How the Business and Planning Act changes the system: the Planning Briefing

How new legislation that aims to mitigate the economic impact of Covid-19 will affect applicants and authorities. By David Blackman

Image: Andreas Borchert / Wikimedia (CC BY-SA 3.0 DE)
Image: Andreas Borchert / Wikimedia (CC BY-SA 3.0 DE)

On 22 July, the final day before the House of Commons broke up for its summer recess, the government secured Royal Assent for its Business and Planning Act, which contains a series of measures designed to keep the economy ticking over during the coronavirus pandemic.

Below, Planning examines the practical implications of the five changes in the bill that will have the greatest impact on planners.

Appeal Procedures

What's new?

The Act allows the Planning Inspectorate to take a mix-and-match approach to the procedures for handling individual appeals. Until now, inspectors have decided at the beginning of the appeal process whether the procedure used will be written representations, a hearing or a planning inquiry. The Act allows appeals to take a hybrid form, blending these three avenues.

Unlike the Act's other planning provisions, there is no cut-off date for the appeal measures, meaning they are likely to remain in place once the pandemic has lifted.

Practical implications

The explanatory notes, published alongside the Bill, said the change was designed to provide greater flexibility for planning inspectors and enable the inspectorate to deal with cases 'quickly and effectively' during the coronavirus pandemic. In addition, the notes say the changes will generate 'ongoing efficiencies' for the inspectorate.

Hannah Quarterman, head of real estate planning at law firm Hogan Lovells, says the measures will enable inspectors to take a "more nimble" approach to running appeals. For example, she says, it is often useful for experts to appear in person to explain and be cross-examined on particular issues, such as light and noise impacts of development. The problem currently, she says, is that if one aspect of the appeal is handled this way, the whole exercise must then go onto an inquiry footing.

The ability to be selective about which appeal procedure is used for which topic will mean the inquiry format can be reserved for the disputed issues, says Claire Dutch, partner and co-head of planning and environment at solicitors Ashurst. That will address a current drawback with inquiries, she argues. "When it gets to the inquiry, all the issues are up to grabs and it's quite difficult to close down some of the topics in the background that are non-contentious," she says. "Developers often end up having to wheel out a number of witnesses who are not necessary."

A more focused process should deliver savings all round, adds Quarterman: "The potential for a reduced amount of inquiry time has got to be a good thing in terms of costs for developers and local authorities".

Developers meanwhile may be able to bring smaller professional teams to the inquiry. However, under the new procedures, applicants should be wary of the risks of inspectors deciding part way through an appeal that written representations are no longer adequate, says Carina Wentzel, senior associate in the planning team at law firm Russell-Cooke.

"Some witnesses and experts excel in producing written evidence," she says. "However, they may not necessarily have the relevant experience to perform as well at a hearing or public inquiry." In such circumstances, she says, postponements may be "inevitable" to ensure procedural fairness, for example to ensure the availability of barristers, witnesses and experts.

More focused inquiry procedures will probably mean inspectors spending more time sifting through written representations, and less in hearings and inquiries.

Shorter hearing and inquiry processes should cut the bottlenecks that result from lack of availability of inspectors, says Quarterman. "It should mean it's quicker to get inquiry time," she says, "because you will have fewer of the really lengthy inquiries and therefore overall demand for inquiry dates should lessen and the whole appeal determination process should speed up."

The "big question", says Stuart Baillie, head of planning at property advisers Knight Frank, will be whether the public and interested parties continue to see the appeal process as transparent, while Bob Bennett, chair of the development management network at the Planning Officers Society (POS), which represents public sector planners, says ensuring continued public involvement will have to be "carefully managed".

But experienced inspectors should be able to manage these concerns, says Quarterman: "Inspectors are adept at ensuring that members of the public feel they have appropriate opportunities."

Noting that few members of the public would be able to attend every day of an appeal conducted by inquiry, she believes slimmed-down procedures with inquiry elements focused on the issues of greatest concern could help to promote public engagement with planning. "If the inquiry element is cut down to two or three days, it's much easier for people to genuinely engage," she says.

Extended Permissions

What's new?

In normal circumstances, planning permissions granted in England expire after three years unless work on site has commenced, with reserved matters consents having a shorter two-year lifespan.

The Act automatically extends live planning permissions or listed building consents in England that would otherwise have lapsed sometime between the lockdown date of 23 March and the end of the year.

When first tabled in Parliament, the Business and Planning Bill automatically extended permissions to 1 April 2021. However, due to the legislation taking longer to pass than initially envisaged, this cut-off date has been extended by a month to the beginning of May 2021.

