1. 1 Community Infrastructure Levy Update Meeta Kaur, Associate - Planning & Environment

2. 2 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

3. 3 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

4. 4 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

5. 5 Two main issues: –Neighbourhood funding –Mayoral Development Corporations 4. April 2013 Amendment Regulations

6. 6 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 Order 15% of CIL must be passed to the parish council (subject to annual cap) 5. Neighbourhood funding

7. 7 –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 order 25% 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

8. 8 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

9. 9 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)

10. 10 “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)

11. 11 Growth and Infrastructure Act 2013 and Enterprise and Regulatory Reform Act 2013 - Key points Stephen Webb, Partner – Planning & Environment

12. 12 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

13. 13 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

14. 14 Section 1: Option to make planning application directly to Secretary of State NIF (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 Councils Schedule 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

15. 15 Sections 2 and 3: Planning and CPO Costs NIF 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

16. 16 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

17. 17 Section 6: Information requirements NIF 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

18. 18 Section 7: Modification or discharge of affordable housing requirements IF25 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

19. 19 Sections 11 and 12: Stopping up and diversion of highways and public paths IF25 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

20. 20 Sections 14 NIF, 15 NIF and 16 IF25 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

21. 21 Section 26: Brings business and commercial projects within Planning Act 2008 regime IF25 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

22. 22 Changes to heritage planning Conservation Area Consent (Schedule 17, para 6 NIF ) –CAC for demolition of an unlisted building in a CA no longer required –Instead, demolition will require planning permission Listed Building Consent (Schedule 17, para IF25 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

23. 23 Changes to heritage planning Certificates of Immunity from Listing (Schedule 17 para 9 NIF ) –Can be applied for by anyone at any time –No need for a concurrent planning application Heritage Partnership Agreements (section 60 NIF ) –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

24. 24 A sound plan? Simon Ricketts, Partner – Planning & Environment

25. 25 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?

26. 26 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?

27. 27 Soundness under NPPF, e.g. does it seek to meet objectively assessed needs of area? Dacorum East Hants West Northamptonshire North Warwickshire A sound plan?

28. 28 Inspector’s reasoning Blyth Valley BC v Persimmon Homes (North East) Limited [2009] JPL 335, CA – no presumption of soundness University 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?

29. 29 Strategic environmental assessment Save Historic Newmarket Ltd v Forest Heath DC [2011] JPL 1233 – DPDs require SEA Heard 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 option St Albans DC v S/S for C+LG [2009] EWHC 1280 – iterative process and some alternatives can be ruled out at earlier stage Cogent Land v Rochford DC [2013] P+CR 2 – defects can be remedied prior to adoption West Northamptonshire Joint Core Strategy A sound plan?

30. 30 Conclusions A sound plan?

31. 31 Neighbourhood Planning Meeta Kaur, Associate - Planning & Environment

32. 32 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

33. 33 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”

34. 34 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

35. 35 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

36. 36 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

37. 37 Publicity and six week consultation Refusal with reasons or approval with publicity Designation ceases to have effect after five years Interactions 6. Neighbourhood forums

38. 38 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

39. 39 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)

40. 40 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)

41. 41 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)

42. 42 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)

43. 43 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)

44. 44 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)

45. 45 First come, first served LPA discretion – R (oao Daws Hill Neighbourhood Forum) v Wycombe DC (2013) Genuinely neighbourhood planning? 14. Issues arising

46. 46 Reforming Judicial Review Simon Ricketts, Partner – Planning & Environment

47. 47 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:

48. 48

49. 49 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

50. 50 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

51. 51 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

52. 52 Proposed changes to legal aid, April 2013 consultative paper In 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

53. 53 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.”

54. 54 Statistics Administrative Court targets and processes Reducing the trip hazards for local authorities Mediation? Where further improvements required

55. 55 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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