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The fate of your planning permission during the COVID -19 crisis

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This is one of a series of blog posts specifically catered to address some of the questions the planning team has been receiving relating to issues that have an impact during the current Covid-19 crisis. 

Are you at risk of not being able to implement your planning permission?

Do you have existing planning permissions which pre-Covid-19, you were ready and willing to implement to ensure your development plans proceeded?  If so, since the onset of the pandemic and the recent lockdown arrangements, there is now a very real risk that these planning permissions may no longer be capable of being implemented within the timeframes that are applicable to them. 

We have had queries in respect of planning permissions where the time limits are not too far off expiring and clients want to know if there are any realistic solutions to ensure that they do not lose the existing consent. 

What has the Government addressed so far?

There have already been a host of responses from the Government in terms of addressing concerns on planning issues such as how to deal with decision making during the time of the present crisis and how to manage planning cases in the Planning Courts for instance.  However, on the issue of planning permissions and the knock-on effect that the time limits would have, both in terms of keeping the permission “live” and in relation to the commencement of development and submission of reserved matters, and also on the corresponding impact this could have on the payment or performance of section 106 obligations and the Community Infrastructure Levy (“CIL”) (where this applies), there has been nothing concrete forthcoming as yet

Professionals working in this area such as myself are all expecting, or rather anticipating, that some change may be coming although it is quite discouraging to note that these issues have not been mentioned in the recent Chief Planner’s letter providing guidance on Covid-19 and neither has the Local Government Association Planning Advisory Service addressed these pressing issues. 

Standard timeframes for the commencement of development and reserved matters

As most will be familiar, the standard timeframes for the commencement of development and reserved matters applications are enshrined within sections 91 and 92 of the Town and Country Planning Act (1990) (“TCPA 1990”), with the former requiring development to begin no later than three years from the grant of planning permission and the latter specifying that applications for reserved matters approval should be made no later than three years from the grant of planning permission and development to begin no later than two years from the final approval of reserved matters.  These is the default position and unless a specifically different timeframe has been imposed by the Local Planning Authority (“LPA”), which is unusual in most cases nowadays, the above timeframes would apply.

It has also now long been good law that we cannot use the procedure under section 73 of the TCPA 1990 to extend time limits (please see section 73(5) of the TCPA 1990) and similarly section 96A of the TCPA1990 is only to be used for non-material amendments and extensions to time limits would not constitute a non-material amendment. To summarise therefore time limits are a constraint and we cannot change them through the Act or through variation applications.

 

 

The problem

With the industry generally stuttering due to shortages in the supply chain and staffing and viability limitations, it is safe to say that many are finding, or may soon find, that schemes that were entirely realistic even some months ago may now be called into question. If the existing planning permission in such cases cannot be kept “live”, the obvious implication will be that a brand new application will need to be made and naturally, this will be something most developers/owners will dread, bringing to life the spectre of a changed policy context or the threat of a refusal when the permission was hard won in the first instance.

What’s happening elsewhere?

By contrast to the limbo we are currently operating in with regards to the status of such planning permissions, the Scottish Parliament has moved quickly and has already allowed that through the Coronavirus (Scotland) Bill 2020 (when enacted) there will be measures to extend the life of planning permissions which would otherwise have lapsed during this “emergency period” (six months) by a year.

Hope for the near future?

Most planning colleagues and industry professionals seem to be pushing for England, Wales and Northern Ireland to introduce the same. Many will well remember that similar allowances were made during the financial crisis of 2008 to allow this flexibility in ensuring planning permissions were kept alive, although those measures did not get introduced through formal guidance until October 2009.

Let us hope the response is quicker this time around as the obvious implications are already being feared by the industry especially where their existing Section 106 triggers for payments are often linked to the timeframe of a development rather than to appropriate stages of a development and there is in practice limited scope to renegotiate those unless there is will to do so by all concerned. In a time where authorities will also be inundated on all fronts, it seems impractical to think that a negotiated alternative will be reasonable within set timeframes. The situation could be even more exacerbated when we consider the inherently inflexible nature of CIL as a tax that is automatically triggered at appropriate timeframes without much “give” in the way the CIL Regulations themselves operate or function. All this would point to a need for an automatic extension mechanism that would allow the existing consents to be implemented once the crisis is over and to deal with concerns over this causing concerns over delivery in the long term, there can always be a “long stop” time limit set for completion of the development, but one that still allows the permission to outlive the pandemic period.

What can you do?

I attended an excellent webinar hosted by Landmark Chambers earlier this week and in a very useful session covered by Anjoli Foster, some other helpful suggestions were discussed.  One such suggestion included exploring measures such as trying to keep the permission immediately live where possible by carrying out a “material operation” within the meaning of Section 56 of the TCPA 1990, the criteria for which is not overtly onerous and can be usually be satisfied by what I would refer to as the “spade in the ground” test.

Also, it may be sensible to carefully review the wording of your condition requiring the submission of reserved matters applications to consider if it simply requires the submission of your application rather than validation or approval of details. The deemed discharge of conditions could also be an option in some circumstances, but this will similarly be subject to exceptions making its scope limited. All these of course come with their own limitations and may not be applicable for a lot of cases.

Section 106 agreements

It is crucial to be even more careful when negotiating or drafting current Section 106 obligations and/planning conditions to take account of the pressures we are all going to face over the coming months. Ensure your advisors are vigilant on triggers for payments; the timescales for the performance of obligations and on the quantum of what such contributions should look like.

Wherever possible, check whether your conditions are drafted as pre-commencement conditions.  The wording may be flexible enough to ensure that the planning permission is not jeopardised due to the inability to implement such conditions. Again, it has never been more important to ensure that the advice received is robust and well considered.

In summary

I shall draw these observations to a close for now with a repeat of the stance expressed above (and one shared by almost all in the industry it seems), which acknowledged that we need some legislation and guidance on these issues and we need it promptly and expeditiously. We have already seen Regulations issued to allow planning decisions to be taken by local authority members in virtual meetings (to be the subject of a separate post) so one would hope that extending the time limits for planning permissions would be the next matter addressed on the planning front.