Changes
Amending planning permissions after the lock-down.
Let’s assume – as Her Maj and Vera Lynn tell us – that we will indeed meet again. And not just over Zoom (n.b. for those after a summary of the new regulations on LPA remote meetings, see excellent posts by Nicola Gooch, Richard Harwood and Jonathan Easton for starters).
We don’t know where or when the sunny day will come. But one’s thing for sure. When we meet again, lots will have changed.
For example, take housebuilding:
Several national housebuilders have already closed sites and furloughed large numbers of employees.
With decision-making - both at LPA level and at appeal - substantially (albeit not entirely) stood still, developers acting under conditional contracts with deadlines to secure planning permission may run out of time.
Where permissions have been granted, with construction largely shut down, lots of schemes will come up against deadlines for commencement (on which, see my debut post).
In these extraordinary times, there’ll be a case for amending national planning policy to help to get us building again - a topic I’ll return to in a future post.
And many planning permissions will need to change. Albeit there are optimistic projections of 2021 residential values (see e.g. Knight Frank’s report this week), lots of the key inputs defy prediction (e.g. the length of our lockdown, and the scale of the UK’s recession). Local needs will change - we cannot yet tell the impact this construction shut-down on individual LPAs’ housing land supplies, or housing delivery test results. We may be on the cusp of a widespread national “tilting of the balance” - another topic to which I’ll return in a future post.
The Government has accepted before that the correct response to economic collapse is a more flexible approach to amending planning permissions. After the 2008 financial crisis, section 96A was inserted the TCPA 1990 in October 2009, and with it a power to make “non-material changes” to a planning permission without the need for a formal application or consultation.
So, in a nutshell, how flexible is the law on varying planning permissions?
Section 73 of the TCPA 1990 allows for the grant of a new planning permission with amended conditions. The recent Finney case in the Court of Appeal confirms that section 73 applications cannot change the description or the nature of the permitted development.
So take care - earlier High Court cases like Wet Finishing Works (in which, full disclosure, I acted for the housebuilder) which held that section 73 applications could amend descriptions of development so long as the change wasn’t “fundamental” no longer represent the law. The key point post-Finney is that section 73 variations must be consistent with the “operative” part of the original planning permission.
A section 73 application must be determined in accordance with the current development plan and other material conditions and, as above, there will be a range of new and pressing material considerations to balance once we emerge from lock-down. Including what will in many LPAs be a considerable slow-down in delivery.
And - a really important limitation given the closure of construction sites - section 73 cannot extend deadlines to commence development.
Section 96A differs from section 73 in many important ways. Section 96A doesn’t require a formal application or public consultation. A refusal cannot be appealed to PINS. The result of a grant is not a fresh permission, but a variation of the original permission. The key limit is, of course, that unlike for section 73, section 96A amendments cannot be material.
In the end, whether or not a change is material is a question of judgment for planning officers (not Planning Inspectors - because section 96A decisions can’t be appealed - and not High Court judges - because they don’t dirty their hands with questions of planning judgment). For that reason, approached with a bit of pragmatism and creativity, section 96A can be a very powerful tool.
For example, many planning permissions fix the overall number of units both (a) in the description of development, and (b) in a planning condition. In those cases, it will often be possible to remove (a) - the unit number in the description of development - under 96A because the scheme allowed by the amended permission would be unchanged (because the numbers remain capped by condition). Once that’s done, a section 73 application to increase numbers could be allowed without offending the rule in Finney which I explain above because an increase to scheme numbers wouldn’t conflict with the new description of development. And could be supported by new material considerations, e.g. a national downturn in housing delivery.
How should the system change? Simon Ricketts makes characteristically clever and sensible suggestions in his latest blog, i.e. an automatic general extension of time to commencement development, or allowing extensions of time under section 96A. The Scottish approach has lots to commend it. Beyond the law, as I say above, national planning policy will need to keep up in order meet this extraordinary challenge. And beyond amending planning permissions, there’ll be pressure to vary planning obligations under section 106A - something I’ll return to in a future post.
In the end, new policy or guidance can only take us so far. Most of all, it’s going to be mission-critical - now more than ever before - for planning officers (themselves under unprecedented pressures) to take a practical, sensible approach to varying consents. An approach which reflects what will be monumental strain on the delivery of development over the next few months.
Keep smiling through, #planoraks! And stay safe and well.
