Key Planning Law Changes in the latest amendments to the Planning and Infrastructure Bill
A raft of 67 new amendments to the Planning and Infrastructure Bill (“PIB”) was tabled earlier this week by the Minister for Housing, Communities and Local Government (“MHCLG”). The amendments present a substantial package of proposed changes, some of which introduce entirely new provisions. In its press release accompanying the amendments, MHCLG refer to the changes as a “pro-growth package” with the aim of getting Britain building faster.
The amendments have come late in PIB’s passage through parliament. Having now passed through the House of Commons, and progressed through the Committee stage in the House of Lords, the PIB is due to enter the Report stage in the Lords on Monday 20 October, where these amendments and any further changes will be the subject of scrutiny and debate. Further hearing dates are set for 22, 27 and 29 October. In anticipation of this next stage, the below sets out a summary of some of the key amendments.
Automatic extensions to implementation periods for challenged decisions
This amendment would amend the Town and Country Planning Act 1990 to allow for extensions of the implementation period for planning permissions when a legal challenge has been made against the grant of that permission
The extensions that would automatically apply depend on the forum in which the challenge is made:
High Court: if permission is granted to bring a legal challenge in the high court, the implementation period would be extended by one year.
Court of Appeal: if permission is granted to appeal a decision/ consent, the period would be extended by a further two years.
Supreme Court: if permission is granted to appeal to the Supreme Court, the period would be extended by a further two years
Extensions would only apply if the challenge proceeds to a full hearing: refusals of permission would not trigger an extension.
A similar amendment is proposed which would introduce an automatic extension of time for submitting reserved matters applications and commencing development under outline planning permissions if that permission is challenged. The proposed extensions of time are the same as above.
Changes to the deemed grant of listed building consents
The proposed replacement of Clause 41 of the PIB with a new clause would allow the Secretary of State (or Welsh Ministers) to grant deemed listed building consent at the same time as planning permission for works under the Transport and Works Act 1992, with the aim of streamlining the process by removing the need for separate applications.
The duty to have ‘special regard’ to the desirability of preserving listed buildings, their settings and features of special architectural or historic interest when deciding whether to grant planning permission would extend to apply to decisions to grant deemed planning permission under the Transport and Works Act.
Requirement for Reasons by Secretary of State in respect of s55 Applications
This amendment would require the Secretary of State, when deciding not to accept a Development Consent Order application under s55 Planning Act 2008, to publish a statement of reasons for reaching that decision.
Restriction of Natural England’s role in the Planning system
A new amendment would allow Natural England to decline requests for advice from local authorities (but not from Ministers) on specific planning matters where it has published a statement setting out how it would respond to such requests. Any such statement would need to be reviewed every five years in consultation with the Secretary of State.
While Natural England may still choose to respond to requests, the effect of this amendment may limit Natural England’s involvement in certain planning matters by removing the legal requirement for it to respond to all nature-related planning query received from local authorities.
Review of water infrastructure Nationally Significant Infrastructure Projects
An expansion of the definition of Nationally Significant Infrastructure Projects (“NSIPs”) under the Planning Act 2008 would see certain water-related developments included when they are carried out not only by water undertakers but also by third parties appointed by them.
Use of forestry estate for renewable electricity projects
Clause 28 of the PIB as currently drafted allows for forestry estate (held by the Forestry Commission in England and the Natural Resources Body for Wales in Wales) to be used for applications for renewable electricity projects subject to NSIP regime consents as required.
The proposed amendments remove the application of this clause to Wales, and make changes to the way this would operate in England, including giving the Secretary of State power to require consent for renewable energy projects over certain capacity thresholds.
Controls on onshore wind projects
A new amendment would allow the Secretary of State to make regulations for planning permissions for windfarms that would risk interfering with defence related seismic array systems. This may involve the creation of exclusion and restriction zones around such systems, and allows the Secretary of State to block applications or development orders in sensitive areas.
Local Area Energy Plans
Under a new amendment, the Government would be required to lead a national programme to develop a framework for Local Area Energy Plans which would help local and combined authorities plan electricity infrastructure and help support decarbonisation and strategic energy planning.
Restriction on local authorities’ ability to refuse applications
This amendment would enable the Secretary of State to give directions which would restrict a local planning authority’s ability to refuse to grant planning permission in certain circumstances while ministers consider whether to use call-in powers on those applications.
This would depart from the current rules, under which holding directions can only be issued on planning applications when the local authority is due to approve that application.
Duty to give special regard to climate change mitigation and adaptation in planning
A new clause would place a legal duty on the Secretary of State and planning authorities to give special regard to climate change mitigation (including the target of net-zero by 2050 as set out in the Climate Change Act 2008) and adaptation when preparing national planning policy, local-plan making and planning decisions.
Further changes to Environmental Delivery Plans
An amendment would require Natural England to consult its Welsh or Scottish Counterparts and Welsh or Scottish Ministers where a draft Environmental Delivery Plan (“EDP”) covers development in England but which may also have an impact on a protected site in Wales or Scotland.
A further amendment would prevent Natural England including, in an EDP, network conservation measures for an affected site not located in England.
Nutrient regulation
A new proposed clause would allow the Secretary of State to issue regulations concerning the impact of nutrients in water on protected habitat sites in England. Such regulations would apply to nutrient-affected catchment areas linked to habitat sites and would need to be made prior to 31 March 3030.
Health in Planning
New clauses would aim to embed a statutory duty for health promotion and inequality reduction into planning law by placing a legal duty on the Secretary of State to consider public health and health inequalities when making decisions under planning legislation, aligning with similar provisions in the English Devolution and Community Empowerment Bill.
Code of Practice for Compulsory Purchase Orders
One amendment proposes that the Secretary of State publish a code of practice governing the use of compulsory purchase powers for planning and development, with the aim of ensuring that all acquiring authorities and their agents follow the normal code of conveyancing practice exercised by a willing seller and willing buyer.
Ramsar Sites
An amendment correcting Schedule 6 would ensure that Habitat Regulations protections apply to all Ramsar sites affected by plans or projects in England, not just those located within England.
The extent to which these amendments, in addition to previously proposed changes (running list as at 13 October available here), make it into the final iteration of the PIB will depend on further changes made at the Report stage, Third Reading or through the Consideration of Amendments process. The publication of a large volume of amendments this late in the legislative process means that close parliamentary scrutiny of the changes will be required through the forthcoming stages, starting on Monday.
