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Published 10 July 2020
As the UK adjusts to a new type of normal, the planning industry has acclimatised to COVID-19 measures introduced by the Ministry for Housing, Communities and Local Government (MHCLG) in mid-May 2020. These measures have generally, if not somewhat ambiguously, encouraged local planning authorities to exercise flexibility and pragmatism. Guidance issued by The Planning Officers Society on 4 June 2020 urged local planning authorities to “take a sympathetic approach” in instances where development had stalled or was incomplete due to the impact of COVID-19.
On 25 June 2020 the Business and Planning Bill was presented to the House of Commons, offering some vital clarity on key planning concerns, including extensions for planning permissions and flexible construction hours. Specifically: “The Bill ensures the planning system in England can continue to operate effectively and proactively support the planning and safe construction of new developments following the impact of Covid-19” (Explanatory Memorandum).
The Bill introduces measures which will allow for the extension of certain unimplemented planning permissions, outline planning permissions (reserved matters and conditions for commencement of development) and listed building consents lapsed/lapsing between 23 March 2020 (Lockdown Day) and 31 December 2020, to be extended.
The legislation is a welcome relief, providing clarity to the planning and development sector in light of Covid-19 related delays. According to the Explanatory Memorandum, “MHCLG analysis of data from Glenigan, the construction market analysts, shows that at the end of March there were 1,178 major residential planning permissions with capacity to deliver over 60,000 homes due to lapse this calendar year”. These figures only serve to highlight the importance and timeliness of the proposed extension provisions.
Where a full permission is due to expire between the day the Bill comes into force and 31 December 2020, it will automatically extend to 1 April 2021. Where a permission expired between Lockdown Day and the day when the Bill comes into force, then the developer can apply for an extension to 1 April 2021 and there will be an additional environmental approval process undertaken by the LPA to decide if the extension will be granted. This second scenario is in effect an ability to revive a lapsed permission.
Outline permissions are dealt with slightly differently as the approach here depends on whether the time limit in jeopardy is the submission of an application for an approval of a reserved matter or the time limit relating to commencement of development. In the reserved matter application scenario, if the deadline for submission falls within the period commencing on Lockdown Day and 31 December 2020, an automatic extension is granted for submission of the reserved matter to 1 April 2021.
In the commencement of development scenario, the extension options are akin to the scenarios described above relating to full planning permissions. An automatic extension to 1 April 2021 applies if the commencement deadline falls between the date the Bill comes into force and 31 December 2020. Where the commencement deadline falls between Lockdown Day and the date the Bill comes into force, the developer can apply for an extension to 1 April 2021 and an additional environmental process applies.
Extension of Listed Building Consents
The position here is more straightforward. If the consent contains a condition which requires works to be commenced not later than a time falling within the period commencing on Lockdown Day and 31 December 2020, an automatic extension is granted to 1 April 2021. No requirement for an environmental process means that no distinction need be made between consents which have already expired by the time the Bill comes into force and those yet to expire.
For those planning permissions that require “additional environmental approval”, if a local planning authority does not issue a decision in relation to this additional environmental approval within 28 days the permission will be deemed as granted provided that the application made is a valid application containing all of the required information.
On 22 June 2020 the MHCLG announced new measures to "help builders to quickly agree more flexible construction site working hours with their local council for a temporary period". This streamlined application process is outlined in the new Bill, with the relevant provisions coming into force six days after the act is passed.
Under the Bill, provisions for flexible construction site working hours will ensure that planning conditions do not hinder developers from flexibly and safely operating constructions sites and resuming work otherwise delayed by Covid-19 and will also help make up for lost time during lockdown.
The Bill specifies that applications of this nature must be made electronically. Local authorities will have 14 days to decide an application, after which point it will be deemed as having been approved. Approvals under these provisions will be effective until 1 April 2021 and will not apply to the construction of individual homes. LPAs do have the ability to refuse an application and a right of appeal against such refusal would apply. It would be difficult for an LPA to justify refusals that do not follow current published guidance which suggest that extensions of working hours to 9pm Monday to Saturday should be granted.
With the application for extension of construction hours being free and a swift process, there is little reason for developers not to pursue such applications and a lot to be gained from securing the extensions.
• allows for Planning Inspectors to address appeals through hybrid procedures consisting of multiple elements at the same time (including inquiry, hearing and written representations) as opposed to the current legislation which requires ; • removes the requirement for the Mayor of London to make the current Spatial Development Strategy available for physical inspection / to provide hard copies on request; and
• includes a range of amendments to licencing laws to allow for the consumption of food and beverages outside.
These legislative updates offer developers valuable clarity moving forwards, particularly in circumstances where planning permissions may have been due to lapse and the temperament / flexibility of a local planning authority was unclear.
The draft Community Infrastructure Levy (Coronavirus) (Amendment) (England) Regulations 2020 (the Regulations) have been published to amend the notoriously inflexible Community Infrastructure Levy Regulations were published this week, which once they come into effect would allow “small” developers to apply for extensions to CIL payments.
The Government had announced in May 2020 its desire to give Local Authorities more discretion around how they deal with the payment of CIL in light of the Coronavirus pandemic. Some Local Authorities, like Wakefield, had of their own volition made offers to developers to be more forgiving when it came to requesting CIL payments, but the CIL regime’s rigidity limits even the most willing planning authorities.
The Regulations apply to developers with an annual turnover not exceeding £45m to make a request to defer a CIL payment if:
1.1 they have received a demand notice for a CIL payment;
1.2 that CIL payment is set to be made before 31 July 2021; and
1.3 they are experiencing financial difficulties for reasons connected to the effects of coronavirus.
Developers should make a deferral request to the Council no more than 14 days before, or as soon as practicable after the date the CIL payment is due.
The Council can request whatever information from the developer it reasonably needs to consider the deferral request. Developers must provide that information, in so far as it is in their possession or control, within 14 days of the request being made.
The Council will make a decision to grant or refuse the request within 40 days of receiving the request.
The Council may grant a deferral request for no more than 6 months beginning with the day the Council receives the request in writing and then issues a revised demand notice. The Council are precluded from charging late payment interest or a surcharge while they are considering the request. Where interest has been triggered an application to credit this may be made but only if the deferral of the CIL payment is successful. Interest does not accrue during the determination of an application.
It is important to remember that Councils have a discretionary power to grant or refuse these requests to defer CIL payments. Whilst there are no appeal provisions in the draft regulations against a Council’s decision, they are expected to “take a positive approach when considering a deferral request.”
Where the deferral is refused, then the deadline for payment will be within 7 days.
These changes will be welcomed by those developers who are experiencing cash-flow issues as a result of the pandemic. How Councils respond remains to be seen when considering these requests and how resourced they are to deal with them. As ever there will likely be an inconsistency across Councils in terms of administration and request outcomes.
Keep an eye out for further updates, as we track the latest changes facing the UK planning sector. The next articles in this series will look at a range of topics including proposals for radical changes to the planning system and zonal planning.
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