Following the completion of the consultation by the Department of Communities and Local Government on "Greater Flexibility for Planning Permissions," amendments to the Town and Country Planning (General Development Procedure) Order 1995 will come into force on 1 October 2009, introducing new procedural mechanisms which will increase the flexibility of planning permissions granted under the Town and Country Planning Act 1990 regime in England and Wales.
This package of measures is aimed at stimulating development activity and minimising regulatory barriers to project delivery. New provisions relate to the extension of time limits for implementation, minor material amendments and non-material amendments to existing planning permissions.
Extension of Time to Implement Planning Permission
Sections 91 and 92 of the 1990 Act currently impose default time limits on the implementation of planning permissions. Since 2004, full permissions have been capable of implementation for three years from the date of grant and outline permissions have been subject to a requirement to apply for reserved matters approval within three years from the date of grant, with a further two years from the approval of reserved matters to implement the permission. Equivalent time limits exist on the implementation of listed building and conservation area consents under the Planning (Listed Buildings and Conservation Areas) Act 1990.
No variation to these default time limits is allowed under the current regime but this is set to change from 1 October 2009, although the relevant legislation has yet to be published. This change will help to preclude an influx of repeat applications for expired consents once recession-hit funding streams start to regain momentum.
In the same way as variations to planning conditions are granted under existing provisions, the new procedure will result in the issue of a fresh, separate permission on terms identical to that originally granted but allowing additional time for the permission to be implemented before it expires.
Time extensions will be available for all types of planning permission and for associated listed building and conservation area consents which:
- were granted on or before 1 October 2009;
- are extant at the date of the time extension application, and
- have not yet been implemented.
Time extensions will be available for all eligible permissions, not just those for major developments.
Given how recently the consultation ended, the proposed amendments are unlikely to have precipitated a flurry of applications in recent weeks. However, they will provide comfort to the market that asset development value can be preserved where permissions are granted by 1 October 2009.
Only one extension will be permitted for each planning permission and the procedure cannot be used to secure any other changes. Other amendments would be pursued under procedures available elsewhere under the 1990 Act.
In theory anyone can apply for an extension of time, even if they do not have an interest in the development site. However, in practice, some relationship with a landowner or tenant is likely to exist, particularly as extension applications may be required to include certificates of land ownership. Indications are that time extension applications for major developments will attract a flat fee of £500, minor developments a fee of £170 and a fee of £50 for householder applications although these figures remain to be finalised. Pending regulations on fee levels, which are expected in December this year, the amounts payable are as for a wholly new planning application.
Design and access statements are not required in support of extension applications, as the principle of the development will already have been approved. However, any extension permission granted will qualify as "development consent" for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. This means that, where the underlying development proposals meet the relevant criteria, local authorities must conduct a screening exercise for an extension application. Such screening could necessitate an updated EIA, which would have cost and timing consequences and require consultation.
Planning Obligations and Community Infrastructure Levy
Where the original planning permission was issued subject to planning obligations under a Section 106 Agreement, a local authority may seek a new or supplementary agreement in connection with a time extension, to ensure the obligations continue to have effect, and/or to include additional terms to mitigate any planning impacts associated with the time extension.
Details of the new Community Infrastructure Levy under the Planning Act 2008 remain to be confirmed. The current position is that planning obligations will continue to apply after the CIL comes into force next year. This means that, at least in theory, both CIL and payments under Section 106 planning obligations could be chargeable on a time extension permission. Pending further clarification, it is assumed that this double hit might even apply where the original planning permission pre-dates the introduction of CIL. Emerging guidance on the CIL and its effect on the commercial viability of pursuing a time extension will need to be considered, along with the outcome of vigorous industry campaigning on this issue currently being carried out.
Listed Building and Conservation Area Consents
As described above, the new provisions allow listed building and conservation area consents associated with extended planning permission also to be replaced through a simplified application procedure. There is currently no fee for listed building and conservation area consent applications and none appears to be proposed in respect of time extensions.
Deciding Extension Applications
In determining time extension applications, policy changes and other material considerations (notably including those relating to climate change) will also be taken into account, although a "constructive" approach to incorporating any updated requirements will be encouraged in local authorities. Local authorities will have 8 weeks from receipt of an application in which to decide whether or not to grant an extension of time.
