The Holy Grail: flexibility in delivering development

As the long-term impact of the lockdown starts to bite, many developers are looking again at their planning permissions to ensure they let them do what they want, when they want. They may have a number of important questions before doing so. I have a planning permission which is due to expire shortly. However, because of the lockdown I have been struggling to discharge my pre-commencement conditions and I’m not sure now is the best time to start a new development. Can I extend the deadline for implementing? You’re in luck as the government may well have done this for you in the Business and Planning Bill currently making its way through parliament. Although there are provisions which let you change other parts of a planning permission, there is a legal bar on extending the deadline for implementing a planning permission. However, many developers have found themselves in a similar situation to you and so certain temporary extensions to implementation periods have been introduced. If your permission expires between the date when these provisions come into effect (likely to be mid-August, at the time of writing) and 31 December 2020, the deadline for starting works is automatically extended to 1 April 2021. If your permission expires before these provisions take effect, there is still hope. For those permissions expiring since 23 March 2020, an application can be made seeking an extension to the implementation deadline. There is a streamlined process for this – the local planning authority only has 28 days to make a decision (although you can agree an extension of up to 21 days) and if it fails to do so, then the extension is deemed to be granted. How likely is it that the extension will be granted? The government’s position is pretty clear on this – the expectation is that the extension sought should be granted unless there’s a good reason not to. However, the position is trickier if your development required an environmental impact assessment or a Habitats Regulations assessment. In those cases, the LPA cannot approve the extension unless it is satisfied that all of the relevant information is up to date. Given that your permission is about to expire it’s likely that the relevant information is over three years old, so there is a real risk that the LPA decides that it is now out of date and either refuses the application or requires more information. What’s the position on outline permissions? Where the deadline for submitting an application for reserved matters approvals falls between 23 March 2020 and 31 December 2020 that is also automatically extended until 1 April 2021. The position on implementation deadlines is the same as for detailed permissions – the extension is either automatic or requires an application depending on the relevant date. I have another scheme where I’d like to make design changes. Is that possible? Changes can be made to planning permissions using the procedure in section 73 of the Town and Country Planning Act 1990. By amending conditions, you can alter the manner in which development can be carried out, as well as the form of the development itself, by changing the condition which lists the plans that must be complied with. Although commonly referred to as “minor material amendments”, this term isn’t used in the law and doesn’t have a specific definition. Instead the courts have decided that the powers prevent making changes which would be a “fundamental alteration” to the scheme. This is clearly broad, and provides a lot of scope as to what can be changed. It is not unusual for uses to be revised, buildings moved, and indeed whole new buildings added into a scheme. As this results in a new planning permission, the procedure for securing a section 73 permission is generally the same as for a fresh planning permission, so it is not necessarily a particularly quick fix for design changes. On the bright side, though, having a new permission means you have the choice of which to implement, and you’re free to change your mind until you reach the point of carrying out works which are no longer consistent with one or other of the permissions. I have reams of supporting documents relating to the original scheme. Would I need to update all of those? Possibly, depending on the nature of the changes. In particular, it is worth noting that as the section 73 permission is a new consent the requirements relating to environmental impact assessment will apply and, while in some cases this can be addressed by way of an update to previous documentation, in others a whole new assessment needs to be carried out. Are there other limits on what I can do using this procedure? Although the scope of changes permitted is broad, in Finney v Welsh Ministers and others [2019] EWCA Civ 1868; [2019] EGLR 56 it was held that you cannot make a change that would be inconsistent with, or change the description of, the development. So if, for example, you have floorspace caps in your description of development, these could not be exceeded and the specified numbers of storeys in a building can’t be altered, even though these features could be changed if not specifically mentioned in the description of development. As always, there are ways to work around this, but they complicate the process and add to the time needed to secure your revised consent. Are there alternatives if the changes are more modest? Section 96A of the Town and Country Planning Act 1990 allows applications for “non-material” amendments to a planning permission. There is very little guidance, though, on what is “non-material” and this will depend largely on the nature of the scheme. What is material for a permission for a single house may well not be material if a permission relates to 1,000 houses. If you do want to go down this route, though, you need to get the LPA onside, as it is very difficult to challenge a decision as to whether a particular change is considered material. If you do pursue this route, the process is much quicker and simpler than for a section 73 permission and, given the non-material nature of the change, the majority of reports should not need updating. If I don’t benefit from an automatic implementation deadline, can either of these routes buy me time to carry out development? Although neither the section 73 procedure nor the section 96A procedure can be used to extend an implementation deadline, they can be used to make life easier when implementing permissions, provided you have a supportive LPA. In many cases, significant costs need to be incurred to clear all pre-commencement conditions, which is necessary for your implementation to be lawful. However, by revising the relevant conditions to allow specified works to be carried out without discharging the relevant pre-commencement requirements, the planning permission can be implemented, and safeguarded, but the LPA has the comfort of knowing that the details it needs will be provided before any substantial works are carried out. But if you go down this route you need to be careful when agreeing the extent of works permitted – they need to be adequate to lawfully implement your permission but ideally not works which would trigger payments pursuant to any section 106 planning agreement. It’s also worth noting that this won’t help with community infrastructure levy obligations, which will still be triggered when you implement, however minor the works. Is there anything else I need to bear in mind if I am looking to revise a permission? You should look carefully at any section 106 agreement to see whether this needs to be updated. For a section 73 permission, if nothing else it is often necessary to revise the agreement so that it relates to the new form of development and planning permission. However, the LPA will often expect revised obligations, especially where you are increasing floorspace. As ever, careful thought should also be given to CIL. The rules around CIL and revised consents are complex and should be handled with care. As a starting point, where the amount of floorspace is increasing, you should expect an increased CIL bill. So, all in all, while there is plenty of scope to revisit permissions to make them work better for you, careful thought needs to be given to the strategy to achieve this to ensure no nasty surprises. Key terms Pre-commencement condition: conditions which need to be discharged before works may be carried out pursuant to the planning permission Environmental impact assessment: an assessment to consider the impacts of a development on the environment Habitats Regulations assessment: an assessment of proposals on certain parts of a habitat, as required by legislation Outline permission: a planning permission which only grants consent for the main details of the permission, but requires further details to be approved at a later date Reserved matters approval: the further details which need to be approved pursuant to an outline planning permission Section 73 permission: a permission which changes the conditions of an earlier permission to make a “minor material amendment” Section 96A consent: a consent making a non-material amendment to an existing planning permission Section 106 agreement: an agreement accompanying a planning permission which imposes obligations on the developer Community Infrastructure Levy: a financial levy required to be paid in respect of many new developments Hannah Quarterman is a partner and head of planning at Hogan Lovells