IMPLEMENTATION OF PLANNING PERMISSIONS IN A TIME OF NATIONAL CRISIS

Jonathan Easton published this article on LinkedIn on the 16th March, it deals with important issues for all those involved with planning permissions that are nearing the end of their implementation period.

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With the prospect of the United Kingdom going into lockdown for an extended period of time, quite apart from the general concern about the impact on everyday life, planning stakeholders are becoming increasingly worried about the ability to implement planning permissions that are nearing the end of their implementation period.

This article examines briefly the legal position on implementation and the potential answers to this likely problem.

Section 56 Town and Country Planning Act 1990 (“TCPA”)

Section 56(2) TCPA provides that the development is ‘begun’ on the earliest date on which any ‘material operation’ comprised in the development begins to be carried out.

Section 56(4) TCPA defines ‘material operation’ as encompassing a number of different acts, ranging from any work of construction in the course of erecting a building to digging a trench. The courts have shown themselves to be relatively liberal in the interpretation of this provision: see e.g. Thayer v Secretary of State for the Environment [1992] J.P.L. 264, where the opening of a 12 foot gap in a hedge and limited ground preparation was sufficient to implement a planning permission.

Thus, my first piece of advice is to carry out works within the scope of s.56(4) TCPA before lockdown occurs or contractors cannot or will not attend site. My strong recommendation is to document these works (photos, videos, site reports) and, if possible, secure the LPA’s written agreement that they are sufficient to implement the planning permission.

Conditions Precedent

The settled position is that if operations contravene a condition precedent (e.g. “no development shall commence until ….”), they cannot properly be described as commencing the development authorised by the permission: see F. G. Whitley & Sons v Secretary of State for Wales (1992) 64 P. & C.R. 296; [1992] 3 P.L.R. 72.

This principle may cause a real problem if staff or consultants are simply not available to submit schemes or details that must be approved by the LPA before development starts.

The sensible option – again, if possible – would be to carry out the works necessary to implement the permission but to complete the submission of pre-commencement details as soon as reasonably practicable thereafter. If required, developers should be able to point to one of the exceptions to the Whitley principle set out in R. (on the application of Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin). This confirmed that development could lawfully take place if, according to judicial review principles, it would irrational or an abuse of process to take enforcement action. If (genuinely) it is not possible to discharge a pre-commencement condition for reasons connected to COVID-19 and development was nonetheless ‘commenced’, there would be a strong case that enforcement action would be irrational and/or an abuse of process. Such a contention would only be reinforced if the Government introduces emergency legislation which would render compliance with a pre-commencement condition impractical or even unlawful for reasons unconnected with planning law.

Extension of Time

Inevitably there will be cases where it is not possible to carry out physical works which are sufficient to commence development. Herein lies a real problem.

Section 73(5) TCPA prohibits an application under s.73 TCPA to ‘vary’ a planning permission by extending the date for implementation or for submission of reserved matters. NB – this restriction does not apply to Wales, so developers with sites in the Principality could make an ‘extension of time’ application under s.73.

In England, there is no way out of this conundrum without an amendment (say through statutory instrument) to s.73(5).

However, s.73(5) TCPA states that “planning permission must not be granted under this section”. As such, an application which leaves the original permission intact and/or which is made under a different provision, is not caught by the preclusive effect of s.73(5).

In the recent case of R. (on the application of Fulford Parish Council) v York City Council [2019] EWCA Civ 1359, the scope of s.96A TCPA (non-material amendment) was discussed. It is important to stress that a NMA application is not an application for planning permission under s.62, s.73, s.73A and therefore s.73(5) does not bite. Rather, a NMA leaves the original permission intact.

The question about whether a NMA approval could override s.73(4) TCPA (or by extension, s.73(5)) was raised in Fulford (see §35) but was not resolved either way, in my view. In these exceptional times, it is at least arguable that a NMA to extend by a number of months the implementation period imposed by s.91 or 92 TCPA or by an express condition could be ‘non-material’ and therefore lawful under s.96A. My concern is that in ‘normal times’, the Courts would instinctively consider that the statutory time limits would take precedence or at least provide the clearest possible indication that an extension of time would be ‘material’ within the meaning of s.96A. Still, unprecedented times may call for unprecedented responses.

That is the position as the law currently stands. Nonetheless, it is entirely open – and would probably be highly desirable – for the Government to introduce emergency and time limited legislation to provide a blanket extension of time for all planning permissions which are due to expire before the end of 2020 (or such longer period as is appropriate). If ss.91 and 92 TCPA and conditions imposed by local planning authorities were automatically amended to add an extra 12 months (say) to the implementation period, the issue could easily be resolved.

In the meantime, I pray that everyone stays safe and looks out for one another.

Jonathan Easton

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