Growth and Infrastructure Bill (HL Bill 85)

Promoting growth and facilitating provision of infrastructure, and related matters

1 Option to make planning application directly to Secretary of State

(1) In the Town and Country Planning Act 1990, after section 62 insert—

“62A When application may be made directly to Secretary of State

(1) 5A relevant application that would otherwise have to be made to the
local planning authority may (if the applicant so chooses) be made
instead to the Secretary of State if the following conditions are met at
the time it is made—

(a) the local planning authority concerned is designated by the
10Secretary of State for the purposes of this section; and

(b) the development to which the application relates (where the
application is within subsection (2)(a)), or the development for
which outline planning permission has been granted (where the
application is within subsection (2)(b)), is of a description
15prescribed by the Secretary of State.

(2) In this section “relevant application” means—

(a) an application for planning permission for the development of
land in England, other than an application of the kind described
in section 73(1); or

(b) an application for approval of a matter that, as defined by
5section 92, is a reserved matter in the case of an outline planning
permission for the development of land in England.

(3) Where a relevant application is made to the Secretary of State under
this section, an application under the planning Acts—

(a) that is—

(i) 10an application for listed building consent, or for
conservation area consent, under the Planning (Listed
Buildings and Conservation Areas) Act 1990, or

(ii) an application of a description prescribed by the
Secretary of State,

(b) 15that is considered by the person making the application to be
connected with the relevant application,

(c) that would otherwise have to be made to the local planning
authority or hazardous substances authority,

(d) that is neither a relevant application nor an application of the
20kind described in section 73(1), and

(e) that relates to land in England,

may (if the person so chooses) be made instead to the Secretary of State.

(4) If an application (“the connected application”) is made to the Secretary
of State under subsection (3) but the Secretary of State considers that it
25is not connected with the relevant application concerned, the Secretary
of State may—

(a) refer the connected application to the local planning authority,
or hazardous substances authority, to whom it would otherwise
have been made, and

(b) 30direct that the connected application—

(i) is to be treated as having been made to that authority
(and not to the Secretary of State under this section), and

(ii) is to be determined by that authority accordingly.

(5) The decision of the Secretary of State on an application made to the
35Secretary of State under this section shall be final.

(6) The Secretary of State may give directions requiring a local planning
authority or hazardous substances authority to do things in relation to
an application made to the Secretary of State under this section that
would otherwise have been made to the authority; and directions
40under this subsection—

(a) may relate to a particular application or to applications more
generally; and

(b) may be given to a particular authority or to authorities more
generally.

(7) 45None of the following may be designated for the purposes of this
section—

(a) the Homes and Communities Agency;

(b) the Mayor of London;

(c) a Mayoral development corporation;

(d) an urban development corporation.

(8) The Secretary of State must publish (in such manner as the Secretary of
State thinks fit)—

(a) the criteria that are to be applied in deciding whether to
5designate an authority for the purposes of this section;

(b) the criteria that are to be applied in deciding whether to revoke
such a designation;

(c) any designation of an authority for the purposes of this section;
and

(d) 10any revocation of such a designation.”

(2) Schedule 1 (amendments related to applications made under the new section
62A, including provision for such applications to be determined by a person
appointed for the purpose unless the Secretary of State otherwise directs) has
effect.

2 15Planning proceedings: costs etc

(1) In section 320 of the Town and Country Planning Act 1990 (local inquiries), at
the end insert—

“(3) In its application by subsection (2) to an inquiry held in England,
section 250(4) of that Act has effect as if—

(a) 20after “the costs incurred by him in relation to the inquiry” there
were inserted “, or such portion of those costs as he may direct,”,
and

(b) after “the amount of the costs so incurred” there were inserted
“or, where he directs a portion of them to be paid, the amount
25of that portion”.”

(2) In section 322 of that Act (orders as to costs of parties where no local inquiry
held), after subsection (1A) insert—

“(1B) Section 250(4) of the Local Government Act 1972 applies to costs
incurred by the Secretary of State, or a person appointed by the
30Secretary of State, in relation to proceedings in England to which this
section applies which do not give rise to a local inquiry as it applies to
costs incurred in relation to a local inquiry.

(1C) In its application for that purpose, section 250(4) of that Act has effect
as if—

(a) 35after “the costs incurred by him in relation to the inquiry” there
were inserted “, or such portion of those costs as he may direct,”,
and

(b) after “the amount of the costs so incurred” there were inserted
“or, where he directs a portion of them to be paid, the amount
40of that portion”.

