Town and Country Planning Act 1990

The Town and Country Planning Act 1990 was passed to better regulate the way in which large and small scale developments were approved by local authorities in England and Wales.

ection 1

Subsections 1 and 2 set out that county and district (county and county borough in Wales) councils are Local Planning Authorities ('LPA's) in non-metropolitan counties; that metropolitan district councils (usually unitary authorities) are LPAs in metropolitan counties and that different authorities govern Greater London and the Isles of Scilly. This is subject to sections 2 and 9;

Subsection 1(3) states: "In England (exclusive of the metropolitan counties, Greater London and the Isles of Scilly) all functions conferred on local planning authorities by or under the planning Acts shall be exercisable both by county planning authorities and district planning authorities." and is subject to Sch. 1.

Subsection 1 (4) deals with mineral planning authorities.

The exercise of functions in Wales is subject to Schedule 1A.

This section is subject to sections 4A to 8.

ection 2

Allows the Secretary of State to join council planning authorities into joint planning boards.

ection 2A

The Mayor of London may in circumstances prescribed in the Town and Country Planning (Mayor of London) Order 2008/580 or directions under that order, direct that he is to be the local planning authority for the purposes of determining an application made under s 70 or s 73.

ection 2B

The Mayor of London is to have regard to guidance issued by the Secretary of State, must give reasons, must at that time send a copy of the direction to the applicant and to the Secretary of State. The Mayor may also become the planning authority for a connected application for Listed Building, Conservation Area or hazardous substances consent if he so considers.

ection 2C

The Mayor of London after granting outline permission, may pass determination of reserved matters on to the original LPA (ie London Borough or Corporation of London). He may also do this for connected applications he grants 'subject to subsequent approval'.

ection 2D

Enables secondary legislation related to the Mayor's planning powers.

ection 2E

Passes the function from the LPA to the Mayor of agreeing a Planning Obligation related to a direction above after that time. The Mayor must consult the LPA before agreeing to one and both the LPA and Mayor may enforce it.

ection 2F

Before determining an application, the Mayor of London must give the applicant and the local planning authority to whom the application was made an opportunity, with at least 14 days notice, to make oral representations at a hearing (“a representation hearing”). The Mayor must publish a procedural document for this.

ection 3

Retains the advisory joint planning committee for Greater London.

ection 4A

National Park Authorities (not all National Parks) are the sole local planning authority for the area of the Park except for functions in ss 198 to 201, 206 to 209 and 211 to 215 where the district planning authority for an area in the park shall share functions with the national park authority, who in such cases retain all their legal functions.

ection 5

Makes similar provision as 4A for the Broads Authority for land in that area. However only for the purposes of Chapter I of Part VIII (Trees: Ss 197-214D) and sections 249, 250 and 300.

ection 6

Makes similar provision as 4A for Enterprise Zone Authorities for land in that area for such functions as a statutory Order may prescribe.

ections 7 to 8A

Makes similar provision as 4A for Urban Development Corporations under Local Government, Planning and Land Act 1980, Housing Action Trusts under Housing Act 1998 and The Urban Regeneration Agency Leasehold Reform, Housing and Urban Development Act 1993 for their respective areas to the extent an appropriate order directs.

ection 9

Power to make consequential and supplementary provision about authorities.for land in that area for such functions as a statutory Order may prescribe.

ections 11 to 54A - Part II

Deal with Development Plans, in particular Unitary Development Plans in metropolitan areas including London and, for non-metropolitan areas, Structure Plans and Local Plans.Note that this part is now repealed.

ections 55 to 106B - Part III

Deal with Control over Development.

ection 106

Section 106 of the Act, in conjunction with DoE Circular 5/05, allows for Local Planning authorities and persons interested in land to agree contributions, arrangements and restrictions as "Planning Agreements" or "Planning Obligations". Applicants can offer such agreements unilaterally or negotiate and agree them as support for their application to make it accord with local planning requirements, but without some of the rigorous controls of Planning Conditions under s 70(1).

It relates to monies paid by developers to Local Planning Authorities in order to offset the costs of the external effects of development. For example, if a developer were to build 100 new houses, there would be effects on local schools, roads etc., which the Local Authority would have to deal with. In that situation there might be a Section 106 agreement as part of the granting of planning permission. The developer might agree to make a contribution towards the provision of new schools.

Section 106 arrangements are currently being reviewed by the Department for Communities and Local Government.

ection 106A

Has the effect that any modification or discharge of a s 106 Agreement must be agreed by deed between the parties and in accordance with s 106B. It creates the right to apply in a prescribed form to modify a s 106 agreement once five years has passed since the agreement, or such shorter period as secondary legislation may prescribe. It prevents one applicant applying for a modification which may become enforceable against others who have not applied.

