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17th May 2013

Growth and Infrastructure Act 2013: Planning Changes

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On 25 April 2013, the Growth and Infrastructure Act 2013 (GIA) received Royal Assent. The Government says that the GIA “will help the country compete on the global stage by introducing a comprehensive series of practical measures to reduce confusing and overlapping red tape that delays and discourages business investment, housing development, new infrastructure and job creation”.

On 25 April 2013, the Growth and Infrastructure Act 2013 (GIA) received Royal Assent. The Government says that the GIA “will help the country compete on the global stage by introducing a comprehensive series of practical measures to reduce confusing and overlapping red tape that delays and discourages business investment, housing development, new infrastructure and job creation”. In this article we briefly summarise some of the key changes to planning legislation aimed at meeting this somewhat ambitious objective. In bringing forward this legislation, the Government has been accused by some MPs of “causing the death of localism”; they say that the Act represents a massive u-turn by the Government from its localism agenda. Certainly it does seem that these changes go against the Government’s previously stated commitment to ending what they called the “era of top-down Government” and handing power back to local councils and communities. 1. Option to make planning applications directly to the Secretary of State The GIA will allow (but not require) certain planning applications for “major development” to be made directly to the Secretary of State rather than the local planning authority (LPA) where the LPA has been designated as not adequately performing their function of determining planning applications. The criteria for designation of an LPA as not adequately performing have not yet been set out, but the indications are that an LPA will be designated where less than 30% of major applications are determined within the statutory deadline or where the proportion of major decisions overturned on appeal is greater than 20%. It was suggested some time ago that Cambridge City Council would fall foul of the first criteria. Similarly, what constitutes “major development” is yet to be set out, but it has been indicated that it will be schemes involving 10 or more houses or residential sites of 0.5 ha or more, development involving 1,000 sq m or more of additional floorspace or a site area of 1 ha or more, and development involving minerals and waste. This new procedure represents a move away from localism in that it effectively allows planning applicants to by-pass the LPA in some cases. This may offer an attractive option to applicants where they are dealing with a slow or obstructive LPA, but in some cases it may not be the best course of action since there will be less opportunity to discuss and negotiate the details of an application. 2. Reconsideration of affordable housing requirements The Act also introduces some changes in relation to affordable housing requirements, which again offer an opportunity to by-pass the LPA. If the affordable housing requirements in a Section 106 planning obligation mean that development is not economically viable, the developer will be able to apply to the LPA to remove or modify the requirement. The LPA cannot make the revised obligation more onerous than the original obligation. If the LPA does not modify the planning obligation as requested within a specified time, the developer will be able to appeal to the Secretary of State. The Government has already produced guidance on reassessing viability for these purposes. This new right is temporary and will expire on 30 April 2016 (unless the Secretary of State postpones this). If the modifications are granted at the appeal stage, they will only last for 3 years. If the development has not been completed by then, the affordable housing provisions must revert to the original requirements in relation to the parts of the development which have not yet commenced. This is intended to encourage developers to build as much of their scheme as possible within 3 years. The hope is that these new provisions will deliver more housing by helping to unlock developments that are currently stalled due to a lack of commercial viability. However, they have not generally been well received, even by developers. There is a general feeling that it is not necessarily Section 106 requirements that are at the root cause of stalled development and that it is more to do with the housing market and the availability of funding. There are also fears that these provisions could give rise to more delay whilst developers have long, drawn out arguments regarding viability with LPAs and the Secretary of State. 3. Stopping up Another change introduced by the GIA is the streamlined procedure for the stopping up or diversion of highways and public paths. The GIA enables developers to commence the process for the stopping up or diversion of highways and public paths where this is required for their development before planning permission has been granted in all cases. Currently, in the majority of cases, the applicant must wait until planning permission has been granted before commencing the process. This is likely to offer substantial cost and time savings for developers, although there is always a risk of abortive work if the planning application is ultimately refused or amended. 4. Fast tracking business and commercial projects Another way the Act diminishes the power of LPAs is by bringing certain commercial and business development within the scope of the fast track, development consent order regime. This regime is currently reserved for nationally significant infrastructure projects. A development consent order is obtained from the Secretary of State, so again the LPA is by-passed. It is designed to be a fast track procedure, with decisions taken within 12 months. In order to take advantage of the new procedure, a project must meet a certain description which is still to be set out in regulations, but is likely to include large scale office and R&D developments, manufacturing plants and storage and distribution facilities. It must also be of national significance by itself or when considered together with another such project. Concerns have been raised that this new regime will enable projects to be progressed without being the subject of local scrutiny, and it has been argued that the Government is indicating that these types of scheme will get an easier ride. However, others have welcomed the proposals as giving confidence to business that the Government understands the need to fast track important infrastructure projects to boost growth. The process will certainly bring more certainty in terms of the timing of decisions and is likely to be an attractive option for some developers, particularly where they are looking to avoid dealing with a difficult LPA. 5. Limits on power to require information with planning applications Another blow to localism comes in the form of a limit on LPAs’ powers to require information with planning applications. Under the new provisions, the LPA’s request must be reasonable and relate to matters which are likely to be material planning considerations. Overall, from the development industry’s perspective, many of these measures are welcome improvements. They may not solve every problem, but they will certainly address some of the issues that give rise to delay in the current system. In addition, the sentiment underlying the measures, namely the desire to speed up the planning process and remove the obstacles to development, are certainly to be welcomed. The provisions have started to come into force in a piecemeal fashion but in some cases secondary legislation needs to be put into place before the change can take effect. Many of the changes apply in England only. For further information, please contact Gemma Harris on 01223 461155 or click here to email Gemma.