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

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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.

22 comments:

Carol Grant said...

I would be interested to know (and I would assume that this is the case now in many situations), is it possible to further extend a permission that has already been extended already under the new rules. You refer to original planning permission, would that be be the original (ie the first) application for the proposed development or the application to renew the original application?

Martin H Goodall LARTPI said...

In answer to Carol Grant’s query, the ability for a developer to seek an extension of time applies only to a planning permission granted before 1 October 2010. Where a section 73 application is granted, it does not simply vary the condition or conditions to which it relates. It takes effect as a fresh planning permission. Thus the relevant planning permission is no longer going to be the original planning permission, but the fresh planning permission granted under section 73, with an extended time limit for its implementation, but this fresh permission will necessarily be a permission that was granted after 1 October 2010, so this new permission cannot itself be extended. You can’t have two bites of the cherry!

Anonymous said...

Martin, do you know when s73(5) was brought into force? Some websites say s73(5) was brought into force in August 2005, but it seemed more recent than that to me...

Martin H Goodall LARTPI said...

Subsection(5) was inserted by section 51(3) of the Planning and Compulsory Purchase Act 2004 (subject to the savings contained in section 51(6)). It was brought into force with effect from August 24 2005 (in relation to England only) by Article 2(c) of the Planning and Compulsory Purchase Act 2004 (Commencement No. 5 and Savings) Order 2005 (SI 2005/2081), subject to the savings contained in Article 4(2) of that Order.

Anonymous said...

Given that there is no requirement for the drawings to be resubmitted and assuming that the architect was commissioned to produce drawings for the sole purpose of gaining planning permission, could the time limit be extended without the architect claiming an infringement of his/her copyright in the drawings?

Martin H Goodall LARTPI said...

If an architect’s drawings are not copied, it is difficult to see how their copyright can be infringed by the renewal or extension of the permission. But different considerations might apply when it comes to actually building it. I don’t pretend to have any great knowledge of copyright, but we have a particularly strong intellectual property law team in Keystone Law, who would undoubtedly be able to advise, if they were to be instructed.

Anonymous said...

Am I right in thinking that this power has not been extended by a further period of time and, therefore, is now redundant given that 1 October 2013 has come and gone (assuming a three year permission)?

Martin H Goodall LARTPI said...

I am not aware that there has been any further extension, so I believe my correspondent may be right about this.

Anonymous said...

Can a S73 application be made to vary the time limit of a planning permission granted after 1st October 2010?

Martin H Goodall LARTPI said...

In answer to this last question - Yes in Wales, but not in England. The prohibition on extending a planning permission by varying the time condition by means of a section 73 application has never (or at least not yet) been brought into force in Wales.

As noted in answer to a previous question, the temporary relaxation of this rule in England has not been extended, and so this is no longer an option on this side of the Welsh border.

Steve said...

Hi Martin

In a situation where there is outline planning permission (granted 2011) which has been implemented, in phases, in accordance wight he time limit condition and also detailed consent for an element (i.e. it was a hybrid application submission) for a listed building conversion, with the latter having its own condition for implementation - is there the ability to amend the condition requiring the commencement of development of the listed building, to allow a longer period to do so?

There is also a separate LB consent with its own commencement date condition.

Anonymous said...

Very interesting blog. In Wales, if a planning application has a time limiting condition which has expired, is it possible to submit a s73 application after the expiry date to amend the condition and extend the planning permission?

Martin H Goodall LARTPI said...

If the time limit for commencement has passed, then the planning permission has lapsed, whether in Wales or in England.

Even in Wales, it is not possible to submit a section 73 application after the expiry date to amend the condition and extend the planning permission. An entirely fresh planning permission would be required in these circumstances.

Martin H Goodall LARTPI said...

In answer to Steve’s query of 4 November, in England it is no longer possible to extend the life of a planning permission by means of a section 73 application to vary the time limit specified by the condition. The same would apply to a Listed Building Consent (although this may need to be double-checked in case the same amendment was not in fact made to the Listed Buildings Act).

If approval of all reserved matters was applied for within the original time limit, then phased commencement of remaining elements of the development would have to be put in hand within the further period specified in the permission. However, if there were reserved matters for which approval had not been sought within the original time limit for doing so, it would no longer be possible to seek such approval, even though the planning permission has been implemented by the commencement of other phases of the development.

Whilst the planning permission will not have lapsed in these circumstances, it would no longer be possible to implement the further phases of the development in respect of which reserved matters approval had not been obtained.

The Listed Building Consent and planning permission would be considered separately in relation to this question, but the same rules apply to both planning permissions and LBCs (subject to my proviso as to the need to confirm that the Listed Buildigns Act has been amended in the same way as the principal Act. I haven't had time to check this.)

Ed said...

Martin,

Full planning permission was granted in November 2012 subject to the standard three year timescale for implementation. The permission includes a further two conditions requiring:

1 - implementation of an element of the scheme (barn conversion) within two years of the date of the permission; and
2 - completion of the same element within three years.

The developer is seeking to extend the time limit for implementation of the barn conversion and it has been suggested that they apply to extend the time on each of the above conditions by 1 year via Section 73.

