Coronavirus planning update: Automatic extension of English planning permissions
What started as an epidemic limited to China has now become a truly global pandemic. Its effects have been felt throughout many sectors including those impacted by planning law, and below we set out the main changes and issues relating to the automatic extension of planning permissions that you should be aware of as of 4 August 2020. The situation is constantly changing, and we will aim to provide the most up-to-date information where possible.
Further advice regarding the impact of the Coronavirus outbreak on planning law, and how to prepare for any impact on your business, is offered by the Freeths Planning team. Please contact us should you wish to know more.
Automatic extension of English planning permissions
As we noted in earlier versions of this update we considered it was a distinct possibility that the longer the current restrictions last, the more likely it becomes that Government may introduce legislation to alter the current time limits for implementation.On 22 July the Business and Planning Act 2020 was granted Royal Assent. The Act facilitates the automatic extension of all planning permissions and listed building consents which have already been granted in England and would lapse/have already lapsed between 23 March 2020 and 31 December 2020 until 1 May 2021. The original Bill proposed an extension until 1 April 2021 but this has been extended following an amendment in the House of Lords.Planning permissions that expired/will expire between 23 March 2020 and 19 August 2020 are subject to an Additional Environmental Approval process. Listed building consents will not be subject to the Additional Environmental Approval process.A local planning authority is to grant the additional approval if and only if the following are met:
- Environmental Impact Assessment requirement -the development contains no EIA development or if the local planning authority is “satisfied” that the development remains the subject to an up-to-date Environmental Impact Assessment; and
- habitats requirement - the development would not require a habitats assessment or if it were previously subject to one it ascertained that the development would not adversely affect the integrity of the protected sites and the local planning authority is “satisfied” that the assessment remains up-to-date.
We would refer you to the Government's detailed guidance here. There is no fee payable for an Additional Environmental Approval. An Additional Environmental Approval may only be sought by a person with “an interest in the land” or a person acting on behalf of that person, which is far more limited than the usual approach to submitting planning applications. Is this going to cause an issue for promoters? Notably, these applications will be deemed approved if the relevant local planning authority does not make a decision in writing within 28 days beginning with the day after the application was sent to the local planning authority - however, extensions of time (but only by a maximum of 21 days) may be agreed. We consider we may seek future challenges because of this Additional Environmental Approval and developers and local planning authorities will need to be aware of this risk. Further, there is a similar automatic extension for outline planning permissions until 1 May 2021, however, the legislation is more complex. Be aware that 1 May 2021 is the extension period for both the submission of reserved matters and the commencement of development time limits - you would not get a further extension of two years from the final approval of reserved matters if that took the period past 1 May 2021.These measures will come into effect on 19 August 2020.For the avoidance of doubt, there is no requirement to obtain Additional Environmental Approval for unimplemented planning permissions with time limits for implementation that were due to lapse between 19 August 2020 (when the provisions come into force) and 31 December 2020: they are automatically extended. This is significant for the development industry, and follows actions already taken in Scotland. The Ministry of Housing, Communities and Local Government said that it estimated that “by the end of [June] alone, more than 400 residential permissions providing more than 24,000 new homes would have expired” without the Government taking this action. Tackling the housing crisis seems to have risen up the Government's agenda.
Our Planning team can help you navigate the impact of Coronavirus on planning law and your business. Contact Robert Bruce and Stephanie Gozney for planning-related legal enquiries and Paul Brailsford and Mark Harris for planning consultancy enquiries. This update was originally published on 8 April 2020 and was last updated on 4 August 2020.Whilst you are here we would also recommend our additional Coronavirus planning updates:
- Coronavirus planning update: Plan Making
- Coronavirus planning update: Decision Taking and impacts on five year housing land supply
- Coronavirus planning update: New Coronavirus Permitted Development Rights
- Coronavirus planning update: Community Infrastructure Levy and Section 106 Obligations
- Coronavirus planning update: Enforcement
- Coronavirus planning update: Other significant issues
- Coronavirus planning update: Boris' “new” deal?
If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.