146: Penfold Review recommends extension of the Planning Act regime, if it works

This is entry number 146, first published on 5 July 2010, of a blog on the implementation of the Planning Act 2008. Click here for a link to the whole blog. If you would like to be notified when the blog is updated, with links sent by email, click here.

Today's entry reports on the publication of the final report of the Penfold Review.

Today, Adrian Penfold has published his final report into rationalising non-planning consents.  Adrian is head of planning and environment at British Land, having moved there from Dartford Borough Council in 1996.

He had been asked to:
- identify non-planning consents which developers and other stakeholders regard as problematic;
- assess their impact on developers and the development process; and
- consider how obtaining such consents could be made simpler and more cost-effective.

His interim report, published in March, among other things gives a useful list of the 86 non-planning consents that he identified (starting on page 74).  If you are involved in a project I would certainly recommend running your eye down it to see if you have missed anything.  As the final report notes, however, it is already out of date as the Environmental Permitting Programme (see below) has removed four of them

The final report makes 12 detailed recommendations A to L.  The recommendation that will make the headlines is the second bullet point of recommendation E: to merge planning permission and conservation area consent into one permission, and similarly to merge listed building consent and scheduled ancient monument consent.  Recommendation E also suggests that the principles and approach of the Environmental Permitting Programme (stress on the first syllable of 'permitting') should be extended to other consents.  He likes its risk-based approach (i.e. less risky matters are subject to less scrutiny), its flexibility (new consents can be added to the same regime as they come along), and its simplicity (legislation is streamlined and less guidance is needed).

He also makes an interesting distinction between permissions that decide 'if' the development should go ahead with permissions that decide 'how' it should go ahead.  The last bullet point of recommendation G states that the government should:

Emphasise that, so long as all the non-planning consent issues which might affect the ‘if’ decision have been considered by the relevant decision maker in parallel with planning permission, and have informed the decision on planning permission, then the decision in principle as to whether the development can proceed should be considered to have been dealt with. Thereafter, the determination of non-planning consents should be concerned with ‘how’ a development is built or operated rather than whether it can go ahead, unless the factors listed in paragraph 4.8 apply.

For completeness, the factors in paragraph 4.8 are:
− there has been a significant change in circumstances or policy;
− a critical issue that was not material to planning arises and has therefore not been previously considered;
− the planning decision maker has acted unreasonably; or
− following more focused and detailed consideration, previously unforeseen issues of substance come to light.

Of particular interest to Planning Act aficionados is recommendation J:

Government should look for opportunities to extend the benefits, if realised, of the introduction of Development Consent Orders by reviewing their operation after 2 years experience and actively considering extending their use to a wider range of projects and / or extending decision-making powers to appropriate local authorities (potentially by building on any future aims to increase local decision making more generally).

Of course the regime for Development Consent Orders (DCOs) under the Planning Act is not quite the 'one stop shop' that some claim it to be, but it is a step in the right direction.  Byelaw-making powers and offences cannot be included in a DCO, and if applicants wish to include any of a specified list of other consents in their application, they must obtain the permission of the original decision-maker to do so, which is not much of a saving from applying to them in the first place.

Having said that, the Penfold Review shines a light on some of the less scrutinised consent regimes and should provide some impetus towards further combining, simplifying or simply removing some of the many consents that are still needed for different types of project. Despite being a lawyer who specialises in obtaining consents, obscure or otherwise, it is therefore something that I welcome!

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