The Planning Bill is proceeding smoothly through parliament, despite many unanswered questions and a worrying amount of vagueness …
The Planning Bill is nearing the end of the committee stage in the House of Commons. Given that the subject is a charged one, it is surprising that the bill seems to have been given a fairly easy ride so far. Aside from some hamming in the early debates, the Conservatives have been guarded in their criticisms. They are behind the push for nuclear power stations – something the bill is supposed to help deliver in short order – and appear anxious not to be seen as anti-business.
One of the key claims for the bill is that it will speed up the delivery of major projects. This was also the basis on which the 2004 changes were introduced, although the local government minister, in his remarks to the committee, acknowledged that the current system was “simply… not up to the task”.
It is true that, for the first time, the decision-maker on major applications – the new Independent Planning Commission (IPC) – will be subject to a nine-month deadline for making decisions on applications, but even so the bill includes a power to extend this. That is something that might well happen in a large number of applications for a number of reasons. First, resources: it was originally envisaged that the IPC would be dealing with about 10 applications a year. That has now increased to 45 a year.
Second, the IPC will have to devote much more time to the process than is currently the case with, for example, the Planning Inspectorate. Unlike the Planning Inspectorate, the IPC will be heavily involved in managing the pre-application process as well as taking the lead role in questioning parties at hearings.
Third, the bill tries – not altogether successfully – to straddle a difficult line between accelerating the timetable for considering applications and giving everyone the right to be heard.
Large infrastructure projects can generate thousands of objections, and although the IPC will have the power to exclude objectors who repeat others’ objections, is it realistic to expect commissioners to do so on a large enough scale and risk a challenge on human rights grounds? Are they not more likely to err on the side of caution and allow objectors to be heard, thereby running the risk that decisions will not be made within the statutory time limits or taking the opportunity to extend them?
The other big area of concern coming out of the committee’s deliberations is the proposed Community Infrastructure Levy (CIL). The provisions in the bill are skeletal only and the detail remains to be fleshed out in the regulations. Last week the government published a consultation paper on the CIL, but it remains very vague.
The bill tries to accelerating the timetable while giving everyone a right to be heard
Concern has been focused on references in the bill to the calculation of the levy based on the increase in value attributable to the grant of planning permission. Commentators have argued that that sounds, on the face of it, like a development tax.
The difficulty of assessing value uplifts was one of the principal reasons the planning gain supplement was so unpopular. What precisely the government has in mind now remains unclear. The minister for housing told the committee: “The approach is not to try to assess the value of every single piece of land … but it also needs to take account of viability across the area.”
However, the consultation paper continues to hold out the possibility of valuing individual plots, while referring, somewhat delphically, to continuing discussions on alternatives.
The bill is also silent on the interaction between the CIL and planning obligations. The government is seeking views on whether there should be a statutory boundary between the two, but in the absence of this, it’s quite possible that a new dual system of levy and planning agreements will complicate and bog down the planning process.
The jury remains out on this Big Bang approach to reform. What is clear is that they have got to work if the government is to achieve its ambitious aims in energy and sustainability in the timescales it has set itself.
Michael Hutchinson is partner at Mayer Brown International