The Infrastructure Bill (part 1)

Posted by Keith Lancaster on
Now that the dust has settled on the Government's legislative agenda for the forthcoming Parliamentary session it is a good time to look in a little more detail at some of the proposed legislation.

It is easy to be misled by legislative titles and so it is with the Infrastructure Bill which contains some interesting changes to planning matters other than "infrastructure planning". 

Part 3 section 20 of the Bill is a case in point. It paves the way for secondary legislation relating to the deemed discharge of planning conditions.

This is another attempt by the Government to free up the planning system in favour of developers. Astute developers have for many years sought deemed provisions during negotiation with planning authorities in both planning obligations and conditions only often to be met with resistance.  Unsurprisingly, developers have thought it unfair that their development programmes could be stalled by local authorities, out of their control, for any number of reasons ranging from inefficiency to local politics.

The Bill proposes to insert a new section 74A into the Town & Country Planning Act 1990 and raises a number of interesting points.

Firstly, and especially noticeable after our recent merger, the provisions are only proposed to apply to development in England.  I am not sure why especially as the draft Planning (Wales) Bill contains no such reciprocal provision.

Secondly, and rather obviously, secondary legislation may only relate to conditions that require the consent, agreement or approval of a local planning authority.

Thirdly, the new provisions may specify that they will not have effect with regard to specified conditions, certain types of planning permission or prescribed development.

So, what would at first appear to be a broad and wide ranging change may not turn out so.

Fourthly, it is also clear that a developer seeking to rely on the new provisions may well have to follow a process. The drafting talks of "applying" for consent, possibly after a stipulated period has elapsed for the authority to give notice of their decision and any further steps that may be required in a prescribed procedure.

What becomes abundantly clear is the possibility for more bureaucracy which flies in the face of the legislative objective.  Words such as "application" and "procedure" must sound warning bells although the devil will be in the detail of the subsequent legislation and whether it is light-touch or heavy-handed.

What could the procedure look like?  It may require steps to be taken by either party, stipulate time-frames for those steps to be taken or provide for an express time upon which the deemed discharge will take effect. Certain parts of the procedure may also be modified by agreement and the formal content of any notice which might be required may be set out too.

And there we go again, another one of those words that should send a shudder down the spine; "notices"...more bureaucracy.

So what would initially seem to be positive for developers may turn out to be anything but. The writing is on the wall especially as there may be provision to allow the parties to agree, before or after planning permission is granted, that the provisions will not apply to some or all conditions.  That, in itself, could lead to hefty argument and who knows, possible appeal.

Nonetheless, it is hoped that the starting point has shifted more in favour of developers.  I would expect many authorities to continue to resist such provisions which may make negotiation over the wording of conditions more protracted and contentious.  Let's just see if these provisions change as the Bill passes through Parliament.


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Keith specialises in planning law, advising in major projects and infrastructure, energy and renewables in the commercial, industrial and residential sectors.

Keith Lancaster
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