Permission renewals raise issues for complex scheme implementation

Legislation to allow extension of permission where the downturn has hit project viability has been welcomed by the development industry but questions remain on aspects of interpretation, explains Louise Brooke-Smith.

October 2009 saw the introduction of legislation to allow an extension of time for the implementation of a planning permission by grant of a new permission for the development authorised by the original permission. This is more commonly known as a renewal application.

This legislative change was driven by the dire economic climate which, coupled with consents of only three years, led to a glut of lapsed permissions. Such losses are a huge blow to the development industry and those trying to deliver physical regeneration projects.

They reflect many hours of abortive consultancy work and also time spent by council officers. For many consented schemes, it has just not been economically feasible to discharge all pre-commencement conditions and make a substantive start on site.

In light of this, the legislative changes allow for a renewal application if the relevant time limit to implement has not expired at the date of application and the development has not yet commenced.

A much reduced fee for renewals applications is applied, along with a simplified submission. However, it may be prudent for applicants to submit additional information such as revised environmental surveys or comment on new planning policy.

It is also open to local planning authorities to seek further information in support of an application.

Now that this renewal approach has been around for a year, we can ask whether it has been successful and what issues are still open to interpretation. The first issue concerns the fact that permission must be extant at the time of submission of a renewal application.

The local authority and the secretary of state, in the event of an appeal, retain jurisdiction to determine an application even if the original permission has expired before determination. This sometimes results in a situation where a renewal is still before the council or Planning Inspectorate for consideration even though a consent may have expired.

Developers who have left it to the last moment to submit their renewal forms have argued that while waiting for a decision they should still be able to start work on site. This is not permissible and this limbo situation could result in unauthorised work and enforcement action.

The second issue is that largescale consents can be accompanied by a multitude of legal agreements and related orders. Section 106 and 278 agreements, compulsory purchase orders (CPOs) and traffic regulation orders may all be tied to a specific permission.

Can these be easily transferred to a renewed permission? Do CPO consultations and procedures need to be revisited? Will councils take this opportunity to increase section 106 contributions? There is considerable confusion on this point.

Thirdly, in making decisions councils should focus on development plan policies and other material considerations. These may have changed significantly since the original grant of permission. But what is the scale and scope of such changes?

Renewal applications have been refused by councils on the grounds of fundamental changes, which have included updates in the courts' interpretation of legislation such as the habitat regulations. Such changes may be considered material but may also be difficult to spot.

Finally, when is it best to submit an application for renewal? For complex schemes with numerous and costly pre-commencement conditions, do developers submit their renewals early to allow plenty of time to deal with relevant conditions and make a start on site in case the application is refused?

This could result in renewals being lodged after only one or two years, leaving an extensive period to deal with conditions and other legal issues.

It cannot be doubted that the ability to renew permission has been a huge boost to the development industry while retaining the discretion of the local authority. However, a number of issues are still open to interpretation and the strategy for submission, particularly in relation to large, complex schemes, needs to be carefully considered by developers and their agents.

Louise Brooke-Smith is a member of the RTPI regeneration network and director of CSJ Brooke Smith Ltd.

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