Growth and Infrastructure Bill

Memorandum submitted by the City of London Corporation (GIB 55)

Submitted by the Office of the City Remembrancer

General Remarks

1. The City Corporation fully supports the Government’s ambition to ensure that the planning system functions in a manner which facilitates and does not inhibit economic growth. It is necessary to bear in mind that an active approach on the part of local planning authorities can play an important part in advancing this objective. The City provides an example. Its position as one of the world’s leading business districts is underpinned by the Common Council’s management of the planning process to ensure an appropriate range of various types of premises in different locations. This serves to sustain the concentrated mixture of high-end commercial activities which characterises the City’s distinctive economic contribution to the country.

2. The results of the City’s planning strategy in recent decades go to illustrate that planning functions should not simply be seen as a counterweight to be balanced against the need for economic growth. On the contrary, a rigorous, strategic approach to local planning can provide the conditions for business and commerce to thrive. It follows that any inroads into the powers of local planning authorities should be closely directed at only those aspects of the local planning system which can persuasively be shown to operate as an unnecessary impediment to growth. Furthermore, any reforms should be careful not to undermine the positive role that local planning authorities can play in encouraging appropriate development through bringing to bear their local knowledge and expertise.

3. Comments in greater detail on some of the clauses which are of particular interest are set out in paragraphs 4 to 21 below.

Clause 1

4. We note that this clause is intended to allow for the by-passing of local planning authorities where an authority is found to be falling far short of a reasonably expeditious or competent performance of its duties. As the Government have accepted, the use of such a power should be contemplated only in extremis, so as to give due weight to the need to maintain local control and accountability. Accordingly, the criteria for the exercise of the proposed power should be framed extremely carefully in order to ensure that local planning authorities, and through them the local communities which they represent, are not unjustly deprived of their ability to influence development in their areas.

5. It should be borne in mind that criteria rigidly or solely based on a limited number of statistical thresholds would not necessarily offer a complete picture of an authority’s standard of performance. The experience of the Common Council provides a useful illustration. Planning applications in the City are often of a very high level of complexity, owing to the presence of large-scale and architecturally innovative commercial development within tight geographical constraints. It is sometimes inevitable that applications in respect of such development take more than 13 weeks to determine, owing to the challenges they pose to the planning authority, to the developer and to other  parties. In our experience, developers of major projects are generally happy to accept a longer period for the determination of their application, in order to give maximum opportunity to reach a sound footing for the approval of the development, and also to allow a more convenient time-frame for the conclusion of section 106 agreements and other ancillary matters.

6. The evidence is that, by working with developers to ensure an appropriate amount of time for the consideration of complex applications, even where this exceeds the 13-week period, the Common Council achieves a high standard of decision-making. Indeed, only one major planning application out of 81 has been rejected in the City in the past four years. No developer during this time has exercised the right to appeal against a failure to decide within the prescribed limit, and we are confident that developers would regard the Common Council as among the more business-friendly planning authorities with which to work.

7. We are pleased that the Minister (Mr. Boles) has acknowledged the force of such considerations, in his remarks to the Committee on planning performance agreements (First Sitting, Q. 14). However, it should be noted that planning performance agreements are only one particular means of providing an appropriate degree of flexibility to deal with complex applications. Many developers and planning authorities find them unnecessarily formalised and bureaucratic, and instead prefer to make arrangements on a less formal basis.

8. A blunt, numerical approach to setting the criteria for designation might risk confusing inefficiency and delay with mutually beneficial and sensible arrangements to ensure the best possible standards in the consideration of complicated applications. We think it important that the final criteria avoid this problem by incorporating sufficient flexibility to take account, so far as possible, of such considerations as the complexity of applications and levels of approval. Otherwise, local planning authorities may be pushed towards a rigid, ‘target-chasing’ adherence to bureaucratic formulae, which would not be in the interests of developers.

9. In the light of this, we welcome the Government’s proposal (as set out in its consultation, ‘Planning performance and the planning guarantee’) to exclude from the criteria periods beyond the 13-week target where the delay has been agreed by the developer and the local planning authority, even when not in the form of a full planning performance agreement. If implemented, this proposal should mitigate our concerns to a considerable degree, by providing a measure of flexibility to help ensure that the statistics do not misrepresent an authority’s true standard of performance.

