Growth and Infrastructure Bill


1. Introduction

1.1 This memorandum is submitted by the Mayor of London. Under the Greater London Authority Act 1999 (as amended), the Mayor shares responsibility for planning in London with the London boroughs. In particular, he:

· Sets strategic planning policies for the spatial development of London through his London Plan. These policies form part of the statutory development plan for Greater London, and borough plans have to be in general conformity with them;

· Ensures that major developments help to deliver these policies through his scrutiny of planning applications of potentially strategic importance (defined in regulations); and

· In some cases can take over applications of particular strategic significance and decide them himself.

1.2 The Mayor shares the Government’s commitment to ensuring that the planning system facilitates development, rather than presenting an obstacle to it. This is a particular priority for London, which over the next decade faces population growth similar to that last seen between the world wars. Meeting the needs of a growing and increasingly diverse population, ensuring a modern building stock embodying the most up-to-date standards and design, and ensuring London continues to contribute to the prosperity of the UK as a whole, all require new development and growth.

1.3 The Mayor has recently commissioned research on barriers to the delivery of new housing, and early findings suggest that in a minority of cases planning can be an impediment to development, whether through inflexible or inappropriate application of policies on matters like affordable housing, provision of employment space or mixed use, or through delays in giving advice or taking decisions. He firmly agrees with ministers that powers are required to deal with these cases, and welcomes the introduction of the Bill.

1.4 He considers, however, that the proposals could be improved by including greater recognition of the unique arrangements that exist in Greater London – in particular giving him responsibility in the capital for many of the functions it is currently proposed to confer on the Planning Inspectorate. This would enable quicker delivery of the Government’s objectives by building on established and successful arrangements, expertise and relationships. It would also provide a valuable element of local democratic accountability in keeping with the Government’s localist focus.

1.5 In June 2012 the Secretary of State for Transport directed that the proposed Silvertown Tunnel and associated matters be treated as development for which development consent pursuant to the Planning Act 2008 is required. Transport for London (TfL) is currently developing its proposals for the Silvertown Tunnel. The Mayor welcomes the provisions in the Bill which will facilitate the provision of major infrastructure projects such as the Silvertown Tunnel, but considers that the Bill could go further to help achieve the fast-tracked and unified consenting regime that the Planning Act is intended to put in place.

2. Provisions of the Bill

2.1 Clause 1: Option to make planning application directly to Secretary of State

The Mayor agrees that in the exceptional circumstances of a "failing" planning authority it is appropriate to have a procedure allowing developers to make applications directly to an outside body. This will encourage authorities to focus on planning performance and ensure that decisions are taken promptly and on the basis of sound, proportionate evidence.

He suggests that in London it would be better if applications subject to this procedure were considered by him, rather than the Planning Inspectorate (PINS), as unlike PINS he is democratically accountable to Londoners. He has a planning team already in place which has well-established relationships with boroughs, developers and other stakeholders and considerable experience of ensuring prompt decisions on often complex schemes. Allowing the Mayor to take on this role in London would therefore be the quickest, most cost-effective option, and would allow PINS to focus on preparing to deal with applications from other par ts of the country where appropriate arrangements are not already in place. It would also provide developers with quicker recourse in London - the part of the country where the development industry is strongest and schemes are being planned and built - than would be possible if this role is given to PINS.

This would not be a power of call-in, nor would it detract from the Mayor’s strategic role: it is applicants who would have the right to decide whether to refer an application to the Mayor, and the Mayor considers that a London borough’s failure to perform in its role as a local planning authority is a matter of strategic importance. If one element of the London planning system is not functioning as it should, it is the Mayor’s view that the solution should be found within London , rather than by bringing in PINS which does not have the specific London knowledge and experience the Mayor has , nor experience of dealing with applications as a primary decision maker .

To ensure that related cases can be dealt with quickly and effectively in London, the criteria for allowing the Mayor to take over strategic applications could be widened to include poor-performing London boroughs / Local Planning Authorities as designated through this legislation, and the definition of "strategic" (in relation to applications that the Mayor can call in) could be amended so that when any application deemed to be strategically important for delivering the London Plan (and good planning in London) is submitted the Mayor has the right to take it over, preferably at the point of submission (rather than on LPA determination) .

2.2 Clause 4: Limits on power to require information with planning applications

The Mayor strongly agrees with the principle that planning authorities should only require applicants for planning permission to submit supporting information that is reasonable and proportionate to the application concerned. He has tried to reflect this principle in his London Plan, and will continue to look at the requirements he and other organisations within the GLA Group (such as TfL) with this principle in mind.

2.3 Clause 5: Modification or discharge of affordable housing requirements

The Mayor agrees that there is a need to allow S106 agreements dealing with affordable housing to be considered and changed or removed when they are making development unviable. It is better to have a lower percentage of something rather than the higher percentage of the nothing that we will get if development does not take place at all.

The Mayor proposes that he should be notified of any application to modify or discharge an affordable housing requirement in London, that he should have the ability to call such applications in so that he can deal with those of most strategic impact, and that in these cases he would decide the matter rather than PINS. Given the Mayor’s existing resources and expertise, this additional power would allow him to speed up the current process, and would not add an extra stages or complexity. It would also allow the Mayor to ensure London’s strategic needs were fully taken into account, and to ensure alignment with the housing investment role he has taken on from the Homes and Communities Agency.

