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.
Extending and reviving planning permissions
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.
Outline planning permissions
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.
Extending and reviving listed building consent
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.
Business and Planning Bill 2019-2021
Updated 22 July 2020 to reflect the Business and Planning Act 2020
Section 16 of the Business and Planning Act 2020 provides a new temporary mechanism that allows applicants to modify conditions attached to a planning permission controlling construction working hours. The aim of this is to allow those working on construction sites greater flexibility to support safe working in line with social distancing guidance on construction and other outdoor work. The procedure comes into force on 28 July and will expire at the end of the day on 1 April 2021, but this can be extended by further regulations.
New Section 74B to the Town and Country Planning Act 1990 means applicants can apply to amend conditions relating to construction hours, to either:
allow construction activities to be carried out for a longer period on a particular day; or
allow construction activities to be carried out for the whole or part of a day on which they would not otherwise be allowed to be carried out.
The applicant must have an interest in the land and the provisions do not apply to construction hours conditions related to development of a dwelling house or its curtilage.
When determining an application, local planning authorities may choose to modify the condition in accordance with the application, refuse to modify the condition, or specify alternative modifications to the condition as they see appropriate; however, this final option would require the applicant to first agree in writing to the new terms of the determination.
There is no fee for the application, and decisions must be made within 14 days, starting the day after the application is sent to the local authority. If no decision is made within that time, the application will be deemed to have been approved. Any extension to working hours would remain in place until 1 April 2021 at the latest. After this date, the original conditions relating to construction hours would resume.
Guidance states that applications to extend working hours until 9pm, Monday to Saturday should not be refused, unless “very compelling reasons” indicate otherwise. In areas outside of residential areas, it may be justified that extensions beyond these hours is acceptable. But if the application is refused there is a right of appeal.
Of the information to be provided to authorities, applicants should also include a short justification explaining why extended hours will be necessary to enable safe working practices on site.
A May 2020 Ministerial Statement already attempts to support the sector on this issue, stating that LPAs should take a “swift and positive approach to requests from developers and site operators for greater flexibility around construction site working hours”. The statement emphasised that planning enforcement is discretionary, and that LPAs should not seek to undertake enforcement action where only short term or modest increase to working hours are needed. Where developers required a more significant changes to working hours, applicants were encouraged to temporarily amend a condition or a construction management plan in the through the usual way.
Legislative changes do risk adding an additional administrative burden to already stretched local planning authorities; whilst potentially complicating situations where authorities have already made informal agreements with developers. However, our experience is that while some local planning authorities have been pragmatic about vary construction hours, others have not, thereby demonstrating the need for the legislation.
The new, formal, procedure provides applicants the right to appeal where an application made under 74B has been refused. Whilst this would not result in a swift approval given the waiting times for appeals to be decided, the local authority would need to consider carefully whether issuing a Breach of Condition notice would meet the tests of expediency.
Business and Planning Bill 2019-21MHCLG, draft guidance on construction site hours deemed consentWritten Ministerial Statement, Construction update