1. Extension of planning permission deadlines…
The deadline for commencing planning permissions (both full and outline), listed building consents and for obtaining reserved matters approvals will be extended for all relevant permissions/consents due to expire between 23 March and 31 December 2020. This measure comes after weeks of calls for permissions to be extended, but the extension to next April is relatively short and is clearly aimed at encouraging developers to press on to get the help get the economy moving again.
The extension will be automatic and permission will be extended until 1 April 2021. There will be transitional provisions in place for permissions which expire during this time before the extension takes effect which will require an ‘Additional Environmental Approval’ to ensure that requirements of the relevant environmental and habitats legislation are satisfied. No new conditions can be applied to the Additional Environmental Approval.
…but no change to timescales for getting a decision!
There are currently no plans to change the determination timescales for applications but the government has acknowledged that timescales may not be met in all cases. Appetite for extensions to decision-making timescales will of course be more prevalent on the local authority side of the fence, where the transition to a virtual set-up has not been as swift or as smooth as in the private sector for obvious reasons. However, as time goes on, resource (both systems and people) at local authority level will have to be addressed if the government is to meet its programme of radical reform.
Developers are encouraged to agree extensions of time where necessary, and retaining the timescales means there is still the option to appeal to the Secretary of State on the grounds of non-determination (although there are a few pitfalls especially if an extension has been agreed).
2. Flexible construction site working hours
A new temporary procedure is due to come into effect to allow developers to agree more flexible construction site working hours with their local planning authority. This is to facilitate safe working where social distancing causes delays to working practices, or where there is a need to reduce pressure on public transport and amend working hours.
Councils will have 14 days to determine applications for more flexible hours and deemed consent will be granted if no response is received within 14 days. This procedure will also be in place until 1 April 2021 but will not apply to individual houses.
The government has recognised that an application will not be necessary in every circumstance and has reminded Councils that enforcement action is discretionary, and they should consider the reason for imposition of a condition before considering enforcement action in the case of breach.
One practical point with this new measure is to ensure that the application is made by the landowner, or a person acting on their behalf, otherwise it will not be valid.
3. New permitted development rights for upwards extensions
The construction of up to 2 storeys to create new flats above the topmost residential storey of a building which is an existing purpose-built, detached block of flats can now be carried out under permitted development rights, subject to prior approval. Any replacement or new plant required; new accesses including fire escapes; and any storage, waste or ancillary facilities reasonably necessary to support the new dwellings can also be constructed under this new permitted development right.
There are of course limitations and conditions on the right, including the height of the existing building, which must be at least 3 storeys above ground; the age of the building; and a number of other finer points of detail.
There are also a number of amendments to other permitted development rights including an additional 28 days between 1 July 2020 and 31 December 2020 for the temporary use of land as a market; and a requirement for local authorities to consider the provision of adequate natural light to all habitable rooms where a change of use to residential is proposed.
The government has also announced as yet unpublished plans to allow further permitted development rights for building upwards, including for new and bigger homes. This is unlikely to be popular in residential areas where the height of existing buildings is relatively uniform, and it remains to be seen what the government proposes in terms of safeguards for amenity. It has been suggested that there will be no formal procedure for objections which would be a radical departure from the status quo.
4. Changes to planning appeals process to speed appeals up
Planning appeals are currently determined by one of three routes:
- written representations;
- a hearing; or
- a public inquiry.
The government has announced a permanent change which will allow more than one procedure to be used to determine an appeal i.e. part could be determined by way of written representations and parts meriting cross-examination can be determined at inquiry.
The changes are aimed at speeding up the appeal process and have been shown in a pilot conducted last year to more than halve the time for appeal inquiries. A pilot conducted last year showed that this approach more than halved the time taken for inquiries from 47 weeks to 23 weeks.
As an aside, the government has stopped publishing figures on average timescales for planning appeals since lockdown, ostensibly because average timescales are not meaningful at present, but it is widely known that the Planning Inspectorate found itself very much on the back foot when it came to adapting to virtual processes and so there are currently long delays in the appeal system.
Watch this space for…Ch-ch-changes…A New Deal for Britain
Echoes of Roosevelt and Bowie in one heading…unlikely bedfellows in an article about planning! The government had promised a Planning White Paper shortly before lockdown which went on hold for obvious reasons. The White Paper is now due in July and will now set out far more fundamental proposals for change than previously planned.
In a taster of what is to come, PM Boris Johnson published a statement on 30 June entitled “A New Deal for Britain” in which he outlined radical reform of the planning system, with many measures due to be in place by September, including:
- greater flexibility for many town centre uses to change without the need for planning permission;
- new rights to convert commercial properties, including empty retail premises, into housing without planning permission;
- removal of the requirement for planning permission for demolition where redevelopment is for housing; and
- new rights for homeowners to build upwards (subject to neighbour consultation);
Other areas of planning reform which the PM announced include:
- Project Speed, a taskforce mandated to bring forward infrastructure projects more…well, speedily!;
- More affordable housing to deliver up to 180,000 new affordable homes over the next 8 years, including a ‘First Homes’ pilot, where houses sold at a 30% discount to first time buyers will be retained as affordable housing in perpetuity; and
- £450mn for small developers who require finance for housing developments.
The obvious challenge for the government is how to find a way of making the system work more efficiently to deliver projects which will create long-term prosperity and better health, economic and social outcomes for Britain. There is a big question mark over what public participation in the new planning system will look like and whether these reforms will require a shift in power away from localised decision-making, at least for an initial period.
Back to (Planning for) the Future?
Following the March Budget statement, the government published “Planning for the Future”, a paper which set out the government’s pre-COVID 19 plans for housing and planning. Among the measures it proposed to accelerate planning and increase house-building was the use of zoning for residential and commercial development. This may still feature in the Planning White Paper but is much more complicated than it appears at first blush so may be less extensive than planned pre-March 2020.
Building beautifully, building greener, building higher, building strategically all featured in Planning for the Future, as did digitalising the planning system. The latter has moved higher up the agenda following the lockdown which exposed which parts of the planning system are most under-resourced to make the transition to remote working and virtual procedures.
The New Deal and Project Speed are likely to develop many of the themes in the White Paper due in July and the government has picked up the pace with planning reform in the past week, so expect more detail before long.
Changes to the Community Infrastructure Levy Regulations (again)
SME developers with a turnover of less than £45mn are set to benefit from changes to the CIL Regulations due to be in place until 31 July 2021 which will allow charging authorities to:
- defer CIL payments for up to 6 months;
- temporarily disapply late payment interest and surcharges;
- introduce new instalment policies for as yet uncommenced chargeable development; and
- crediting interest already charged from the start of lockdown where considered appropriate (drafting eagerly awaited on this point but it will not be permitted where a deferral of payment has been refused)
Until the law is changed later in the summer, government guidance encourages collecting authorities to consider carefully whether CIL enforcement action is appropriate in respect of unpaid CIL liabilities and to ensure CIL does not cause undue burdens to developers. There will undoubtedly be calls for further reform to the CIL regime, as it is often smaller developers who are supposed to benefit from the measures to reduce the financial burden of CIL who end up penalised due to the complexity and rigidity of the CIL regime.
