From introducing zoning to expanding Permitted Development Rights, reforms to the planning system have been in the pipeline for a while.
Driven by the need to boost economic recovery in Britain in the wake of the coronavirus, the Ministry of Housing Communities and Local Government (“MHCLG“) announced, in a press release on 22 July 2020, some proposed changes to the planning system that are aimed at encouraging development.
These reforms are set to be implemented through the Business and Planning Bill (“the Bill“), which, if passed into law, will become the Business and Planning Act (“the Act“). The Act would affect these changes by introducing new sections to the Town and Country Planning Act 1990 (“TCPA 1990“).
This article looks specifically at how the proposed planning reforms intend to drive development and encourage economic recovery.
THE PROPOSED PLANNING REFORMS
EXTENSION TO CONSTRUCTION HOURS
In a bid to encourage the safe return of development, the Bill intends to introduce a fast-track application process to temporarily allow modification of those planning conditions that restrict construction hours. Any extension must cease by 1 April 2021.
The application process is deemed ‘fast-track’ because the Local Planning Authority (“LPA“) is given just 14 days to respond to an application before it receives deemed approval.
EXTENSION TO PLANNING PERMISSION DEADLINES
Following our previous blog on this topic, we are glad to see that the government intends to introduce extensions to certain planning permissions.
Currently, planning permissions lapse when they are not implemented within a requisite time limit. This time limit can be imposed through conditions attached to the permission or, in England, the default position is 3 years from the decision date.
The halt to construction has prevented some developers from starting works, and has accordingly meant some planning permissions are due to, or already have, lapsed. The Bill proposes a resolution by introducing a process that temporarily allows such conditions to be modified.
Extension
A ‘relevant planning permission’ due to lapse between the date the relevant provision comes into force and the 31 December 2020 will be automatically extended to 1 April 2021.
Revival
There is also provision to revive those permissions that have, or are due to lapse between the 23 March 2020 and the date the provision comes into force. However, this will not be automatic, and they will be subject to the LPA granting ‘additional environmental approval’. This will only be granted where requirements for Environmental Impact Assessment (“EIA“) and Habitats are met. An application for such approval must be made by the 31 December 2020. Once granted, the time limit will be extended to 1 April 2021.
PLANNING APPEALS
The only permanent reform to be introduced by the Bill allows the Secretary of State to adopt one or more of the following methods in conducting proceedings, allowing a mixture of local inquiry, hearings and written representations.
GENERAL ISSUES AND COMMENTS ON THE PLANNING REFORMS
WILL THE REFORMS HAVE THEIR INTENDED BENEFICIAL EFFECT?
Whilst some developments will benefit from the extensions to planning permissions, doubt is cast over whether the actual effect of this will be as wide-reaching as the government indicates. The MHCLG press release proposes that the reforms will ‘prevent work that has been temporarily disrupted by the pandemic from stopping altogether’ and will ‘help these developments and more resume as the economy recovers’. However, the extensions will only save planning permissions that have not had chance to be implemented (i.e. to put a spade in the ground) prior to expiry of their time limit. Developments that have started (and are therefore capable of being ‘disrupted’ or ‘resuming’) are likely to have already carried out such works, and therefore will not benefit from such extensions.
Extensions to deadlines will undoubtedly save some planning permissions from lapse, however there has been suggestion that they may prove insufficient to safeguard many others. Stuart Baillie, partner and head of town planning at Knight Frank, has emphasised that he would have preferred to see ‘greater flexibility with a full 12 months or even 24 months added to the expiry date’, acknowledging that ‘the full economic impact of Covid-19… is unlikely to be understood until we are well into 2021′[1]. Any permissions due to lapse after 31 December 2020 are currently unable to benefit from an extension, and still face risk of lapse due to the pandemic.
This, taken with the fact that the only reform introduced on a permanent basis relates to planning proceedings, raises the question as to whether these reforms are sufficient to stimulate the on-going delivery needed to encourage economic recovery.
THE ADDITIONAL ENVIRONMENTAL REQUIREMENT
Planning permissions that will need revival will face the additional burden of the additional environmental requirement. The already short extension window afforded to those developers will be eaten into by the requirement to apply for this approval by 31 December 2020. This application may pose significant challenge to them by demanding further time and resources.
Further, this additional requirement may prompt fresh challenges from third parties that originally disputed the proposals.
THE QUESTION OF CONSISTENCY
The Bill does also raise an interesting question of consistency. Deadlines would only be extended for ‘relevant planning permissions’, which does not include those permissions granted by a development order. Why should an express consent benefit, and its implementation be saved, whilst a Permitted Development Prior Approval completion deadline, for example under Part 2 Class O of the permitted development rules, that falls within Covid-19 times does not benefit from a similar extension? Both developments’ on-site works would be similarly restricted but the detriment to one would be greater.
Nevertheless, despite the issues raised we are pleased to see that planning reforms are being used to boost economic recovery in England, and will be keeping a watchful eye on the progress of the Bill.
[1] See article by Anna Ward of Knight Frank here.
