New CIL restrictions, EIA thresholds and PD rights come into effect on 6 April 2015

Out-Law News | 26 Mar 2015 | 3:29 pm | 2 min. read

The thresholds at which development proposals in England must be screened to determine whether environmental impact assessments (EIA) are necessary under European Union rules will change from 6 April.

Under existing rules, developers must apply to the relevant local authority or the communities secretary for a screening opinion where developments will cover at least 0.5 hectares. The government consulted last summer on proposals to increase the threshold in order to reduce the time and money spent on screening proposed developments that were unlikely to have significant environmental effects. It is expected the new proposals will cut the number of residential development screenings by 80%.

Under regulations made this month, the threshold for residential developments will be altered to exclude "developments which do not exceed five hectares or ... include more than 150 units" from the requirement for screening. The screening threshold for urban developments will increase to one hectare and screening will be required for industrial estate development where the area of development exceeds five hectares.

On the same date, permitted development rights allowing the demolition of pubs and bars, or their conversion to new uses, without the need to obtain planning permission will be disapplied for pubs that have been listed as assets of community value (ACV). For pubs that are not listed, developers must request confirmation from the relevant local authority that the relevant pub has not been nominated as an ACV before any works can commence. If the building has been nominated, the permitted development rights will be disapplied for 56 days whilst the nomination is considered.

Community pubs minister Kris Hopkins announced the government’s intention to introduce the change in a written statement to parliament in January. "The passion for community pubs, as demonstrated by the significant numbers listed as ACVs, highlights the need to enable local communities to consider planning applications for the change of use of a pub of particular local value", Hopkins had said.

At least 42 pubs in Greater London have been listed as ACVs to date and alterations to the London plan adopted last month included a new policy encouraging London boroughs to 'maintain, manage and enhance' valued local pubs to prevent them being lost.

A further change on this date is that the provision of infrastructure funding required to make a development acceptable in planning terms will shift from section 106 agreements to Community Infrastructure Levy (CIL) receipts. Local authorities detail the level of their CIL charges in a charging schedule and list the types of infrastructure projects that can be funded using CIL in a Regulation 123 list. Currently, 19 London boroughs have adopted CIL charging schedules.

From this date, the local authorities who have not adopted a charging schedule will be limited by pooling restrictions. The pooling restrictions limits the number of planning obligations entered into since 6 April 2010 which are to be used to fund a specific infrastructure project or type of infrastructure to five planning obligations. Therefore, no more than five planning obligations for the same project can accepted. This limit does not apply to affordable housing. For local authorities who have already adopted CIL charging schedules, the pooling restrictions were in effect from the date of adoption.

"We have had a recent influx of London developers seeking to negotiate, agree and execute section 106 agreements before the 6 April drop date, however there are a large number of London developments that will be affected by the CIL pooling restrictions post the changes coming in effect," said planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com.

"Going forwards, the tension that exists within the regulations means you may be required to mitigate harm through compensatory measures within a section 106 agreement, whilst lacking the statutory authority to actually insert those necessary provisions to make the development acceptable," said Holgate. "There are number of potential mechanisms and avenues that can be explored, however this requires very considered drafting and strategic planning to navigate through this difficult territory".