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Community Infrastructure Levy Update

Meeta Kaur, Associate - Planning & Environment

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• Community Infrastructure Levy (Amendment Regulations) 2012 (into force 29 November 2012)

• Community Infrastructure Levy (Amendment) Regulations 2013 (into force 24 April 2013)

• Community Infrastructure Levy Guidance (April 2013) (updates December 2012 guidance)

• Consultation on Community Infrastructure Levy further reforms (April 2013)

1. Recent developments

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• Deals with previous problems with Section 73 permissions:– Pre-CIL original permission and post-CIL Section 73 permission:

• CIL only payable on increase in floorspace due to Section 73 permission

– Post-CIL original permission and post-CIL Section 73 permission: • Where Section 73 permission does not change the CIL liability

no additional CIL payable• Where Section 73 permission changes the CIL liability, the CIL

payable is that arising on most recently commenced/recommenced development

2. November 2012 Amendment Regulations

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• Credit against CIL already paid• Permissions to extend time limits• Allows consent granted under Neighbourhood

Development Orders to be liable to CIL• Amendment has been made to the formulae for

calculating chargeable amount and social housing relief

3. Other amendments

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• Two main issues:

– Neighbourhood funding

– Mayoral Development Corporations

4. April 2013 Amendment Regulations

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• Requirement for charging authorities to pass on proportion of CIL receipts for neighbourhood planning

• In areas with parish councils:– Where all or part of the chargeable development

• is not in an area with a neighbourhood plan; and• was not granted permission by a Neighbourhood

Development Order15% of CIL must be passed to the parish council (subject to annual cap)

5. Neighbourhood funding

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– Where all or part of the chargeable development is:• In an area with a neighbourhood development plan; or• Not in an area that has a neighbourhood development plan in

place and was granted by a neighbourhood development order25% of CIL must be passed to the parish council (not subject to an annual cap)

• In areas with no parish councils charging authority retains neighbourhood funding element but must spend it on neighbourhood planning

• Wider application permitted

6. Neighbourhood funding

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• Provides for MDCs to be charging authorities for their area

• Allows Mayor to carry out preparatory work on MDC charging schedule

7. Mayoral Development Corporations

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• Originally issued in December 2012 but updated April 2013

• Intended to provide further clarity on a range of issues including:– Setting CIL rates – Infrastructure planning– Factors to consider– Setting differential rates

8. Community Infrastructure Levy Guidance (April 2013)

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• “Radical overhaul” – wide range of questions and proposals• Proposed changes include:

– Differential rates by reference to use and scale– Regulation 123 list part of relevant evidence including at examination– Section 278 agreements– Payment in kind through provision of infrastructure– Full permissions capable of treatment as phased development– Removal of the vacancy test– Social housing relief to include discount market units– Relaxation of exceptional circumstances relief conditions

9. Consultation on Community Infrastructure Levy Further Reforms (April 2013)

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Growth and Infrastructure Act 2013 and Enterprise and Regulatory Reform Act 2013 - Key points

Stephen Webb, Partner – Planning & Environment

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• Growth and Infrastructure Act 2013 and Enterprise and Regulatory Reform Act 2013 amend TCPA 1990, Planning Act 2008 and Planning (LB and CA) Act 1990

• Not stand-alone Acts• Come into force in stages:

– on the date of Royal Assent: 25 April 2013 IF25 April;– 25 June 2013 IF25 June; or– on such day as the Secretary of State shall appoint NIF

• Trailed as being a counter to the Localism agenda• May not reflect all Government rhetoric but some measures

should speed up the consenting process

Introduction

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• Option to make planning applications directly to Secretary of State (section 1)

• Planning proceedings & CPO costs (sections 2 and 3)• Permitted development changes (section 4)• Information requirements (section 6)• Section 106 and Affordable Housing (section 7)• Stopping up and diversion of highways and public paths (sections

11 and 12)• Registration of TVGs (sections 14, 15 and 16)• Bringing businesses and commercial projects within 2008 Act

regime (section 26)

Growth and Infrastructure Act 2013

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Section 1: Option to make planning application directly to Secretary of StateNIF (except for designation power – IF25 April)

• Applies to planning applications, “reserved matters” and “connected applications” (e.g. CAC and LBC)

• LPA must be “designated” for underperformance• Duty to notify Parish CouncilsSchedule 1:• Allows the Mayor of London to continue to “call in” strategic

planning applications where submitted to SoS• No s.78 right of appeal where submitted to SoS

Growth and Infrastructure Act 2013

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Sections 2 and 3: Planning and CPO CostsNIF

• Broadens powers of SoS to recover costs in part as well as in full

• Enables SoS to recover costs where an inquiry/hearing has been arranged but does not take place

• Provides a power under which regulations may be made which set out the criteria for awarding or recovering costs

Growth and Infrastructure Act 2013

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Section 4: Permitted development IF25 April • Where order permits development within the curtilage of

a dwelling house, the LPA can prevent the development proceeding if:– there are objections from neighbours who share a boundary; and– the LPA considers that there will be an unacceptable impact on the amenity

of the adjoining properties

• Where development is permitted by way of a development order and involves a change of use – then certain matters may still need to be approved by LPA/SoS e.g. traffic/transport issues

