29.06.2020

Legislation, Legislation, Legislation: A (comparatively) brief summary of the Business & Planning Bill and the New PD Rights

Last week, MHCLG were very busy indeed. In just three days, they released  the Westferry Papers, launched a new set of changes to PD Rights, and  introduced the Business & Planning Bill into parliament.

This post deals with the last two of these events. It is going to be a long. I can, however, promise you that it is shorter than the actual legislation.

The Business & Planning Bill

The Business and Planning Bill was placed before parliament on Thursday. The legislation is stuffed full of…well… stuff. In the interests of brevity, I am going to ignore the first two sections (which deal with measures to help businesses and the hospitality industry) and get straight to section 3 of the bill, which deals with planning.

In planning terms, the bill (which only applies to England) does three main things:

• Introduces a fast track application procedure for varying construction hours;
• Extends the life of planning permissions which are due to expire this year; and
• Changes the rules for planning appeals, to allow them to mix and match their appeal procedures, if it is considered appropriate.

It also allows the Mayor of London to allow electronic inspection of his spatial planning strategy, but I am not going to focus on that for now.

Fast Track Process for Varying Construction Hours

Is contained in what will be s.74A to 74D of the Town and Country Planning Act 1990. The provisions allow most developers to use a special 'fast track' process for applying to vary conditions on their planning consents that either:

1.  Impose construction hour limits on their consents; or
2. Condition construction management plans that impose similar restrictions.

The word 'most' is important. The new route is not available to 'house-holder' consents i.e. those allowing for residential extensions or granny annexes. 

According to the draft guidance, the new process is intended to be a 'deemed consent' provision. In fact, it closely resembles a hybrid  s.73 / prior approval process; so it is likely to feel pretty familiar to those engaging with it.

The key features are as follows:

• The application is made in writing. Containing details of the planning permission and condition being varied and the changes sought; 
• The Council has 14 days to consider the application and determine it. This could be an approval, a refusal, or by way of a compromise set of variations.
• If the Council do not respond within 14 days the application is approved by default

There is a right of appeal for the developer in the event of a refusal and local authorities have to include the details of the applications on their planning registers.

The draft guidance is far more accessible than the legislation, so if you are interested in the details, I strongly suggest starting there.

Extending the life of planning permissions

Once in force, these will be contained in sections 93A to 93F of the Town and Country Planning Act 1990; and section 18A of the The Planning (Listed Buildings and Conservation Areas) Act 1990.

The provisions are not straight forward,* so I have summarised the key features for you below. The key things to note are as follows:

• The ability to extend the life of a planning permission will extend to most forms of consent, including full and outline planning permissions, permitted development schemes and consents granted by development order.
• Eligible planning permissions are those which are due to expire between 23 March 2020 and 31 December 2020; however the rules are different depending on whether your permission is still alive when these sections of the bill come into legal effect or not.
• If your planning permission is still 'alive' when the law comes into force, then its duration will automatically be extended to 1 April 2020.
• If your consent expired between 23 March 2020 and the date on which the law comes into effect, you will have to apply for an extension of time. This is called an 'additional environmental approval'.
• Councils have a period of 28 days within which to determine an application for an 'additional environmental approval' and if they do not determine it within this period, the application will be approved by default.
• It is possible to extend this time period by agreement, but only for an additional 21 days.
• The legislation does not provide any specific guidance on how councils are to approach these applications, other than to say that they must NOT be granted if EIA or Habitats issues have not been appropriately dealt with.

I suspect that additional detail will be provided in the draft guidance, but at the time of writing, this has yet to be published.

Planning Appeal Procedure 

The Bill also tweaks the rules governing planning appeals to allow PINS to 'mix and match' the procedures used for different aspects of the same planning appeal. This would, for example, allow you to deal with the less contentious matters in appeal by way of written reps or an informal hearing - saving  inquiry time for the most complex or contentious issues. 

Permitted Development Rights

This week has also seen the launch of a new set of changes to the general permitted development order, which can be found here. The amendments will come into effect on 1 August 2020.

In short, the effect of the amendments is to:

• require all conversions of non-residential buildings into new dwellings under Part 3, classes M, N, O, PA and Q  to provide adequate levels of natural light to all of the habitable rooms in the converted dwellings
• require layout plans of the proposed dwellings as part of the prior approval application for these conversion schemes; and
• introduce the ability for councils to refuse them if there would be a lack of natural light in the resulting dwellings.

The amendments also introduce new permitted development rights allowing:

• the upwards extension of blocks of flats by up to two storeys; and
• the temporary use of land for holding markets (for up to 28 days a year).

Conclusion

I can't help but feel sorry for the planning officers who are going to have to process the applications for varied construction hours and extensions of time once the Bill becomes law. The timescales involved for both forms of application are extremely short, and there is a risk that the need to prioritise them will cause delays for other types of planning application. 

I am also a little disappointed that the measures proposed are only going to last until 1 April 2021. Implementing a planning permission can have significant financial consequences and, given that we are still waiting for the CIL Deferral Scheme that was promised in May, it may have been sensible to give developers a little longer before they had to commit to incurring these costs. 

The changes to Permitted Development Rights are a mix of changes long promised and reactions to bad press. It will no longer be possible for PD schemes to come forward without windows (I am sure we all remember the headlines), but developers will be able to build additional storeys onto blocks of flats without a full planning consent. 

If recent press reports are to be believed, these will not be the last set of changes to the planning system coming our way this year. The Planning White Paper is expected imminently, we are still waiting on the CIL Deferral Scheme, and there are rumours of further liberalisations of planning restrictions for the high street.  

If even some of this comes to pass, MHCLG's busy week looks like it may become a very busy summer indeed. 

* Due to an IT failure that almost brought me to tears, I have written this post twice now, and read these provisions about five times. They do not get easier with re-reading.

Example 2: Cases of development where planning
permission has lapsed

An unimplemented planning permission for development which was required to undergo Environment Impact Assessment (but not an appropriate assessment under the Habitats Regulations) was granted on 15 April 2017, subject to a requirement to commence within 3 years, imposed as a condition limiting the duration of planning permission under section 91. This permission was not commenced before 15 April 2020 and has consequently lapsed.

As this permission lapsed before the date on which clause 17 comes into effect, in order to be extended to 1 April 2021, a person with an interest in the land (or someone on their behalf) would have to submit an application for additional environmental approval to the local planning authority. In this case, additional environmental approval should be granted if (a) the Environmental Impact Assessment remains up to date and (b) it remains the case that no appropriate assessment under the Habitats Regulations would be required, if planning permission for the development were being granted now. If the local planning authority is satisfied on these points, and so grants additional environmental approval, the permission would benefit from an extension to 1 April 2021.”