Planning: a look forward to 2015

Our panel of experts consider the cases, legislation and trends likely to affect planning lawyers and their clients in 2015 including in relation to infrastructure planning, compulsory purchase, planning agreements, and judicial review.

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The experts

Trevor Goode, head of the planning and public sector team, Ashurst

Robbie Owen, head of infrastructure planning and government affairs, Pinsent Masons

Michael Gallimore, partner, Hogan Lovells

Tim Hellier, head of planning, Berwin Leighton Paisner

What are the key cases and legislation for 2015?

Trevor Goode: In infrastructure terms, High Speed 2 is clearly a hugely important and contentious Bill to watch over the coming 12 months. We will also get the Airports Commission report soon after the general election and hopefully an Airports National Policy Statement after that.The Infrastructure Bill—somewhat less about infrastructure than its title suggests—has become the next piece of sweep-up legislation and is likely to carry a range of minor reforms to both the mainstream planning and nationally significant infrastructure projects regimes. Its main thrust of converting the Highways Agency into a separate government-owned company is somewhat overshadowed by the plethora of other tweaks it proposes. From fracking rights to deemed approval of minor planning conditions, the devil is likely to be in the detail.

We are also expecting the Criminal Justice and Courts Bill—subject to what comes of the House of Lords amendments—to make significant change in the costs regime for most judicial review claims, which remains a heavy drag on major schemes. However, given the preponderance of environmental claims, those changes are unfortunately likely to be heavily curtailed by the Aarhus Convention protections, and so the almost risk-free environment for anti-development litigation will persist.

Robbie Owen: The key cases for 2015 in infrastructure planning will be the judicial reviews into the Secretary of State’s recent consents for the Thames Tideway Tunnel and the Able Marine Energy Park and the outcome of the Hinkley Point C judicial review.

In terms of legislation, 2015 will see more detailed regulations for the process to change development consent orders (DCOs) once made, as outlined in the Infrastructure Bill. While the recently re-launched national infrastructure plan (December 2014) details the government’s commitment to major new infrastructure projects, if the Labour Party wins power in 2015 (either with a majority of its own or in a coalition) then it is committed to introducing legislation to provide for a National Infrastructure Commission as recommended by the Armitt Review—this may well usher in further changes to the national policy statements element of the national infrastructure planning process.

Michael Gallimore: The government’s review of the community infrastructure levy (CIL) regime will be significant—provided it takes the opportunity to have a thorough and in-depth review. Part of the ‘deal’ when CIL was introduced was that the Town and Country Planning Act 1990, s 106 (TCPA 1990) obligations would be ‘scaled back’. It is to be hoped that the review will consider the extent to which that is actually being achieved.

Tim Hellier: Whether any government proposals will survive the general election is very debatable. However, that aside, the government has indicated its willingness to tackle some major inhibitors to development:

  • compulsory purchase
  • planning agreements, and
  • judicial review

Compulsory purchase

Compulsory purchase order (CPO) reform is long overdue. The government has said that it is bringing forward proposals to make the CPO regime clearer, faster and fairer with the aim of bringing forward more brownfield land for development. This reform is urgently needed to facilitate regeneration. The current system is far too complex and antiquated.

Planning agreements

In terms of planning agreements, the TCPA 1990, s 106 announcement (‘steps to speed up negotiations’) is the most significant both from a planning perspective and at a practical level.

Judicial review

The Criminal Justice and Courts Bill, published in February 2014 and currently going through Parliament, includes a number of provisions relating to the reform of the judicial review system which is likely to impact on the ability of objectors to apply for judicial review and will change the rules on costs. This, in turn, should assist developer clients.

While not a planning matter, we would also mention the Law Commission paper on reform of rights of light (out to consultation until February 2014). In our view reform is long overdue as the current uncertainty caused by rights of light issues is a significant inhibitor to development, particularly in Central London.

What are you seeing in terms of trends and what are your predictions?

Trevor Goode: The potential exists for genuine acceleration of delivery through the planning system as the various initiatives that have been brought forward over the past year are all pulling in the right direction. However, they need to be properly resourced. Developers have some ability to make a difference at local authority level through planning performance agreements, but no such mechanism exists in other systems. There will need to be a real and rapid increase in staffing levels of the Planning Court and the Planning Inspectorate in order to deliver the government’s push towards significant improvements to the timetable for project delivery.

Robbie Owen: At present, the trend in infrastructure planning legislation seems to be to smooth the process and tinker round the edges, rather than introduce any major reforms. However, this could change with the advent of the next parliament in 2015—particularly if we have a Labour government, in which case we are likely to see the introduction of a National Infrastructure Commission, greater changes to the nationally significance infrastructure projects/DCO regime and a renewed focus on major housing development and fracking. We may also see action by the government to tackle judicial review delays in the higher courts.

Michael Gallimore: One thing we are seeing is an ever increasing focus on viability as part of the decision-making process. This is leading to a greater use of freedom of information requests by third parties seeking disclosure of viability information, which in turn is leading to justifiable concerns to maintain the confidentiality of that information. How this develops in 2015 will be interesting to see.

Tim Hellier: In general we have seen a growth of major regeneration based projects (for example, Westfield Croydon, Olympicopolis and Ebbsfleet) and we see that trend continuing in 2015. Reforms of the compulsory order process, rights of light issues and further reform of planning judicial review would assist in bringing projects forward more quickly.

Interviewed by Jenny Rayner.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

First published on LexisPSL Environment on 2 January 2015. Click here for a free trial.

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