The government has published regulations bringing more of the Planning and Compulsory Purchase Act 2004 into force. The Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006 (SI 2006/1062) is, according to Planning Minister Yvette Cooper:

… the latest step in the government’s ongoing reform of the planning system to make the planning system more effective and provide more certainty for communities and developers alike.

This article summarises the changes and considers their business impact.

Mezzanine floorspace

Certain works that have the effect of increasing the internal floorspace of a building will now require planning permission. The definition of development for which planning permission is required, found in s55 of the Town and Country Planning Act 1990, has until now excluded works that ‘affect only the interior of the building’. This definition has been amended so that works to increase the internal gross floorspace of a building, used for the retail sale of goods other than hot food, by 200 square metres or more now constitute development, and therefore require planning permission.

The previous exclusion of internal works from planning control meant that out-of-town retail stores could extend their floorspace significantly through the creation of mezzanine floors, without needing planning permission. These extensions contributed to the diversion of trade away from existing city centres, and threatened to undermine the government’s objective to protect the vitality and viability of town centres.

Although the courts ruled in Northampton Borough Council v Secretary of State for the Home Department and Land Securities Properties Ltd [2005] that planning conditions could restrict internal as well as external extensions, the issue was seen as serious enough to require a change in the law. Section 49 of the Planning and Compulsory Purchase Act 2004 thus enabled the Secretary of State to specify circumstances where the exclusion of internal works from the definition of development would not apply.

The regulations are slightly more restrictive than those consulted upon last year, as they apply not just to new retail floorspace, but also to new ancillary floorspace such as display, storage and staff facilities. There is no guidance in the regulations on how to apply the rules to mixed-use buildings, ie whether the use of any part of a building for retail purposes (eg the ground floor) will bring the whole building within the regulations. This means that, despite the government’s motivation to reduce the growth of out-of-town retail stores, the regulations could apply to a much wider range of buildings.

The effect of the new rules is nevertheless most likely to be felt by out-of-town retailers, who will face difficulties in getting mezzanines approved where their works are seen as a threat to the vitality and viability of existing town centres. The government has said that ‘the purpose of the legislation is not to halt mezzanine development’ so retailers should not face difficulties in obtaining permission for internal extensions to shops within town centres. Indeed, planning authorities that want to encourage such development can grant ‘deemed’ consent for it by a local development order.

There is also scope for retailers to avoid the new rules by installing a series of mezzanines just below the 200 square metre threshold, which counted together would breach that threshold, without the need for planning permission. The retailer would need to demonstrate that each installation was a separate set of works, however. This is likely to require closing the premises on separate occasions for the works to take place, and so may not make commercial sense.

The regulations came into force on 10 May 2006. In relation to building works to construct new internal floorspace that had not been completed by that date, planning permission will not be required provided the works were begun before 5 April 2006, or were carried out pursuant to a lawful development certificate (a CLOPUD) and were begun before 10 May 2006. It follows that lawful development certificates authorising internal floorspace increases of more than 200 square metres are now of no further effect, unless the relevant works had been started before 10 May 2006.

Design and access statements

From 10 August 2006 it will be compulsory for planning and listed building consent applications to be accompanied by a formal design and access statement, save in relation to applications for changes in use, engineering and mining operations, and single householder developments.

The government’s main objective for design and access statements is to ensure that local planning authorities have sufficient information properly to consider design and access issues against relevant policies in their local development documents. Local communities will be given a better understanding of what is proposed and, therefore, a greater opportunity to engage in the planning process. Design and access statements are also a means of encouraging high-quality design for developments of all sizes.

A design and access statement should explain and justify the proposed development by reference to the design concepts and principles upon which it is based. The same elements must be covered in statements relating to both outline and detailed planning applications, although statements relating to outline applications will also need to provide a link to the future consideration of reserved matters.

Information must be provided in relation to the design progress that has been followed and the physical characteristics of the development. The design process must be assessed in relation to the physical, social, economic and policy context for the development. The physical characteristics of the development must be described by reference to the amount of development, the mix of uses proposed, the layout of the scheme, the scale and appearance of the development, landscaping proposals, and how access issues have been dealt with.

Planning applications will not be registered without a valid design and access statement, the contents of which will be a material consideration when the application is determined. Local planning authorities may also bind the developer to elements of a statement through the use of planning conditions or obligations. This is likely to occur particularly in relation to outline planning applications, in order to fix the development parameters for future reserved matters.

The requirements for design and access statements are complex and will take some time to get used to for both developers and local planning authorities. The statements are intended to be more formal and prescriptive than before, and their use is likely to evolve as the new system beds down. Although statements will not be compulsory until August, it would be advisable for developers to take account of the new requirements immediately, in order to adapt to the new system as quickly as possible.