Parties wishing to benefit from this extension will also be required to secure an additional environmental approval. This can be met if the development is not considered to require an environmental impact assessment (EIA). If it does, the application for environmental approval should furnish up-to-date information demonstrating that the EIA or habitats assessment addresses any significant environmental effects of the scheme.

If the local planning authority (LPA) does not issue its decision within 28 days of the application for additional environmental approval, the extension of the permission will be deemed to have been approved. The LPA will therefore need to give notice to either grant without conditions or refuse the application within 28 days. The time period for determination of the environmental approval may be extended by a further 21 days if the applicant agrees.

The cut-off date for granting environmental approvals is 31 December, although the act gives the secretary of state leeway to extend this date.

Practical implications

The extension of the lifespan of planning permissions has been given a near-universal welcome in the planning sector.

The main headache for applicants and developers will surround the need to secure additional environmental approval, where the information underlying existing EIAs may be up to four years out of date, says Hogan Lovells' Quarterman: "Things will have moved on and in some cases, there is potentially a lot of information to provide," she says.

And vetting these environmental approvals will involve significant work for LPAs, says Michael Coxall, knowledge director at solicitors Clifford Chance. "Whether they will have the ability to devote much time to this is questionable," he says.

The nature of the deemed approval process will put the pressure on local authorities to make a quick decision, says Quarterman.

The use of deemed approvals is a proportionate response to what all hope will prove to be a temporary, pandemic-induced problem, says Ashurst's Dutch: "This is meant to be a quick and dirty fix," she says. "It seems a sensible approach for what is essentially keeping the planning permission alive".

The government is unlikely to want to continue to allow temporary extension of permissions, says Coxall: "Unless there is going to be a continuing issue with the coronavirus, the government will be very keen to remove those temporary extensions so that developers are forced to get on with their development," he says.

Pavement Licensing

What's new?

The Act contains powers for councils to grant new "pavement licences", allowing businesses in certain circumstances to serve food and drink to customers outside their premises without making a planning application.

The licences, which will enable hospitality businesses to sidestep rules that generally govern their use of tables and chairs on pavements, will last at least three months, but must expire on or before 30 September 2021. A default period of one year's duration will apply if the authority does not specify a time period when issuing the licence.

Practical implications

The act's provisions on pavement licensing have been widely welcomed as a shot in the arm for the beleaguered hospitality sector, but could raise issues about how to reconcile the interests of these businesses and their residential neighbours with regards to matters such as noise.

Authorities will only have seven days to consult on and determine the pavement license applications, after which they will be deemed to be approved. This short timeframe will give officers little time to conduct site visits, which POS' Bennett says would often be required to judge the impact that such a relaxation will have on a neighbourhood.

Site Hours

What's new?

The act introduces a fast-track planning application process for temporarily varying planning conditions on construction site working hours. If an LPA fails to respond to such an application within 14 days of submission, approval is deemed.

Practical implications

How challenging the new rules prove for local authorities will depend largely on the kind of neighbourhood in which the work is taking place, says Coxall. "In a non-residential area, where you are less likely to get complaints from residents, it could be a relatively straightforward way of adding some hours to the working day," he says.

But flashpoints will be more likely in residential neighbourhoods, says Quarterman: "There is a good reason why they (builders) stop construction work at a certain hour of the evening and at the weekend. They will have to prove that there isn't any detriment."

In addition, the act does not address the separate provisions in the Pollution Act for noise notices, says Coxall, which can take 21 days to put in place.

Russell-Cooke's Wentzel says developers will also have to be careful to ensure that their proposals to vary site hours do not "inadvertently" fall foul of section 106 obligations relevant to construction management. "Developers should also keep in mind that, unless specifically authorised by Parliament, planning permission does not authorise a nuisance – for example in relation to noise," she says. "So, it remains important to keep the local community informed and to act reasonably when seeking to extend construction hours."

London Plan

What's new?

The Act provides temporary flexibility to allow the London Plan to be inspected purely electronically, rather than having to be made physically available. This provision will remain in force until 31 December 2020.

Practical implications

This measure brings the London Plan into line with provisions already introduced, via a recently passed statutory instrument, for other local plan documents.

"It felt archaic that we were having to provide paper copies," says Knight Frank's Baillie. However, while significant sections of the community still struggle to access the internet, the document should be made available somewhere in a paper format, he adds.

Coxall agrees: "The risk is that you leave some people behind, who don't have that access: you need to find a way to be inclusive."

Have you advised on, or secured, a recent major permission? We want to know about big housing, retail and leisure, and commercial and industrial schemes approved between 1 June - 31 August 2020 for our next Biggest Permissions report. To qualify, schemes should be above the following thresholds: 500 homes; 5,000 square metres of retail or leisure space; or 20,000 square metres of commercial or industrial space. To get involved, or for more details, please email by 10 September.

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