(1D) Section 42 of the Housing and Planning Act 1986 (recovery of
Minister’s costs) applies to costs incurred in relation to proceedings in
England to which this section applies which do not give rise to a local
inquiry as it applies to costs incurred in relation to an inquiry.”

(3) 45In section 322A of that Act (costs orders: supplementary), after subsection (2)

insert—

“(3) Where this section applies in the case of an inquiry or hearing which
was to take place in England but did not, section 250(4) of that Act
applies to costs incurred by the Secretary of State or a person appointed
5by the Secretary of State as if—

(a) in the case of an inquiry, the inquiry had taken place;

(b) in the case of a hearing, the hearing were an inquiry which had
taken place.

(4) In its application for that purpose, section 250(4) of that Act has effect
10as if—

(a) after “the costs incurred by him in relation to the inquiry” there
were inserted “, or such portion of those costs as he may direct,”,
and

(b) after “the amount of the costs so incurred” there were inserted
15“or, where he directs a portion of them to be paid, the amount
of that portion”.

(5) Section 42 of the Housing and Planning Act 1986 (recovery of
Minister’s costs) applies to costs incurred in relation to a hearing of the
kind referred to in subsection (1) or (1A) which was to take place in
20England but did not as it applies to costs incurred in relation to an
inquiry which was to take place but did not.”

(4) In section 322B of that Act (local inquiries in London: costs), in the subsection
set out in subsection (5)—

(a) after “the costs incurred by the Secretary of State in relation to the
25inquiry” insert “, or such portion of those costs as he may direct,”, and

(b) after “the amount of the costs so incurred” insert “or, where he directs
a portion of them to be paid, the amount of that portion”.

(5) In section 323 of that Act (power to make provision about procedure in cases
where no inquiry or hearing etc), after subsection (3) insert—

“(4) 30Regulations made by the Secretary of State under this section may
include provision as to the circumstances in which, in proceedings in
England such as are mentioned in subsection (1) or (1A)—

(a) directions may be given under section 250(4) of the Local
Government Act 1972 as applied by a prescribed provision of
35this Act;

(b) orders for costs may be made under section 250(5) of that Act as
so applied.”

(6) In section 9 of the Tribunals and Inquiries Act 1992 (power to make provision
about procedure in inquiries and hearings), after subsection (3) insert—

“(3ZA) 40Rules made by the Lord Chancellor under this section may include
provision as to the circumstances in which, in statutory inquiries held
in England—

(a) directions may be given under section 250(4) of the Local
Government Act 1972 as applied by a provision of the Town
45and Country Planning Act 1990 specified in the rules;

(b) orders for costs may be made under section 250(5) of the Local
Government Act 1972 as so applied.”

(7) In Schedule 6 to the Town and Country Planning Act 1990 (determination of
certain appeals by person appointed by the Secretary of State), in paragraph 2,
after sub-paragraph (10) insert—

“(11) The Secretary of State may, if he thinks fit, direct that anything in
5connection with an appeal in England to which this section applies
which would otherwise fall to be done by an appointed person shall
instead be done by the Secretary of State.”

3 Compulsory purchase inquiries: costs

In section 5 of the Acquisition of Land Act 1981 (public local inquiries), after
10subsection (3) insert—

“(4) In relation to each of the matters mentioned in paragraphs (a) and (b)
of subsection (3), section 250(5) of the Local Government Act 1972 also
applies—

(a) where arrangements are made for a public local inquiry to be
15held in England in pursuance of this Act but the inquiry does
not take place;

(b) to the costs of a party to a public local inquiry held in England
in pursuance of this Act who does not attend the inquiry.”

4 Permitted development rights for changes of use: prior approvals

(1) 20In section 60 of the Town and Country Planning Act 1990 (planning permission
granted by development order) after subsection (2) insert—

“(2A) Without prejudice to the generality of subsection (1), where planning
permission is granted by a development order for development
consisting of a change in the use of land in England, the order may
25require the approval of the local planning authority, or of the Secretary
of State, to be obtained—

(a) for the use of the land for the new use;

(b) with respect to matters that relate to the new use and are
specified in the order.”

(2) 30In section 70A(5) of that Act (“relevant application” includes an application for
approval under section 60(2)) after “60(2)” insert “or (2A)”.

