Hello. It has been a year since I last posted and some may have been wondering where I have been. Nothing sinister, but amongst other things I was applying to become an Examining Inspector, that is, one of the Planning Inspectors dealing with applications for permission for Nationally Significant Infrastructure Projects (or NSIPs) under the Planning Act 2008. I am delighted to say that I was successful and am now on the panel of Examining Inspectors. All we need now is a few more applications. Nuclear power stations, highways schemes and third runways are at the high octane end of the diet of the NSIP regime. Keen readers of the Infrastructure Planning website (https://infrastructure.planninginspectorate.gov.uk/ ) will have noted that while there were 13 applications for NSIPs in 2015, there were four in 2016 and so far none in 2017. Students of politics and economics may wish to draw conclusions. Your insights and comments on this blog will be welcomed.
Since my last post there have been many developments in planning law and policy, including of course the White Paper this year and report on the operation of CIL. We have also seen the Housing and Planning Act 2016 which gives the legislative basis for, among other things, Permission in Principle. I suspect that many of us, when we heard about it, thought, “that’s what outline permission used to be about” and indeed the proliferation of requirements such as design and access statements, parameters plans and local lists of supporting documents has made that process cumbersome. So, probably in response to housing industry lobbying, the “permission in principle”, or PiP has been created.
A PiP is for housing led development. Development orders can provide for PiPs to be contained in a development order, in which case they can only be for development of a prescribed description on land allocated in a qualifying document, or for PiPs to be granted by a local planning authority following an application in accordance with the development order, in which case it must be for development of a “prescribed description”. Once a PiP is granted, technical details consent (TDC) is needed to flesh out the principle. Greybeard planning professionals will not be surprised to learn that the details in an application for TDC are “all matters necessary to enable planning permission to be granted without any reservations of the kind referred to in section 92”, that is, reserved matters.
Now, one of the curious things about PiPs is that the PiP itself is not a planning permission. In case there is any doubt about this, not only has the Town and Country Planning Act 1990 been amended to include the phrase “permission in principle” alongside “planning permission” in several places, the definition section, s.336, specifically says “”planning permission” means permission under Part III or section 293A but does not include permission in principle”. However, an application for technical details consent (TDC) is an application for planning permission see s.70(2ZZB). This distinction is important, because there are things which flow only from being a planning permission.
The PiP legislation has provided from the outset that a PiP can be revoked or modified by the local planning authority. It did this by adding PiPs to planning permissions in the revocation section, s.97. It is the norm to pay compensation when a planning permission is revoked or modified, and s.107 is the lead section. So the PiP legislation provided for compensation but it differentiated between the two types of PiP. When a Pip granted by a local planning authority under a development order is revoked or modified, s.107(1) says compensation is payable. But in the case of a PiP granted by the development order we must look to the terms of the order itself to discover if and what compensation is payable. I don’t know why there should be a difference. It becomes obvious that care is needed here and that there are traps for the unwary.
But assuming we are dealing with a PiP granted by a local planning authority under a development order, we are thinking that it is a bankable proposition, because if revoked or modified, compensation is payable. That, it seems to me, is an error, because for compensation to be payable there must be loss. And now we must turn to s.75 of the Town and Country Planning Act 1990. This section says that “Without prejudice to the provisions of this Part as to the duration, revocation or modification of planning permission, any grant of planning permission to develop land shall (except in so far as the permission otherwise provides) enure for the benefit of the land and of all persons for the time being interested in it”. Because permission therefore runs with the land, we can rely on it. Revocation will create a loss for which compensation is payable. And persons deriving title can rely on it. So a landowner can obtain permission for development, and sell to a developer who can build the development, who can obtain finance from a bank for the development. But s.75 only applies to a “planning permission”. And because a PiP is not a planning permission, the PiP does not run with the land. The developer who buys does not have the benefit.
But help is at hand. For Parliament has approved the Housing and Planning Act 2016 (Permission in Principle etc) (Miscellaneous Amendments) (England) Regulations 2017, which will come into force on Monday 27th March 2017, and will add permissions in principle to planning permission in s.75. But we will still need to distinguish between PiPs granted by a development order and PiPs granted under a development order.
The Regulations also cure an anomaly in s.100. The Secretary of State’s power to revoke or modify planning permissions is extended to PiPs from Monday 27th March.
There are a couple of other tidyings-up being done on Monday. We should commend Government and DCLG for dealing with these things, and encourage them to deal with some of the others which are out there.
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