Out-Law Analysis | 24 Apr 2020 | 4:07 pm | 6 min. read
There is concern about how to keep planning permissions alive and complying with planning conditions. There are options open to developers, though issues to keep in mind too while the industry continues to press the government for a change to the system during the crisis.
Most developments are required to start within three years of the planning permission being granted either through the specific imposition of a condition attached to the planning permission or through the general condition contained in section 91 of the Town and Country Planning Act 1990. If work doesn't start the permission will lapse. The same time constraints apply to approvals for permitted developments that convert offices into homes.
Starting development in lockdown is obviously challenging, but there is a high cost attached to missing deadlines. If planning permissions expire then a fresh planning permission process is required. This is time-consuming and delays a development further.
Central government could legislate to automatically extend the time limits for implementing planning permissions due to expire, for example, within the next six months as has been done in Scotland through the Coronavirus (Scotland) Act 2020. In order to create an automatic extension, primary legislation amending sections 91-92 of the Town and Country Planning Act (TCPA) would be required.
An extension could also apply to deadlines for submitting reserved matters applications for outline planning permissions. The approach in Scotland has provided welcome flexibility and although the government here is considering this option, no equivalent legislative provision was included in the Coronavirus Act.
Another option for the government would be to introduce a new permitted development right to carry out development within a certain timeframe after planning permission has run out. A set of standard conditions could be applied in order to secure compliance with any planning conditions and section 106 planning obligations associated with the original permission.
An alternative to the automatic extension option would be to allow for the submission of individual applications. There are several routes available for this.
In the wake of the 2008 financial crisis the government introduced new powers for the application of an extension of time to implement planning permissions granted on or before 1 October 2009 if the development had not yet begun. A similar measure could be put in place now to give greater flexibility for planning permissions that are at risk of running out.
Section 96A of the TCPA allows for minor 'non-material amendment' applications to existing planning permissions. There is currently much debate about whether it would be lawful to use this provision to extend the life of a planning permission. While there is no absolute prohibition within this section to vary time limit conditions, it could be argued that varying the time limit on a planning permission could be considered a material change and therefore not appropriate for use by a section 96A application, particularly as it is absolutely clear that an application under section 73 of the 1990 Act cannot be used for these purposes.
However, while it would not be our first recommendation to clients, if within these unprecedented times a local authority is willing to consider this option and reasonably decides that a short-term extension could be considered a non-material amendment, then this route could in theory be an option for developers and landowners to pursue. However, it does in our view carry potential risk of judicial review challenge where developments are in any event controversial and lacking local support.
Section 97 of TCPA allows for the modification of planning permissions with the approval of the local planning authority where this "appears expedient" to the local planning authority. This could be a useful tool for extending the life of a planning permission as there is no express provision within statute to prevent using section 97 for this purpose. There is no formal application process either but an order under section 97 would need to be confirmed by the Secretary of State for planning in England, currently Robert Jenrick, so could suffer time delays as a result.
These options are only available if a planning permission has not yet expired. Once a planning permission has lapsed there is no mechanism for its resurrection.
Clearly if any works can be carried out on site to comply with requirements, doing those works and recording them should be the first priority. Even where certain pre-commencement conditions have not been formally discharged, in our view it is still worth carrying out works on site. There are further options to mitigate the risk of somebody later saying that the permission has not been lawfully implemented and has lapsed.
Before starting works to implement a planning permission, any pre-commencement conditions attached to that planning permission must be discharged. However, local authorities across the country are under pressure and delays are inevitable when obtaining formal discharges. There are several factors to consider to help keep a planning permission alive.
'Deemed discharge' allows for the automatic approval of the planning condition by serving notice under the Town and Country Planning (Development Management Procedure) Order (DMPO) 2015, where certain criteria apply.
This procedure is not available to discharge all types of planning conditions. It is not available for any conditions attached to a development that is subject to an Environmental Impact Assessment; conditions requiring reserved matters approvals of details for outline planning permissions, or conditions requiring a section 106 agreement or highways agreement;
There are numerous examples where conditions have been amended under section 96A of the TCPA to allow certain enabling works to be undertaken before the condition is required to be discharged. Where you are trying to implement the permission, the enabling works need to be sufficient to constitute a material operation as defined in the Act but this would not be a difficult amendment to make if the local authority is supportive of the change;
There are certain exceptions to the general rule on discharge of pre-commencement conditions prior to the start on site with varying degrees of risk associated. If, for example, all information has been submitted to a local authority under a condition and eight weeks have passed since that submission, it would be worth starting on the site within the required timescales notwithstanding that the condition has not been formally discharged.
Even if eight weeks have not passed but it is clear that the information submitted under the condition is not contentious with the local authority and they are in time likely to approve that condition, if time is running out to implement, again, starting on site following discussions with the local authority would be recommended.
It is worth remembering that implementing a planning permission may also trigger planning obligations under any section 106 agreement linked to the development, including the payment of significant financial contributions. These payments may be problematic at the moment. If the agreement is more than five years old, a formal application to vary the agreement can be made to the local authority. However, even where the agreement is more recent, local authorities can be approached to discuss altering or delaying payments, but of course time to do so before implementation under both routes is required.
Finally, implementing planning permission will also trigger payment under the Community Infrastructure Levy (CIL) regulations where CIL applies. The CIL regime is inflexible and while there are some potential routes for delaying CIL payments – through exceptional circumstances relief where this is available or through agreeing additional CIL phasing provisions on your permission – if time is limited to implement the permission, payment of CIL must be taken into account. The CIL regulations are sufficiently complex and bring their own challenges.
We remain in a rapidly evolving situation but both the public and private sectors are undoubtedly doing their best to ensure the continued delivery of services and developments, despite the difficult circumstances. However, it is clear that there are immediate issues requiring attention if longer-term impacts on development delivery are to be avoided, and the government is looking at priorities for changes required to the planning system.
At the top of the list should be the automatic extension of planning permissions about to expire either through the approach adopted in Scotland or by using the framework already utilised during the 2008 economic recession. Until these changes, developers must ensure planning deadlines are complied with to keep planning permissions alive.
Nicholle Kingsley and Jessica Craske are planning law experts at Pinsent Masons, the law firm behind Out-Law.
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