Hannah Quarterman stresses the importance of a sound planning strategy by answering a number of key questions about the process.
When trying to secure any planning permission, often the eye is on the big prize – finally getting that consent so you can start development. However, as a raft of recent cases show, the value of that prize can be undermined if time is not taken to properly structure your planning permission. Here we consider some key strategic decisions to be made as part of the planning application process.
How important is the description of development that I actually apply for?
The description of development used is important, and must be approached with caution. It must be clear what exactly the development relates to, setting out, for example, type of use permitted.
However, since the decision in Finney v Welsh Ministers [2019] EWCA Civ 1868; [2019] EGLR 56 confirming that applications under section 73 of the Town and Country Planning Act 1990 to vary the conditions on a planning permission cannot result in the development permitted being inconsistent with the description of development (and cannot amend the description itself), it is more important than ever to ensure that the description of development adopted gives you enough flexibility to deliver any future form of development envisaged. This includes, for example, flexibility around height, the total amount of floorspace, or the range of uses being permitted.
Bear in mind that, while the description of development sets out the parameters of what is allowed by the permission, it cannot impose ongoing restrictions, for example excluding permitted development rights or making a planning permission temporary. Where a local planning authority wants to control matters such as this, a condition is required. This can often help persuade LPAs to control the critical parameters of the development within conditions, meaning many are relatively relaxed about a bland description of development.
Are there any risks around having too much flexibility?
For many, the description of development will dictate whether or not they want to respond to consultation so to avoid challenges it must be detailed enough for members of the public to understand the proposals. Increasingly, public notices describing developments are going beyond the description of development, often including details to be specified in conditions. This provides clarity for the public, but also helps retain flexibility.
Once I secure consent I want to implement it as soon as possible, without having to discharge loads of pre-commencement conditions – is there any way to achieve this?
The government is keen to reduce the number of pre-commencement conditions imposed on planning permissions, and introduced regulations saying that an LPA cannot impose pre-commencement conditions without an applicant’s consent. However, this can cause problems of its own, as if you refuse to accept necessary pre-commencement conditions the LPA can simply refuse to grant permission.
Instead, thought should be given to which approvals are genuinely required prior to the commencement of all works, or whether certain approvals should be required prior to the commencement only of specified works. For example, while it makes sense that certain documents relating to construction works must be approved prior to the commencement of any demolition, it may be possible to agree to discharge other conditions prior to commencement of construction itself. In these cases, defined “preparatory works” can be excluded from the ambit of many pre-commencement conditions, meaning that you can start on site while these details are approved.
The development is likely to give rise to a big community infrastructure levy bill – can I avoid paying this all on day one?
Yes. CIL is payable when you commence a development and, unlike section 106 agreements, you cannot agree to exclude certain works from this requirement. However, the CIL Regulations 2010 state that, for phased planning permissions, each separate phase is treated as its own chargeable development. This means that CIL is only payable in respect of a phase once that phase is commenced, letting you spread the total CIL liability over each of the phases.
The 2010 Regulations are clear that to benefit from these provisions the planning permission must clearly state it is a phased planning permission. There is no prescribed approach to this, but either the description of development, conditions or informatives must clearly state that the planning permission is a phased one, and in practice will usually confirm the parameters for establishing what falls within each phase.
I would like to avoid paying any CIL when I implement – is this possible?
Potentially. CIL is only payable in respect of development, or phases, which create floorspace. Where demolition or other site preparation is required, it can often be agreed with the LPA that these will form their own phase, and that construction works will form part of a later phase. As the demolition phase will not result in the creation of any floorspace and is treated as its own chargeable development, commencing that phase would not trigger any CIL liability.
Fortunately, given that CIL liability can be reduced where there is existing floorspace, the 2010 Regulations recognise that developers may want to rely on floorspace demolished in one phase when calculating CIL liability for a later phase. This ability to “roll over” floorspace means that, by splitting your phases into demolition and construction phases, you do not lose the benefit of existing floorspace when calculating overall CIL liability.
I already have planning permission for a large development but want to change part of it – can I secure a new planning permission for just that part?
This is a complex area. The position depends on how your permission is currently structured and what you want to change.
As a starting point, you cannot implement two inconsistent planning permissions. Although this is a principle which has been around for a while, the recent case of Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ 1440; [2020] PLSCS 199 has shone a light on the issue again. Previously it had been understood that where part of a scheme was easily divisible from the remainder of the permitted development, you could refrain from delivering that part, and instead develop in accordance with a new “drop-in” permission, provided that would not cause breach of conditions on the first permission. However, in Hillside the court found that even in these cases, layering up permissions would mean that it was unlawful to implement both. This has raised some big questions, for example whether development carried out lawfully in reliance on the first permission would retrospectively be rendered unlawful by implementing an inconsistent permission.
Consequently, if you do need to replace part of a permitted development, the original consent should also be amended to ensure that there is no longer any inconsistency.
If the permission is a phased one, and it is clear that individual phases can be delivered independently of one another, it may be possible to adopt the drop-in route without amending the original where no conflict is created. However, the position is still complex and detailed legal advice should be sought.
I want to incorporate new development on additional land into an existing scheme and need to link the two schemes together – is the position any different here?
Probably not – the key principle remains that the two permissions must be consistent with one another. On the basis of the law as it now stands, even a small overlap, for example a shared car park or landscaping, if not handled carefully, could render development unlawful.
What other key considerations should I have in mind when structuring a permission?
Always think long term – be that an exit strategy or ongoing management intentions. The tendency is often to present a scheme as a single development. However, if some parts are going to be sold or occupied independently of others, think about how this will work in practice. Are any elements dependent on others coming forward? How will open space or car parking be dealt with? If there are infrastructure works required to release triggers linked to more than one part, who will be responsible for delivering those and how will others be able to enforce this? None of these issues are insurmountable but all deserve careful consideration.
At a time when everyone is looking for flexibility in their permissions, while also trying to reduce the burden – administrative and financial – of starting and delivering developments, investing time in some good strategic thinking should pay dividends in the long run.
Hannah Quarterman is a partner at Hogan Lovells