The implications of extending consents that lapse during the pandemic

Plans to allow automatic extensions to planning permissions that are due to lapse during the Covid-19 crisis have finally been confirmed by the government, to the relief of the development sector. But the new measures throw up some potential challenges for decision-makers and developers where consents have already lapsed, say observers.

Construction: Permissions extensions included in Business and Planning Bill
Construction: Permissions extensions included in Business and Planning Bill

It was the planning world's clearest single ask from government following the lockdown in mid-March. But it took until last week for the Ministry of Housing, Communities and Local Government (MHCLG) to announce that the lifetime of planning permissions in England, which either expired during the lockdown or are due to do so during the next six months, will be extended. The Scottish government had already announced such an extension in early April, which prompted calls from a range of planning, development and local authority bodies for similar measures in England.

Last week's announcement means that any live planning permission or listed building consent lapsing in England between the lockdown date of 23 March and the end of this year will automatically be extended until 1 April 2021. In normal circumstances, planning permissions granted in England expire after three years unless work on site has commenced, with reserved matters permissions having a shorter two-year lifespan. According to MHCLG figures provided by construction data firm Glenigan, planning permissions for 61,000 homes are due to expire between 23 March and the end of the year.

The permission extension is included in the Business and Planning Bill, which is due to be debated by the House of Lords on Monday (6 July). The government has said the extension will come into force within 28 days of the bill receiving Royal Assent, which, according to the Parliamentary calendar, is due to happen before MPs rise for their summer recess later this month.

Michael Kiely, chairman of the Planning Officers Society, which was one of the bodies that called for the change, said the extension is "obviously helpful". Hannah Quarterman, head of real estate planning at Hogan Lovells said the extension will give extra time for sites to get up and running as lockdown restrictions ease. Stuart Baillie, head of planning at Knight Frank, said the government's announcement is "a step in the right direction," but pointed out that it will only help schemes whose consents are due to expire by the end of this year.

Claire Dutch, partner and co-head of planning and environment at law firm Ashurst said she was "surprised" that the extension did not feature in the government's wider 13 May announcement easing restrictions on the housing market, but said: "It will provide a much needed boost to the development industry."

Local planning authorities should be braced for a flood of applications from developers to discharge pre-commencement conditions, said Dutch. On the other hand, she said: "It's good news for local authority's housing delivery targets. If planning permissions are being kept alive, hopefully it will help them meet those targets."

Dutch also pointed out that the legislation has retrospective effect. "Many developers will be delighted to see permissions that they thought were dead in the water three months ago being resurrected," she said. For planning permissions that will have already expired between 23 March 2020 and the date the new provisions take effect, they have to receive an "additional environmental approval" from the local planning authority to benefit from the extension to 1 April 2021. Local authorities have 28 days to determine applications for such approval, and if they miss this deadline, it is deemed to be granted and the expiry date extended.

Allowing automatic extensions of permissions via this deemed approval route will actually be helpful for local authorities, Kiely said: “We didn’t want loads of extra work for something that we feel should be automatic.”

However, councils determining additional environmental approvals for permissions that have expired will also have to consider how to deal with environmental impact assessments (EIAs). For permissions that have already or are due to expire, the information that was used for the EIA will be more than three years old. The bill says councils must be satisfied that this information is up to date, said Baillie: "Additional information might be required [from applicants] to justify positions."

Kiely said local authorities will probably have to go through their thinking on EIA afresh. "They will have to make sure that what they thought was the case still is now." In most cases, unless there has been a significant change in the environmental factors that have fed into the assessment, he believes the bulk of EIAs will remain "fundamentally sound".

A bigger headache for developers though is that the proposed extension is "not particularly generous" said Baillie: "If you have a scheme that expires in the early part of next year, it doesn't help at all."

Baillie and Quarterman said the extension is unlikely to address many of the longer-term economic ramifications arising from Covid-19, which will have knock on consequences for the nature of property demand. Quarterman suggested that office occupiers are likely to have dramatically different requirements in a post-pandemic world, for example. "We may not see the effect of this until next year," she said. "The world has shifted significantly and we've entered into a period of sustained uncertainty."

"It (the extension) doesn't go quite far enough. This has bought clients a little bit more time but not as much as they would like," said Quarterman. She added that her concerns about the short timeframe are offset "slightly" by provisions in the legislation that will enable the government to extend the extension dates.

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