This popular and widely read blog acts as a Legal Commentary on issues affecting Town & Country Planning including recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It was originally intended mainly for fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.
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Thursday, 9 April 2020
Temporary PD right for emergency development
Local authorities and certain health service bodies now have power under the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 [2020 No. 412] to carry out certain emergency development. This amendment order was made on 7 April, and came into force at 10.00 a.m. today (9 April).
The new PD right takes the form of a new Part 12A of the Second Schedule to the GPDO. The development permitted is development by or on behalf of a local authority or health service body on land owned, leased, occupied or maintained by it, for the purposes of preventing an emergency; reducing, controlling or mitigating the effects of an emergency; or taking other action in connection with an emergency.
[The specified health bodies that have this PD right are listed in paragraph A.3(1). ‘Emergency’ for this purpose means an event or situation which threatens serious damage to human welfare in a place in the United Kingdom. There is also a definition in paragraph A.3(2) as to what constitutes an event or situation that threatens serious damage to human welfare. This has the effect of restricting the PD right to this limited category of situations. However, subject to this limitation, this PD right is not confined to dealing with the coronavirus crisis alone, but could embrace other emergencies arising during the period that this PD right continues to apply.]
Development is not permitted if any part of the development is on land which is, or forms part of a military explosive storage area, or a site of special scientific interest; or if the land or building is, or contains, a scheduled monument. [There is, however, no restriction in relation to other environmental or heritage designations, such as an AONB, a conservation area, or the curtilage of a listed building, etc.] Development under Part 12A is not permitted if any part of the development would be carried out within 5 metres of any boundary of the curtilage of a dwellinghouse. There are also detailed height limits (which are too complex to summarise here, but which are clearly set out in paragraph A.1).
There is a condition that, if the developer is not the LPA, the developer (i.e. if it is one of the specified health bodies) must, as soon as practicable after commencing development, notify the LPA of the development. Any use of the land for the purposes of permitted development under Part 12A must cease on or before 31st December 2020. Any building, works, plant, machinery, structure and erection permitted by Part 12A must be removed; and the land must be restored to its condition before the development took place (or to such other state as may be agreed in writing between the LPA and the developer). This must be done before the expiry of a period of 12 months after the use of the land ceases for the purpose of Part 12A.
© MARTIN H GOODALL
For many planning applications nearing their commencement expiry date, it must be impossible now for these to commence until the end of the lockdown - and perhaps for some considerable time afterwards. Do local authorities have discretionary powers in this regard, or would the government need to legislate for some kind automatic right of extension on these applications?
ReplyDeleteThe answer in respect of the question that Passer-by poses is that, unfortunately, the primary legislation in England (the 1990 Act, as amended some years ago) does not permit a section 73 application to be granted so as to vary the time limit for commencement that was set when a particular planning permission was issued. So, without an amendment of that statutory provision (which would require primary legislation), I am not aware of a means by which an impending commencement deadline can be extended, except of course by applying for a fresh planning permission.
DeleteSo far as currently pending planning applications are concerned, an LPA is not obliged to impose the ‘default’ time limit for commencement that is laid down in the Act. The LPA has a discretion, and can set a shorter or longer time limit by condition in the planning permission. The default time limit is only there in the Act in case the LPA forgets to impose an express commencement condition on a planning permission, and the default time limit would then apply as if incorporated in the PP. A lot of planning officers seem to be unaware of the LPA’s power, when granting PP, to impose a time limit on commencement that differs from the ‘default’ time limit laid down in the Act. However, once issued, a PP cannot be varied so far as the time limit for commencement is concerned.
" A lot of planning officers seem to be unaware of the LPA’s power, when granting PP, to impose a time limit on commencement that differs from the ‘default’ time limit laid down in the Act. "
DeleteAs an officer I can definitely vouch for that, I'd assumed it was a statutory requirement. Are there any general principles that LPAs should be mindful of when imposing greater or lesser time limits?
Tom’s observation doesn’t surprise me. In my experience 99% of all planning officers simply impose the same commencement deadline as the statutory default, although I seem to recall that there was a time a few years ago when it began to be thought that shorter time limits should be imposed (which is perfectly lawful) and some LPAs did do this.
DeleteI cannot say that there are any general principles that should be observed in deciding what time limit would be appropriate in each case. It is simply a question of exercising reasonable planning judgement in the circumstances of the particular case. In the present circumstances, there may be some justification for allowing an extra year (so stipulating 4 years for submitting an application for consent to details, with the usual 2 years after that to carry out a material operation). Bearing in mind that this would be designed to allow for a whole year effectively being lost between the PP being issued and the developer being able to make further progress with their scheme, the time limit for implementation of a full PP should perhaps also be extended to 6 years, but this should not be a blanket practice; each case should be considered on its own merits. We all hope that the coronavirus crisis will be resolved in the not too distant future, so a blanket extension of time limits when granting PP may not be appropriate.
Of course, this doesn’t resolve the problem that, once a PP is issued, the time limit for implementation is set in stone, and cannot be varied under section 73. As I mentioned before, it would require primary legislation to change this rule, which is enshrined in the 1990 Act.
Thank you Martin.
DeleteI see that emergency legislation has recently been introduced in Scotland ensuring that all planning permissions due to lapse during the six-month ‘emergency period’ will be extended for a further year. While I don’t actually think this goes far enough, it does seem at least a step in the right direction, and it seems odd that England is now out off step with Scotland in this regard.
ReplyDeleteI'm afraid I'm less optimistic about the rate at which the construction sector and the myriad groups funding constrution projects will be able to recover. Consequently, I would like to see legislation extending (by a year or two) the expiry date of ALL Planning Applications determined in the last 3 years, whether or not the expiration date coincides with the emergency period.