Lawyers suggest measures to address permission expiry deadlines

The legal profession in England and Wales has outlined a number of planning measures to help manage the impact of coronavirus – including amending primary legislation to extend the time limit on planning permissions.

The Law Society of England and Wales Planning & Environmental Law Committee and the City of London Law Society Planning & Environmental  Law Committee have written to Housing Secretary Robert Jenrick with eight suggestions on the steps that can be taken to ensure that the planning system and the construction industry can deliver during and after the crisis.

As Parliament is just coming out of Easter recess, and could sit with a reduced number of MPs or even virtually, the committees acknowledge that amendments to primary legislation "could suffer from more restrictive parliamentary time".

Therefore, they have "looked at the appropriateness of temporary development changes and where these can be made using secondary legislation or non-legislative guidance".

The letter primarily focuses on the Town and Country Planning Act 1990, and the suggestions, particularly those relating to consultation and expiry of permissions, "apply equally to the nationally significant infrastructure project regime under the Planning Act 2008 and compulsory purchase process".

A "real concern" for developers is the expiration of planning permissions, which the signatories say requires an "urgent fix".

The letter insists that when social distancing restrictions are lifted the economy will need the development industry to have sites ready to be built out, particularly given the need for new homes.

The expiration of permissions might cause "the unnecessary expense and unsafe practice, in contravention of government guidelines, of contractors being engaged to go to site simply to undertake works to save the permission", the committees warn. There will be legitimate reasons why works have not yet been undertaken, such as the time taken to discharge pre-commencement conditions.

This issue was considered after the economic downturn in 2008. Guidance and secondary legislation was published to make sure there was a streamlined application system in place to apply for replacement permissions where the original had been granted on or before 1 October 2009 (later changed to October 2010), the letter points out.

"At the time, the guidance suggested that there was no other way of extending permissions...but in our view, given the widespread disruption to the planning system and the urgent need to save planning permissions which are about to expire, all potential options need to be considered."

The industry needs a "blanket extension" of six months to permissions expiring in the next few months, which is what Scotland has implemented through the Coronavirus (Scotland) Act, as has Ireland through the Emergency Measures in the Public Interest (COVID-19) Act 2020 and new Section 251(A) of the Planning and Development Act 2000.

To achieve this in England, the committees make a number of suggestions, including:

  • Amend sections 91 and 92 Town and Country Planning Act 1990 (TCPA) that regulate the time limits on planning permissions through primary legislation, although there may be limited parliamentary time over the next few weeks to bring it forward.

  • Amend the GDPO to provide for a new class of permitted development – by adding to the list in article 3(12)) to allow development to be undertaken within six (or more) months of the expiry of planning permission. This permitted development right would need to be conditioned to ensure that the conditions from the original planning permission continue to apply and to extend any planning obligations.

  • Issuing guidance to remind local planning authorities that they have discretion under sections 91 and 92 of the TCPA to extend the default three-year period when granting new planning permissions at this time.

  • Publishing guidance to confirm that in these exceptional circumstances an extension of the time limit imposed on a permission by way of condition may be considered to be non-material for the purposes of s.96A of the TCPA.

  • The same route could be adopted now as in 2009 with an amendment to the Development Management Procedure Order to allow for applications to be made for replacement planning permissions. While effective and tested, there remains a significant burden on developers and local planning authorities and this won't assist permissions that are expiring in the short term.

On determination periods, the committees say not that it will be "inevitable" that planning applications currently in the system or submitted in the next few months will be delayed, but it "should not be left to applicants and local authorities to agree extensions of time to allow for this delay on a case-by-case basis".

They think the government should extend (through amendments to the Development Management Procedure Order) the statutory determination periods for planning applications and the time limit for appealing refusals or deemed refusals of planning permission, even if by just a few weeks.

This would reduce the burden on local authority resources and allow time for internal reorganisation of decision-making structures, which is what Ireland has chosen to do.

The committees also considered measures for:

  • remote council meetings regulations;
  • hot food takeaway permitted development rights;
  • temporary development;
  • the appeal process;
  • section 106 obligations; and
  • the Community Infrastructure Levy

Sara Hanrahan, partner at law firm Lewis Silkin, told The Planner: "Although appreciative of the speed at which the various legislative changes to date have been introduced there is concern that expediency is winning over efficacy. Members also believe there has been too much focus on the short term and less on the medium and long-term effects of lockdown.

"The shortfall in housing was critical even before the coronavirus outbreak and unless more is done to help the real estate sector the ramifications could be felt for years to come. The introduction of regulations to allow committee meetings to be held remotely will certainly assist developers, but it is not enough. There are many large residential schemes that already have permission but for various reasons have not yet been implemented and are in danger of expiring. Legislation does not allow for extensions of time and given the current shutdown it is no longer even possible to go on site to make a material start to preserve a permission."

With Parliament coming out of Easter recess this week, primary legislation changes will take time, she said, an interim fix might be to issue guidance confirming that time extensions can be temporarily approved through the S96A TCPA 1990 process as a non-material amendment. 

The full letter can be read here.

Article source: The Planner

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Planning COVID-19