The COVID-19 pandemic is causing strain on every aspect of society. Schools have been closing, the NHS is being stretched thin and most people are now working from home. Society will unlikely revert back to the ‘norm’ in the immediate future and so adapting to this unprecedented time will be key to ensure business runs as smoothly as possible. We have identified the key struggles the planning world is/will face and set out a proactive approach to overcome each issue.

Unless amended by the Local Planning Authority, commencement of development must begin, and reserved matters approval must be sought, no later than 3 years from the grant of the permission (detailed planning permission section.91 and outline planning permission section.92 Town and Country Planning Act 1990 “TCPA”).

Construction is still able to be carried out in the UK but many companies have halted until government isolation rules relax. This will pose an issue for developers whose planning permissions will expire in the coming months.

Scotland has automatically extended any planning permission which is to expire within the next 6 months. There is no word on such measures being implemented in England so far (although it is likely) and therefore action by those holding planning permissions will have to be made.

Possible solutions until Government guidance/new legislation is issued

In order to keep a planning permission alive, development must have commenced. This requires a material operation to be carried out on site, what constitutes a material operation is a very low threshold. If all pre-commencement conditions have been discharged and importantly, only if the safety of workers can be ensured then Developers could proceed on this basis and then halt any further development

An alternative may be to discharge conditions. Where the Local Planning Authority do not respond within a certain time (and where a notice has been served) then the condition is deemed to be discharged. This only applies to permissions granted after 15 April 2015, and there are a number of exceptions.

Alternatively a s73 application could be made to amend the triggers within the conditions.

Section 106 and Community Infrastructure Levy (CIL) obligations

Where current planning applications are being determined and the delay in issuing the decision notice is due to the completion of the s106 agreement, it has been suggested that a Grampian condition could be included within the planning permission to enter into a s106 agreement prior to commencement of development.

Many existing s106 agreements contain obligations, such as payment, which are triggered at specific times. Fortunately this is triggered by an event e.g. commencement of development/occupation of the first dwelling and should not catch too many people out but we would still advise you to make a record of your s106 obligations.

Where triggers are due to be reached but viability issues are a problem, you should contact your Local Planning Authority to reach an agreement to vary the s106 (by way of deed of variation) to either alter the payment due or the trigger for the payment.

What if a CIL Payment is due?

If development has begun and a CIL payment is due but isn’t possible, there are two potential options which may be available if the Charging Authority has elected to do so:

1. Apply for exceptional circumstances relief - it is likely that viability issues due to the COVID-19 pandemic would be considered an exceptional circumstance.
2. The Charging Authority could amend their instalment policy to allow for staggered payments (rather than the full amount payable within 60 days of commencement of development).

These solutions do not apply retrospectively and only apply to payments which have not been triggered by the commencement of the chargeable development.

We would suggest seeking agreement from the Charging Authority not to use their wide range of enforcement powers and for both parties to instead agree a payment plan. This will vary depending on each Charging Authority and so may not be applicable to everyone.

Until the Government issue guidance or introduce new legislation the onus will be on developers to take action to preserve their planning permissions and agree alternative payment provisions with the relevant Local Planning Authorities.

What are the key take-aways?

• The best way to keep a planning permission alive is to commence development, however this should only be done if safe for workers and pre-commencement conditions have been discharged.
• Track s106 obligations to ensure none are missed – seek a deed of variation to alter payment triggers.
• Agree a CIL payment plan with the Charging Authority prior to commencing development. 

How Capsticks can help

Our Housing & Regeneration team, one of the largest in the country, advises on all types of development transactions from forward funded schemes, section 106 developments and stock rationalisations to plot sales and general asset management work. We are experts on all aspects of planning law including s106 agreements, CIL advice, planning appeals, Compulsory Purchase Orders and all general planning law matters.

If you have any queries around what's been discussed in this article, and the impact on your organisation, please speak to Suzanne Smith or any of your contacts at Capsticks to find out more about how we can help.