5 Limits on power to require information with planning applications

In section 62 of the Town and Country Planning Act 1990 (applications for
planning permission) after subsection (4) (limitation of power under section
3562(3) to require inclusion of particulars and evidence in an application) insert—

“(4A) Also, a requirement under subsection (3) in respect of an application for
planning permission for development of land in England—

(a) must be reasonable having regard, in particular, to the nature
and scale of the proposed development; and

(b) 40may require particulars of, or evidence about, a matter only if it
is reasonable to think that the matter will be a material
consideration in the determination of the application.”

6 Modification or discharge of affordable housing requirements

(1) After section 106B of the Town and Country Planning Act 1990 insert—

“106BA Modification or discharge of affordable housing requirements

(1) This section applies in relation to an English planning obligation that
5contains an affordable housing requirement.

(2) A person against whom the affordable housing requirement is
enforceable may apply to the appropriate authority—

(a) for the requirement to have effect subject to modifications,

(b) for the requirement to be replaced with a different affordable
10housing requirement,

(c) for the requirement to be removed from the planning
obligation, or

(d) in a case where the planning obligation consists solely of one or
more affordable housing requirements, for the planning
15obligation to be discharged.

(3) Where an application is made to an authority under subsection (2) and
is the first such application in relation to the planning obligation—

(a) if the affordable housing requirement means that the
development is not economically viable, the authority must
20deal with the application in accordance with subsection (5) so
that the development becomes economically viable, or

(b) if paragraph (a) does not apply, the authority must determine
that the affordable housing requirement is to continue to have
effect without modification or replacement.

(4) 25Where an application is made to an authority under subsection (2) and
is the second or a subsequent such application in relation to the
planning obligation, the authority may—

(a) deal with the application in accordance with subsection (5), or

(b) determine that the affordable housing requirement is to
30continue to have effect without modification or replacement.

(5) The authority may—

(a) determine that the requirement is to have effect subject to
modifications,

(b) determine that the requirement is to be replaced with a different
35affordable housing requirement,

(c) determine that the planning obligation is to be modified to
remove the requirement, or

(d) where the planning obligation consists solely of one or more
affordable housing requirements, determine that the planning
40obligation is to be discharged.

(6) A determination under subsection (5)(a), (b) or (c)—

(a) may provide for the planning obligation to be modified in
accordance with the application or in some other way,

(b) may not have the effect that the obligation as modified is more
45onerous in its application to the applicant than in its
unmodified form, and

(c) may not have the effect that an obligation is imposed on a
person other than the applicant or that the obligation as
modified is more onerous in its application to such a person
than in its unmodified form.

(7) 5Subsection (6)(b) does not apply to a determination in response to the
second or a subsequent application under this section in relation to the
planning obligation; but such a determination may not have the effect
that the development becomes economically unviable.

(8) In making a determination under this section the authority must have
10regard to guidance issued by the Secretary of State.

(9) The authority must give notice of their determination to the applicant—

(a) within such period as may be prescribed by the Secretary of
State, or

(b) if no period is prescribed under paragraph (a), within the
15period of 28 days beginning with the day on which the
application is received, or such longer period as is agreed in
writing between the applicant and the authority.

(10) Where an authority determine under this section that a planning
obligation is to have effect subject to modifications, the obligation as
20modified is to be enforceable as if it had been entered into on the date
on which notice of the determination was given to the applicant.

(11) The Secretary of State may by regulations make provision with respect
to—

(a) the form and content of applications under subsection (2), and

(b) 25the notices to be given to applicants of determinations under
subsection (9).

(12) This section and section 106BB do not apply in relation to an English
planning obligation if planning permission for the development was
granted wholly or partly on the basis of a policy for the provision of
30housing on rural exception sites.

(13) In this section and section 106BB—

• “affordable housing requirement” means a requirement relating to
  the provision of housing that is or is to be made available for
  people whose needs are not adequately served by the
  35commercial housing market (and it is immaterial for this
  purpose where or by whom the housing is or is to be provided);

• “the appropriate authority” has the same meaning as in section
  106A;

• “the development”, in relation to a planning obligation, means the
  40development authorised by the planning permission to which
  the obligation relates;

• “English planning obligation” means a planning obligation that—

  (a)

  identifies a local planning authority in England as an
  authority by whom the obligation is enforceable, and

  (b)

  45does not identify a local planning authority in Wales as
  such an authority.

