In mid-July this year the government announced a wide range of additional powers to be granted to the London Mayor in respect of planning, waste and a number of other strategic areas. The new planning powers would give the Mayor the ability to take over strategically important planning applications and determine them, the rationale being that it would enable the Mayor to ensure the full implementation of strategic planning policy in Greater London. The government has since launched a consultation exercise, ending on 2 November 2006, setting out its detailed proposals on what applications would be involved and how the process would work in practice.

The proposed take-over of power

Current position

At present, each London borough is obliged to notify the Mayor of any planning application of ‘potential strategic importance’ (PSI applications). In cases where the Mayor wishes to be consulted on the application and the borough notifies the Mayor that it intends to grant planning permission, the Mayor then has 14 days during which he can direct the borough to refuse the application. The Mayor can issue a refusal direction if he considers that the proposed development would be either contrary to the spatial development strategy (or prejudicial to its implementation), or if the development would be otherwise contrary to good strategic planning in Greater London.

What powers are proposed?

The government proposes to extend the range of powers open to the Mayor in respect of PSI applications. The power to direct refusal is retained, and a new power to take over and determine PSI applications is proposed. If the Mayor takes over the determination of the PSI application, he will also be responsible for leading negotiations on the section 106 agreement, with the relevant London boroughs being statutory consultees whose views the Mayor would be required to take into account. The Mayor would also be responsible for associated reserved matters approvals and listed building consents. Where the borough determines a PSI application, the Mayor would remain a consultee.

What applications will be subject to these powers?

The consultation paper sets out the thresholds for determining when an application is a PSI application requiring reference to the Mayor. The paper does not propose significant changes to the PSI application thresholds currently applied, save in respect of waste facilities, metropolitan open land and tram stations.

Current thresholds largely retained The following categories of development, by way of example, will continue to be referred to the Mayor as PSI applications (the full list is set out below):

(1) commercial development in the City of London comprising a total floorspace of more than 30,000 square metres (20,000 square metres in central London and 15,000 square metres outside central London);

(2) development including the erection of a building over 25 metres high and adjacent to the River Thames; over 75 metres high in the City of London; or over 30 metres high and outside the City of London; and

(3) residential development comprising the provision of more than 500 dwellings or a development that occupies more than 10 hectares.

Amended thresholds

These are:

(1) Hazardous waste sites handling at least 5,000 tonnes per annum (for non-hazardous waste: 50,000 TPA), and all waste sites larger than one hectare, except where the application does not conform with the relevant development plan, in which case the thresholds are 2,000 TPA, 20,000 TPA and 0.5 hectares (currently a simple 50,000 TPAthreshold applies).

(2) Tram stations (currently only the tramway itself is covered).

(3) Metropolitan open land (MOL) – all departure applications involving proposed development on MOL or change of use of existing buildings (currently only larger buildings are covered).

With an expansion of possible referrals to the Mayor, the policy framework allowing the Mayor to take over applications takes on greater importance.

In what circumstances can the Mayor take over a PSI application for his own determination?

The consultation paper states that the Mayor ‘should take over no more than a limited number of strategic planning applications in any given year that raise issues of London-wide or sub-regional importance’.

The government is proposing a two-stage test whereby the Mayor will need to be satisfied both that:

• the application raises issues that are of a nature and scale that would significantly impact on the implementation of specific London Plan policies; and

• the issues raised by the application have significant effects that go wider than a single borough.

In addition to considering a borough’s analysis of policy issues and the issue of setting precedents, the Mayor must consider its record in dealing with previous applications raising strategic issues. This will facilitate the Mayor taking over applications from boroughs he views as ‘repeat offenders’.

What is the proposed new procedure?

PSI applications will be notified to the Mayor, who will then have 21 days to respond (similar to the current position). He can notify the borough that he:

• will not intervene and the borough can then determine the application (similar to the current position);

• wants to be consulted on the borough’s proposed decision – the Mayor can direct refusal if necessary (similar to the current position); or

• wants to be consulted on strategic issues.

It is this last option that allows the Mayor to exercise his new take-over power: the borough has six weeks to revert to the Mayor with its assessment on strategic issues and the Mayor then has 21 days to decide whether to take over the application. If he does not take it over, he can still ask to be consulted and direct refusal if necessary.

The government envisages that relevant boroughs would undertake the necessary public consultations on development proposals and would feed the results to the Mayor.

Comment

These new powers are being introduced to help the Mayor push through the strategic aims of his London Plan, something the boroughs have been criticised for hindering. There are a number of significant schemes in London where the Mayor’s input could have sped up the development process significantly, including, for example, the Lots Road scheme in Chelsea where the Royal Borough of Kensington & Chelsea vacillated by refusing a £500m mixed-use development application on several occasions, while neighbouring Hammersmith & Fulham had approved the scheme.

The ability for the Mayor to take over applications from LPAs is not a new concept – it already exists at a national level with the Secretary of State for Communities and Local Government’s call-in powers, but these are used sparingly. Whether the Mayor will be so sparing in his use of the powers will be keenly awaited. Press reports indicate that the Mayor has already reported on 25 schemes that should have been approved without LPAs dragging their heels.

It is important to note, however, that the government considers that the Mayor should not be allowed to take over any proposal upon which he has made public statements of support or opposition (he would, however, retain his power to direct refusal of such applications). The Mayor will therefore need to be careful not to get into the media fray on significant schemes to avoid the possibility of this important power being lost. How far this arrangement would be workable in practice will be open to question.

It is unsurprising that the results of the initial consultation on increasing the Mayor’s powers identified that the London boroughs were significantly opposed to the powers, whilst developers were generally in favour. Arecent poll commissioned by the Association of London Government has indicated that more than half of Londoners are against the Mayor having greater control over planning matters, with only 27% in favour. The possibility for dispute as to use of the Mayor’s new planning powers seems clear. Where the Mayor has directed refusal in the past, there has remained a right for the developer to appeal. With his positive take-over power, unless agreement can be reached, the borough’s only remedy will be a legal challenge of the Mayor’s decision (unless it can persuade the Secretary of State to call in the decision herself). Likely areas of legal challenge will relate to the scope of the power and the application of the policy tests mentioned above:

• Does the application in fact impact on implementation of policies in the London Plan?

• Do the issues raised by the application in fact go wider than a single borough, eg what effects does a mixed-use development in one borough have in other boroughs?

The government does not consider it likely that the Secretary of State will be given the power to overturn a decision by the Mayor to take over an application. However, the ‘call-in’ powers under the Town and Country Planning Act 1990 would continue to apply, although such powers would only be exercised where the proposed development raised issues of national importance.

Conclusion

The proposed new take-over powers are likely to provide a powerful if controversial tool in the Mayor’s planning armoury. These, along with other powers granted to allow the Mayor more direct intervention in the boroughs’ development planning processes, will no doubt assist the Mayor to implement the London Plan more quickly and fully, but at what cost for local democracy? This will be an interesting time for London planning as boroughs are pitched against the Mayor on the planning field but quite likely also in the courts.