The Government has published its first full draft of the new Neighbourhood Planning Bill this afternoon. The Bill, which was originally intended to include ‘infrastructure’ provisions, originally caused a stir in the archaeological community in May, when it was announced in the Queen’s speech, as it was anticipated that outlined provisions could have a serious impact upon archaeological protections within the planning system.
The draft Bill today confirms the intention to introduce new provisions which seek to limit the use of pre-commencement conditions, which are currently used by planning authorities to ensure appropriate archaeological mitigation though, for example, the agreement of written schemes of investigation.
However, CIfA is cautiously welcoming the Bill, which appears to leave room for archaeology, and wider heritage and environmental protections, to be exempted from new provisions.
The provisions, set out in Clause 7 of the Bill are introduced by way of an amendment to the 1990 Town and Country Planning Act (100ZA) which, among other things, creates changes to the way in which conditions are attached to grants of planning permission by local authorities:
‘(5) Planning permission for the development of the land may not be granted subject to a pre-commencement condition without the written agreement of the applicant to the terms of the condition.’
CIfA considers this to be a significant shift in the balance of power in the decision-making process, meaning that the local planning authority (LPA) will need to obtain prior agreement from the developer before planning permission can be granted.
In effect, if the developer does not expressly agree to conditions, the only available option for the LPA would be to refuse the application. Since there are a variety of disincentives for LPAs to refuse applications, this opens the possibility that LPAs will feel pressured into accepting less mitigation if developers refuse initial conditions. In simple terms, developers might be able to barter down requirements to undertake archaeological assessment prior to commencement.
However, in a statement released today, DCLG made explicit reference to maintaining ‘heritage and environmental safeguards’, stating that the Bill will;
"…ensure that planning conditions which require developers to take action before work starts are only used where strictly necessary, but in a way that ensures important heritage and environmental safeguards remain in place so that once a developer has planning permission they can get on and start building as soon as possible."
This may suggest that the Government intends these 'heritage and environmental safeguards' to be subject to exemptions from this principle as per the provision of 100ZA (6):
‘(6) But the requirement under subsection (5) for the applicant to agree to the terms of a pre-commencement condition does not apply in such circumstances as may be prescribed.’
It is unfortunate that the specific intentions regarding these exemptions to the provision were not stated explicitly in the Bill, however, CIfA will be seeking confirmation from DCLG that this is indeed intended to cover principles of historic environment protection.
Other provisions set out under Subsections 1 of the amended TCPA 1990 clause 100ZA will give a new power to the Secretary of State to introduce regulations to prohibit particular types of pre-commencement condition. However, subsection 2 provides caveats which would appear to prevent prohibition of conditions which are ‘necessary to make the development acceptable in planning terms’.
It should follow from this that, so long as the historic environment is protected within the National Planning Policy Framework, archaeological pre-commencement conditions will not be able to be prohibited, subject to being judged ‘relevant’, ‘sufficiently precise’, and ‘reasonable’.
From this initial reading, CIfA is optimistic that protections for the way archaeological conditions are currently used are included in the Bill and that the concerns raised by the archaeological community in May have indeed been heard. However, this is subject to the Government providing confirmation that the presumed exemptions will indeed cover archaeology. CIfA, along with colleagues in the sector, will make obtaining these assurances a priority in the coming weeks.
It is important to also note that wider elements of the provision continue to focus on shifting the balance of the planning system further towards the developer, and this is a common theme in recent planning reforms, which also increase deregulation, often with unintented consequences for environmental and heritage protections. The positive reaction to provisions in this Bill should be tempered in the full knowledge that CIfA has ongoing concerns with provision in the Housing and Planning Act which we continue to lobby government on.
The Government has also released a consultation on the precise nature of the prohibition of particular pre-commencement conditions, to which CIfA will be contributing in due course.
CIfA will release a more detailed briefing on the Bill in due course.