10. None the less, we remain cautious about the proposal automatically to designate authorities on the basis of statistical thresholds, with no possibility of exception. Although we recognise the benefits of providing a measure of certainty, we would think it appropriate that the criteria left some scope for a local planning authority to draw the attention of the Secretary of State to individual circumstances which might extenuate or justify an apparently slow speed of determination, even if such arguments might not often succeed.

11. The City Corporation is interested in this aspect of the Bill not only in the Common Council’s capacity as the local planning authority for the City, but also as a custodian of numerous important public open spaces in Greater London and the Home Counties. In order to ensure that the amenity of the open spaces is preserved, we closely scrutinise planning applications in relation to peripheral developments, and frequently contribute to the consultation process. We would therefore be anxious to see that any transfer of powers from local planning authorities to the Planning Inspectorate did not entail an attenuation of the degree to which locally interested parties could participate in the process. The Bill does not guarantee that the same procedural requirements will apply to determinations by the Planning Inspectorate as to determinations by a local planning authority. We note that the Minister indicated in his appearance before the Committee that further details of the Government’s intentions in this regard would shortly be revealed (First Sitting, Q. 15). We hope that suitable reassurance will be provided in due course.

Clause 5

12. In the City, it is already the Common Council’s policy to negotiate (and renegotiate) affordable housing requirements in the light of economic circumstances. We would, however, be concerned about the introduction of an absolute obligation founded on a test of whether or not a development is "economically viable," in the form proposed by the Bill. This would treat economic viability as an objective legal condition which, presumably, would be subject to adjudication by the courts in case of dispute. However, economic viability is not a black-or-white criterion, but a question of judgment about which opinions could reasonably differ in a given case. No definition of "economically viable" is given in the Bill, and, although local planning authorities would have to have regard to guidance from the Secretary of State, it does not appear that such guidance would influence the proper legal meaning of the term as would be determined by the courts. This could give rise to the risk of difficult litigation about whether development is or is not economically viable.

13. It would be preferable to oblige local planning authorities to consider whether an affordable housing requirement has made a development unviable, and to modify or discharge the requirements only where the authority (or, on appeal, the Secretary of State) does not reasonably conclude that the development remains viable. This would acknowledge that the question of viability may be met with a range of reasonable responses, and would confine the prospect of litigation to cases where a local planning authority has come to a conclusion outside of that range.

Clause 7

14. We approach this clause on the basis that it is intended to enable in due course the suspension of the ‘prior approval’ regime for broadband infrastructure which currently applies within national parks, areas of outstanding natural beauty, and conservation areas (along with the other categories within article 1(5) of the General Permitted Development Order 1995). Our interest in this arises because approximately 40 per cent of the City falls within a conservation area.

15. Whatever the arguments in relation to other categories of ‘article 1(5) land’, we do not believe that it would be justified to suspend the prior approval regime in conservation areas. It is clear from the arguments made in the Government’s Impact Assessment that the underlying purpose behind clause 7 is to improve access to broadband in rural areas which currently do not enjoy adequate provision. Conservation areas, however, are not predominantly rural in character: a sample taken for a recent study showed that, of the 80 per cent of areas for which information was available, 43 per cent were urban in character, 23 per cent were suburban, and only 13 per cent were rural. [1] It can be inferred from this that conservation areas largely cover parts of the country which are likely already to enjoy reasonable access to broadband services.

16. The effect of suspending the need for prior approval in such areas would be to jeopardise the aesthetic and historical value of important urban heritage for little or no practical benefit in terms of broadband access. For instance, in the City-an area with excellent access to high-speed broadband-the unconstrained installation of street cabinets and cabling in sensitive locations would adversely affect the setting of celebrated buildings and areas which symbolise London’s character and heritage.