Outline planning permission and reserved matters

In 2003 the government proposed the abolition of outline planning permissions, but then agreed to retain them following uproar from the development industry. In return for that agreement, the provision of a minimum threshold of information will now be required with every outline planning application. That information falls into five categories: use; amount of development; indicative layout; scale parameters; and indicative access points.

In addition, the list of reserved matters, ie those things that a developer may postpone determination of until after outline permission is granted, has been reclassified. The new categories of reserved matters and their definitions are detailed in the table below and tie in to the categories for which a minimum amount of information must be provided. So, even where a developer treats ‘layout’ as a reserved matter, the minimum threshold requirement means that details of the approximate location of buildings, routes and open spaces in the development must still be provided.

All outline planning applications submitted with effect from 10 August 2006 must comply with these new requirements. As with design and access statements, the changes are designed to create greater certainty in the planning system and encourage the provision of information and better, informed, community involvement. Essentially, the new approach to outline applications means that bare or ‘red-line’ planning applications are no longer permitted. The government describes these changes as a ‘move towards a more detailed outline planning permission regime’, with a consequent increased burden on developers submitting outline applications and on local planning authorities processing them.

There is also likely to be a knock-on effect on applications for the approval of reserved matters. We may in future see the requirement to submit ‘statements of conformity’ to show that reserved matters are consistent with information provided at the outline stage. The outline planning process will also have to take account of the recent decisions of the European Court of Justice relating to environmental impact assessment at the reserved matters stage, namely: R (on the application of Barker) v Bromley London Borough Council [2005] and Commission of the European Communities v UK [2006].

Local development orders

Local development orders (LDOs) enable local planning authorities to create permitted development rights at the local level, thus supplementing the national system of permitted development rights set out in the Town and Country Planning (General Permitted Development) Order 1995.

An LDO effectively grants deemed consent for the type of development specified in the LDO and, by so doing, negates the need for a planning application to be made. LDOs can only be made to implement policy contained in local development documents, and cannot grant permission for development affecting a listed building, nor for Schedule 1 EIA Development or for development which is likely to have a significant effect on a European Site for the purposes of the Habitats Regulations. LDOs can, however, be made for Schedule 2 EIA Development (provided EIA is carried out) and, contrary to earlier proposals consulted on by the government, LDOs can grant planning permission in conservation areas. The existence of an LDO will be discoverable by looking at the local planning register, where all LDOs must be noted.

The power to make LDOs came into force on 10 May 2006. LDOs will form part of the Local Development Framework, so when making LDOs an authority will have to comply with the same publicity and consultative requirements as are required for a Supplementary Planning Document. LDOs could therefore have significant cost implications, and developers may be asked to contribute where LDOs relate to a specific site that they are interested in developing.

The government hopes that by introducing this change local authorities will take proactive steps to implement their policies to enable development to come forward with greater speed and certainty. LDOs are likely to be used primarily in relation to development that is relatively minor and for which permission is invariably given, such as small household extensions. This should free up planning officers’ time, enabling them to concentrate on more major applications.

However, LDOs could also potentially be used to encourage development to come forward in regeneration areas. If used confidently by local planning authorities in this way, they could become a powerful addition to the planning toolkit.

Decision periods for major development applications

The determination period for ‘major development’ applications has been increased from eight weeks to 13 weeks. Major developments include minerals and waste development, residential development where more than ten dwellings are to be provided (or, on a site of more than 0.5 hectares, where the number of dwellings is not fixed), the provision of a building or buildings with more than 1,000 square metres of floorspace, or any development on a site of one hectare or more.

This brings the determination period into line with the local planning authority’s Best Value Performance Indicator target period, resolving the previous anomaly that planning authorities are given 13 weeks to determine major planning applications, yet applicants could lodge an appeal for non-determination after only eight weeks. Although it means a longer period before which applicants can appeal against a planning authority’s failure to determine an application, authorities will now have a more realistic time frame to determine applications, thus discouraging the rejection of applications just to hit targets.

This change does not affect the special rules for planning applications involving EIA development, where the determination period remains 16 weeks. The position is summarised in the box above.

The government has also clarified ambiguity over exactly when the determination period begins. The period for determination of any planning application will now commence on the day immediately following the date that a valid application is received by the local planning authority.

In order to be valid, planning applications must be accompanied by certain prescribed information including the correct fee, an environmental statement where relevant and, from 10 August, a design and access statement. The government has chosen not to implement its earlier proposal to define a valid planning application as one that includes all data required by a local authority, in response to concerns from developers that this would allow planning authorities to request practically anything they wanted before validating an application.

Conclusion for practitioners

Clarification of the way to calculate determination periods is welcome, and bringing determination periods in line with local authority targets addresses a minor inconsistency in the current system.

These new rules came into effect on 10 May 2006. No transitional provisions have been published, however, and it is not clear how the change will take effect in relation to applications that were submitted prior to 10 May.  © Property Law Journal