It clarifies that s 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenants affecting land) does not apply to a planning obligation.

ection 106B

Right of the applicant to appeal against the decision or non-determination of a Local Planning Authority under s 106A to the Secretary of State. Section 106B states "before determining the appeal the Secretary of State shall, if either the applicant or the authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose". It states "the determination of an appeal by the Secretary of State under this section shall be final". Schedule 6 applies to determine how the appeal is heard and by whom.

ections 107 to 118 - Part IV

Deal with compensation for effects of certain orders, notices etc.Note that much of Part IV is repealed.

ections 119 to 136 - Part V

Deal with compensation for restrictions on new developments in limited cases.

ections 137 to 171 - Part VI

Deal with rights of the owner to require purchase of interests.Namely, interests affected by planning decisions or orders in certain circumstances and interests affected by planning proposals: serving blight notices.

ections 172 to 196C - Part VII

Deal with methods of enforcement of planning law.

ections 197 to 225 - Part VIII

Deal with Special Controls. Specifically, those for:
*Trees
*Land adversely affecting amenity of neighbourhood
*Advertisements

ections 226 - 246 - Part IX

Deal with acquisition and appropriation of land for planning and public purposes. Also the extinguishment of certain rights, e.g. on burial places and constitution of joint bodies to hold land for planning purposes.

ections 246 - 261 - Part X

Deal with highways.

ections 262 - 283 - Part XI

Deal with statutory undertakers. These are persons authorised by any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of hydraulic power and a relevant airport operator (within the meaning of Part V of the Airports Act 1986). Deemed statutory undertakers for sections 55, 90, 101, 108(3), 139 to 141, 143, 148, 170(12)(b), 236(2)(a), 237 to 241, 245, 247(4)(b), 253, 257(2), 263(1) and (2), 264, 266 to 283, 288(10)(a), 306, 325(9), 336(2) and (3), para.18 of Sch.1 and Schs. 8, 13 and 14 are any public gas transporter, water or sewerage undertaker, the National Rivers Authority, any universal postal service provider in connection with the provision of a universal postal service, the Civil Aviation Authority and a person who holds a licence under Chapter I of Part I of the Transport Act 2000 (air traffic services) shall be deemed to be statutory undertakers and their undertakings statutory undertakings. This applies with variations for a universal postal service provider and licence holders under section 6 of the Electricity Act 1989 or Chapter I of Part I of the Transport Act 2000.

ections 284 - 292 - Part XII

Deal with validity of development plans, certain planning related orders, decisions, directions, enforcement and similar notices.

ections 292A - 302 - Part XIII

Deal with the application the Act to Crown Land.

ections 303 - 314 - Part XIV

Deal with financial provision. This includes application fees to the LPA, costs of certain inquiries, grants for research and education, contributions by ministers towards compensation paid by local authorities, contribution by local authorities and statutory undertakers, assistance for acquisition of property where objection made to blight notice in certain cases, recovery from acquiring authorities of sums paid by way of compensation, sums recoverable from acquiring authorities reckonable for purposes of grant, expenses of government departments, general provision as to receipts of Secretary of State and the expenses of county councils.

ections 303 - 337 - Part XV

Deal with miscellaneous and general provisions. Note s 318 deals with ecclesiastic property, s 318 deals with the Isles of Scilly, s 300 provides a power to require information as to interests, s 333 deals with regulations and orders and s 336 deals with interpretation.

Criticisms of s 106 Agreements

Section 106 agreements are criticised for:-
*Inconsistency
*Unfairness
*Lack of transparency
*Unnecessary length of time to negotiate [http://www.communities.gov.uk/pub/221/PlanningobligationsdeliveringafundamentalchangePDF98Kb_id1143221.pdf] Section 106 agreements are one of the main ways in which new affordable housing is provided in England and Wales. A new housing development over a given threshold size, commonly 15 dwellings (the figure varies between local authorities) is required to ensure a pre-determined proportion is affordable housing - see DCLG Circular 6/98. This is a source of friction between developers and local planning authorities because the developers attempt to maximise revenue and councils attempt to maximise the amount of affordable housing. Unfortunately many councils have a loosely worded Development or Local Plan to reflect s 54A of the Act which requires any decision to be reached in accordance with the terms of the Plan unless material considerations indicate otherwise. Circular 6/98 states affordable housing itself is just one material planning consideration. Therefore, simply meeting a requirement for affordable housing provides no guarantee that other issues may need to be addressed.One of the reasons that s 106 agreements are unpopular with developers is that, at present, the government makes more money from the sale of affordable rented housing (about £5Bn a year) than it spends (about £3.5Bn a year) and it is arguable that main cause of these proceeds is not ongoing government investment but private sector (developer) investment.

A counter-argument would run that developers seeking to maximise revenue and would neither provide services for housing at a subsidised rate, nor subsidised rents for the vulnerable.

The practice of bargaining for Planning Gain precedes the 1990 Act and a 1981 report by the Property Advisory Group [Planning Gain - Report by the Property Advisory Group, Her Majesty's Stationery Office 1981, ISBN 0 11 751588 4] concluded that:

"(with limited exceptions) the practice of bargaining for planning gain is unacceptable and should be firmly discouraged".

However, the report was not acted upon.

See also the 2007 Consultation Paper “Changes to Planning Obligations“ which proposes reducing the types of contributions contained in s 106 Agreements, with instead creating a perhaps uniform or perhaps more open to review system of Planning Gain Supplements. [http://www.dclg.gov.uk]

References

http://www.opsi.gov.uk/legislation/

ee also

*Town and country planning in the United Kingdom
*Planning and Compulsory Purchase Act 2004
*Planning Policy Guidance Notes
*Grampian condition

External links

* [http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900008_en_1.htm Town and Country Planning Act (1990) on OPSI Website]