Growth and Infrastructure Bill

Memorandum submitted by Stephens Scown LLP (GIB 60)

1. Stephens Scown LLP is a South West law firm with a nationally recognised Planning team. We have significant depth of experience in all types of Planning matters, with clients ranging from large residential and retail developers to individuals and including major minerals operators.

Clause 1

2. We welcome the option to apply directly to the Secretary of State. We question how many applicants will wish to forgo their "two bites at the cherry" (see subsection 5) and suspect that where a developer has a good relationship with the planning authority the option will not be utilised.

3. Our experience tends to be that ‘delay’ occurs in two scenarios in particular:-

a. A resolution to grant permission subject to a s106 agreement. There is delay in the Planning Officers instructing a solicitor to deal with the s106 agreement and then a significant amount of time is taken to negotiate and agree the terms of the agreement. Often developers are more concerned to receive their planning permission than fight every single point at issue on a s106 agreement. This approach often necessitates renegotiation further down the line. The overall process needs to be speeded up, it may be useful to have an option to refer an uncompleted s106 agreement to PINS within a specified timeframe – although we note the provisions of Clause 5.

b. Planning Authorities often validate an application and thereafter require additional information (Transport Assessments etc). Developers do not always agree that these documents are necessary, but are left in a position where there applications will not be determined unless they provide the information – we refer to our submissions on Clause 4.

4. We would however suggest that this power should be limited to major applications only, it would seem to us to be an improper use of such powers for an application for a single dwelling to be made to the Inspectorate. We note that the Impact Assessment envisages this applying to major applications only, but the draft Bill and Explanatory Notes do not make this provision. This could be achieved by an amendment to Clause 5(2)(a).

5. We note the direction of travel on "twin tracking", but this provided the applicant with the opportunity to obtain a decision as quickly as possible. We would not be averse to the re-introduction of "twin tracking" in order to allow a developer to obtain a decision as quickly as possible.

Clause 2

6. We welcome broadening of the powers and the introduction of the ability of the Inspectorate’s costs of an appeal to be recovered.

Clause 3

7. The principles in our response to Clause 2 also apply in respect of Clause 3.

Clause 4

8. We welcome the amendment of s62 of the TCPA 1990 as drafted. We question what sanction there is where an LPA requires information, contrary to the provisions as drafted. It seems that as drafted the provision allows: i) the applicant to negotiate with the LPA; but ii) where the LPA is intransigent the only option would be to: a) provide the additional information; or b) appeal the application for non-determination. We do however agree with the proposals in the Impact Assessment that there is scope for a reference to PINS to determine whether the material requested is reasonable and material (etc) in a similar manner to the method by which PINS determined whether an application was valid. This should be a fast-tracked process, and also be subject to the costs regime.

9. We expect that this provision would address conflicts with local validation checklists.

Clause 5

10. The principle of clause 5 is welcomed. Our clients have a number of projects which are stalled for viability reasons and have experienced significant delay and expense renegotiating s106 agreements with planning authorities.

11. We consider that where a CIL charging schedule is not in force the clause as drafted will focus LPA’s minds on renegotiations under s106A(1)(a). If the LPA fail to agree a renegotiation then the applicant will apply under the provisions of the proposed s106BA to modify the affordable housing provisions. The LPA’s hand will thereby be forced and any discretion the LPA may have wished to apply under a renegotiation under s106A(1)(a), e.g. reducing Education, Highways, Waste contributions etc will be lost.

12. The position will be slightly different where a CIL charging schedule is in force. LPAs will have little or no discretion and will therefore be forced to reduce the affordable housing if the development is not economically viable.

13. It seems somewhat contrary to other government policy for affordable housing to bear the brunt of viability at the expense of infrastructure (which may or may not even be provided in the locality of the development), however this is a criticism of CIL more than the proposed s106BA.

14. We would expect the term "economically viable" to be defined, perhaps by way of secondary legislation or guidance.

15. We consider that the differing proposals for first and second or subsequent applications act as an incentive for a developer to proceed with development soon after having had their first application determined.

16. The concept of completion is a matter which has historically had some difficulty in planning law. It may therefore be appropriate to give this area further definition in the proposed s106BB(8). For example, if the development is completed externally, but not internally, or if the development is completed save for landscaping works. We note the amendments (44) proposed to 8A and agree that commencement is a more suitable means to address this point, although we still consider that there is scope for disagreement on whether a particular part of the development is commenced or not at the end of the three year period.

Clause 8

17. We have significant experience in dealing with ROMP applications. The proposals to free MPAs from a rigid 15 year review period are applauded. ROMP applications put minerals operators to great expense and do not tend to bring any significant environmental benefits now that the initial reviews have been conducted (in the majority of cases).

18. Our interpretation of the Bill is that the provisions will not apply to a ROMP which has been postponed. This would mean that the process would have to proceed for a postponed ROMP, even if this meant another postponement. We would suggest that the postponed ROMPs are not excepted from the new provisions. MPAs should be able to serve a reminder notice at the time they consider appropriate on a postponed ROMP as they would for any other ROMP.

19. We are not clear why ROMPs which are currently being determined cannot be subject to MPA discretion. We would suggest that if an application has not been submitted then the MPA could have the option to review the permissions at a later date (with the agreement of the other parties).

20. We also welcome this proposal in terms of improving the existing law. As noted in the Impact Assessment we also have experience of MPAs failing to serve the required reminder notices at the appropriate time, the current law does not contemplate MPAs failing to comply with the requirements and hence creates a lacuna. Whilst to date MPAs and operators have dealt with this non-compliance by their own methods, the proposals will mean that this issue will not occur in the future.

21. We have had experience of MPAs seeking more and more additional information. A provision similar to that in Clause 4 would be welcomed in respect of ROMPs.

Clause 9

22. We currently act for a client whose planning application was approved by committee 3 months ago. In order to implement that permission it is first necessary to stop up a highway. That application cannot be made until the permission is issued. The permission has still not been issued. DfT advise that a stopping up application will take a minimum of 5 months (according to DfT’s guidance) providing there are no objections. There appears to us to be no reason why an application cannot be made alongside a planning application and the Order be made conditional upon planning permission being granted. Bringing forward this proposal will expedite acceptable development, the risk is with the developer in terms of costs and it should be up to the developer as to whether to accept the risk in return for the benefit of a expedited development.

Clause 10

23. The principles in our response to Clause 9 apply here also.

Clause 11

24. We welcome this proposal.

Clause 12

25. We welcome the proposal to allow deposits to bring an end to any period of use as of right etc.

Clause 13

26. We agree that the village green legislation has been used to attempt to defeat or delay planning applications. We have some concerns that the proposals will not go far enough given the requirement for developers to carry out public consultation prior to submitting an application. A well organised opposition group could defeat the intention of the clause by submitting an application for registration of a village green prior to the submission and publicity of the planning application. We would suggest that the trigger events should be reconsidered to address this potential issue. One solution to this may be for the developer to submit a declaration to the registration authority that they are consulting on a development proposal and that declaration will act as a trigger event for a specified time period.

Clause 21

27. We generally approve of the proposal to bring business and commercial projects within the 2008 regime on an opt-in basis. Our minerals clients make great efforts to work with the community and the planning authority and would wish to maintain their relationships with them. An opt-in procedure would allow them to utilise the 2008 system if they considered it necessary, but we would expect that in the majority of circumstances they would pursue an application with the mineral planning authority.

December 2012

Prepared 10th December 2012