Extending the life of planning permissions

As a result of the economic downturn, developers have had difficulty funding the work necessary to implement planning permissions before they expire. In response to this the previous government introduced changes to the planning system including replacement planning permissions. Christian Silk outlines the key issues that those in local government will want to be aware of.

Local Planning Authorities (LPAs) will be familiar with the situation where a developer has had to allow their planning permission to expire because they have not been able to afford to implement it and planning permissions have expired before pre-commencement conditions have been discharged. This has been exacerbated by a change in the law which reduced the default time limit for implementation from five to three years, and which prevents applications to extend time limits from being made.

Replacement Planning Permissions

Replacement planning permissions were introduced on 1 October 2009 to allow the time period for implementing planning permissions to be extended.

As an application can only be made to replace a planning permission (including outline planning permission and associated listed building and conservation area consents) in existence on 1 October 2009 which has not yet been implemented, replacement planning permissions will only apply to a finite number of planning permissions.

The application process is a relatively straightforward one. There is no requirement for a design and access statement, although LPAs have the power to seek further information as required. Also, an Environmental Impact Assessment may be required if the relevant screening criteria are met. Consultation, notification and publicity requirements are the same as for a new planning application. It should also be noted that the LPA must consider the application against policy current at the time of the application. So, where circumstances have changed since the original application was granted, the LPA may not grant the replacement permission.

Points to note in relation to Replacement Planning Permissions

If there is a Section 106 Agreement in place linked to the original planning permission, it may be necessary to enter into a supplementary deed which will link the replacement planning permission with the Section 106 Agreement. Also, LPAs have the power to impose different conditions to those on the original planning permission. This may occur in circumstances where there has been a policy change and the imposition of new conditions is required to make the scheme acceptable. If an application for a replacement planning permission is refused, the same procedure will be available for submitting an appeal as for other planning applications.

It is important to note that replacement planning permissions will not be available to replace planning permissions which are granted after 1 October 2009. In addition to this, only one replacement application will be permitted. Applicants will have to ensure in future that they negotiate a suitable time period for implementation rather than allowing the default period of three years to be applied. However, LPAs have the discretion to grant replacement planning permissions for any time period that they believe is reasonable. Examples have been seen of replacement planning permissions being granted subject to a condition limiting the time period for implementation to as little as 12 months.

LPAs must bear in mind when considering an appropriate time period for implementation, that a developer granted a replacement planning permission with a time period that it believes is too short may choose to appeal against that decision (an application to vary the time period condition under Section 73 of the Town and Country Planning Act 1990 will still not be available to applicants). LPAs must be able to provide a sound justification and reasoning for their decision to apply conditions in order to be able to address any criticism of their decision at appeal.

LPAs should also bear in mind that applicants have only one opportunity to obtain a replacement planning permission, meaning that if they attach a condition which sets out a time period for implementation which is too short, for example because a developer believes that it will be unable to secure funding for its development or will not be able to discharge pre-conditions within that time period, the LPA may see replacement planning permissions expire and development delayed.

A response to any such criticism by applicants is that they will still have an opportunity to apply afresh for a new planning permission even if a replacement planning permission has expired. This is of course subject to development plan policies and government guidance not having changed in the meantime leading to the proposal being unacceptable.

LPAs will also be familiar with a standard question that arises on application forms for replacement planning permissions, which asks the applicant if the development the subject of the original planning permission has been implemented. There may be circumstances where an applicant cannot answer this question, for example where the applicant may not have been the owner or had control of the application site throughout the period since the original planning permission was granted.

An example of such a situation, which is pertinent in the current economic climate is where a bank has taken possession of a property and is seeking to retain the additional value that a planning permission gives to a property; or where a receiver is appointed over land where a borrower has defaulted on mortgage payments; or where land has been bought at auction following a sale by a bank or receiver where only limited information about the past use of the property is made available to the purchaser due to the bank's or receiver's limited knowledge. In these circumstances the applicant will place the responsibility on the LPA to determine whether or not the original planning permission was implemented.

Where an LPA is faced with a situation where an applicant seeks to place the responsibility on the LPA to determine whether or not the original planning was implemented, it may be more suitable for the LPA to refuse to register the replacement planning application or invite an applicant to withdraw its application while both the LPA and applicant jointly inspect an application site in order to establish if works have taken place which may have been implemented as part of the original planning permission.

A final point for LPAs to consider is how to deal with an application for a replacement planning permission which is not determined before the original planning permission expires. Unfortunately the law makes no clear statement as to how this situation should be dealt with and guidance published by the Labour government left it to the discretion of LPAs to determine which is the best course to take.

An analogy can be draw, however, with applications that were made before August 2005 under Section 73 of the Town and Country Planning Act 1990 to vary conditions which applied time limits to implementation. Where such applications were made before the time period for implementation expired, but that time period expired before a new planning permission subject to an alternative time period was issued, LPAs were nevertheless entitled to continue to deal with the application and to issue a new planning permission. Similar principles apply to applications for replacement planning permission.

Christian Silk is an associate in the Planning and Development team at TLT, with experience in all aspects of planning law. He can be contacted on 0117 917 7580.