Since 2005 the duration of detailed planning permissions (i.e. the period after which they lapse if not implemented) has been three years rather than five. In the case of an outline planning permission, an application for approval of all reserved matters must have been made within three years of the date of the consent. The development must then have been commenced no later than two years from the date of approval of the last of the reserved matters.
A planning permission will invariably enhance the value of a property and whilst an applicant may not wish to build out the consented scheme, they’re quite likely to want to preserve the value which it represents. The difficulties which the deadlines posed in the light of the economic climate were acknowledged by the Government in 2009. New rules were introduced in October of that year permitting, in certain circumstances, applications to extend the time limit for implementing planning permissions.
The alternative to extending the validity of a planning permission is, of course, to simply implement it by carrying out a “material operation”. Any works of implementation will, however, only be effective to preserve the permission where any pre implementation conditions have been complied with.
A condition within a planning permission will be a pre implementation condition where:
- the commencement of the development is conditional on that condition being satisfied; and
- the condition goes to the heart of the planning permission
Failure to comply with such a condition in advance of any works which would otherwise amount to a material operation, will prevent valid implementation (and the permission may consequently lapse).
This position was restated by the Court of Appeal in the recent case of Greyfort Properties –v- Secretary of State for Communities and Local Government (applying the principles laid down in a long list of other similar cases where developers had sought to implement planning permissions very shortly before the date on which they would otherwise have expired).
The case serves as a reminder of the importance of identifying any relevant planning consents when purchasing a property and scrutinising planning conditions. Any conditions which are identified as being pre-commencement conditions should be the subject of an appropriate application (which may itself take some months to process) to the relevant authority at the earliest possible opportunity. A timely application to clear any pre implementation conditions will ensure that the planning permission can be implemented at any point up to the date on which it would otherwise expire.
With a new White Paper expected before the end of the year, further planning reforms anticipated, the upcoming Autumn Statement on 23 November, Local Authority and Mayoral elections in 2017, and formal BREXIT negotiations on the horizon, there has never been a more important time for public and private sector land owners to be fully ‘engaged’ with the planning system.