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Neighbourhood Planning Act 2017: essential guide to future changes to development management
19 July 2017 update: the first Regulations commencing a series of provisions in the Neighbourhood Planning Act 2017 were laid on 18 July and are already in force. Of the Act’s development management changes, the Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017 mean that the Secretary of State (SoS) can now go ahead and make another set of regulations that will be about what kind of conditions may or may not be imposed on a grant of planning permission (s14 of the Act). Regulations can be made now too, governing the circumstances when the agreement of an applicant has to be obtained in advance and when it does not, to the terms of a pre-commencement condition. Also, s1 is now in force so that a local planning authority has to have regard to a ‘post-examination’, unmade neighbourhood development plan (‘neighbourhood plan’) as a material consideration in the determination of planning applications. With s3 now in force too, it is the case that just prior to a draft neighbourhood plan being made after succeeding at referendum, the Plan forms part of the development plan (but it would not continue to do so if the LPA were to decide it should not be made). S16 of the Act has now amended the New Towns Act 1981, so that the SoS can transfer the overseeing of new town development corporations established under that Act to one or more local authorities covering the New Town area. The SoS can also now make further Regulations for how a local authority should then go about overseeing the New Town’s development. This guide provides a summary of the measures in the Neighbourhood Planning Act 2017 that relate to development management procedures in England, other than those for planning conditions – covered in Lichfields’ ‘essential guide to future changes - the use of conditions’.  Also affecting development management are the Act’s provisions that will alter: the status and materiality of draft neighbourhood plans at given stages; requirements for notification for neighbourhood planning bodies; and local authority planning registers.  The new legal requirement to further amend the Town and Country Planning (General Permitted Development)(England) Order 2015 (as amended), to alter permitted development rights (PDRs) for pubs and other drinking establishments, has already been fulfilled by amendments in force from 23 May. Lichfields’ ‘essential guide to changes to plan-making’ covers the changes relating to local plans and neighbourhood plans that will arise from the Act. Changes to the materiality and status of advanced draft neighbourhood plans Once section 3 is brought into force, a draft neighbourhood development plan (‘neighbourhood plan’) will become part of the development plan just before being made, once it has succeeded at referendum (but it would not continue to do so, if the local planning authorities (LPA) decides it should not be made). And prior to that, a ‘post-examination’, unmade neighbourhood plan will have to be taken into account in the determination of planning applications when section 1 is brought into force. The Act defines a post-examination neighbourhood plan and stipulates when a draft neighbourhood plan would cease to be considered to be a post-examination neighbourhood plan.  These sections should be read in the context of past appeal decisions not always being in line with advanced draft neighbourhood plans (see the Housing and Planning Minister’s jovial reference to a ‘Malthouse clause’), and a perception that some authorities are not doing enough to support neighbourhood planning (hence the other neighbourhood planning provisions in the Act). The inclusion of an unmade plan in the statutory development plan is a significant conceptual and legal change, but not an enormous leap in practice, as it is likely that very significant weight would be attached to such an advanced draft neighbourhood plan as a material consideration in any event. Indeed, at the fourth sitting of the Commons Committee stage  the Housing and Planning Minister quoted para 216 of the NPPF, regarding the weight to be given to emerging plans, in order to “help” the Committee to understand the provision. And regarding the weight to give a draft plan, Baroness Parminter noted at Committee Stage in the Lords: “Clause 1 says that local authorities “must have regard” to neighbourhood development plans, but there are no sanctions. Furthermore, this applies only to post-examined plans, whereas case law says that draft plans should be taken into account.” The Housing and Planning Minister had previously explained that (the then) Clause 1 was about giving communities the confidence, through legislation rather than guidance, that their neighbourhood plans “will get proper consideration in planning decisions, where the plan is material to the application” because the hours communities put in to preparing them should be “recognised in the system at the earliest possible opportunity”.  