He considers that in London he is better placed to take on this role than PINS for many of the same reasons given in relation to Clause 1.

2.4 Clause 7: Electronic communications code

Given the increasing importance of the telecommunications, media and technology sectors to London, the Mayor agrees that facilitating the roll-out of superfast broadband will be crucial to supporting the capital’s growth, and clearly supports this through his London Plan.

He therefore supports strongly the addition of the need to promote economic growth to the criteria to which the Secretary of State must have regard in making regulations relating to the Electronic Communications Code.

2.5 Clauses 11 and 12: Town and Village Greens

Through the London Plan, the Mayor gives firm support for the protection and, where appropriate, extension of London’s green spaces. Properly used, the legislation allowing designation of town and village greens can help deliver these objectives. They should not, however, be allowed to be misused simply as a means of preventing development, and he supports the provisions in the Bill that will help rebalance the operation of the legislation and prevent its inappropriate application.

2.6 Clause 19: Special parliamentary procedure in cases under the Planning Act 2008

The Mayor welcomes the proposed repeal of the provisions which apply special parliamentary procedures in circumstances where a statutory undertaker or local authority has objected to its land being acquired compulsorily under a development consent order.

The Mayor also supports the proposal to widen the circumstances in which the Secretary of State can certify that a development consent order which authorises the compulsory acquisition of open space, or a right over open space, is not subject to special parliamentary procedure. However, the Mayor considers that the Bill should go further and remove the possibility of the procedure applying altogether where open space, or a right over open space, is proposed to be compulsorily acquired. The special parliamentary procedure provisions have the potential to cause significant delays after a development consent order is made, can be costly to undergo and hold back the provision of key infrastructure projects which support economic growth. The effect of a project on open space is something that the Secretary of State is already required to take into account when deciding whether to make the development consent order for the project, and which the Mayor would take into account in deciding to promote a project.

2.7 Clause 20: Modifications of special parliamentary procedure in certain cases

This proposal is welcomed by the Mayor because it will result in a reduction in the amount of time Parliament requires to consider development consent orders which are still subject to special parliamentary procedure. Currently Parliament may consider any petitions relating to the content of a development consent order that is subject to special parliamentary procedure. The Mayor believes it is right to limit this consideration to those provisions of development consent orders which authorise compulsory acquisition of the specified types of land which triggered the application of special parliamentary procedure in the first place. These provisions should reduce the delays which arise when there is a requirement for a development consent order to be subject to special parliamentary procedure.

3. Provisions not in the Bill

3.1 There are some provisions that are not currently in the Bill that the Mayor would like to see included which could help to speed up the planning processes in London while maintaining democratic accountability.

3.2 In many cases planning delays are as damaging as an ultimate decision not to grant planning permission, particularly to developments which may be on the brink of viability. Giving the Mayor the ability to call in strategically important applications if the planning authority concerned has not come to a decision after 13 weeks (in the case of "major" applications) or 16 weeks (in cases where an environmental impact assessment has to be submitted) would be a quick way of achieving ministers’ objectives without the need for widening the role of PINS.

3.3 Developers have expressed considerable concern about the operation of the Community Infrastructure Levy (CIL), and the risk that it may make development unviable, and therefore put at risk delivery of strategic development objectives. At the moment, the Mayor vets London boroughs’ CIL proposals to ensure that they take account of the rates he sets. He considers that a wider role, allowing him to ensure that borough CIL proposals would help deliver the strategic growth objectives set in his London Plan, would help give developers greater confidence in the CIL-setting process.

3.4 The Planning Act 2008 imposes a fixed timetable for the examination and determination of development consent order applications after the preliminary meeting has been held, but timescales before this time, particularly before applications for development consent orders have been submitted, are indeterminate and are subject to considerable variation and uncertainty. The Mayor believes that the pre-application process could be significantly improved by enabling pre-application Inspectors appointed by the Planning Inspectorate to set timescales in agreement with the applicant and an overall framework within which the pre-application phase of projects can be structured, particularly the Environmental Impact Assessment and consultation processes.

3.5 The Planning Act 2008 regime was intended to provide a unified authorisation process for the construction of major infrastructure. However, under section 150 and related regulations, a number of prescribed consents may only be disapplied by the development consent order with the permission of the body which would otherwise be responsible for granting that consent. Consequently, if that body’s permission cannot be obtained, separate consents have to be obtained, adding to the cost and time of obtaining the required authorisation for projects.

The Mayor considers that the requirement in Section 150 to obtain the consenting body’s permission should be removed and replaced by an obligation to consult that body in any case where the promoter of a development consent order is considering including in the draft order a provision disapplying a consent for which that body is responsible. In the event of the consenting body having concerns about the intended disapplication of a particular consent by the development consent order, that body would be able to object to the proposed order and its concerns could be addressed through the examination process and by requirements or protective provisions included in the order.

3.6 Under the Planning Act 2008 various certificates, in addition to the Development Consent Order itself, are required to be obtained from the Secretary of State, e.g. under s.127 in a case involving the proposed compulsory acquisition of statutory undertakers’ land. These ‘consents within consent’ are unnecessary and should be repealed now that the Secretary of State, rather than the former Infrastructure Planning Commission, is making decisions on development consent orders.

December 2012

Prepared 10th December 2012