Planning power in London?
By Martha Grekos, Barrister and Director at Martha Grekos Legal Consultancy Limited
Londoners will head to the polls on 6 May 2021 to elect a mayor and 25 London Assembly members. So what planning powers does the Mayor actually have and can he (or maybe a ‘she’ in the future) shape the physical fabric of the city?
The Mayor’s Planning Role
The Greater London Authority Act 1999 (GLAA 1999) established a Greater London Assembly for the Greater London Area, for the purpose of promoting economic and social development in Greater London and the improvement of the environment in the area. The GLAA 1999 also provides for a directly elected Mayor, with the power to exercise any of the important functions of the authority on its behalf and who, is responsible for strategic governance in London.
The planning functions are set out in the GLAA 1999, Part VIII, as well as in subordinate legislation. These functions relate to (a) strategic planning by means of the spatial development strategy (The London Plan, for which see further below), and (b) ‘referred’ applications, where the Mayor is consulted on all planning applications that are of potential strategic importance (PSI) to London.
In relation to the ‘referred’ applications, the local planning authority must notify the Mayor as soon as possible after it has received an application for a PSI development. This includes applications for planning permission and applications under section 73 of the TCPA 1990 for permission without complying with conditions subject to which a previous planning permission was granted.
A PSI application is defined as an application falling within the Schedule to the Town and Country Planning (Mayor of London) Order 2008 (2008 Order). PSI developments include: development of 150 residential units or more; development over 30 metres in height outside the City of London and more than 150 meters in the City; development on Green Belt or Metropolitan Open Land.
The Mayor must also be consulted before planning permission can be granted for development on safeguarded wharves. The Mayor does not have any powers to comment on or intervene in any proposal that does not meet the criteria set out within the 2008 Order. These proposals are the responsibility of the local planning authority.
Once an application has been submitted to the local planning authority, and if it meets the 2008 Order, the local planning authority is required to refer it to the Mayor. The Mayor has six weeks to provide comments on the application, assessing whether it complies with the London Plan policies. This is a consultation response known as Stage 1.
The application is then considered by the local planning authority at its planning committee, where it decides whether to grant or refuse permission.
Following its consideration, the local planning authority is then required to refer the application to the Mayor for his final decision, known as a Stage 2 referral. The Mayor has 14 days to make a decision to allow the local planning authority decision to stand, to direct refusal, or to take over the application, thus becoming the local planning authority.
In making the Stage 2 decision, the Mayor may be content to allow the local planning authority to determine the case itself, subject to any action that the Secretary of State may take. In such an instance the Mayor would therefore not wish to direct refusal or direct to become the local planning authority. Under article 6 of the 2008 Order, the Mayor has the power to direct refusal on an application that has been referred to him. Under article 7 of the 2008 Order, the Mayor has the power to direct that he will become the local planning authority for an application. These are commonly referred to as ‘call-ins’, ‘public hearings’, ‘representation hearings’ and ‘Stage 3s’.
To be able to take over an application it would have to meet the following three policy tests as set out in the 2008 Order: the development would have a significant impact on the implementation of
the London Plan; the development would have significant effects that are likely to affect more than one London borough; and that there are sound planning reasons for intervention.
The Housing and Planning Act 2016 provides additional powers for the Mayor to intervene in plan making and decision-taking by: giving the Mayor power to intervene in development plan documents on a direction by the Secretary of State where he considers that a London Borough is failing or omitting to do what is necessary to put its development plan document in place; expanding the circumstances in which the Mayor can intervene in decision-taking by providing for the Secretary of State to: (a) identify schemes that should be referred to the Mayor in specific areas identified in the London Plan or a London Borough development plan document, and (b) enable the Mayor (by development order) to direct that a London Borough must consult the Mayor before granting planning permission for development described in the direction.
The Planning Act 2008, under section 206, also grants the Mayor power to charge the Community Infrastructure Levy (CIL) in respect of any development within the London Boroughs. In addition, each of the London Boroughs is empowered to charge the CIL in respect of any development within its area. It is important to note that this means that development in London may be subject to two CIL charges—one charged by the Mayor and a second charged by the relevant London Borough.
The Mayor’s first Community Infrastructure Levy (MCIL1) was introduced in 2012 to help finance Crossrail, the major new rail link that will connect central London to Reading and Heathrow in the West and Shenfield and Abbey Wood in the East. In February 2019, the Mayor adopted a new charging schedule (MCIL2). MCIL2 came into effect on 1 April 2019 and superseded MCIL1 and the associated Crossrail Funding SPG. MCIL2 will be used to fund Crossrail 1 (the Elizabeth Line) and Crossrail 2. MCIL1 was, and MCIL2 is, collected and administered by the London Boroughs but paid by them to the Mayor to help fund Crossrail. Until 31 March 2043, where the GLA or Transport for London has borrowed money for the purposes of, or in connection with, the Crossrail project, the Mayor may apply CIL to repay that money and any interest.
