The Planning Act 2008
The Planning Act 2008 received Royal Assent on 26 November 2008 and makes a number of important changes to planning law.
Nationally Significant Infrastructure Projects
Parts 1-8 of the Planning Act 2008 provide a new streamlined system for obtaining consent for certain specified infrastructure projects which are of such a size that they would be considered to be of national significance. Such projects include generating stations, overhead electricity lines, underground gas storage facilities, pipelines, highways, airports, harbour facilities, railways and rail freight interchanges, dams and reservoirs, water resource transfer facilities, waste water treatment plants and hazardous waste facilities.
An Infrastructure Planning Commission will be established to deal with the grant of development consent for such projects in place of the current planning permission and other authorisation consents. The Government is expected to publish a timetable in early 2009 to set out when the arrangements will be made to set up the IPC and for it to start receiving applications for major infrastructure projects.
Changes to the Existing Planning Regime
The Planning Act 2008 makes the following changes to the current planning regime:
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Regional Planning Bodies now have the ability to delegate their functions to the Regional Development Agency for their region;
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The Regional Spatial Strategy and Development Plan Documents must now include policies designed to ensure that the development and use of land in the relevant area addresses climate change issues;
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Local planning authorities are given power to make non-material changes to planning permissions which can include imposing new conditions or removing or altering existing conditions. Such changes can only be made pursuant to an application by a person who has an interest in the land to which the permission relates;
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Prior to the Planning Act 2008 local authorities would impose Tree Preservation Orders on trees in their areas as necessary and each Tree Preservation Order would have conditions attached to it governing how it would operate. Going forward, Tree Preservation Orders will identify the trees affected but all the conditions explaining how the order operates will now be found in regulations made by the Secretary of State;
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Where a local planning authority acquires or appropriates land for planning purposes the local planning authority is now able to override easements and other rights which would otherwise restrict the use of that land provided that it is used in accordance with planning permission. Compensation will be payable for interference with an easement or other right.
The Secretary of State now has the power to select the procedure by which certain proceedings under the Town and Country Planning Act 1990, the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Planning (Hazardous Substances) Act 1990 should be determined. The procedure could be a local inquiry, a hearing or written representations.
Community Infrastructure Levy
Part 11 of the Planning Act 2008 establishes the framework and criteria for the new Community Infrastructure Levy (“CIL”):
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Power is given for the Government to make regulations for the imposition of CIL, the overall purpose of which is “to ensure that costs incurred in providing infrastructure to support the development of an area can be funded (wholly or partly) by owners or developers of land”;
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CIL is to be administered by specified charging authorities for example, local planning authorities, councils, the London Mayor etc;
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CIL is to be charged “in respect of development of land” in the charging authority’s area. Development means construction of a new building or carrying out works to an existing building;
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In the absence of someone else assuming the liability for paying CIL, it will be paid by the owner ie the person who owns the land or by the developer ie the person responsible for the development;
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Liability for CIL arises upon commencement of development in reliance on planning permission;
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The amount of CIL will be determined by reference to the time when planning permission first permits the development;
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Regulations will make provision for settling the amount of CIL, and this, together with other criteria, will be set out in a charging schedule;
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Provision may be made for payment of CIL on account or in instalments;
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Late payment or failure to pay CIL may be made subject to both civil and criminal sanctions including interest, penalties and surcharges, suspension or cancellation of planning decisions, prohibition of development and entry onto land;
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The collecting authority will be obliged to apply CIL to fund infrastructure. What constitutes infrastructure will be defined by regulations but it will include roads, transport, flood defence, facilities for schools and education, medicine, sport and recreation, open spaces and affordable housing;
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Provision will be made for registration of CIL liability as a local land charge and for enforcement against successive owners;
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Most registered and other charities will be exempt from CIL where the building or structure is to be used wholly or mainly for charitable purposes.
This article was first published in the Property Law Journal on 2 February 2009.