Therefore the provision in section 3 in particular is more about motivating communities and ‘sending a message’, than about making a significant change to the weight to be given to neighbourhood plans. As Mr Barwell said towards the end of the Bill’s passage: “We want to ensure that this process helps people who give up their spare time and put effort into producing neighbourhood plans to get the result they want in terms of how their local community develops.” Notification arrangements for sites where there is a neighbourhood plan, or a post-examination draft neighbourhood plan Once all of section 2 is in force, LPAs must notify parish councils and neighbourhood forums of applications for planning permission, permission in principle (PIP) or reserved matters approval (and any alterations to those applications), on land where there is a draft neighbourhood plan, or a post-examination draft neighbourhood plan, unless the parish council has advised the LPA that it wishes to be notified of certain applications, or does not wish to be notified at all.  The requirement does not extend to technical details consent applications that follow PIP, which is an interesting omission given the Government’s intention that mandatory engagement at the technical details stage will be “proportionate” and its desire to promote engagement with neighbourhood planning to LPAs. This provision, which amends/will amend Schedule 1 of the Town and Country Planning Act 1990, will operate alongside the pre-existing requirement in Schedule 1 to notify parish councils and neighbourhood forums of planning applications and reserved matters approval applications (and any alterations to those applications) where they have requested to be notified. The amendment to Schedule 1 in force thus far, only has the effect of allowing changes to the automatic notification procedure to be set out in the amendments to the Town and Country Planning (Development Management Procedure) (England) Order 2015 (Articles 25 and 25A).  We are seeking clarification as to which sub-sections of section 2 have been brought into force, and understand that it is section 2(1-5). Planning register Section 17 permits regulations requiring LPAs to include prior approval applications, decisions and notifications on their planning registers –whether the authority has responded or not to an application.  Regulations may also stipulate the information to be included in the register, and the circumstances when an application or notification may be removed from it.  The inclusion of this information on the planning register is intended to lead to the accurate recording of the number of homes permitted via PDRs. The section requiring LPAs to include prior approval applications and prior notifications on the planning register has commenced (new section 69A of the Town and Country Planning Act 1990), but a development order prescribing the information to be recorded is outstanding. A draft Town and Country Planning (Development Management Procedure) (England) (Amendment) Order - 2017? December 2016’s ‘The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers’(the ‘further information document’) includes a draft amendment to the Town and Country Planning (Development Management Procedure) (England) Order 2015, which relates solely to housing prior approval applications that will create additional dwellings.  If it were brought into force as drafted, LPAs would have to keep all information submitted with, or in respect of a housing prior approval applications in its planning register, including any statement specifying the net increase in dwellinghouses proposed by the development, and any legal agreements. Given that the amendment to the Order has been drafted, and the May Government’s (and probably the new Government's) desire to monitor the number of new homes being built or converted, one can expect this provision to be fully in force by the end of the year. Changes to permitted development rights for drinking establishments During the passage of the Act, there was much debate regarding PDRs and pubs, and some MPs and Lords expressed strong concerns regarding pub closures.  The outcome of these debates is that the Town and Country Planning (General Permitted Development) (England) Order 2015 (GPDO) was legally required to be amended as set out by section 15. The main change is that the previously available PDRs for the change of use or demolition of drinking establishment have been removed.  The Lords had sought to delete Use Class A4*, drinking establishments, but the Government thought that this would risk unintended consequences, and would limit opportunities for pubs to expand without seeking planning permission. The Town and Country Planning (General Permitted Development) (England) (No. 2) (Amendment) Order 2017 As required by the Neighbourhood Planning Act 2017, and within the timescale promised in the Lords, amendments to the Town and Country Planning (General Permitted Development) (England) Order 2015 removing certain PDRs for pubs will come into force on 23 May 2017.   The Lichfields’ ‘Guide to the Use Classes Order’ has been updated to reflect this change. The Town and Country Planning (General Permitted Development) (England) (No. 2) (Amendment) Order 2017 (‘GDPO amendment’) removes PDRs to change drinking establishments (use class A4) to use class A1 (shops), A2 (financial and professional services), or A3 (restaurants).  Temporary rights to change from a drinking establishment, or ‘a drinking establishment with expanded food provision’ to a school, and to use classes A1, A2 or A3, will also be removed at the same time (Article 3 of the Amendment Order). ‘Drinking establishments with expanded food provision’, where a pub or other drinking establishment use operates concurrently with a use falling within Class A3, is a new typology that has been introduced by the GPDO amendment.  ‘Drinking establishments with expanded food provision’ are not defined further. New Class AA PDRs added to Part 3, Schedule 2 will permit change of use from drinking establishments to drinking establishments with expanded food provision, with no limitations or conditions.  Drinking establishments with expanded food provision may not change to a restaurant without applying for planning permission. Planning permission will also be required to demolish a drinking establishment, or a drinking establishment with expanded food provision. As a consequence of the removal of these rights, the current requirement to establish with the LPA whether the drinking establishment has been nominated as an asset of community value will be removed, as it is no longer relevant. There are transitional arrangements: where a request for confirmation from the LPA as to whether the building has been nominated or listed as an asset of community value was made more than 56 days before 23 May, the development can begin.  For demolition, prior approval must have been granted, determined to not be required or deemed granted before 23 May. New permitted development right Class AA is postponed for 18 months, for buildings which fall within the scope of an Article 4 direction that withdraws permission to change use from Class A4 to Class A3.  This will give LPAs sufficient time to draft and then advertise any amendments to an Article 4 Direction, or prepare any new Article 4 Directions that are considered necessary. Compensation rules relating to Article 4 directions are being amended to reflect the new Class AA right. Local accountability for New Town Development Corporations Section 16 will allow the transfer of functions under the New Town Act 1981 from central government to one or more local authorities within the area proposed for a New Town. Regulations can then be made for how the local authority should oversee the New Town's development. It was added to the Bill at Third Reading in the Lords, in an amendment tabled by Lord Taylor, Lord Best and Lord Lucas, and followed an earlier debate during the passage of the Bill, which led to subsequent discussions between Lord Taylor and DCLG officials, and to referencing the (then future) amendment (being referred to) in the Housing White Paper (para 1.36). Consequently the amendment was accepted by the Government. At Third Reading Lord Taylor argued: “In the modern world, it is not right that in seeking to deliver a new settlement through a new town corporation to ensure that it is delivered at quality and pace to meet local needs a local council would surrender all the powers to the Secretary of State... This is a localising measure. It hands really strong power to communities to ensure that new towns are delivered at quality.​” The draft regulations will need to be approved by resolution of each House of Parliament. New government - new DCLG ministers and a new approach? In my view, a new Conservative government would be unlikely to change tack on the development management changes outlined here (despite the pub PDR changes being rushed through).  Furthermore, Gavin Barwell has dropped a number of heavy hints about his desire to return to the Department of Communities and Local Government, and should this happen, an altered approach is even less likely. Expect full steam ahead from 19 June. Sources Improving the use of planning conditions, public consultation Government response to the consultation on improving the use of planning conditions The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers The Neighbourhood Planning Bill 2016/2017 Delegated Powers Memoranda *Use Class A4 ‘drinking establishments’ includes public houses, pubs, and bars  

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Neighbourhood Planning Act 2017: essential guide to future changes - the use of conditions
19 July 2017 update: the first Regulations commencing a series of provisions in the Neighbourhood Planning Act 2017 were laid on 18 July and are already in force. The Neighbourhood Planning Act 2017 (Commencement No. 1) Regulations 2017 mean the Secretary of State (SoS) now having the power to go ahead and make another set of regulations that will be about what kind of conditions may or may not be imposed on a relevant grant of planning permission (s14 of the Act). Regulations can also now be made too, governing the circumstances when the agreement of an applicant does or does not have to be obtained to the terms of a pre-commencement condition. The Neighbourhood Planning Act 2017 gained Royal Assent on 27 April, and several of its provisions have come into force.  This guide provides a summary of the measures in the Act that relate to the use of planning conditions in England (see also the ‘essential guide to changes to plan-making’ which includes the changes relating to local plans and neighbourhood plans). These provisions are not yet in force. What was the Government hoping to achieve? The Government’s intention was that the Act would reduce the time lag between planning permission being granted and work starting on-site, as reflected in the provisions regarding planning conditions.  The Government was concerned ‘about the number of unnecessary or otherwise unacceptable conditions attached to permissions… It is therefore vital to ensure that conditions are only imposed where they meet the tests that are currently set out in the National Planning Policy Framework.’ Once these provisions of the Act are commenced, the circumstances under which pre-commencement conditions may be imposed without an applicant’s consent, and conditions that are prohibited, will be set out in regulations.  A draft of these regulations will have to be consulted on, before they can be made, laid and come into force. Section 14 of the Act will insert a new section into the Town and Country Planning Act 1990:  section 100ZA ‘Restrictions on power to impose planning conditions in England’[1].  For the avoidance of doubt, section 100ZA relates to limitations as well as conditions, and includes the modification of a planning permission. The Secretary of State (SoS) must issue guidance on the operation of this new legislation on the imposition of planning conditions, and the Regulations that relate to it.  Pre-commencement conditions First proposed in the Budget 2016, section 100ZA will require the agreement of applicants to pre-commencement conditions[2] on full planning permissions, granted on application (in England).  However, s100ZA(6) also allows regulations to be made that set out when planning permission may be granted subject to a pre-commencement condition, without first obtaining the applicant’s written agreement. Will any types of pre-commencement condition be expressly exempted from needing the agreement of the applicant? The Government’s 2016 consultation document stated that the requirement of the LPA having to seek the applicant’s approval before attaching a pre-commencement condition would apply ‘while retaining the ability of the local authority to impose conditions that are necessary to achieve sustainable development, in line with the National Planning Policy Framework’ (para 10).  And ‘This measure will not restrict the ability of local planning authority to propose pre-commencement conditions that may be necessary – for example, conditions in relation to archaeological investigations or wildlife surveys’ (para 11). Consequently, and given the provision at s100ZA(6) described above,  it had been anticipated that the regulations would prescribe the circumstances when planning permission could be granted subject to a pre-commencement condition, without the written agreement of the applicant to that condition.   However, this will not necessarily be the case. ‘Indicative draft’ regulations[3] relating to the Act’s provisions on conditions were included within Annex A of a 2016 ‘Further Information’ document; it is important to note that they have not been consulted on. The indicative draft regulations are worded such that the applicant’s written approval would always be required – albeit that in certain instances, refusal to give approval would lead to the refusal of planning permission.  The Government response to the 2016 consultation confirms that this is the intention and explains: ‘We want to reassure those who expressed concern that these proposals will not restrict the ability of local planning authorities to seek to impose conditions that are necessary to achieve sustainable development, in line with the National Planning Policy Framework’ (para 11, (my emphasis)) And ‘In the unlikely event that an applicant refuses to accept a necessary pre-commencement condition proposed by a local planning authority, the authority can refuse planning permission.’ (para 3) The Government has frequently noted that these measures build on current, national Planning Practice Guidance, and that applicants and the LPA not coming to agreement would be an ‘unlikely event’.  Perhaps it will be, as LPAs consider whether they can successfully defend the need for any given pre-commencement condition at appeal. In any event, future regulations could of course include such an exemption.  Proposed procedure for the imposition of pre-commencement conditions If the indicative draft Regulations were to become law, the procedure would be as follows. The LPA (or the SoS) would write to the applicant giving notice of the intention to impose the pre-commencement condition(s).  And unless the applicant responds within 10 working days of the notice, advising either that they don’t agree with the proposed condition, or providing comment on the proposed condition, the pre-commencement condition would be imposed.  A time limit longer than 10 working days may be agreed in writing by the applicant and the LPA (or SoS where applicable). The LPA would be able to decide at what point during the determination process it seeks the applicant’s agreement to a pre-commencement condition. The indicative draft Regulations do not require the applicant to respond in writing, but it would be prudent to do so.  If the applicant does not agree to the proposed pre-commencement condition the LPA could amend it, remove it, or make it a post-commencement condition.  If none of these options would make the development acceptable, planning permission would be refused, and the applicant would need to consider appealing the decision.  Thus both the applicant and the LPA would have to consider whether a proposed pre-commencement condition is truly essential, and therefore whether or not an Inspector would be likely to accept that viewpoint.  