The Mayor’s Spatial Development Strategy – The London Plan
The spatial development strategy, known as the London Plan, is similar to the former regional spatial strategies (now abolished). In London, the Planning and Compulsory Purchase Act 2004 (PCPA 2004), section 38(2) provides that for the purposes of any area in Greater London the development plan is: the spatial development strategy for London; the development plan documents (taken as a whole) which have been adopted or approved in relation to that area; and the neighbourhood development plans which have been made in relation to that area.
The London Plan is therefore part of the development plan in London and thus central to the determination of planning applications in accordance with section 38(6) of the PCPA 2004.
The requirement for the Mayor to prepare a spatial development strategy is set out in the GLAA 1999, section 334. Requirements in relation to the content and procedure for the preparation of the London Spatial Strategy are set out in the Town and Country Planning (London Spatial Development Strategy) Regulations 2000 (LSDS Regulations 2000). These require public participation in, publication and examination of the London Plan.
The Mayor’s spatial development strategy should consist of his policies in respect of the development and use of Greater London. It comprises ‘an integrated economic, environmental, transport and social framework for the development of London over the next 20–25 years’.
The current version of the London Plan is the one that the Mayor sent to the Secretary of State on 21st December 2020 which contains the modifications necessary to conform with all the previously issued directions under section 337 of the GLAA 1999 (this includes the Directions issued on both 13th March 2020 and 10th December 2020). The Mayor will be publishing this London Plan on 2 March 2021.
The London Plan Annual Monitoring Report is the most important document for assessing the effectiveness of the London Plan and its policies. The Mayor has published a monitoring report each year since 2005.
Energy Planning Monitoring Reports are published annually. They present the outcomes secured by the implementation of the London Plan energy policies through the planning system.
The London Plan Implementation Plan explains how the policies in the London Plan will be turned into practical action. It provides a framework for translating the trends and policies in the London Plan into investment proposals and decisions and lists key actions. The infrastructure element of this plan has been superseded by the 2050 Infrastructure Plan.
The Mayor also produces Supplementary Planning Guidance (SPG) to provide further guidance on policies in the London Plan that cannot be addressed in sufficient detail in the plan itself. The SPGs are an aid to the application of policy and where relevant are a material consideration in the determination of a planning application but are not part of, or an alternative to, the development plan.
The Mayor’s Development Role
Under the Localism Act 2011, the Mayor also has the power to establish mayoral development corporations (MDCs) to facilitate large-scale regeneration sites within London. Development corporations can buy, own and develop land and take over planning powers within a designated area within a specific time-frame. The MDCs can only be set up following consultation with stakeholders and approval from the London Assembly. The Mayor sets their budget and strategic direction, and appoints the boards that oversee them. Two have been established to date: the London Legacy Development Corporation (in April 2012) and Old Oak and Park Royal Development Corporation (in April 2015).
The Mayor’s Housing Role
Apart from the planning powers and strategic role identified above, since 2011 the Mayor has also had the power to buy land for housing and to secure funding from Government and allocate the grants to help fund councils and housing associations who are building affordable housing. This is a similar role to that played by Homes England outside London. The Mayor has negotiated £4.8billion from Government to invest in 116,000 new affordable homes in London, which will be started by 2022.
The organisations that the Mayor runs, such as Transport for London, the Metropolitan Police, and the Greater London Authority, are also landowners. The Mayor has previously entered into development agreements to build homes on land inherited from the London Development Agency. Transport for London, which is also run by the Mayor, also owns more than 5,000 acres of land in London, with many homes on such land consented and under construction and more planned in the future.
Many will ask whether the above-mentioned powers are fit for purpose and whether further powers are required (e.g. powers to control private sector rents/landlords and further tools to intervene in the housing market as well as the climate crisis). Indeed, some may even venture to ask whether the mayor’s relationship with central government is in crisis given the very difficult few months over political issues to do with TfL, the move of City Hall as well as the London Plan.
The months ahead look set to be a defining one not just for the New Mayor, but for London’s 20- year-old mayoralty too. The next Mayor will have to form a view about London’s likely trajectory of population and economic growth, and how this can be accommodated within the city and wider south east, at a time of considerable uncertainty. The new Mayor will also need to make the case for investment in London and the South East, against a backdrop of government levelling up policy.
The next Mayor will need to make some tough decisions on things like how to recover confidence in public transport and crowded places; built a mixture of houses in many parts of London but also more in Central London too given the different working patterns that are emerging so as to make our City sustainable once again (but also create a mixed neighbourhood to encompass things like arts and culture, retail, education, health, hospitality, leisure etc); propose stronger utilities and transport infrastructure (to include walking and cycling too); take a lead on climate crisis initiatives such as smart buildings; and foster relationships internationally so our City still flourishes with investment domestically but also from abroad etc.
What does the future hold for our modern metropolis? It’s one that is resilient (on many levels) and for that our next Mayor of London needs to be able to handle and deal smoothly with future challenges. He or she also needs to be able to work collaboratively with central government to make the changes possible. The future of London is in the hands of those governments, businesses and entrepreneurs who will work together to create a resilient London.