It is hard for anyone in the development industry to ignore the impact that COVID-19 and the lockdown have had – be that on day to day construction works, development timelines and even the type of development we're likely to want in the "new-normal". Compounded by recent declarations by Robert Jenrick and Dominic Cummings about the need to "fix planning" (again) there were some fears that addressing these issues may not be top of the Government's agenda.
After sustained lobbying by the industry, it's therefore great to see that the Government is finally bringing some relief from the doom and gloom in the form of the Business and Planning Bill, which is expected to pass through Parliament before the summer recess.
So what does the Bill do?
Extending the implementation period for planning permissions
Many developers have said that the most pressing concern facing them was the expiration of planning permissions which they are currently not in a position to implement. It has been estimated that over 400 planning permissions, providing more than 24,000 new homes, will have expired by the end of June 2020. Thankfully, the Government has stepped in, but there are big question marks about whether it has gone far enough.
Planning permissions which expire between the coming into force of the relevant provisions and 31 December 2020 will automatically have the implementation deadline extended to 1 April 2021. This also applies for listed building consents with an expiry date between 23 March and 31 December 2020. These changes are definitely welcomed. However, the short timeframes involved mean that whilst this approach addresses the physical restrictions placed on development due to the lockdown, it is unlikely to address many of the longer term economic impacts arising as a result of COVID-19 (e.g. the financial implications of starting on site in the way of CIL and S106 contributions). There is at least some comfort that the Act enables these key dates to be extended with the making of new regulations.
For planning permissions which expired between 23 March 2020 and the date the new provisions take effect, there is an extra hurdle to overcome. The expiry date will only be extended to 1 April 2021 if an "additional environmental approval" is granted, or deemed to be granted, by the Local Planning Authority (LPA). A person with an interest in the land can submit an application for this approval, which must include "sufficient information" (although this isn't defined) to enable the LPA to determine whether the approval should be granted. The LPA has 28 days to determine the application, and if it doesn't notify the applicant of the decision within this period, the approval is deemed to be granted and the expiry date is extended.
The LPA can only grant the approval if certain requirements are met around environmental impact assessments and habitats assessments – in short, if any such assessment is necessary the LPA must be satisfied that the information it has is up to date. Given that this process is only likely to be needed where permissions themselves are more than three years old, the relevant assessments will be even older than that. This seems, at best, to put LPAs in a difficult position when looking to grant extensions and, at worst, gives LPAs a readymade excuse to refuse them.
There is also a clear conflict between a bar on an LPA granting the extension unless these tests are met and the extension being deemed to be granted if there is no LPA response, meaning in cases of delay by the LPA the extension will automatically be granted, even though the LPA would have been lawfully required to refuse it.
It will be interesting to see if these procedural wrinkles can be ironed out while the Bill makes its way through Parliament, given the short timeframe before recess.
Extra time for RMAs too
It is also good to see that the automatic extension has been applied to the deadline for securing reserved matters approvals, where that deadline falls between 23 March and the end of the year. This gives everyone time to prepare the necessary submissions to ensure that the most appropriate form of development is coming forward and helps avoid the risk that phases forming part of large, complex schemes, will fall away. The provisions above relating to the implementation deadline also apply to phases of outline permissions.
Modification of construction hours
For the majority of developments, developers will also be able to make use of a simplified planning process to temporarily amend any planning condition or approved construction management plan (or similar document) restricting the hours during which construction activities can be carried out on site. Any approved altered hours will only remain in place for a temporary period and not beyond 1 April 2021 – although new regulations can be made to extend this period.
The LPA has 14 days within which to notify the applicant of its approval, refusal or modification of any requested amendments, otherwise the modifications in the application are deemed approved. Helpfully the LPA can't use this process to restrict work at times when it was previously permitted, so there is no downside to seeking this extra flexibility.
Hopefully this step will enable developments which have suffered delay over the last few months to catch up to ensure that much needed housing, and other development, can be delivered on time.
A silver lining – flexibility for planning appeals
One bonus for the industry is that the Government has taken the opportunity to introduce flexibility to the way that planning appeals are determined. It has always been the case that planning appeals are either determined by one of three clearly defined routes. However, when the Act comes into force, a "mix and match" approach can instead be adopted, meaning that the manner in which a topic is dealt with can vary depending on the complexity of the issue. This definitely has the potential to help speed up the planning appeal process, with only the trickiest of topics needing to be dealt with by way of an inquiry.
It is encouraging to see that the Government is prioritising measures to keep development coming forward, given that housing need remains a critical issue. However, with only a matter of weeks before summer recess, and a clear need for the Act to come into force before then, it remains to be seen whether there is time to ensure that the proposals truly deliver the change required
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