Flexible planning: making applications more complicated?

This month, the new housing minister John Healey addressed the Royal Town and Planning Institute Planning Convention in London: “I’m announcing the power for local authorities to extend the time limits for existing planning permissions.” A great deal of the response from the property industry has been positive; welcoming in fact, albeit with the caveat that perhaps it doesn’t go far enough. What most people appear to have missed though is the fact that this announcement raises a big question about the validity of the existing process and how developers with planning permissions due to expire before October 1, 2009 should act.

The consultation document ‘Greater flexibility for planning permissions’ is aimed at introducing a temporary means by which an application can be made to extend the time limits of existing planning permissions for ‘major’ developments: schemes providing more than 10 houses or over 1,000sq m of floor space. The government says these proposed measures are being mooted in response to the current climate and will only apply to permissions granted on or before the October 1, 2009. The length of a granted extension is down to the local planning authority (LPA), and a case for longer than the standard three years can be negotiated.

This all sounds fine, except that the suggestion is that this is the introduction of an entirely new power to extend planning consents. It glosses over the fact that this power already exists in law in Regulation 3 (3) of the General Permitted Development Order (GPDO) and completely fails to address the situation facing applicants whose planning permissions will expire between now and October 2, 2009. 

The consultation document suggests that the mechanism for extending the time limit under Regulation 3(3) was ‘effectively removed’ in 2008. We at Indigo Planning are less than convinced, and the various lawyers we have consulted share our belief that this statement should be disputed. ‘Greater flexibility for planning permissions states’: “Although regulation 3 (3) of the 1988 Regulations has not been revoked, it has, in effect, been superseded by these changes… This method of extending the life of a planning permission is no longer available.” It is unclear whether the government intends this to be the case from now or when the new powers come into force on the October1, 2009.  In our view, if the law has not been revoked, the ability to use this route still exists, rendering this statement not just misleading and confusing, but legally incorrect. Only new regulations can change the current legal entitlement. 

Okay, so what do we do between now and October? Local authorities are likely to read this consultation document, which suggests Regulation 3 (3) is no longer valid, and therefore reject the regulation as an approved process to renew consents. They, and indeed significant sections of the property industry, may not necessarily know that, legally, the law cannot be changed by a consultation document and that the route is still available. There is a reason after all that a consultation document is given that name…its contents are a merely suggested or intended course of action upon which interested parties may comment, object or advise. If authorities stop accepting Regulation 3 (3) or even put a stop to processes already under way, there could be serious and potentially disastrous consequences for schemes for which it is too expensive to prepare and submit information to satisfy pre-development conditions or to implement the consent. These schemes will then lose their consents; hardly the support for the industry promised in John Healey’s speech: “This will help to make sure that more homes, offices and factories get built at a time when investing in new developments is difficult and when access to funding is hard.”

A second issue, albeit one that’s slightly less concerning, is the way the consultation document presents the
‘new’ streamlined process that will be on offer post-October 1, 2009. No matter how the solution is dressed up, it can’t be any easier than the permission extension route that currently exists, and there will still be the potential for unforeseen delays, complications and additional costs. It is also only a temporary measure, perhaps only really a gesture, presented by the government as a boost for a shaken industry.

The consultation document encourages LPAs to adopt a positive approach towards extension applications, since the principle of the development in question has already been established. A successful application will lead to a new permission with a new time limit, based on the same description and conditions of development. But the document also states that any material changes in circumstance since the original decision still have to be taken into account.

Changes in circumstance might range from ecology to planning policy, and the word ‘material’ is hardly specific. The LPAs, for example, are obliged to involve external bodies such as Natural England, the government’s adviser on the natural environment, which could potentially raise concerns not previously highlighted. Similarly, a change in planning policy means developments could be subject to more onerous conditions, wiping out the prospect of a straightforward decision. Further costs, legal fees and delays could also be associated with the need to prepare supplementary or new S106 Agreements, update Environmental Statements and even prepare fresh supporting documents such as Design and Access Statements, something else which comes under the discretion of the local planning authority.

In presenting the consultation document, Mr Healey says: “We recognise development is difficult during the downturn, so we need to do what we can to cut out unnecessary bureaucracy and keep developments warm and keep plans on the table.” This shows just how much the government has dressed up this ‘new’ initiative. It would have been better, simpler, swifter and less ambiguous for the government to have recognised and supported the existing route to renewing consents, i.e. Regulation 3 (3), and streamlined it further by, for example, ruling out the need for further supporting documents.

On the face of it, the announcement is a positive one, but in reality it does nothing but muddy the waters for the property industry in respect of an avenue that already exists. It puts us in a state of limbo between July and October, when some major and significant consents will lapse. We must feed this concern back to government before the deadline of the August 13, 2009. We also believe that applicants should discuss consents that are due to expire before October 1, 2009 with their LPAs, and explain fully why Regulation 3 (3) remains a legitimate route to preserve a consent.