With developers and landowners having to alter the way they work due to the impact of Coronavirus, we’ve collated a few key points to bear in mind when considering planning permissions.
Beginning a planning permission
All planning permissions have a date by which they must be begun. If they are not lawfully begun by that date the permission will be considered to be expired. It may not be possible to obtain permission for the same development again, e.g. because of a change in policy (including a new neighbourhood development plan, or change in the 5 year land supply etc.).
Whilst it is possible that during Coronavirus legislation might be brought forward to give developers additional time, that cannot be relied upon at this time.
Therefore developers who wish to ensure that their permission remains extant should ensure that they have lawfully carried out a material operation before the permission expires.
A material operation can include the formation of (part of) an access, the digging of foundations, or the laying of pipes. A planning permission can therefore be ‘saved’ even with limited works.
However, if a permission contains conditions precedent (e.g. the development shall not commence until…) then works to begin a planning permission will not be lawful unless those pre-commencement conditions have been discharged (the ‘Whitley Principle’).
There are a few exceptions to the Whitley Principle, including that the application to discharge the condition has been made before the permission expires and is subsequently approved (on appeal if necessary).
In addition, consideration should be given as to whether any pre-commencement condition is in fact a ‘true condition precedent’. Some pre-commencement conditions do not go to the heart of the permission and therefore a failure to discharge them will be a breach of condition rather than an unlawful commencement of the permission. Two recent examples of conditions found not to be true conditions precedent were: i) the requirement to approve a scheme of lighting for wind turbines; and ii) a requirement to provide an archaeological report, when there was no archaeology of importance on the site.
In some cases developers may wish to have certainty that they have lawfully commenced their permission – this can be achieved by applying for a certificate of lawfulness from the Local Planning Authority, which, if issued, is conclusive proof of the lawfulness of the development.
In areas where CIL is charged, developers will need to bear in mind that CIL is payable as a result of commencement of development. Payment by instalments may be possible and some Councils are currently taking a pragmatic view on payment.
Our Planning team can assist developers with advice on material operations, the Whitley Principle and its exceptions and on certificates of lawfulness.
Permitted development
Planning permission granted through some permitted development rights is subject to a requirement that the development is completed within a specified timeframe (e.g. Class Q conversions of agricultural buildings to residential use – the time limit being three years from the determination that prior approval is not required).
There is currently no provision for that timeframe to be extended. The result of failing to meet the timeframe is that the permission is lost in its entirety.
In some cases it will not be possible to obtain a new approval through permitted development rights, e.g. because the permitted development rights have since been withdrawn.
Deemed Discharge
Where the discharge of planning conditions is required in order to lawfully commence a permission, it may be worth considering the use of the deemed discharge procedure.
Deemed discharge cannot be used for specific types of condition, so it is worth checking the pre-commencement conditions to confirm whether the deemed discharge route is applicable to your development.
Judicial Review
The period for bringing a claim for Judicial Review against planning decisions remains six weeks from the date of the decision. However, it is possible to bring a claim ‘out of time’ if good reason can be shown. This is worth bearing in mind by both objectors and developers.
Whilst it may be unlikely that development will commence on such a planning permission within the six week period, some land contracts are conditional upon the expiration of the Judicial Review period.
Developers receiving planning permissions may wish to check that the decision notice is available on the Local Planning Authority’s online portal on the date it was issued and making a record of that fact.
S106 Agreements
Although many Section s106 obligations will be related to the achievement of particular milestones, such as the completion of a particular number of houses, some may be triggered during this period.
It may be worth checking your s106 agreement for any obligations that will be triggered during this period and considering contacting the Local Planning Authority (LPA) if you may need some additional time to comply. This can be done informally with the LPA, or where the issue is likely to be significant, through a deed of modification to the s106.
As an s106 agreement is required to be by deed, in some cases signatures will need to be witnessed by an independent party. In some cases (e.g. companies) this can be avoided by the deed being executed by two directors or a director and the company secretary. For individuals this will be unavoidable. Where a signature needs to be witnessed, this has to be achieved by maintaining a 2m distance between the signatory and the witness and using separate pens. Some witnesses have even witnessed the signing of the deed through a window!
Community Infrastructure Levy Payments
In contrast to most s106 planning obligations, Community Infrastructure Levy (CIL) payments are due on the basis of time since permission was commenced. This means that CIL payments may become due whilst a development is shutdown in accordance with government guidance.
The government have indicated that they will amend the CIL Regulations to allow a suspension of CIL payments for small to medium sized companies. In the meantime, a number of collecting authorities are taking a pragmatic approach to the collection of CIL.
Decision making
Local Planning Authorities are approaching decision making in different ways. However, many continue to make delegated decisions in accordance with their constitution.
New legislation has been made permitting ‘virtual Planning Committees’; some authorities have implemented this new system quicker than others.
Any developer receiving a planning permission (or objector) may wish to review whether the permission was lawfully granted.
Neighbourhood Plans
All neighbourhood plan referenda have been postponed or suspended. In the interim period, all pre-referendum neighbourhood plans are to be given ‘significant weight’ in the planning process.
Conversion of Offices
The recent requirement for home-working may mean that businesses will look differently at their office space. It is worth remembering that there are permitted development rights to convert an office into residential units, subject to meeting a number of requirements.
It is important to understand whether the permitted development rights are restricted b y the terms of a planning permission, a direction removing the rights and that the terms of the rights can be complied with.
If you have any questions on the topics above, or other planning matters, please contact our planning team at planning@stephens-scown.co.uk.