(14) The Secretary of State may by order amend this section so as to modify
the definition of “affordable housing requirement” in subsection (13).

(15) An order under subsection (14) may have effect for the purposes of
planning obligations entered into before (as well as after) its coming
into force.

(16) The Mayor of London must consult the local planning authority before
5exercising any function under this section.

106BB Appeals in relation to applications under section 106BA

(1) Where an authority other than the Secretary of State—

(a) fail to give notice as mentioned in section 106BA(9),

(b) determine under section 106BA that a planning obligation is to
10continue to have effect without modification, or

(c) determine under that section that a planning obligation is to be
modified otherwise than in accordance with an application
under that section,

the applicant may appeal to the Secretary of State.

(2) 15For the purposes of an appeal under subsection (1)(a), it is to be
assumed that the authority have determined that the planning
obligation is to continue to have effect without modification.

(3) An appeal under this section must be made by notice served within
such period as may be prescribed by the Secretary of State.

(4) 20If no period is prescribed under subsection (3), an appeal under this
section must be made—

(a) in relation to an appeal under subsection (1)(a), within the
period of 6 months beginning with the expiry of the period
mentioned in section 106BA(9) that applies in the applicant’s
25case, or

(b) otherwise, within the period of 6 months beginning with the
date on which notice of the determination is given to the
applicant under section 106BA(9).

(5) An appeal under this section must be made by notice served in such
30manner as may be prescribed by the Secretary of State.

(6) Subsections (3) to (8), (10) and (11) of section 106BA apply in relation to
an appeal under this section as they apply in relation to an application
to an authority under that section, subject to subsections (7) to (15)
below.

(7) 35References to the affordable housing requirement or the planning
obligation are to the requirement or obligation as it stood immediately
before the application under section 106BA to which the appeal relates.

(8) References to the first, the second or a subsequent application in
relation to a planning obligation are to an appeal under this section
40against a determination on the first, the second or a subsequent
application in relation to the obligation (whether or not it is the first
such appeal).

(9) Section 106BA(5)(d) (discharge of affordable housing requirement)
does not apply in relation to an appeal under this section.

(10) 45Subsection (11) applies if, on an appeal under this section, the Secretary
of State—

(a) does not uphold the determination under section 106BA to
which the appeal relates (if such a determination has been
made), and

(b) determines that the planning obligation is to be modified in
5accordance with section 106BA(5)(a), (b) or (c).

(11) The Secretary of State must also determine that the planning obligation
is to be modified so that it provides that, if the development has not
been completed before the end of the relevant period, the obligation is
treated as containing the affordable housing requirement or
10requirements it contained immediately before the first application
under section 106BA in relation to the obligation, subject to the
modifications within subsection (12).

(12) Those modifications are—

(a) the modifications necessary to ensure that, if the development
15has been commenced before the end of the relevant period, the
requirement or requirements apply only in relation to the part
of the development that is not commenced before the end of
that period, and

(b) such other modifications as the Secretary of State considers
20necessary or expedient to ensure the effectiveness of the
requirement or requirements at the end of that period.

(13) In subsections (11) and (12) “relevant period” means the period of three
years beginning with the date when the applicant is notified of the
determination on the appeal.

(14) 25Section 106BA and this section apply in relation to a planning
obligation containing a provision within subsection (11) as if—

(a) the provision were an affordable housing requirement, and

(b) a person against whom the obligation is enforceable were a
person against whom that requirement is enforceable.

(15) 30If subsection (11) applies on an appeal relating to a planning obligation
that already contains a provision within that subsection—

(a) the existing provision within subsection (11) ceases to have
effect, but

(b) that subsection applies again to the obligation.

(16) 35The determination of an appeal by the Secretary of State under this
section is to be final.

(17) Schedule 6 applies to appeals under this section.

(18) In the application of Schedule 6 to an appeal under this section in a case
where the authority mentioned in subsection (1) is the Mayor of
40London, references in that Schedule to the local planning authority are
references to the Mayor of London.”

(2) Schedule 2 (amendments relating to this section) has effect.

(3) The amendments made by this section and that Schedule apply in relation to
planning obligations within the meaning of section 106 of the Town and
45Country Planning Act 1990 entered into before (as well as after) the coming
into force of this section.