New guidance published this month from the Department for Communities and Local Government sets out measures to increase flexibility for planning permissions during difficult economic times. The guidance follows consultation carried out in June this year. The measures adopted fall under three main headings:
Extensions to time limits for implementing existing planning permissions
The procedural regulations governing planning applications have been amended to permit applications to extend the life of planning permissions granted prior to 1 October 2009. This is a temporary measure to help developers to respond to the current economic circumstances. In summary, the amendments mean that a permission granted prior to 1 October 2009 can be extended, provided that the application is made before the original permission lapses. Each permission can only be extended once. The length of the extension will follow the usual rules on the duration of a planning permission, i.e. usually 3 years, although the Local Planning Authority (LPA) has discretion to apply a longer or a shorter period in appropriate circumstances.
The application is made on the standard application form, but with less supporting material than would be required for a new application (for example, no design and access statement will be necessary). If successful, the outcome is the grant of a new planning permission. An application to extend a planning permission would be caught by the Environmental Impact Assessment (EIA) regulations, so a screening opinion and/or an Environmental Statement (ES) may be necessary to support the application. Where an ES was prepared for the original application, a revised ES may be required.
The guidance encourages LPAs to take "a positive and constructive approach towards applications which improve the prospect of sustainable development being taken forward quickly". However, this is not a "rubber-stamp" process. LPAs can refuse applications if there have been changes in planning policy or other material considerations since the original application which render the proposal unacceptable in planning terms. If permission is granted, LPAs have power to impose such conditions as they see fit, so the conditions could be different to those imposed on the original permission. A supplementary deed or a new s106 agreement may be required to link the planning obligations to the new permission.
Outline planning permissions can also be extended, provided that the time limit for submission of reserved matters has not expired, or if reserved matters approvals have been granted, the time limit for commencement of the permission has not expired. Listed building and conservation area consents can be extended where they are associated with an application to extend a planning permission.
New guidance to local authorities on permitting non-material amendments to existing planning permissions
A new power has been inserted into the Town and Country Planning Act 1990 to allow LPAs to grant consent for non-material amendments to planning permissions. Only a person who has an interest in the land can apply for a non-material amendment. The procedure only applies to planning permissions and not to listed building or conservation area consents. The procedure is not an application for planning permission. It does not require full application material (such as a design and access statement). By definition, it should not trigger the requirement for EIA, as the changes must be non-material. There are no consultation or notification requirements on the LPA. The applicant must, however, notify anyone who owns land that would be affected by the amendment.
The decision on whether an amendment is non-material is for the LPA to take, having regard to the effect of the change on the original permission. Each case must be considered individually. The LPA will have 28 days in which to determine the application. The decision letter is not a new planning permission. The original planning permission will remain but must be read alongside a decision letter granting a non-material amendment.
New procedure for minor material amendments to planning permissions using the procedure under section 73
The new guidance aims to "streamline" and clarify the operation of s73 applications for minor material amendments to planning permissions. LPAs are encouraged to include a condition listing approved plans in all new planning permissions, as s73 amendments rely on the existence of a suitable condition that can be modified. If there is no condition to modify, a new planning application may be required. There is no statutory definition of what constitutes a "minor material amendment", but the consultation paper explains that a "minor material amendment" is one "whose scale and nature results in a development which is not substantially different from the one which has been approved". Early discussion of proposed amendments with planning officers is recommended to determine whether a proposed change is minor or requires a more detailed application. A section 73 application is an application for planning permission for the purposes of EIA, so the EIA regulations will apply, and the original ES may need to be updated, or a supplemental ES prepared.
Section 73 cannot be used to extend the time on a planning permission. A separate application would be necessary. The guidance warns that applications must be made in the correct order: if a minor material amendment and an extension are required concurrently, the extension must be sought first because the outcome of a section 73 application is the grant of a new permission, which would not be eligible for extension as it would have been granted after 1 October 2009.
In the current economic climate, the ability to extend and protect an existing permission will be useful, as it gives the flexibility to wait for a market recovery before making decisions on whether to implement planning permission, potentially triggering the need for payment or delivery of s106 obligations. A clear timescale for dealing with applications for non-material amendments will also be of benefit to anyone carrying out development work.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 08/12/2009.