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The ever changing face of planning law

8th October, 2012

The government has decided that changes to the planning system are to play a key role in revitalising the economy. In particular the provision of more housing and the opportunity to enable more development (and by implication generate work for the flagging building and construction industries) is a thread running through a number of recent decisions.

We are told that there is a need to provide new houses and lots of them. The government is  keen to blame the red tape and bureaucracy of the planning system (and  planning officers) as the evil which is preventing the industry producing the much needed new housing.

Against this there are many land banked sites with the benefit of planning permission which are not being developed because the conditions or planning obligations which were

negotiated in a much more fruitful time make the sites economically unviable.

In response to this the government is currently negotiating on proposals to allow developers to look to renegotiate these agreements where they were entered into before the 6 April 2010. Under the current legislation you cannot seek to renegotiate such agreements within 5 years of the date of them being agreed if the local landing authority do not agree to do so.

In respect of relevant agreements, if the local planning authority do not agree to negotiate to a revision then the developer can appeal to the Planning Inspectorate.

Alternatively it is suggested that developers, burdened with an obligation to provide an excessive amount of affordable housing,  could go straight to the Planning Inspectorate to seek a review of the number of affordable housing units that would need to be provided on the basis that the requirements imposed by the local planning authority make the development unviable. The planning inspectorate could set aside any existing agreement and approve a reduced number of affordable housing units. This reduced commitment  would last for three years.

Section 106 obligations are still the main tool open to planning authorities to ensure that sufficient affordable housing is provided in respect of any housing or mixed use development.

The effect of these negotiations on the provision of affordable housing or other infrastructure payments is unclear but, is it really acceptable to push forward with the building of houses for the private sector without providing for all of the necessary social and other infrastructure that is so clearly needed by the country?

With a little sense of déjà vu all I can really say is “here we go again”.

Practitioners will recall that in England (but not in Wales) the government decided that it would be sensible to remove the right to extend the life of a planning permission by using an application to vary conditions under Section 73 of the 1990 Planning Act. They soon saw the sense of amending that approach and relaxed the position so that  unimplemented permissions pre dating 1 October 2009 could be extended.

Under  the government’s new proposals the position will be relaxed to allow those permissions granted before the 1st October 2010 to be extended – provided that they have not yet been implemented.

Although the need to submit documents supporting the application as well as consulting on the proposed extension are relaxed,  how extending existing permissions will tie in to the reconsideration of any planning obligations on the original permission is unclear.

What hasn’t been addressed is why local planning authorities cannot be given free reign to consider any extension to any planning permission where the circumstances make it appropriate to do so. So will we be back here next year when the key date is likely to be the 1st October 2011?

It’s not surprising that the government are proposing to relax permitted development rights in an attempt to push people and businesses into growing, extending and redeveloping their property.

The proposed changes, which were referred to in a speech by the Secretary of State, Eric Pickles, will see homeowners given the right to further extend their properties without the need to obtain a planning permission. It is suggested that these changes will only last for a limited period (three years).

Given the amount of bad feeling ill thought out extensions can create, it is a surprising proposal given that the benefit to the building industry of a wave of new house extensions is surely minimal at best whilst local communities are likely to be up in arms about large extensions they have no say over controlling.

Other consultations include extending the period for temporary changes of use from 28 days to 2 years for low impact uses, allowing hotels and boarding houses to convert to dwellings and to allow increased opportunities for businesses to change floor space within  office, industrial an storage and warehousing uses.

Also, as from the 1st October 2012 you will be able to create 2 flats, rather than 1, over shops in previous office or storage space.  The aim is to create more footfall in town centres and increase the number of available homes. From 2013 it is also expected that there will be a further relaxation allowing the conversion of commercial premises to residential.

These changes only apply in England with Wales going its own way. How effective the changes will be is uncertain and on the surface looks like more tinkering with the system rather than producing a new step change in freeing up and encouraging development.

The government’s starting point for changing the planning system was that it wanted more decisions on development to take place at a local level guided by communities and the people who live in them rather than by red tape and bureaucracy imposed from central

Government. We have localism, neighbourhood plans, community right to build orders and the potential ownership of community assets by the community.

Against that we have a sudden retrenchment of power being retained by central government and one of its more important quangos, the Planning Inspectorate. As well as proposing that the Planing Inspectorate will be the final arbiter on whether or not affordable housing numbers make a scheme viable or not, it is now suggested that where planning authorities under perform, developers will be able to sidestep the normal planning process and go straight to the Planning Inspectorate for a decision; local decision making by local people? Added to this, it is suggested that planning inspectors will be given more powers to award costs where it is clear that an application has not been handled with “due process”. Again, a further focus on planners and the planning authority being blamed for the performance of the planning system.

And finally, we have been promised a new Bill which will set out how the government plans to speed up the planning process. There is no sign of it on the horizon as yet but the government is only just coming out of summer recess. As soon as it appears we will give you a further update on its implications for the planning system.

Will the changes proposed bring the regeneration and economic uplift the country clearly needs? Given the radical changes to the planning system since the government came to power, and the limited effect that has had on restarting development, it is far from clear how far the rules will need to be changed before any significant results accrue. Until then we will just have to hold on for the ride. Uncertainty never supports investment, and investment seems to be the real key to unlocking development. Perhaps what we really need is for the government to stop changing things for a while so that everyone, developers, planners and the communities affected, can understand what is really going on.


Aaron & Partners LLP will be hosting a number of seminars in early November to look at where, if anywhere, the government has decided to go on these proposed changes to the planning system. The purpose of this article is to highlight some of the proposed changes that we hope to look at during the seminars.

Click here for further information on our upcoming seminars

For any other enquiry on Planning Law, contact David Kerfoot at [email protected] or 01244 405538.



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