The latest Government consultation on the planning service seeks to accelerate the planning system and covers 4 key topic areas.
This week focusses on implications of the proposals for varying and overlapping planning permissions, with our Managing Director, Liz Fitzgerald’s expert analysis.
A necessary change
The principle of this change can only be welcomed following the ‘Hillside’ Supreme Court decision and the subsequent ‘Dennis’ High Court decision. Dealing with multi-phased and multi-faceted planning permissions has become nigh on impossible, as there is limited to no scope to change the scheme to respond to an ever-changing market.
As planning professionals, we had probably become complacent around the use of s73 applications, and the ability to overlap and intertwine variations of a scheme to deliver the optimal proposal.
Lack of flexibility equals increased risk
Ultimately, when obtaining an outline permission for a large development that will be delivered over years, if not decades, there needs to be scope for some flexibility.
This is particularly vital when Local Planning Authorities (LPAs) put shorter time periods on permissions for the submission of reserved matters applications. And rightly so – if the Applicant’s argument is that it will deliver in a short time period to assist with housing delivery!
Similarly, we must deal with elements such as schools. Secured as part of the original outline or hybrid permission, they are invariably brought forward under the Reg 3 County application process, over which the developer has no control.
With larger and broader scopes of mixed-use development, the risk to the developer increases. The scope for enforcement action increases and the developer is in the hands of the LPA.
It only takes a minor deviation from the scope of the original permission for the developer to be left with the remainder of a large-scale development that they cannot build out.
How the process might change
The consultation brings forward the option of a s73B application, but does it go far enough?
The proposal advises that a s73B application can only be made pursuant to the original permission and not any subsequent s73 application or permission granted by a development order. If granted it will form a new permission.
The s73B will allow the change of description and for conditions to be altered, removed or added. BUT it cannot be substantially different from the original permission.
The key difference therefore is that you can change the description of development, which of course we currently can’t under s73 and can only make non-material changes under s96a. ‘Dennis’ tells us that even the introduction of the word severable may not fall into the non-material category.
Will it be enough?
There’s no doubt that the proposed change would solve some of the issues we are currently facing. However, it won’t facilitate drop-in permissions, or for parcels of development to change their use if required.
It also won’t prescribe what is defined as ‘substantially different’. This will be left to the LPA to determine on a case-by-case basis – can I hear barristers rubbing their hands with glee?
Any lack of clarity has always led to an increase in appeals and challenges through the courts. While prescribed guidelines for the use of a s73B application are not beneficial, as matters do need to be determined on a case-by-case basis, the general intent could be made clearer to give all parties a framework within which submissions can be targeted.
This should be considered to be a positive first step towards providing the necessary flexibility required for mixed use development, but should it go further, or should we find other ways to approach applications?
Image by umme saleha from Pixabay
