the relevant local authorities, local communities and other key stakeholders • Applicant conducts an Environmental Assessment, if required • Applicant and the relevant local authorities prepare and publish a statement explaining how the local community will be consulted after application made • Regulations will provide more details of minimum consultation and pre-application requirements (draft published Mar 2009) • Application • Local authority must produce a ‘local impact report’ • Likely to require outside assistance • Who funds it?

9. NSIPs (6) • Examination • IPC considers whether relevant adverse local consequences outweigh the national interest identified in the NPS • All interested parties will have the right to be heard • But may be in an open forum and not to cross-examine • Extra funding for Planning Aid to assist local communities • Applications dealt with either by a Panel or a single commissioner • Regulations will provide more detail on the examination procedure

10. NSIPs (7) • Decision • Secretary of State only makes the final decision if the development is not covered by a National Policy Statement • SoS can also intervene if significant change in circumstances since the relevant NPS was published • Otherwise all decisions made by the IPC not ministers • Local authorities responsible for enforcement of conditions • IPC responsible for applications to vary conditions

11. Community Infrastructure Levy • Charge on most types of development to help fund new infrastructure • Local authorities are empowered but not required to use it • Cannot be used until Regulations are in place • Consultation expected in Summer 2009 • Final version expected 1 October 2009 • Must have an up-to-date development plan

12. Community Infrastructure Levy (2) • Charging schedule • Sets rates and/or other criteria for determining the amount of CIL to be charged for each type of development • Must have regard to the expected costs of infrastructure, the availability of other funding, and economic viability • Charge calculated at the time planning permission first permits development • Payment on commencement? • Will be subject to consultation and an independent examination by a planning inspector • Could be produced sub-regionally • Regional planning body could seek to call on part of the CIL

13. Community Infrastructure Levy (3) • Relationship to ‘planning obligations’ (section 106 agreements) • Unlike s106, infrastructure funded by CIL does not need to be directly related to the development paying it • CIL provides more certainty for developers • CIL can apply to a wider range of developments, including single houses • No requirement to use CIL, so could continue to rely on s106 but narrower scope than CIL • S106 will continue to be used for affordable housing and site-specific requirements • CIL is a requirement, whereas s106 is a negotiation

14. Other issues • Allows for the regional planning body to allow the RDA to exercise any of its regional planning body functions • Supplementary Planning Documents (SPDs) no longer need to be listed in the Local Development Scheme (LDS) or be subject to a sustainability appraisal • Statement of Community Involvement no longer needs to be listed in the LDS or be subject to independent examination • RSS and Local Development Documents must: • Contribute to the mitigation of, and adaptation to, climate change • Have regard to the desirability of achieving good design

15. Other issues (2) • Introduces power to make non-material changes to planning permissions • Currently treated as ‘working amendments’ • Will require a formal application • Approval can be conditioned • Simpler process than amending permission under current rules, but still needs to be consultation/publicity • Won’t be implemented before April 2010 • Considering additional legislation relating to minor material amendments to planning permissions (see Government response to the Killian-Pretty Review)

16. Planning and Energy Act 2008 • Allows local authorities to impose reasonable requirements in their development plans for: • A % of energy used in development to be from renewable and/or low carbon energy sources in the locality • Development to comply with energy efficiency standards that exceed the energy requirements of building regulations • Gives legislative backing to approaches already being trialled by some local authorities • No requirement to use such an approach • Must be ‘reasonable’, e.g. economic viability issues

17. Legal challenge? • Both NSIP and CIL arrangements could result in a large number of legal challenges, e.g. • Human Rights implications of NSIP arrangements • Process followed for producing NPSs (see for example recent legal challenge to Heathrow third runway) • Developers funding local impact reports • Can CIL be justified if local authority funds available?