Planning matters

The Business and Planning Act 2020 introduces a number of measures to support businesses and developers in England with their response to the pandemic, including:

• a streamlined pavement licensing system to install items such as tables and chairs outside of cafes, bars and restaurants, see James Fryatt's blog explaining this procedure;
  
  
• a new route for developers seeking a temporary extension of construction site working hours, which is summarised in this blog;
  
  
• the permanent removal of the restriction for appeals to be determined by either written representations, hearings, or public inquiries, thereby allowing mixed procedures as may be appropriate for the appeal; and
  
  
• revival of certain planning permissions and listed building consents that have expired during lockdown and routes for the extension of time limits for implementing planning permissions and listed building consents that expired or are set to expire between the beginning of the lockdown period and the end of this year - only expired permissions would follow an approval process.

This blog will focus on the latter of these provisions, which would insert amendments into the Town and Country Planning Act 1990 and the Planning (Listed Buildings and Conservation Areas) Act 1990.

As explained below, a straightforward application procedure will apply only to revive certain recently expired permissions (or those expiring on or before 18 August); permissions that expire between 19 August and 31 December will be automatically extended.

Section 17 of the Bill proposes two routes for an extension of a full planning permission, depending on the date on which it expired/is due to expire:

• Extending: Automatic extension under proposed Section 93A

For permissions that state development must be begun on a date between 19 August and 31 December 2020, there will be an automatic extension to the permission, so requiring development to be begun not later than 1 May 2021.

• Reviving: Additional environmental approval under proposed Section 93B

For permissions that state that development should have been begun between 23 March 2020 and 18 August, it will be necessary to seek ‘an additional environmental approval’ from the local planning authority (LPA). This is essentially to confirm that the development was not i) subject to an Environmental Impact Assessment and/or a Habitats Regulation Assessment, or screening for either type of assessment or if it was, the EIA that was carried out continues to address the significant environmental effects that are likely to arise, or ii) an appropriate assessment would not be required for the development or if it would, it has already been carried out and remains up to date. It is proposed that the application can only be made by (or on behalf of) a person with an interest in the land. 

There is no prescribed form for the Approval, nor is there a fee, though the information required is set out in guidance. Where a permission is for EIA development, the applicant will need to provide an environmental report providing justification of why in their view there have not been any environmental changes which would make any previous screening or assessment out of date.

The LPA will need to give notice to either grant without conditions or refuse the application within 28 days, starting with the day after the application is sent, or otherwise the additional environmental approval will be deemed to be granted. The time period for determination may be extended, but only by a maximum of 21 days. No approvals will be granted or deemed to be granted after 31 December 2020, unless granted on appeal, albeit that the SoS can extend the time period.

Section 18 of the Bill proposes similar time extensions with respect to outline planning permissions:

• Extending and reviving: time limits for approval of a reserved matter under Section 93D

For outline planning permission that has a condition requiring the submission of an application for approval of a reserved matter to be made between 23 March 2020 and 31 December 2020, the application for the approval will need to be made no later than 1 May 2021.

• Extending: Automatic extension under proposed section 93E

Outline permissions requiring development to be begun between 19 August and ending on 31 December 2020 will benefit from an automatic extension of time will mean that the development must be begun not later than 1 May 2021.

• Reviving: Additional environmental approval under proposed under Section 93F

In order to be revived, outline permissions requiring development to be begun between 23 March and 18 August will be required to seek an additional environmental approval with similar provisions to those for planning permission (above). If approved, the permission would be extended to 1 May 2021.

For listed building consent which requires that works must be begun between 23 March and 31 December 2020, Clause 19 of the Bill proposes to insert new section 18A into the Planning (Listed Buildings and Conservation Areas) Act 1990, to allow works to be begun not later than 1 May 2021.

Where the legislation refers to 31 December 2020 as the end of the time range for implementation of planning permission or listed building consent, and 1 May 2021 as the date by which the legislation extends implementation to, the SoS can alter these dates by regulation in due course, if required for reasons relating to the coronavirus.

With the easing of lockdown restrictions, the extensions will create additional time for those in receipt of planning permissions and listed building consents – both extant to the end of the year and expired since lockdown began - to lawfully implement their permissions and consents. Establishing whether or not a development has been implemented is not always straightforward; for some sites there may be discussions regarding whether or not a permission was implemented before the Act gained Royal Assent.

The automatic revival/extension of outline planning permissions that expired only because reserved were not submitted between 23 March and the end of the year, is most welcome – as is the automatic extension of listed building consents.

The additional environmental approval route for reviving certain planning permissions might seem a frustration to some, but the reviving of planning permissions was not widely anticipated; a straightforward sounding approval process may be seen as a small price to pay for reviving a planning permission that may or may not have been implemented in time.