This third part of our Q&A on the Housing and Planning Bill 2015 considers how the Government’s proposed duty to list financial benefits associated with planning may create trip wires for development.
What is the new duty?
Clause 115 introduces a new requirement for local planning authorities to provide information about the “financial benefits” of any planning application when reporting it, including:
- list of any material and non-material financial benefits of the application, whether to the local planning authority or otherwise;
- a statement of the planning officer as to whether each benefit is material to the application.
The benefits are the ‘local finance considerations’ introduced by the Localism Act 2011 (the Community Infrastructure Levy (CIL) and the New Homes Bonus) and others specified in regulations (which may also define the amount or value of various benefits).
Why?
The Government is keen to ensure that the benefits of development are known, including the role of CIL and other funding in delivering community infrastructure and other investment. Communicating the value of plans for growth remains a critical aspect of promoting contentious development. There is a risk that the changes will make it inadvertently harder.
What might the practical effects be?
Requiring councils to report on benefits has the potential to increase the risk of judicial review. When a duty to give reasons for approval was introduced in December 2003 by an amendment to the Town and Country Planning (General Development Procedure) Order 1995, it gave rise to legal nit-picking and numerous challenges on the grounds of the adequacy and coherence of reasons. The duty was put out of its misery by a subsequent amendment to the Order in September 2010.
As currently drafted, the Bill requires councils to not only decide whether something constitutes a financial benefit, but also whether the benefits are material or not to the application. Given the current struggle to resource the core planning work needed to process applications, this is unlikely to be a welcome burden. Equally, the question of materiality is one that is rarely dealt with cleanly in practice – in relation to CIL, where the need for a genuine planning relationship between CIL and the scheme itself to qualify as a material financial consideration is often ignored.
