Planning permissions to be extended

A few weeks ago correspondents raised in comments on this blog their concern about planning permissions expiring during the current coronavirus crisis without developers being able to commence their development within the time limit specified in the permission.

The Scottish Government tackled this problem some time ago – one of the many examples of the superior performance of Scottish ministers compared with the hapless and hopeless crew appointed by Boris Johnson.

Now Mr R Jenrick (who is believed to be the Hosing and Communities Secretary, at least for the time being) has at last got around to announcing a similar relaxation in England although, typically, the announcement, only in the form of a deliberately vague press release, fails to give any details of exactly how this will work.

We still don’t know the legal mechanism by which the life of planning permissions will be extended. It appears that the relaxation of the time limit for the implementation of planning permission will apply to all permissions expiring since the imposition of the coronavirus lockdown in late March. So does this mean that planning permissions that have expired within the past three months will be retrospectively revived?

I think we all ought to be told exactly what the government is doing about this, rather than having to rely on a half-baked and largely uninformative press release. Maybe Jenrick has been too busy worrying about legal challenges to unlawful planning permissions to Tory donors, or about getting planning permission for a big extension of his Westminster town house, after it was previously rejected on planning grounds by the LPA’s officers. Must try harder.(Or maybe just resign)

UPDATE [25.6.20]: I am grateful to Richard W and Steve Jupp for drawing the Business and Planning Bill to my attention (see comments below). So this is how the government intends to enable time for commencement to be extended. The Bill is in fact the vehicle for various planning and licensing relaxations that have recently been canvassed. The problem is that it is only a Bill (which has only just had its First Reading [a mere formality] today and is yet to begin its passage through both Houses in parliament). It seems that the government intends to fast-track the Bill through the Commons (with all stages being taken next Monday, 29 June) but they have less control over what happens in the Lords.

Clause 17 of the Bill introduces sections 93A and 93B into the 1990 Act. Section 93A substitutes a commencement condition specifying 1 April 2021 as the commencement date in place of a condition in an unimplemented planning permission. However, section 93A is not retrospective in its effect. This section only applies to planning permissions where the original commencement date specified by the condition in the planning permission will expire within the period beginning with the day on which section 17 of the Business and Planning Act 2020 comes into force [as yet unknown] and ending with 31 December 2020.

For those planning permissions that will already have lapsed before the Act comes into effect, section 93B provides a somewhat more complex procedure. It applies where the date for commencement of development falls within the period beginning with 23 March 2020, and ending with the day before the date on which section 17 of the Business and Planning Act 2020 comes into force. This involves the developer in applying for an “additional environmental approval”. If this approval is granted, this too will substitute a commencement condition specifying 1 April 2021 as the commencement date in place of a commencement condition in the unimplemented planning permission.

The precise requirements for an application for an “additional environmental approval” are too complicated to summarise here, but they cover the need for EIA, compliance with the Habitats Directive, and other environmental protections. There does not appear, however, to be any requirement for the application to be determined in accordance with section 38(6) of the 2004 Act. Furthermore, no conditions can be imposed on the additional environmental approval.

My initial impression is that what is now proposed is going to be unduly complicated and too slow, and will involve developers in jumping through hoops to enable planning permissions to be extended. No doubt the complications of section 93B were thought necessary in order to ensure compliance with the relevant environmental protections, merely by reason of the original planning permission having lapsed, but I find it hard to believe that extending the date for commencement of development by less than 9 months would give rise to any fresh environmental considerations, especially when other permissions expiring a little later will not be subject to the requirement for additional environmental approval.

I had always thought that primary legislation might be required to enable the time limits as to commencement of development to be varied. But there were surely simpler ways the government could have gone about this. For example, section 73(5) of the 1990 Act could simply be have been repealed (or its operation suspended for a stated period), enabling a section 73 application to be made to vary the time by which development must be started, or the time by which an application for the approval of reserved matters must be made. If this variation were to be allowed retrospectively, section 75(4) would have to be similarly repealed or suspended.

This would still make it necessary for the developer to make an application to the LPA, but doing this under section 73 would appear to be more straightforward than what is proposed in the new Bill.

© MARTIN H GOODALL