Gaia, in Greek mythology, was the daughter of Chaos. James Lovelock more recently appropriated it as a name for his hypothesis of the earth as a vast self-regulating organism. By happy coincidence for us bloggers (unless the statutory draftspeople are even cleverer than we suspected), GAIA also stands for the Growth and Infrastructure Act, which entered the statute book on 25 April 2013.
When the Bill was deposited in October 2012, we covered its more controversial aspects in our blog post 45 – Difficult Child, musing at the end of the piece that we did not expect an easy birth.
Well there was certainly drama to the end. The Government had to resort to use of the Parliamentary "ping pong" procedure so as to overcome resistance from the House of Lords to two aspects of the Bill: first on the proposed expansion of permitted development rights for domestic extensions, shoe-horned into later stages of the Bill (and where a late concession was adopted, proposing a "light-touch neighbours consultation scheme", now embodied in section 4 of the Act) and secondly on the Bill's employee shares for rights provisions embodied in section 31 (a bit of a cuckoo within the nest and – phew - outside the scope of this blog).
This post does not purport to be a full summary of the Act. It considers what has changed in relation to the potentially controversial issues we identified back in October, namely:
My comments below supplement my original summaries.
Direct applications to the Secretary of State (section 1)
(This provision allows applicants to sidestep a designated poor performing LPA and make an application straight to the Secretary of State). The new freedom will only now apply to applications for “major development”. The criteria for designation of authorities will need to be laid before Parliament for at least 40 days.
Limits on power to require information with planning application (section 6)
No material changes to the deposited Bill.
Renegotiating affordable housing obligations (section 7)
(This provision allows an application to be made to the LPA to modify or remove an affordable housing obligation in a Section 106 Agreement that is causing development to be "economically unviable". The LPA must deal with the application so that the development becomes economically viable). There is now an exclusion where the “planning permission for the development was granted wholly or partly on the basis of a policy for the provision of housing on rural exception sites”. Unless the Secretary of State prescribes a different period (and unless the applicant and LPA agree an extended period) the LPA must determine the application within 28 days. There are now detailed provisions setting out the process whereby the Mayor of London has the opportunity to make representation in relation to applications received by London boroughs. There is also now a “sunset” clause – the provisions are automatically repealed on 30 April 2016.
CLG published guidance in relation to the provisions on 26 April: section 106 affordable housing requirements: review and appeal. The guidance contains some useful pointers as to the Government’s approach to evidencing viability as well as to the way in which the new procedure is intended to work.
Bringing “business and commercial” projects within the Planning Act 2008 (section 26)
(This provision extends the Planning Act 2008 procedure for determination by the Planning Inspectorate of nationally significant infrastructure projects so that it can be used for nationally significant “business or commercial projects”). No material changes to the deposited Bill. Residential development remains excluded.
We await news as to when the various provisions will take effect (some are already technically in force but dependent on secondary legislation to follow) – this would normally be 6 October in accordance with recent convention but this Government is in a hurry so we wait to see..
It will be fascinating to see what effects, intended or otherwise, these changes – as well as wide range of amendments to other procedures (particularly the Planning Act 2008 nationally strategic infrastructure projects regime) – will have on the “vast self-regulating organism” that is the country’s economy. Will it, in the secretary of State’s words: “unlock British entrepreneurship that has been jammed up for too long in red tape whilst ensuring democratic checks and environmental safeguards remain in place”?
Please contact me or one of the team for more detail.