CHAPTER ONE – PLANNING APPLICATIONS AND PERMISSIONS
Backlog of applications and appeals
Under the new “flexibility” regulations under the Coronavirus Act 2020 allowing for remotely held Council meetings, planning decisions are still being made by local authority planning committees, see now the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020. But it is to be borne in mind that only relatively few applications go to committee in any event. The question arises how overworked planning departments will be able to cope with getting existing, never mind new applications to be decided. It will be interesting to see what steps are taken over the next months and weeks to tackle the backlog. (And see stop press in the Preface.)
Government guidance encourages developers to agree extensions of time where necessary (without altering the time limits for determination of applications in the DMPO) but retaining the timescales means there is still the option to appeal to the Secretary of State on the grounds of non-determination, see generally at https://www.
gov.uk/guidance/coronavirus-covid-19-planning-update#validation-of-applications.
This pressure will be increased by inevitable requests to vary section 106 agreements because of viability issues which we discuss below.
A lot of planning appeals have stalled or been postponed although the Inspectorate is still requiring compliance with procedural timetables. The Planning Bar is trying to keep things moving by using remote conferencing technology. But progress is not as rapid as could be wished. Unaccompanied site visits have restarted and appeals are now being determined again but not at a rate that will keep up with demand.
It will be interesting to see what steps are taken over the next months and weeks to tackle the backlog.
Keeping Planning Permission Alive
None of the Government’s Covid relief measures have (at present at least) resulted in any extension to the lifetime of planning permissions for England and Wales. Although see stop press in the Preface referring to proposed Government measures – as yet unspecified – to extend planning permission deadlines. By contrast Scotland – which NB is outside the remit of this book – has introduced a blanket extension of 12 months for implementation of planning permissions (and for submissions for reserved matters approval) of twelve months for permissions due to expire within six months of the passing of the relevant legislation.
Equally, there have been no moves on the part of Government to reintroduce measures for the extension of the lifetime of planning permissions comparable to those in the (now superseded) Town and Country Planning (General Development Procedure) (Amendment No. 3) (England) Order 2009 which was brought in to “save” various permissions which were at risk of lapsing in the economic downturn which bit in 2008.
So the position remains for the time being that people with the benefit of planning permission still need to implement them within the specified time limit (generally three years for full planning permission and for submission of reserved matters – although NB five years for the former in Wales – and implementation of outline permissions within two years of approval of reserved matters).
So it follows that those permissions will expire if no action is taken to keep them alive. Equally, because of the effect of section 73(5) of the 1990 Act, which prevents an application to vary conditions from actually extending the lifetime of the permission, no application to extend time can be made under section 73.
Submitting reserved matters for approval may be less of an issue. But anyone in possession of a full permission or a reserved matters approval due to expire will have to take steps to implement it before the deadline.
This may well require discharge of all conditions – and fundamentally so if any of the conditions are conditions precedent in the “Whitley” form, ie the form of condition “no development shall be carried out until…” which prevents lawful implementation unless and until its requirements have been discharged, see generally FG Whitley v. Secretary of State [1992] 3 PLR 72. It may be possible to argue that the requirements of the condition do not go to the heart of the permission and/or it can be construed as merely requiring something to be done before development commences, see further R (Hart Aggregates Ltd) v. Hartlepool BC [2005] JPL 1602 and subsequent cases. But that cannot by any means be taken for granted.
Close liaison will be required with officers of the local planning authority to ensure that there is a prospect of achieving discharge sufficiently swiftly to allow time for implementation before the deadline.
Assuming there are no other obstacles, the actual act of implementation may not require a great deal to constitute commencement of development so as to implement it effectively, compare the list of “material operations” for the commencement of development in section 56 of the 1990 Act, namely,
“(a) any work of construction in the course of the erection of a building;
(aa) any work of demolition of a building;
(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;
(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);
(d) any operation in the course of laying out or constructing a road or part of a road;
(e) any change in the use of any land which constitutes material development”.
In Malvern Hills DC v. Secretary of State [1982] JPL 439, the predecessor of section 56 was stated to be “a benevolent section which is aimed at avoiding hardship to a developer who is genuinely undertaking the development” and that “very little need be done to satisfy the section”. Also, the list of material operations given above has been said not to be exhaustive, see Field v. First Secretary of State [2004] EWHC 147 (Admin).
Therefore, so long as a workforce can be mustered in sufficient time to carry out the necessary task of implementation, then a permission could be saved. It is nevertheless advisable to document and evidence any works of commencement to protect the position for the future. Also, and for the avoidance of doubt, it is important to implement the permission substantially in accordance with its actual terms, see eg Commercial Land Ltd v. Secretary of State [2003] JPL 358.
However, regrettably, if lawful implementation cannot be achieved before the deadline, the holder of the permission will have to re-apply for it. This may raise issues of changes in policy in the interval since the original permission was granted and may also have implications for the viability of any scheme.
It is therefore earnestly to be hoped that urgent steps will be taken by the Government to pass legislation extending the lifetime of permissions.