Growth and Infrastructure Act 2013

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Section 6: Information requirementsNIF

• Limits the information which an LPA can request with planning applications

• Information must be:– reasonable having regard to the nature and scale of the

proposed development; and– the subject matter of the information will be a material

consideration in the determination of the application

Growth and Infrastructure Act 2013

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Section 7: Modification or discharge of affordable housing requirementsIF25 April • Section 106BA: enables variation of affordable housing requirements if,

on a first application, it would make the development unviable• On second and subsequent application in relation to the planning

obligation, LPA has more flexibility not to vary• Section 106BB: duty for London Boroughs to notify the Mayor of

applications under Section 106BA• Section 106BC: power to appeal to Secretary of State – if successful, if

development not completed in 3 years then revert to original provisions• Also see DCLG best practice guide

Growth and Infrastructure Act 2013

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Sections 11 and 12: Stopping up and diversion of highways and public pathsIF25 June

• Enables a draft order for the stopping up of a highway to be made at the application stage

• Enables an order stopping up or diverting a public path to be made in anticipation of planning permission

Growth and Infrastructure Act 2013

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Sections 14NIF, 15NIF and 16IF25 April: Registration of TVGs• Reduces period (post 20 years “as of right”) from 2 years to 1

year for registration (section 14)• Enables landowner to deposit a statement and map to bring to

an end the “as of right” period (section 15)• Restricts registration of TVG application where any trigger

event has taken place (section 16): Schedule 1A:– Planning application– Draft or full development plan document or proposal for

neighbourhood plan (which identifies land for development)– Application for an order granting development consent

Growth and Infrastructure Act 2013

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Section 26: Brings business and commercial projects within Planning Act 2008 regimeIF25 April

Introduces a new Section 35 into the PA 2008:• Enables SoS to direct that certain commercial and business

development requires consent under NSIP regime• Projects will be prescribe in regulations but will not include

projects which include dwellings• SoS Direction requires a “qualifying request” to be made –

justifying why in national interest• In London SoS may only make Directions if the Mayor has

consented

Growth and Infrastructure Act 2013

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Changes to heritage planning • Conservation Area Consent (Schedule 17, para 6NIF)

– CAC for demolition of an unlisted building in a CA no longer required

– Instead, demolition will require planning permission• Listed Building Consent (Schedule 17, paraIF25 June)

– Allows certain structures or objects to be specifically excluded from listing rather than everything within the curtilage of a building

– Will allow works to be carried out which may have previously required LBC

Enterprise and Regulatory Reform Act 2013

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Changes to heritage planning• Certificates of Immunity from Listing (Schedule

17 para 9NIF)– Can be applied for by anyone at any time– No need for a concurrent planning application

• Heritage Partnership Agreements (section 60NIF)– Provides for owners of listed buildings to enter into Heritage

Partnership Agreements with the LPA as an alternative means of obtaining consent for alteration/extension

Enterprise and Regulatory Reform Act 2013

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A sound plan?

Simon Ricketts, Partner – Planning & Environment

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• Procedural requirements• Duty to co-operate• Soundness, e.g. does it seek to meet

objectively assessed needs of area?• Inspector’s reasoning• Strategic environmental assessment

A sound plan?

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Duty to cooperate• Section 33A, 2004 Act: to “engage constructively,

actively and on an ongoing basis. . .” with other local authorities and prescribed bodies

• Paragraphs 178 to 181, NPPF: LPAs “will be expected to demonstrate evidence of having cooperated to plan for issues with cross-boundary impacts when their plans are submitted for examination”.

Coventry

A sound plan?

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Soundness under NPPF, e.g. does it seek to meet objectively assessed needs of area?DacorumEast HantsWest NorthamptonshireNorth Warwickshire

A sound plan?

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Inspector’s reasoningBlyth Valley BC v Persimmon Homes (North East) Limited [2009] JPL 335, CA – no presumption of soundnessUniversity of Bristol v North Somerset Council [2013] EWHC 231 (Admin) – inadequate reasoning from inspector, needs to be proportionate to the level of detail in the evidence

A sound plan?

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Strategic environmental assessmentSave Historic Newmarket Ltd v Forest Heath DC [2011] JPL 1233 – DPDs require SEAHeard v Broadland DC [2012] Env LR 23 – reasonable alternatives need to be identified (with justification) and examined on the same basis and reasons given for selecting preferred optionSt Albans DC v S/S for C+LG [2009] EWHC 1280 – iterative process and some alternatives can be ruled out at earlier stageCogent Land v Rochford DC [2013] P+CR 2 – defects can be remedied prior to adoptionWest Northamptonshire Joint Core Strategy

A sound plan?

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Conclusions

A sound plan?

