A consultation to “accelerate” the planning service for major commercial applications comes to a close at the end of the month, with only a few weeks left for public comment on the plans for a new 10-week decision deadline.
The Accelerated Planning System consultation being run by DLUHC outlines a series of changes to help speed up the service provided by local planning authorities (LPAs) across England when determining applications.
The proposals are being put forward, in part, to tackle with the existing system not meeting national expectations for decision making with LPA performance targets being missed.
According to the consultation, approximately only 10% of LPAs determined 70% or more non-major applications within the statutory eight-week time limit between 2021 and 2023. Meanwhile, 1% of LPAs determined 60% or more of major applications within the statutory 13 or 16-week time limits.
The options
Among the options being considered for the introduction of the more finite decision window are a discretionary service, which would give applicants the choice to opt into a quicker service in return for more prescribed information up front – for example a draft section 106 heads of terms.
The alternative option would be a new mandatory application route for a clearly defined major development category which, whilst subject to higher fees, would also offer a guaranteed decision within 10 weeks and a refund of fees if the decision has not been made in that time. This, however, could likely lead to greater rates of refusals.
In first instance, the proposals would apply to “major commercial applications” described as those applications which create 1,000 sqm or more of new or additional employment floorspace (which would include offices, storage and warehousing, retail, general industry, research and development, light industry and advanced manufacturing as well as mixed use applications that include this amount of employment floorspace). This would not apply to EIA development schemes but the government is seeking views on whether a 16 week decision deadline could work for such schemes.
The new timescales would also apply to s73 and s73B applications to vary planning permissions.
If successful, the government have indicated that they would look to extend the rules to cover other types of development such as residential development schemes.
Overlapping planning permission
The consultation also looks to address issues surrounding overlapping planning permissions, including those created by section 73 of the Town and Country Planning Act 1990 which enables applicants to vary planning conditions imposed on a planning permission.
The suggested solution is section 73B – which will enable an applicant to make an application to an LPA for a change to the descriptor and conditions of an existing planning permission as long as this is not substantially different to that granted by the existing planning permission. The new s73B already exists in legislation previously introduced but not yet in force with further details and timings yet to be determined.
Under the consultation’s proposal, the use of s73B this would require:
- the identification of the existing permission (which cannot be a s73, s73A or s73B);
- the s73B application to not be substantially different from the existing permission; and
- the s73B application to not affect the validity of the existing permission.
The recent Hillside Supreme Court judgment is also acknowledged in the consultation for highlighting issues with ‘drop in’ permissions – for example where a subsequent permission is granted for an alternative development on a section of a larger development already granted permission and still being delivered.
If the new permission overlaps with the existing permission in a material way creating incompatibility between the two permissions, then it would be deemed unlawful to continue further development under the existing permission. This has been problematic for many major development schemes (both residential and commercial) who would have until recently used drop-in permissions as a useful tool for changing development schemes to allow for new proposals on parts of larger sites.
Whilst the government has suggested the s73B route could address such situations, it has made alternative suggestions in the consultation - for example the creation of a framework through a new general development order to deal with overlapping permissions in certain circumstances.
To achieve the desired outcome of the changes, the consultation identifies the need to introduce secondary legislation with the potential to even make changes to primary legislation depending on the final model chosen.
Ros Trotman, Partner in the Thrings Planning team and Head of Development of Land, said: “An accelerated decision making process will be welcome news for developers of major applications, given its reputation as being one of the biggest obstacles to progressing schemes.
“The question will remain as to whether there will be sufficient funding to deliver on such ambitions in practice, given the fact that local councils are notoriously under resourced.
“It is positive to see that the issues arising out of the Hillside Supreme Court judgment have been highlighted, given the complexities for developers seeking to secure drop-in permissions.
“Section 73Bs might, however, not go far enough to address this issue as LPAs may apply the ‘substantially different’ test too strictly and be reluctant to allow too much amendment through this route if the original decision did not anticipate such a change and I look forward to seeing what the consultation concludes to resolve this issue.”
The consultation closes on 1 May – to find out more and to make a submission, visit the consultation web page.
Thrings’ Development of Land lawyers are experienced specialists in all aspects of the built environment, working with landowners, developers and businesses. To find out how they can assist in the success of your development project, please get in touch.