In practice, given the cost and timescales of an appeal, particularly for large development, applicants may accept a pre-commencement condition in the first instance but then seek to amend or appeal it, depending on the cost implications of that pre-commencement condition. Other limitations on the use of planning conditions Section 100ZA also permits the SoS to make regulations that could be used to bar all manner of full and outline planning permission conditions that do not meet the national policy tests in the National Planning Policy Framework (NPPF) - tests which are themselves now in law.  These Regulations must be consulted on in draft and approved by both Houses of Parliament. ‘Indicative’ secondary legislation regarding prohibited conditions The Government consulted on its intention to use s100ZA powers to make regulations on conditions not meeting the policy tests within the NPPF.   The ‘indicative draft’ regulations relating to the Act’s provisions on conditions include indicative draft regulation 2(1), which would prohibit the imposition of the following categories of conditions: ‘(a) a condition that requires the development to be completed; (b) a condition that requires the applicant to pay money or to provide some other form of consideration except where the carrying out of development is prevented or restricted until such condition is fulfilled; (c) a condition that requires compliance with a legislative requirement, other than an optional requirement as described in regulation 4(1A)(b) or 36(2)(b) of the Building Regulations 2010 [where the minimum standards are exceeded and only apply where a condition requiring compliance is imposed]; (d) a condition that requires the disposal or conveyance of an interest in the land to a particular person (except a condition which prevents or restricts the carrying out of development until an agreement has been entered into in accordance with section 30 of the Highways Act 1980) [interest is defined]; (e) in the case of a grant of outline planning permission, a condition which reserves a determinable matter for the subsequent approval of the local planning authority [the draft regulations define determinable matter, effectively it is where details have been provided at outline stage and are not illustrative] Regulation 2(2) would provide that: A condition which imposes costs on the applicant may only be imposed on a grant of planning permission if the costs do not make the development in question economically unviable.’ The Government indicated that it would plough on with converting the policy tests into legal ones, despite noting that many respondents (two thirds) did not support the prohibition of certain conditions, on the basis that the current policy tests and the appeals process were sufficient safeguards, and the mandatory consultation on draft regulations in the Act reflects this response. Should procedures be put in place before the regulations come into force? As indicatively drafted, the regulations controlling the use of conditions would apply to planning applications granted (as opposed to submitted) after a certain date.  So while the regulations might allow a time lag between the regulations being made, laid and coming into force that reflects the 8, 13 or 16 week determination periods, some or all planning applications submitted before the regulations come into force could be subject to them.  Consequently, LPAs will need to have systems in place to seek applicant approval of pre-commencement conditions on all planning applications under consideration on or after a given date.  This might include procedures for seeking an applicant’s approval of a pre-commencement condition before the regulations come into force, in order to avoid delaying determination of the application. The regulations would require review after five years, and would expire after seven years if the Government did not extend them (obviously the Government could revoke the regulations prior to five or seven years in any event). When might the restrictions on powers to impose planning conditions come into force? Section 14 is not yet in force, so the SoS does not have the power to make regulations controlling the use of conditions yet.  But given that regulations have been drafted, that the Conservatives are likely to win the general election, and that current Housing and Planning minister Gavin Barwell has made public his desire to return to DCLG, one might conclude that the new measures are likely to be in force by the end of the year.  This would allow time to prepare, consult on, and respond to the consultation on the draft regulations, and for DCLG to draft the accompanying, required guidance. Sources Government response to the consultation on improving the use of planning conditions The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers The Neighbourhood Planning Bill 2016/2017 Delegated Powers Memoranda Footnotes [1] Whilst the some of the planning-related provisions of the NPA 2017 (Part 1) extend to England and Wales, the provisions apply to England only. [2] ‘Pre-commencement condition’ is defined a section 100ZA(8) of the Town and Country Planning Act 1990, not yet in force [3] ‘Indicative draft’ regulations relating to the Act’s provisions on conditions were included within Annex A of The Neighbourhood Planning Bill: Further information on how the Government intends to exercise the Bill’s delegated powers’(the ‘further information document’), but they have not been consulted on. Image credit: Uber Offices

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