Local authorities will be empowered to grant extensions even where the original planning permission expires during the 8-week decision period but applicants are advised to apply at the earliest possible date before expiration, as this power will be discretionary.
Any extension granted would generally be for an additional three years for full or outline planning permission and two years for reserved matters approval, but may be longer or shorter at the discretion of the local planning authority concerned. The appeals procedures and time limits are unchanged.
Minor Material Amendments
The amendments also include a streamlined version of the existing process under Section 73 of the 1990 Act to approve minor material amendments to extant planning permissions. The current procedure provides for the determination of applications to develop land without compliance with conditions previously attached. Although new style Section 73 applications are not likely to differ in effect from those granted under the current system, the new provisions aim to make them easier to administer and less susceptible to the type of regulatory ambiguity that could give rise to a legal challenge or inhibit the valuation of a development site.
What is a "Minor Material Amendment"?
A minor material amendment is broadly "one whose scale and nature results in a development which is not substantially different from the one which has been approved" and will depend on the development proposals in question.
The new style Section 73 application will not be capable of varying the time limit for implementation (which will instead be applied for under amendments to the 1995 Order described above) or amending aspects of development proposals which are not covered in the original conditions (as a Section 73 application can only vary existing conditions).
In the absence of any indication to the contrary, it may be possible in principle to apply for minor material amendments to a planning permission which has already been implemented in the same way as currently allowed under the 1990 Act.
Applying for Minor Material Amendments
As with a time extension application, any person can in theory submit an application under Section 73. New style Section 73 applications must be submitted on a standard application form and subject to existing provisions of the 1995 Order. A flat fee of £170 has been proposed. Section 73 applications will also be "development consents" for EIA purposes and so subject to screening under the EIA Regulations.
Local planning authorities have discretion to decide which statutory consultees should be consulted on a Section 73 application. This will streamline the procedure and take account of consultation already carried out in relation to the existing permission. However, they will not have such discretion where a formal EIA scoping opinion is requested as, in such circumstances, the requirements of the EIA Regulations will prevail.
Deciding Section 73 Applications
Local authorities should decide a Section 73 application within 8 weeks and by reference to the relevant policy in force at that time. This entails a risk that new objections may arise where an original permission was granted pursuant to policies that have changed, although local authorities are advised to concentrate on those plan policies and material considerations that have changed significantly.
Where a Section 73 application is successful, a new permission will be issued. This will set out all conditions to which the development proposals will be subject and will be identical to the permission originally granted, including the original expiration date, apart from the specified variations (and any other changes effected in connection with separate applications). Existing appeals procedures will apply.
Local planning authorities may make non-material changes to planning permissions following an application by a person with an interest in the relevant land. It is for the local authority to decide whether or not a change is "material" in the context of the development proposals.
Applying for a Non-Material Amendment
Applications for non-material amendments will not result in the grant of any planning permissions so there is no requirement for a design and access statement to accompany applications and, given the nature of non-material amendments, EIA requirements are not expected to apply.
Unlike applications for planning permission, applications for non-material amendments may only be made by a person with an interest in all or part of the application site, although how broadly any such "interest" will be interpreted is unclear. It appears that there will be no fee for application for non-material amendments.
Provisions under the 1995 Order relating to statutory consultation, publicity and notification do not apply but local authorities may be required to notify anyone who was notified for the original planning application and, accordingly, take their representations into account.
Deciding a Non-Material Amendment Application
Decisions on applications for non-material amendments must be made within 28 days of submission. In determining applications, the local authority will have regard to the effect of the change in conjunction with any previous changes to the original planning permission. Local authorities are also empowered to impose new conditions or remove or alter existing planning conditions to accommodate any planning impacts of the amendments.
Draft guidance on the new provisions was provided in the DCLG Consultation. Revisions to this guidance will be published as part of the development management policy framework anticipated to be launched in late 2009, which will set out national policy on the development management process. Draft forms and guidance on the application process will be pushed on the Planning Portal website, with final versions available to view from 6.00pm on 30 September 2009.