Town and Country Planning (Development Management Procedure) (England) Order 2010

The Town and Country Planning (General Development Procedure) Order 1995 (GDPO) has now been revoked and a consolidated version of the Order, entitled the Town and Country Planning (Development Management Procedure) (England) Order 2010 (DMPO) came into force on 1 October 2010. The consolidated Order includes the original Order and all amendments made to it up and until 6 April 2010.

The GDPO, made under section 59 of the Town and Country Planning Act 1990 (TCPA), provided for procedures connected with planning applications including planning application consultations, the determination of planning applications, appeals, local development orders, certificates of lawful use or development and the maintenance of planning registers.

Since 1995, it has been amended on sixteen occasions, requiring a user of the planning system to consult seventeen interrelated pieces of legislation.

Consolidation and ease of reference

The intention of the consolidation is to provide a simplified and more user friendly piece of legislation. As part of the consolidation, the Order has been restructured to reflect the actual stages of the submission of a planning application. The Department of Communities and Local Government believes that this user friendliness will save applicants and other users between £0.25 and £3 million in "legal advice". Table one in the DMPO (see link below) sets out where the former articles of the GDPO can be found, together with their new headings.

It was also considered desirable to change the name of the Order from the GDPO to the DMPO to end the last fifteen years of confusion with the General Permitted Development Order (GPDO).

Further changes to replacement time limits for planning permissions

Importantly for developers, the new Order also brings in the enhancement and clarification of a mechanism introduced to assist developers with unimplemented permissions which are unable to be built out, most commonly due to a lack of funding or an end user.

In 2009, the government introduced a policy to give greater flexibility to the lifespan of unimplemented planning permissions as it had become aware of a sharp slow down in the take-up rate of schemes which already had planning permission. It was concerned that many of these permissions would begin to lapse, affecting economic recovery and in particular new housing targets.

Sections 91 and 92 of the TCPA impose default time limits on the implementation of planning permissions. For a full planning permission, the time limit is three years. For an outline planning permission, the time limits are three years in which to apply for reserved matters, and two years to implement the planning permission from the final approval of reserved matters. The previous mechanism for the extension of the time limit for implementation, under section 73 of the TCPA, was removed in 2004 in order to encourage developers to implement permissions or face having to reapply afresh.

The GDPO was amended to enable local planning authorities, at a developer's request, to extend the time limits of existing planning permissions so that schemes would not need a fresh planning permission, with the associated delay, costs (and perhaps policy related uncertainty) that a new application would incur. There was also a concern that as the economy moved out of recession, local planning authorities would find themselves unable to cope with a surge in fresh applications, especially in light of the preceding (and forthcoming) cutbacks.

The procedure only applied to planning permissions that were:

  • granted on or before 1 October 2009; and
  • where the time limit had not expired; and
  • where development had not begun.

This mechanism also covers listed building or conservation area consents which meet the above criteria and are associated with an eligible planning permission which is also being extended, but not for listed building or conservation area consents alone.

Application to phased developments

Concerns were raised by applicants that an application to the Council for the extension of the time limit for the implementation did not apply to an outline planning permission where the development was permitted to take place in phases, and one or more of the phases had already been implemented.

The new measures were of no help to the developer who was unable to submit the reserved matters applications for the remaining phases within the timescales set out in the original permission. As the development had already commenced, the developer could not extend the time limits for submitting reserved matters applications and a fresh planning application was required.

In order to address this, it was considered desirable to amend the legislation to account for these circumstances, but, importantly, only where the development was required or expressly permitted at the outline stage to be implemented in phases.

Article 18 of the DMPO now allows applications for a replacement planning permission subject to a new time limit where:

  • the outline planning permission was granted on or before 1 October 2009; and
  • where the time limit had not expired; and
  • the development permitted was clearly intended to be implemented in phases; and
  • one or more of those phases have commenced.

The new procedure will enable an LPA to grant a replacement outline planning permission and to revise the timetable for the submission of reserved matters and the implementation of unimplemented phases without the need for a new planning application.

The LPA does not have to grant the extension of the time limit on implementation. The original permission will continue to exist whatever the outcome of the application. If an application is granted, the result will be a new planning permission with a new time limit or limits.

Watch this space

This mechanism is intended to be a temporary measure in operation for up to three years but comes at a time when only 128,680 new homes were provided last year, compared with around 167,000 in 2008-09, beating the previous record low of 130,510. It will be interesting to see how long the measures remain in place. The user friendliness, whilst welcomed, is possibly not going to have a dramatic effect on the income of the legal profession or other planning professionals. It would be surprising if a lay person making a planning application used the GDPO rather than the very useful planning portal or Council website guidance that is available. It will also be interesting to see exactly how long it takes before the DMPO is amended and more than one piece of legislation is needed to be referred to again. There will at least be less confusion as to whether the changes have been made to the permitted development Order or the development procedure Order.

The extension of the mechanism for the extension of time limits to outline permissions seems a sensible one, especially with large and complex phased developments, which require so many pieces of the jigsaw to fall into place in the right order or they stall.

To access the full text of the DMPO click here.