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Neighbourhood Planning

Meeta Kaur, Associate - Planning & Environment

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• Localism Act 2011amendments to Town and Country Planning Act 1990 and Planning & Compulsory Purchase Act 2004

• Neighbourhood Planning (General) Regulations 2012 and Neighbourhood Planning (Referendums) Regulations 2012

1. Neighbourhood planning: the basics

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• Key spatial/geographical concept: neighbourhood areas

• Key bodies: parish councils and possible or actual neighbourhood forums

• Key neighbourhood planning tools: neighbourhood development orders, community right to build orders, neighbourhood development plans

2. “Building Blocks”

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• Areas designated by LPAs where a relevant body has made a successful application for designation

• Relevant body: parish council or body which is/is capable of being designated as a neighbourhood forum

• Application must include a map of the proposed area, statement setting out why it should be designated and a statement that the applying body is a relevant body

3. Neighbourhood areas

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• Publicity and six week consultation• LPA must have regard to “the desirability of

designating the whole area as a neighbourhood area whilst considering the preservation of existing neighbourhood area boundaries”

• Refusal with reasons (no outright refusal) and approval with publicity

4. Neighbourhood areas

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• Groups designated by LPAs where they meet certain conditions:– Established for express purpose of promoting or improving

social, economic and environmental wellbeing of an area– Membership open to individuals who live or work in the

neighbourhood area or are elected members– Minimum of 21 members– Written constitution– Any other prescribed conditions

5. Neighbourhood forums

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• Publicity and six week consultation• Refusal with reasons or approval with publicity• Designation ceases to have effect after five years• Interactions

6. Neighbourhood forums

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• Neighbourhood development orders, community right to build orders and neighbourhood development plans

• Qualifying bodies: parish council or designated neighbourhood forum, authorised for the purposes of a neighbourhood development order to act in relation to a neighbourhood area

7. Neighbourhood planning tools

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• Grant planning permission in relation to a particular neighbourhood area for development or classes of development

• Qualifying body entitled to initiate process requiring LPA to make an NDO

• LPA advice or assistance (not financial assistance)

8. Neighbourhood development orders (NDOs)

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• Qualifying body must consult and publicise proposed NDO

• Proposal must include draft NDO, statement with a summary of the proposals and reasons why NDO should be made, and consultation statement

• Publicity• Examination and referendum requirements

9. Neighbourhood development orders (NDOs)

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• Particular type of NDO providing for community led site specific development

• NDO = CRBO if:– made pursuant to a proposal by a community organisation– grants planning permission for specified development in

relation to a specified site in a specified neighbourhood area

– the specified development does not exceed certain limits

10. Community right to build orders (CRBOs)

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• Community organisation: corporate body established for the express purpose of furthering the social, economic and environmental wellbeing of individuals living or wanting to live in a particular area and which meet other prescribed conditions in relation to its constitution

• Community organisations are authorised for the purposes of a CRBO to act in relation to a neighbourhood area

• Examination and referendum requirements

11. Community right to build orders (CRBOs)

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• Plans which set out policies in relation to development and use of land in a neighbourhood area

• Qualifying bodies entitled to initiate a process requiring LPA to make an NDP

• NDP must be appropriate with regard to national policy and in general conformity with strategic development plan policies

12. Neighbourhood development plans (NDPs)

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• Part of the development plan for Section 38 PCPA 2004 but take precedence over non-strategic policies

• Can only relate to one neighbourhood area and a neighbourhood area can only have one NDP

• Examination and referendum requirements

13. Neighbourhood development plans (NDPs)

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• First come, first served• LPA discretion – R (oao Daws Hill Neighbourhood

Forum) v Wycombe DC (2013)• Genuinely neighbourhood planning?

14. Issues arising

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Reforming Judicial Review

Simon Ricketts, Partner – Planning & Environment

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• 3 months to find out whether JR claim lodged• Over 80 days on average for a judge to decide on the

papers whether to grant permission• Another 110 days on average if an oral renewal• And then the Court of Appeal (twice)

It’s a problem:

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Figure 2: Applications to apply for Judicial Review, by nature of review

Judicial Review Statistics 2007-2011 - Ministry of Justice Ad-hoc publication - Published 18 April 2013

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• Time limit in planning JRs to be 6 weeks, not 3 months (and no pre-action protocol)

• If claim “totally without merit”, no right to an oral renewal

• Fee for substantive hearing brought forward to oral renewal stage

MoJ reforms, 7 May 2013

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Many claims will qualify.Since 1 April, claimant can opt for:

£5,000 cap if he or she loses (£10,000 if an organisation)

£35,000 cap on costs recoverable from the Defendant if the claim is successful

Reduces the fear factor for claimants…

New mutual cost-capping regime in Aarhus Convention claims

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Proposed changes to legal aid, April 2013 consultative paperIn 2011-12:• 1,799 JRs started with legal aid• Of these over 500 ended without benefit to the client

MoJ proposal:• Legal aid for commencing JR only if it achieves

permission• Thereafter only if at least 50% prospect of success

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Encore?

“The Government continues to believe that there may be scope to further streamline the process of Judicial Review, particularly for crucial infrastructure and housing projects.”

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• Statistics• Administrative Court targets and processes• Reducing the trip hazards for local authorities• Mediation?

Where further improvements required

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Controversial changes but:• Do they restrict access to justice for deserving

cases?• Will they be positive for economic growth?• Plenty more to be done

Conclusions

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