Legal report

- Regime manoeuvres keep practitioners on the alert

How might those expectations change should there be a shift in political power and thinking next year?

The Planning Act 2008 was trumpeted as the panacea for all our planning problems, as was the Planning and Compulsory Purchase Act 2004. But this regime is mainly dependent on the successful delivery of two vehicles - the Infrastructure Planning Commission (IPC) and the community infrastructure levy (CIL).

The much-vaunted IPC heralds a fast-track process whereby applications for nationally significant infrastructure projects (NSIPs) will be determined in accordance with a raft of national policy statements (NPSs). The commission came into being on 1 October and will start receiving applications next March. A consultation paper on NPSs has been published but the first drafts are not expected until autumn, which in government-speak can be a very long season.

- Signs point to levy imposition

The CIL, ostensibly, will enable local authorities to impose a tariff-based levy on development, primarily aimed at funding infrastructure requirements arising from new development. It was originally promoted as an instrument that would sit comfortably alongside section 106 planning agreements.

However, rumours are rife that government intends to phase out such agreements, requiring the levy to be imposed as a mandatory element in the development plan framework. Does this point to further delay in the "streamlined" planning process, in which councils already have to overcome the high hurdles set for core strategies and development plan documents?

On a more practical level, the government continues to introduce important changes to the planning process, such as the power to vary planning permissions for non-material changes, to extend the life of planning permissions and to widen the scope of the General Permitted Development Order 1995. All are valuable but they run the risk of being lost in the uncertainty surrounding the IPC and CIL.

Over the past few months, practitioners have been faced with some 20 consultation papers running to 2,000 pages. They range from a revised PPS25 to draft regulations on CIL and NSIPs. We may be forgiven for wondering whether this is a desk-clearing exercise, which brings us on to the pending general election.

- Election raises strategy doubt

For the Conservatives, shadow planning minister Bob Neill has indicated that his party has "a firm intention" to abolish the IPC. This plan appears to have been diluted, in that the party now intends to retain the IPC but to draw it into the protective custody of the Planning Inspectorate.

NSIP applications would be determined by the secretary of state following a recommendation from the IPC. The Tories will also retain NPSs, albeit making them subject to parliamentary scrutiny and ratification in both houses. In general terms, the party believes that the IPC process is undemocratic, removing decisions from elected authorities with no right of recourse for the public.

Practitioners will also be aware of the current bill contemplating a new breed of regional strategies prepared by regional development agencies (RDAs) and local authority leaders' boards. The Tories, in a leaked letter, have called for total abolition of this "bureaucratic and undemocratic tier of government". Instead, they believe that councils should have the power to determine their local policies, unfettered by the perceived restraints of regional bodies and strategies.

Does this point to a looming policy lacuna, perhaps exemplified by the Conservative's recent suggestion that the Homes and Communities Agency may be abolished if it is unable to show effective delivery of housing targets? If regional policy disappears, will such matters as housing allocations, minerals planning and highways be left to the local level? Or will ministers be unable to resist the temptation to intervene?

The Liberal Democrats also propose to scrap the IPC and the RDAs in a bid to reduce quangos and return power to communities. They support the concept of NPSs but have stated that decisions on national projects should remain with elected councils. They offer CIL qualified support, subject to concerns about its practical effect and the implications for planning agreements. As ever, the devil will be in the detail - and the ballot box.


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