Flexibility or Frustration?

On 1 October 2009 the government introduced a series of measures aimed at ensuring that delays in the planning system did not hinder the economic recovery. Take up has been low (in part due to the interim fee requirements) as developers and Local Authorities have struggled to assess and interpret the scope of the individual provisions.

Extensions to the time limits for implementing planning permissions

These provisions were introduced to enable developers to keep planning permissions alive during the economic downturn in order that they can be more quickly implemented when economic conditions improve.

The procedure allows developers to apply to Local Authorities for a new planning permission to replace an existing planning permission which is in danger of running out of time for implementation.  A successful application will result in a new permission with a new time limit for implementation.

The provisions only apply to planning permissions that were granted on or before 1 October 2009 and only one extension to each permission will be permissible.

The application must be for the same development as the previous planning permission.

An application must be made on the standard application form which has been amended to incorporate this procedure.

Government guidance has advised that local authorities will retain a discretion to determine an extension application even if the original permission has expired after the application was made before its determination. However developers have been warned not to leave submission of the application to the last possible date.

No design or access statement is required for an extension application. However it is open to local authorities to seek further information if changes have taken place to the surrounding area since the original planning permission was granted.

The fees regulations for extension applications have now come into force. The fees for major applications will be a set £500. Prior to the fees regulations coming into force the fees were the same as for a new full application.

The applications must be determined in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004 and as such local authorities have been encouraged to focus on any significant changes to either the development plan polices or other material considerations since the original permission was granted.

Where the original planning permission was linked to a Section 106 Agreement it may be necessary for a supplementary to be prepared linking that obligation to that new permission.

Local Authorities have a discretion to extend the permission for such period as it sees fit subject to the default period of 5 years set out in section 91 of the Town and Country Planning Act 1990.

The provisions also apply to Listed Building Consents and Conservation Area Consents provided they are associated with an application for an extension of a planning permission.

A number of problems have arisen in respect of the proposals which cast doubt on whether they will achieve the Government’s intended aim. These issues include:

* Where the development is an EIA scheme the local authority may request the original environmental statement to be updated. Similarly, in respect of previous non EIA schemes there may have been change of circumstances and a screening opinion should be sought to seek whether environmental impact assessment will be required in respect of the extension application;

* The Government has confirmed that outline permissions can be extended using this power provided that either the time limit for reserved matters has not expired or the reserved matters application were all submitted within the time limit but the development has not yet commenced.

* However, in a phased development where the development has been commenced but not all the reserved matters applications have yet been submitted, it will not be possible to use the procedure to extend the period of time for submitting the remaining reserved matters. This has caused considerable frustration to developers wishing to extend the period for bringing forward remaining phases on large schemes;

* In respect of non-EIA schemes, local authorities have a discretion to decide which statutory consultees must be consulted. Government guidance advocates that local authorities should use a proportionate approach to consultation and should take into account which statutory consultees were interested in the proposal at the time of the original planning permission. There is no such discretion in respect of EIA schemes where the EIA regulations require statutory consultees to be consulted on a scoping opinion has been requested by a developer and subsequently upon submission of the environmental statement; and

* The publicity and notification requirements remain the same as for a new application for planning permission.

Developers will, however, be able to appeal against refusals of extension applications and the normal appeal timetables will still apply.

Non-Material Amendments

Section 190 of the Planning Act 2008 (which inserted section 96(a) into the Town and Country Planning Act 1990) was brought into force on 1 October 2009.

Section 96(a) allows a non-material amendment to be made to an existing planning permission by a simplified procedure.

The application is not an application for planning permission and as such no design and access statement is required. A new abbreviated application form has been prepared and is available on the planning portal website.

Following parliamentary approval of the fees regulations the fee will be £25 for each application in respect of householder development and £170 in respect of other development.

The procedure will allow new conditions to be imposed or existing conditions to be removed or altered.

The procedure does not apply to either Listed Building or Conservation Area Consents.

There is no requirement for consultation or publicity in respect of the application therefore Local Authorities have a discretion in whether and how they choose to inform other interested parties.  The applicant is however required to notify anyone who owns the land which would be affected by the non-material amendment.

The Local Authority will have 28 days to determine the application and must have regard to the effect of the change to go with any previous changes made by earlier such applications.

Although it is not an application for planning permission there is a right of appeal under section 78 of the Town and Country Planning Act 1990.

The main difficulty with the provisions is that there is no statutory definition of what will constitute a “non-material amendment”. The only requirement is that the local authority must be satisfied that the amendment sought is non-material in order to grant the application.

Minor Material Amendments

In response to the Killian Pretty Review, the Government committed itself to considering options for introducing a simplified procedure for making minor material amendments to planning permissions.

The Government has proposed using Section 73 of the Town and Country Planning Act 1990 to provide the best solution to this issue and has amended the GDPO to give discretion to local authority as to which statutory consultees must be consulted on any such application.

The Government guidance defines a Minor Material Amendment as one whose scale and nature results in a development which is not substantially different from the one which has been improved”.

The use of Section 73 depends on the existence of a relevant condition that can be appropriately amended. For example, “The development hereby permitted shall be carried out in accordance with the following approved plans”.  The Government has advised local authorities to include such conditions on all new planning permissions. However, in respect of existing permissions without any such condition it is difficult to see how the procedures will work in practice.

Applications will be made on the same form and in the same way as a normal Section 73 variation application and the EIA regulations will continue to apply to the Section 73 application.

Local Authorities are encouraged to take a proportionate approach to consultation and notification in light of the full consultation that would have been carried out when the original permission was granted.

When an application under Section 73 for a minor material amendment is granted it will result in a new planning permission.

It remains to be seen whether these series of measures will have there desired effect. Take up has been understandably slow in light of the interim fee position and landowners and developers waiting for local authorities to establish the scope of the minor material amendments and non-material amendments provisions.

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