Getting started
In an attempt to force parties to bring forward development in a “timely manner”, and as a nod to ensuring “communities have access to the homes they need”, the Bill introduces a new requirement to serve a commencement notice before development begins.
The commencement notice must contain the expected date on which the development will begin, as well as any other information which will be set out in regulations, such as details of the planning permission and the proposed delivery rate of the scheme. If the development does not start on the date anticipated, or the anticipated start date changes, another notice must be submitted.
If the parties fail to serve a commencement notice, the local planning authority (“LPA”) has the power to serve a notice requiring the information in a commencement notice to be sent to them. Failure to submit a commencement notice within 21 days of receiving such a notice from the LPA is an offence and the parties could be fined up to £1,000.
The commencement notice itself will be publicly accessible to allow for “public scrutiny”. The government has said that these changes are ultimately to address “perceptions of ‘land banking’” and “slow build out by larger developers”. It will be interesting to see how this works in practice given that multiple commencement notices can be issued as the anticipated date of commencement changes. In fact, although these commencement notices are intended to be more accessible to the public, notices are often served already to meet the deadline for implementation that currently exists. Will these commencement notices really be any different? Or will they just shine a light on tactical implementation (e.g. “bagging” a permission and then doing nothing)?
Perhaps the government’s plan to bring in completion notices will better aid this aim.
Race to completion
Under the Bill a LPA will be able to push a development along by serving a completion notice if they believe that it has not been completed within a reasonable time. Providing that development has begun, this notice can be served at any time and it would no longer be the case that the deadline for commencement of a planning permission needs to have passed, as is the position now. A commencement notice would also no longer need to be confirmed by the Secretary of State, as it does currently.
This goes some way to shorten the length of time that the completion notice process currently takes, something which the then Department for Communities and Local Government had previously identified as a barrier to use. However, these changes do not make the outcome of a completion notice any more certain. Indeed, serving a completion notice does not guarantee that the development will actually be completed...
Any completion notice must allow at least 12 months, after the notice has been served, for the works to be completed. If there is a period specified in the planning permission by which development is to begin, the completion deadline must be at least 12 months after the end of this period. Further regulations are to set out the process for appealing any such notices.
Once a completion notice is served, the development should be completed within the timeframe specified in the notice otherwise the planning permission for any incomplete parts of the development will fall away, leaving local authorities with half-finished developments (as is the case under the current procedure). Given recent case law, we wait to see how this will continue to work… particularly with regards to schemes which are not easily divisible.
Ultimately, it seems that completion notices will remain a gamble for LPAs under the proposed new regime, especially if some work is carried out, but not enough to actually deliver the scheme.
Changing your mind
As we all know, circumstances change, so planning permissions sometimes need to change as well. As the government acknowledges in the Explanatory Notes to the Bill, the process by which a planning permission can be varied is “confusing, burdensome and overly restrictive”. Indeed, in the last few years alone, several cases have highlighted the unclear and often baffling interpretation of section 73 of the Town and Country Planning Act 1990 (the “TCPA 1990”) (“S73”).The Bill therefore proposes a new process to vary planning permissions.
The case of Finney v Welsh Ministers held that S73 can only be used to amend conditions and cannot be used to alter the description of development, or permit development which contradicts that description. At the time, this was at odds with what many were doing in practice and has since resulted in a convoluted process whereby two applications are made to change the description of development (one under section 96a of the TCPA 1990 (“S96a”) to remove details from the description, and another under S73 to add those details to a condition).
In an attempt to tidy up this process, the Bill introduces a new section 73B to the TCPA 1990 (“S73B”). Under this provision “non-substantial changes” can be made to planning permissions – including both the description of development and the conditions - as long as these are not “substantially different from that of the existing permission”. What does “non-substantial” mean? Well…that remains to be seen.
What we do know is that this route can only be used where there is already an existing permission in place and that, if granted, an application under S73B will result in a new permission. However, as with S96a and S73 applications, the new provisions cannot be used to extend the time by which a permission must be implemented. S73B also cannot be used to remove the mandatory biodiversity net gain condition which is due to come into force.
Interestingly, S73B cannot be used to amend a S73 permission. This means that, despite the fact that the applicant is able to point towards a S73, or a sequence of S73 permissions, to help determine a S73B application under the provisions in the Bill, the various tests that the S73B application needs to meet only make reference to the original permission. Presumably this means that the application will ultimately be judged against the original permission and not changes made by any S73 permission in existence. Going forward, applicants will have to be careful that any previous cumulative changes to the original permission do not fall foul of any of the tests in the new S73B provisions and together are “non-substantial”, not least because these tests reopen the possibility for these previous permissions to be scrutinised.
Overall, although this new provision promises to provide a slicker process when it comes to amending the description of development, it isn’t clear what will be considered “non-substantial”. This, in turn, puts a question mark over the future of S96a and S73 applications. Perhaps the new process will be less confusing or perhaps it will just leave applicants confused with yet another, unfamiliar (and less tried and tested), option to consider.
Staying on the hook
Changes to the enforcement of planning controls also have to be grappled with. The headline change is that the four year time limit on enforcement for building, engineering, mining or other operations, and the four year time limit on enforcement for change of use to a residential house, have both been extended to ten years. Although this brings these time limits in line with the other time limits on enforcement, it does raise some fundamental questions. For starters, it’s been long accepted that the lengthier time limit is simply not appropriate for residential uses which should be afforded greater certainty. Indeed, if no one has objected to the use of a home in four years, can enforcement action really be considered expedient?
It is also not immediately obvious why the enforcement time limit has been changed for building, engineering, mining or other operations, as these breaches tend to be more obvious early on. Indeed, will this change make any tangible difference and, if it does, will it really be for the better? There’s a risk here that communities are left living with these breaches for longer without any real impetuous for change.
There are several other changes to enforcement which are worth having on your radar:
• Enforcement warning notices are to be introduced to force unauthorised developments, which have a reasonable chance of gaining acceptance in planning terms, to apply for retrospective planning permission within a specified time period – it is important to remember though, this does not mean that other enforcement action cannot be taken in the meantime;
• Temporary stop notices are now to last for 56 days in England, as opposed to 28 days. This doubles the time that those developing would need to cease works – which isn’t an insignificant delay;
• Penalties for non-compliance with a breach of condition notice are to become unlimited – although it remains to be seen how different these fines will actually be in practice; and
• The Secretary of State is to be given the power to dismiss an appeal which they believe is causing “undue delay” to enforcement action taking effect – it isn’t at all clear what undue delay actually means, how this will be proved or indeed how this will be measured given how slow and delayed the enforcement system is currently.
As feels like the general theme for the Bill so far, it remains to be seen exactly how these changes will play out in practice. We wait to see if the accompanying regulations will shed any light on the unanswered questions (and the inevitable legal debate around “non-substantial”…).
Up next
We take a look at the new environmental assessment regime under the Bill, and consider the specific changes to heritage protection as the government continues to move away from EU-derived rules.
Authored by Rosie Shields.
