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Automatic Extension of Planning Permissions: Temporary Covid-19 Measures

By Nagla Stevens

In the first of a series of articles discussing Business and Planning BillNagla Stevens considers the provisions that will extend the time period for commencement of planning permissions.

Nagla introduces one provision, currently found in clause 17 of the Bill, which will allow for the commencement period for certain unimplemented planning permissions to be extended to deal with the delays caused by Covid-19. 

What are the terms of automatic extension?

A new section 93A TCPA 1990 will modify any condition that imposes a time limit for commencement of development by extending the time limit for commencement of development pursuant to 1 April 2021.

Which permissions will benefit?

Only the following permissions will benefit from the new section 93A:

  1. Permissions that expired on a date between 23 March 2020 and the date the section comes into force; or 
  2. Permissions where the time limit for commencement of development is due to expire between the date the section comes into force and 31 December 2020.

What about permissions that were subject to an EIA or Habitats requirements?

A new section 93B TCPA 1990 provides for the same extensions as outlined above, if an “additional environmental approval” is granted or deemed to be granted, where the original planning permission required and EIA (Environmental Impact Assessment) or a Habitats assessment. An application will need to be made to the Local Planning Authority (LPA). 

The EIA requirement is met if either:

  1. the development contains no EIA development within the meaning of the Town and Country Planning Regulations 2017; or
  2. the development remains the subject of an up-to-date Environmental Impact Assessment within the meaning of those Regulations.

Similarly, the Habitats requirement are met if either:

  1. the development would not require an assessment in accordance with regulation 63(1) of the Conservation of Habitats and Species Regulations 2017; or
  2. the development was previously the subject of an assessment in accordance with that regulation which ascertained that the development would not adversely affect the integrity of a European site or European offshore marine site, and which remains up-to-date.

What are the time-limits for deciding an additional environmental approval?

There are very tight time-limits for issuing a decision to grant or refuse an additional environmental approval, a mere 28 days, or such longer period agreed in writing between the LPA and applicant. The longer period cannot exceed an additional 21 days. 

What happens if the LPA doesn’t determine an additional environmental approval within the time-limit specified?

If the LPA does not issue a decision within the 28-day period (or as extended), it is deemed to have granted additional environmental approval. If the application is refused, the refusal may be appealed. 

Can conditions be imposed on additional environmental approvals?

No. Conditions may not be imposed on the grant of an additional environmental approval. 

Nagla’s Top tips

  • Set aside resources/staff to deal with the new additional environmental approval regime. 
  • Take a detailed look at clause 17 of the Bill. There’s a lot of detail there already about what information must be provided to an LPA with an application for additional environmental approval, including when an application is valid etc.
  • Consider developing draft checklist now based on the clause 17 provisions. LPAs are unlikely to have a long time to prepare for the introduction of the new regime. 
  • Ensure teams dealing with complaints (and your enforcement teams) are aware of the new automatic extension regime when the Bill becomes law. It may come as a surprise to many, including your local residents, that permissions which they thought had expired, are in fact still valid. 
  • Look out for any guidance issued by the Secretary of State. LPAs will be required to follow it; it will be binding statutory guidance. 

If Invicta Law can be of any assistance with getting your authority ready, get in touch. We’d be delighted to assist. For further advice in respect of planning matters please contact our Planning and Highways team: on 03000 415863 email Sarah.Bonser@invicta.law (for Sarah Bonser) or 03000 03000 415139, Nagla.Stevens@invicta.law (for Nagla Stevens).

Contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute professional or legal advice. Invicta Law cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

 

More Planning and Highways  News

Permitted Development Rights to deal with the Covid-19 emergency

Appeals after the Rosewell Review

Planning Obligations and Pooling Restrictions: a Guide

Planning and Highways: Development Consent Order

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