17. We suggest that the proposal should be more closely focused on those categories of land where a genuine problem in terms of access to broadband can be demonstrated. It is only in such areas that the unconstrained use of street cabinets and overhead cabling can be justified, in spite of the potentially damaging effects on local amenity which they entail. We doubt that such a problem could be demonstrated in relation to conservation areas.

18. If conservation areas were not to be exempted altogether, an alternative approach might be for local planning authorities to retain a right of prior approval if they can demonstrate a suitably high level of access to broadband in their areas.

Clause 21

19. This clause would give the Secretary of State a potentially wide power to circumvent the normal role of local planning authorities. It is necessary that such a power be used sparingly and with keen regard for the need to maintain local accountability in the absence of some powerful overriding consideration. In particular, the power should not be approached from an initial presumption that local planning authorities are ill-equipped to deal competently and efficiently with large-scale commercial developments. We hope that the experience of the City in recent decades, where the planning policies of the Common Council have facilitated an abundant provision of large-scale, modern commercial properties, would belie such a notion.

20. We would question whether the rationale behind the national infrastructure planning regime is in fact applicable to commercial developments such as office buildings. It is unlikely that an individual commercial development of this sort could be considered ‘nationally significant’ in the same way as physical infrastructure currently falling within the Planning Act 2008. Whereas railways, roads, sewers, etc. have some direct, tangible connection with the wider areas or networks that they serve, the effects of a commercial development beyond its immediate locality are generally more difficult to identify in any clear manner. We anticipate that it would be only in exceptional cases that a single commercial development could properly be assessed as nationally significant in its own right, whether on the basis of its economic contribution or otherwise.

21. We note that one of the central reasons for the introduction of the national infrastructure regime was to provide ‘unified consent’. While this makes sense in relation to infrastructure, where a number of different consents were formerly required for different types of project, the same rationale would not generally be applicable to commercial developments such as office buildings, where planning permission is usually the only consent required.

22. The Government’s consultation indicates that the development of new floor-space in excess of 40,000 square metres might be considered nationally significant. [2] Although we do not speak for other areas, this threshold seems low so far as the City is concerned. Developments of 40,000 square metres or more would be considered fairly routine in the City, with some thirty such schemes having been approved since 2001. They cannot be regarded as imposing any unusual or excessive burden on the resources or skills of the Common Council. We note that the legislation governing the powers of the Mayor of London to intervene in planning applications defines commercial developments of ‘potential strategic importance’ as those with a floor-space in excess of 100,000 square metres within the City. [3] One would expect the threshold for what is ‘nationally significant’ to be higher, if anything, than the threshold for ‘potential strategic importance’ for the purposes of Greater London.

23. We are concerned by the provision in sub-section (2)(c) of the proposed new section 35, which would enable a project not itself nationally significant to be so adjudged "when considered with… one or more other business or commercial projects." Such an approach might be justified in the case of physical infrastructure, whose significance will often depend entirely or predominantly on its connection to wider networks. It is, though, harder to see exactly when it would be appropriate to consider the significance of a commercial development in aggregate with other existing or proposed developments. For instance, the large business clusters in the City would rightly be regarded as ‘nationally significant’ on the basis of their contribution to the economy; but this would not sensibly justify the treatment of each new building within such a cluster as ‘nationally significant’ for the purposes of the planning system.

24. We would find it helpful to have some further illustration of the sort of circumstances in which the Government envisage an aggregate approach to the assessment of significance being taken. It may be that the wording of the Bill could be tightened in some way to make clear that the individual development under consideration must itself offer a decisive or influential contribution to the ‘nationally significant’ status of the wider group of projects.

December 2012

[1] Ahlfeldt, Holman & Wendland, ‘An assessment of the effects of conservations areas on value’, May, 2012 (downloaded from , November, 2012). See in particular Table 2, p. 27. The figures stated above do not equate precisely because of rounding.

[2] ‘Nationally significant infrastructure planning: extending the regime to business and commercial projects’, November, 2012.

[3] The Town and Country Planning (Mayor of London) Order 2008, S.I. No. 580. The equivalent threshold is 20,000 square metres elsewhere in Central London and 15,000 square metres in the rest of Greater London.

Prepared 10th December 2012