Friday, 21 September 2012
Extending the life of planning permissions
One of the ill-considered amendments to planning legislation introduced a few years ago was the removal (in England, but not in Wales) of the ability to extend the life of a planning permission by applying under section 73 of the 1990 Act to vary the condition imposed under section 91 or 92 of the Act setting a time limit within which the planning permission must be implemented. There has always been a wide range of perfectly good reasons why it is not practicable to commence development within the time limit originally specified, quite apart from the obvious economic factors which have arisen in recent years. Use of section 73 to extend the life of a permission in such circumstances was a convenient way of dealing with the problem, making life easier for both the developer and the LPA. If the LPA felt that such an extension was inappropriate (for example because of changed circumstances since the original permission was granted) they were entirely free, subject to the usual right of appeal, to refuse the application to extend time in this way.
The government was eventually persuaded in light of the worsening economic situation to relax the prohibition on extending the life of planning permissions, but rather than simply restoring the right to apply to vary the time condition under section 73 without strings, the government amended the DMPO to enable this to be done solely in respect of permissions granted before 1 October 2009 (where, for obvious reasons, the time limit had not already expired and where development had not begun). However this did not apply to outline planning permissions; nor did it apply where the development was permitted to take place in phases and one or more of the phases had already been implemented, but the developer was not in a position to submit reserved matters applications for the remaining phases within the time limit specified in the original permission. In this case, because the development had already commenced, the developer could not extend the time limit for submitting reserved matters applications and there was no alternative to submitting an entirely fresh planning application, with all the consequent costs, inconvenience and delay.
As announced in the flurry of initiatives unveiled earlier this month, the government has now further amended the DMPO so that, with effect from 1 October 2012, an application can be made to replace an existing planning permission where the original permission was granted before 1 October 2010, which gives developers an extra year compared with the previous concession. This is still restricted to developments where building has not begun and where the time limit for commencement has not expired. However, in applying for a replacement permission it is unnecessary to re-submit all the plans and drawings, and there is no requirement to submit a fresh design and access statement, nor is there a need for full consultations.
This may not entirely solve the developer’s problems. The adoption of a CIL charging schedule between the time when the original permission was granted and the time when the replacement application is determined could be a complicating factor, not to mention the possibility that planning obligations under section 106 might have to be revisited in view of declining viability of the project in the current market.
© MARTIN H GOODALL
Update [12.11.13] :
De-CLoG has now announced that they will definitely not be renewing powers to extend the life of planning permissions. The ability to extend PP that had been removed (in England) by the 2008 Act was temporarily restored as a result of the financial crisis. It was extended by a further year, but has since lapsed. This latest announcement confirms that extension of time for the commencement of development has now been permanently removed. The thinking behind this seems to be a wish to push developers into starting development, rather than sitting on planning permissions.