Whilst the headline three-year implementation condition will remain unchanged, revising the above conditions will in effect "extend the time limit within which development must be started", potentially in conflict with Sec 73(5).

In your experience, is this a legitimate/lawful strategy?

Martin H Goodall LARTPI said...

I would need to see the precise wording of the relevant conditions in order to be able to answer the question raised by Ed. I am afraid that in view of the time that would be involved this could only be done on a fee-paying basis.

Anonymous said...

It is established that you cannot extend the time limit stipulated in a condition through a S73 application.

If the Local Planning Authority choose to validate such an application anyway and then give consent to extending the time in which a reserved matters application must be submitted from 6 months to 1 year, what are the implications?

Does it simply mean that if no one challenges the invalid decision within the Judicial Review period then the Decision stands and the variation of condition is therefore valid?

I suppose it would then be open to enforcement but what LPA would then take enforcement for a permission it had made the mistake in giving out.

I ask as i work for a housebuilder and we have been offered a site in these circumstances whereby the council have allowed a permission under S73 to vary the time limit.

Martin H Goodall LARTPI said...

Nothing in this blog (including my responses to comments) is to be treated as legal advice, and the disclaimer set out elsewhere in this blog therefore applies, but my immediate reaction to the query raised on 1 July is that in the absence of judicial review, the notice of permission extending the life of the permission is (on its face) valid.

If the site is in Wales, section 73 can still be used to extend the period within which development must commence, and so there would be no problem, but if it is in England, then the grant of permission under section 73 would appear to have been ultra vires. Clearly the LPA should not have entertained this application, but having done so and having issued a fresh planning permission without being challenged it appears that they have issued a permission that on its face is valid.

Natural caution suggests to me that no reliance should be placed on this permission until the position has been checked. I haven’t got time to check the point myself, and my remarks are therefore entirely ‘off-the-cuff’ without having gone into the ultra vires issue properly. I seem to recall that there is some judicial authority on this point, but I haven’t got time to dig it out, so we will have to leave this loose end hanging there.

Anonymous said...

Martin

Your original update blog in November 2013 and related articles and Govt press release at the time all speak of the revocation of the powers to extend time limits. Yet, nothing appears on DCLG or elsewhere to confirm this actually happened.

The point is we have a client with a 5-year permission granted in Feb 2010 which should remain capable of extension if the powers remain.

Is it your understanding the powers were revoked, or do they, as we suspect remain? DCLG has so far been unhelpful in answering what we hoped was a straight forward question.

Martin H Goodall LARTPI said...

The power to apply to extend the life of a planning permission was strictly temporary. It was continued for an extra year, but was not renewed when it finally lapsed. So it simply died a natural death – it required no positive action on the part of ministers. Hence the lack of any evidence of a change to the legislation being made. It would have required a further statutory instrument to prevent the power to extend a planning permission from lapsing. No such further SI was made, which was in accordance with ministers’ announced intention of not renewing this power when it finally lapsed.

WW said...

Dear Martin

A s73 application to remove an onerous condition was granted. The description of the proposal in the new Decision Notice repeats the description of the application to remove a condition, not of the development proposal itself.

The LPA seems to have literally followed the PPG guidance thus: "As a section 73 application cannot be used to vary the time limit for implementation, this condition must remain unchanged from the original permission."

Condition of the (s73) PP states: "The development hereby permitted shall be begun before the expiration of 3 years from the date of this permission.
Reason: In accordance with the requirements of Section 91 of the Town and Country Planning Act 1990 (as amended by Section 51 of the Planning and Compulsory Purchase Act 2004)."

This would seem to have extended the life of the permission 'by the back door'. Would you caution the validity of this permission as ultra vires?

Many thanks

Martin H Goodall LARTPI said...

WW has raised an interesting point. A permission granted under section 73 takes the form of a fresh planning permission, which is why ministerial advice was (and, I believe, remains) that the section 73 permission should contain the same conditions as the original permission which it replaces, save only for the condition or conditions which has/have been removed, relaxed or varied.

The new permission under section 73 bears the date when it is issued; it is not back-dated to the date of the original permission. Thus the time limit for implementation runs from the date of this new permission, not from the date of the original permission. As WW points out, the effect of this may in practice be to extend the period within which the permission may be implemented, and depending upon the timing of the section 73 application and of the fresh planning permission granted in respect of that application, this may have the effect of extending the life of the permission quite significantly compared with the time limit for implementing the original permission.

If an LPA wants to avoid this situation arising, they can do so very easily, because they are not obliged to impose a three-year time limit (which is only the ‘default’ limitation period). The LPA can impose any time limit, either longer or shorter than 3 years, and so (if they thought it appropriate to do so), they could limit the life of the permission so as to expire on the same date as the original permission would have done. In this case the LPA has not chosen to do this, and so the three-year period runs from the date of the fresh planning permission issued under section 73.

There is certainly no basis for suggesting that this is ultra vires. It seems to me that (unless there are other factors of which I am unaware) this permission under section 73 was entirely within the scope of the LPA's reasonable discretion.