COVID-19: Saving Planning Permissions During the Pandemic

30 April 2020

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COVID-19 Concerns

These are unprecedented and challenging times and one of the main concerns at present is compliance with the statutory time limits for the commencement of development contained within the Planning Act (Northern Ireland) 2011 (“2011 Act”), particularly where a permission is due to expire imminently. Due to staff shortages and difficulties with remote working, concerns have been raised in relation to compliance with and the discharge of pre-commencement conditions. In addition, as the construction sector in Northern Ireland has largely shut down, concerns have been raised as to how developers can ensure the necessary commencement works are carried out on site within the requisite time frame to lawfully implement permissions.

What are the statutory time limits for implementing planning permission?

Sections 61 and 62 of the 2011 Act require that every planning permission contains a condition which limits the time within which the permission can be implemented. The standard periods are:

  1. in the case of full planning permission, development must begin within 5 years of the date on which planning permission is granted; or
  2. in the case of outline planning permission, development must begin before: the expiry of 5 years from the date of the grant of the outline permission; or before the expiry of 2 years from the final approval of the last reserved matters, whichever is the later.

If permission has been granted without an express condition limiting the time period for implementation, a condition imposing the standard time limit is imposed by default.

How to preserve your planning permission?

  1. Discharge all pre-commencement condition; and
  2. Carry out works ‘comprised in the development’ prior to the permission expiring.

The general rule established in FG Whitley & Sons v Secretary of State for Wales [1992] 3 PLR 72 is that any works which breach a pre-commencement condition are not authorised by the planning permission and cannot therefore implement the permission and keep it alive. However, there are limited exceptions to the Whitley principle.

After the pre-commencement conditions have been complied with, section 63 of the 2011 Act requires ‘operations comprised in the development’ to be carried out in order for development to be lawfully commenced. Examples are provided in section 63, including:

  • where the development consists of or includes the erection of a building, any work of construction in the course of the erection of the building;
  • where the development consists of or includes alterations to a building, any work involved in the alterations.

Developers must ensure that any work carried out is in accordance with the stamped approved plans pertaining to the permission being implemented. Further information on the exceptions to the Whitley principle and on the extent of the operations required to lawfully commence development can be provided, upon request, by contacting our Planning Law Team.

No ability to amend the duration of a permission once granted

It is worth noting that an application under section 54 of the 2011 Act, which is an application for permission for the development of land without complying with conditions subject to which a previous planning permission was granted, cannot be used to extend time limits (section 54(5)). In addition, section 67 of the 2011 Act, which enables local councils to make non-material changes to a planning permission, is unlikely to provide a solution in its current form.

New legislation required in Northern Ireland

In a letter issued by the Chief Planner of the Department for Infrastructure (“DfI”) on 27th March 2020, the Chief Planner asked that local planning authorities use their best efforts to validate, process and determine renewal applications, as expeditiously as possible, where permissions are nearing the end of the period for commencement. The Chief Planner advised that the DfI is looking at options to address the issue, in conjunction with other jurisdictions, including the potential for legislative change. To date, the legislative time limits in Northern Ireland remain unchanged and, whilst it is hoped that emergency legislation will be introduced, it is essential that the statutory time limits continue to be complied with to avoid a permission lapsing. Further information on the renewal application procedure can be provided, upon request.

Approach taken in other jurisdictions

At the date of writing, we understand that the legislative time limits in England and Wales remain unchanged. In Scotland, the Coronavirus (Scotland) Act 2020 came into force on 7th April 2020. Schedule 7 of the Coronavirus (Scotland) Act 2020 contains provisions amending the legislative framework in Scotland so that during the “emergency period” (defined as the period of 6 months beginning with the date on which the provisions come into force), a planning permission which would otherwise lapse because development has not begun will now lapse at the end of the “extended period”, which is defined as the period of 12 months from the date the provisions come into force. The Coronavirus (Scotland) Act 2020 also provides Scottish Ministers with the power, through regulations, to amend the definitions of the “emergency period” and “extended period”. In Northern Ireland, the DfI’s proposals to deal with this issue are still awaited and it is not yet known if the DfI will follow the approach in Scotland.

If you have any queries regarding the planning process, whether COVID-19 related or not, the Planning Team will be happy to help. Further updates on this topic will follow in due course as the response of local Councils to the processing and determination of applications during the pandemic emerges.

*The contents of this document do not constitute legal advice and should not be relied upon as a substitute for legal advice that is tailored to your individual circumstances.

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