With large swathes of development sites closing down as a result of COVID-19, some developers and landowners may need to consider how best to keep a planning permission alive in situations where development has not yet commenced and the deadline for implementation is approaching. Unfortunately, planning legislation does not currently allow for the life of permissions to be extended through amendment applications, and there are limited indications that England will follow Scotland’s lead and introduce new legislation to allow extensions.
To implement a planning permission and keep it "alive", development must have been lawfully commenced. Development will only commence once a material operation has been carried out - which generally speaking, is a low threshold. To ensure lawful implementation, any pre-commencement conditions will also need to have been discharged and the works to commence must accord with the permission and the approved details.
In the current climate, it may be difficult to discharge pre-commencement conditions, for example because no support is available to prepare the details required to discharge conditions, or no contractors are available to carry out works (even if pre commencement conditions are approved). Focussing on where conditions require submission of detailed information which can be only be collated following 'on the ground' works, without discharging conditions developers may be unable to lawfully commence their development with the consequent risk that their permission may lapse. Where this is an issue, you may need to consider seeking an amendment to the conditions in the planning permission, to push back the triggers for discharge. That in turn will allow commencement without further submissions being required. For example, LPAs may accept a change from "pre-commencement" to "prior to any works above ground". In the alternative, as we have done recently, you might insert via an amendment application a new drawing into the list of approved plans which shows some very limited implementation works, and then amend conditions by carving such works out of the pre commencement restriction. You should remember however that variations to s106 agreements may also need to be done, albeit the risk there is one of enforcement rather than a permission expiring.
There are two routes to amending conditions on a planning permission, and which is best used depends on the nature of the changes – are they ‘minor material’ or ‘non material’. If the former, an application under section 73 of the Town and Country Planning Act will be needed. S73 applications will result in a new planning permission and the procedure for obtaining a s73 consent is similar to (but more limited than) the general planning application process. A prescribed application form will need to be submitted with supporting information, potentially including updated reports. The application will then be registered and consulted on much like the original application. But provided such amendments relate to a relaxation on the triggers alone, it may be such an application can be fast-tracked (once consultation has been completed) by the LPA.
For non-material amendments (NMAs), section 96A of the 1990 Act can be used. However, the NMA process involves limited consultation and so is not intended for use where changes are at all substantive. There has never been a statutory definition of what might be non material – it is a matter of planning judgement. That sees the use of this procedure vary significantly across planning authorities. It is certainly arguable however that simply allowing some very minor works to occur before discharge of pre commencement conditions does not have a material impact, or indeed any impact, in planning terms, particularly as development must then stop until the details are approved. That is a debate worth having, as the decision timescale for NMAs is significantly quicker (at 28 days) than a s73 application.
Developers also need to be aware that implementation of a planning permission may trigger any applicable CIL liability, which in turn may cause difficulties in terms of cash flow/scheme viability if payment is required before any progress is made on site. For further information on options for CIL mitigation, see our separate article.
Whilst Scotland is already introducing an automatic extension to the life of planning permissions which are at risk of expiring due to COVID-19 (for details of those proposals see this letter from the Chief Planner under the heading ‘duration of planning permission’), no comparable measures have yet been announced in England. Until such time as similar measures to those in Scotland do come forward, developers in England will need to plan ahead and rely on the options considered above to keep their permissions alive.