Planning law update – July 2020

Our planning experts are on hand to discuss in further detail what effects they could have for you and your organisation.

The Government’s updated response to Covid 19

Two key pieces of legislation that will assist developers are currently going through Parliament: the Business and Planning Bill containing the temporary provisions to extend the life of a planning permission and the draft Community Infrastructure Levy (Coronavirus)(Amendment) (England) Regulations 2020. Here we outline the key issues that developers will need to know based on the Government’s draft guidance.

Extensions to planning permissions

The press headlines have largely suggested that the extension to planning permissions which have or are about to expire will be automatic, however, that is not the case for all permissions and close attention should be paid to whether a further approval from the LPA will be necessary, and on what grounds the LPA may refuse that further approval. The legislation that is proposed draws a distinction between those permissions that will have lapsed before the new regime comes in to force and those that will expire after the bill becomes law.

The provisions within the Business and Planning Bill dealing with extensions to the life of a planning permission will come into force 28 days after the legislation receives the royal assent. The bill is being fast-tracked through Parliament and was heard at committee stage in the House of Lords on 13 July.  Any planning permissions that expire on or after the date that the provisions come into force will be automatically extended to expire on 1 April 2021. Similarly, any deadline for the submission of reserved matters that is due to expire within the same period will be automatically extended to expire on 1 April 2021. No notification will be issued by the LPA unless a developer asks for this, in which case, LPAs have been asked to work constructively to provide written confirmation as quickly as possible. Developers can also make an application for a certificate of lawfulness if they so wish and/or require more substantive evidence that the permission has been extended.

Where a planning permission (or the period for submission of reserved matters) has expired between 23 March 2020 and the date that the relevant provisions come into force, an application for an Additional Environmental Approval (AEA) will be required before the permission or reserved matters approval may benefit from any sort of extension under the new Regulations.

Such an application is to be made in writing electronically, and LPAs should specify on their website an address for this purpose. Sufficient information must be included with the application to identify the relevant planning permission and to determine whether the AEA should be granted.

Where the original permission was subject to either an Environmental Impact Assessment or a Habitats Regulations Assessment, the original assessments and/or screening opinions should be provided as well as a report outlining the up to date position and whether anything has since changed that would render the original assessment to be out of date. The key test for the AEA is what would be required if the development proposals were being considered in detail at this point in time and if the existing EIA or HRA is now out of date, or if an EIA or HRA is now required, the AEA should be refused.

Details of any changes could include details of surrounding committed development proposals that were not considered at the time of the assessment (because they simply did not exist), or whether an HRA appropriate assessment is now in fact required where it wasn’t previously required due to the impact of the People Over Wind decision.

Where the original permission was not subject to either an EIA or HRA, the application should include a statement and a brief explanation as to why the development still does not require an EIA or HRA.

Of note is that the draft guidance states that the LPA should refuse an AEA application where either:

• insufficient information is provided by the applicant with their application. In such circumstances the LPA should write to the applicant to advise that the application doesn’t comply with the legislation and that they are unable to consider the application unless and until sufficient information is provided. The LPA is not under any obligation to specify what information it requires to comprise “sufficient information”; or
• it is apparent that there has been a change in environmental circumstances. In such circumstances, the LPA should refuse the AEA and the applicant would need to submit an application for a new planning permission.

The AEA application will be deemed to be approved if it is not determined within 28 days. The LPA can agree with the applicant to extend the timescale by up to 21 days, but there should not be any extensions beyond the 21 days. Where an application has not been determined within the 28 days (or such extended period as agreed) the AEA is deemed to be approved. The draft guidance therefore suggests that where an application has not been properly considered within the 28 day period it should be refused purely to prevent a deemed approval.

It remains to be seen how LPAs will resource the determination of these applications The guidance requires LPAs to ensure that their scheme of delegation facilitates the issuing of a decision within the time limit and the challenges for local authorities will be to ensure their procedures for determining applications under the new legislation can be expedited in the short period required by the proposals.  The LPA may voluntarily consult statutory consultees if they consider the position to be complex, but even so, the guidance requires that they should ensure that a decision can still be made in the 28 day period if they do so consult.

The other key point to note is the timescale for submitting an application, this being no later than 2 December 2020 to enable the LPA to determine the application within the 28 days prior to the absolute deadline of 31 December 2020 after which no AEAs may be granted. Any application submitted after 2 December 2020 may still receive a positive determination from the LPA prior to 31 December, but the applicant won’t be able to rely on the deemed approval provision if the LPA does not determine the claim prior to 31 December.

It is clear that the new procedures are intended to deliberately fast track a limited approval process by which the emphasis is on the applicant to provide upfront all the necessary environmental information to enable the LPA to make a decision. In that sense there is limited scope for planning judgement to be exercised in coming to a decision but there can be no guarantees of this particularly if the environmental context has changed. Hence it is important to keep in mind that not all applications will benefit from the so called automatic extension provisions, and in some cases where a planning permission is due to expire shortly (providing all pre-commencement conditions have been discharged) it may be better to implement in time rather than rely on the extension provisions and risk a refusal of AEA.

For further guidance, please see the draft Government Guidance here.

Community Infrastructure Levy

The amendments to the CIL regulations are required to allow for previously announced assistance with the CIL regime, namely deferral of payments and requesting a credit for late interest already accrued, to be brought in. However, the key issue here is that the provisions only apply to those developers with a gross annual turnover of £45 million and where such a developer is experiencing financial difficulties as a result of the health crisis. If a developer is part of a group of companies, the turnover is of that group including any partners or linked enterprises and any partners or linked enterprises of those partners or enterprises.

Where a developer is able to benefit from the provisions, they are able to make a request in writing to the Council to defer a payment of CIL that was/is due between 21 March 2020 and 31 July 2021. The request should be made no more than 14 days before the payment is due, or as soon as practicable after. The request should include a copy of the CIL demand notice, and evidence of the developer’s turnover and that they are experiencing financial difficulties.

The Council may ask the developer to provide any information they reasonably need to consider the request and the developer must provide that information within 14 days after which the Council may refuse to grant the deferral request.

The Council must otherwise determine a deferral request within 40 days of receipt, during which period late payment interest will not accrue. Where a request is granted, the Council will issue a revised demand notice. Any deferral will be for not more than 6 months from the date the deferral request was received, but a developer may request that an already deferred payment is deferred again if the deferred due date is prior to 31 July 2021.

Where interest has already accrued on a CIL payment between 21 March 2021 and any deferral decision the developer can request that the Council credits this against the CIL due.

There is no right of appeal against a Council’s decision to refuse a deferral request or a request to credit interest.

For further guidance please see the Government draft guidance here.

If you have any questions on the issues covered in this update and how they will affect you, please do not hesitate get in touch.

To see our COVID-19 legal updates visit our FAQ hub here.