DCLG Consultation Paper "Greater Flexibilty for Planning Permissions"
The Government has recently published the above consultation paper to consider whether to introduce a mechanism for extending the time limits for implementation of existing planning permissions and to consider how to implement the procedure for making non material amendments introduced by Section 190 of the Planning Act 2008. It also considers changes to the procedures for applications under Section 73 of the 1990 Planning Act by way of amendment to conditions attached to an existing consent. The consultation period ends on the 13 August 2009 with the intention that the majority of the proposals (subject to the outcome of the consultation exercise) might come into effect from 1 October 2009.
Applications to extend the time limits for implementation of existing planning permissions
It is proposed that in respect of “major developments” (principally schemes for at least 10 houses or 1000 square metres of floor space) LPAs be given power to extend the time limit for implementation of existing planning permissions in order to avoid both those existing planning permissions lapsing during the current economic downturn and the need for major expenditure in submitting fresh applications effectively to “renew” the lapsed planning permission when market conditions improve.
Such applications will only apply to permissions that were granted on or before the date when this new measure comes into effect anticipated to be 1 October 2009. Only one such extension to an existing permission will be permissible.
The proposed procedure will not apply to any permission granted after 1 October 2009 and therefore it will still be important in appropriate circumstances to request an extension of the current time limit of three years for implementation in respect of applications likely to be determined after that date.
The extension procedure would not permit the terms of the existing planning permission to be altered in any way other than the extension of time for implementation. Consequently the description of development and the conditions imposed must remain as on the previous consent. The procedure may trigger the need for a supplementary or fresh planning obligation to ensure that the new permission is bound by the same obligations (if any) imposed on the earlier consent.
The extension procedure should not be seen as a mechanism to avoid the proper consideration of environmental issues. Consequently where there have been changes in the Development Plan or material considerations indicate that the effects on the environment need to be reconsidered, this should be done. LPAs may refuse applications where changes in the Development Plan or other relevant material considerations indicate that the previous consent should not be renewed or if they consider the extension procedure is not appropriate.
Extension applications are proposed to be exempt from the requirement to provide a Design and Access Statement and a flat fee of £170 is proposed. Note, however, that due to statutory requirements regarding amendment to the fee regulations, whilst the ability to submit an application to extend after the 1 October is proposed, the amendment to the fee regulation will take a little longer to bring into force and in the interim the relevant application fee would be the same as a new application fee which is likely to be considerably higher than the proposed £170.
Applicants/landowners with the benefit of consents which are likely to expire shortly after the proposed date of 1 October 2009 are recommended not to leave the submission of an extension application until the last moment as if for any reason that extension application is not validated, it may be that the original consent will expire before a valid application to extend can be submitted.
Minor material amendments
To address concerns that where relatively small changes to permissions are sought, a new full planning application is being required, consultation has also commenced on a methodology to allow a simple and expeditious process. The short term solution is to use the procedure under Section 73 of the 1990 Planning Act which permits changes to conditions. The success of this proposal therefore depends upon there being a relevant condition which can be amended under this procedure. Any more permanent solution would require primary legislation and the current proposals is intended to be a stop gap to enable a speedy system in relevant cases only. The consultation relies on the belief that planning permissions generally impose a condition listing the approved plans which would therefore allow an application to amend that condition to substitute new plans. Where such plans are simply listed on the consent and there is no condition requiring development in accordance with the approved plans, the procedure could not operate.
The proposed definition of a “minor material amendment” is “one whose scale and nature results in a development which is not substantially different from the one which has been approved”. Whilst such applications will need to be made on the standard application form and existing requirements for publicity and notification will apply, LPAs are advised that where they have any discretion, they should take into account the fact that consultation on the original consent will have taken place and the proposed variation may only have an impact on a limited number of the persons originally notified. Similarly it is proposed that only those statutory consultees who might be affected by the proposed amendment would need to be reconsulted in order to expedite the procedures.
However, if the development the subject of the proposed minor material alteration is one to which the EIA Regulations 1999 apply, a new screening exercise and an opinion whether an Environmental Impact Assessment is necessary, will be required.
Non material amendments
Section 96A of the Planning Act 1990 was introduced by the 2008 Planning Act to set out a simple mechanism by which non material changes to existing permissions can be permitted without the need to submit a fresh application. In determining whether the proposed alteration is a “non material amendment” LPAs must have regard to the effect of the proposed change together with any previous changes made under this section on the planning permission as originally granted.
Such an application can only be made by someone having an interest in the land benefiting from the consent and must be recorded on the Planning Register. As this application is not an application for planning permission but for a non material amendment to an existing consent, statutory consultation, publicity and notification procedures do not apply. However, it is proposed that any party notified under Article 6 of the previous application for consent should be renotified and a period of 14 days allowed for any representations before the LPA may determine the application. It will be for individual LPAs in respect of a particular application to determine whether any wider consultation or publicity is appropriate. No Design and Access Statement will be required and decisions are proposed to be made by the LPA within 28 days of receipt of the application.
The proposed application fee is £170 except for “householder” non material amendments where the proposed fee will be £25. However, as mentioned above, the process to amend the fee regulation order means that whilst the ability to apply for a non material amendment is proposed to come into effect on 1 October 2009, the proposed fee for this will only come into effect at a later date. In the interim applications can be submitted but no fee would be payable. There is therefore a window of opportunity between 1 October 2009 and when the new fee regulation order is made for the submission of such non material applications at no cost other than the administrative costs of preparing the application.
General summary
The Government’s intention is to respond to recommendations made in the Killian Pretty Review and to lobbying in respect of time limits by such bodies as the Local Government Association, the Confederation of British Industry and the British Property Federation.
It seeks to provide where possible a quick and effective way to enable : -
planning permission time limits to be extended,
non material changes to be made to existing permissions and for
minor material amendments to existing permissions to be granted
without the need to submit fresh applications with all relevant supporting documentation and payment of a full application fee.
Assuming the consultation does not throw up any major objections, it seems likely that these improvements to the planning system will come into effect from 1 October 2009 and may provide developers with permissions (or landowners with the benefit of planning permissions) with some welcome relief from some of the negative impacts of the current recession.
