Elastic Approvals: Longer-life Planning Consents After COVID-19

Extensions to Planning Implementation Periods

Earlier this year, the Scottish Government enacted emergency legislation aimed at assisting planning authorities, developers, landowners and the construction industry to regain momentum as Covid-19 lockdown eases. Usually, development granted Planning Permission, Conservation Area Consent (“CAC”) and/or Listed Building Consent (“LBC”) (all together, “Planning Consents”) must be commenced within 3 years of their grant or they lapse and a new application will be required.

The Coronavirus (Scotland) and Coronavirus (Scotland) (No 2) Acts 2020 temporarily change the default timescales, providing a grace period for commencing development where existing Planning Consents risk expiring before they can be implemented. Under these Acts, Planning Permissions expiring between 7 April and 6 October 2020 and CACs and LBCs (required for some heritage projects in addition to Planning Permission) expiring between 27 May and 6 October 2020 have been automatically extended, to be capable of implementation until April 2021.

As lockdown easing evolves and some commentators anticipate the Scottish economy will take years (rather than months) to return to 2019 activity levels, legislators seek to further extend the Planning Consents grace period. The Town and Country Planning (Emergency Period and Extended Period) (Coronavirus) (Scotland) Regulations 2020 (SS1 2020/254) were laid before the Scottish Parliament on 25 August 2020 and, unless Parliament annuls them, will come into force on 5 October 2020. The Regulations enable qualifying Planning Consents expiring before 31 March 2021 to be implemented until 30 September 2021. As under the earlier Acts, no amendments to the Planning Consents themselves are necessary and extensions under the Regulations will apply automatically, by law.

Limitations/Opportunities

• Impacts on wider project delivery: Developers seeking to rely on the Regulations to extend their Planning Consents may need to update their contractual positions if, for example, they have an agreement for lease or an option over land requiring implementation by a certain date.
   
• Extensions are retrospective and temporary: Once the Regulations have effect, the extension to 30 September 2021 will most likely (but not exclusively) be available for Planning Consents granted before 31 March 2018 (i.e. 3 years before the cut-off date under the Regulations). At the date of this article, the extension will not apply to Planning Consents: (a) granted after 1 April 2018; (b) for which applications are currently in the system but have not yet been determined; or (c) subject to applications to be made in the future.
   
• Longer Planning Consents after March 2021? Those with extant or prospective applications should be aware that, although 3 years is the default implementation period, decision-makers can impose longer deadlines where appropriate. It might be useful for such applicants to request more than 3 years to implement their Planning Consents (although there is no guarantee that such a request will be successful). Benefits to longer implementation periods would include maximising the time available to comply with pre-commencement conditions/S75 obligations and to allow market conditions to stabilise (with the attendant funding and land valuation implications). Disadvantages include potential for development programme delays and supply-chain uncertainty (particularly in the event of a “No-Deal” Brexit). Planning authorities will also need to balance the administrative benefits of avoiding renewal applications for proposals which have already been approved against the loss of planning application fee income and delays to the delivery of key infrastructure (or to funding it through S75 agreements).
   
• Planning records – accessibility and transparency: Planning documents are generally a matter of public record, available from planning authorities to any person who wishes to view them.  However, their legibility could be adversely affected as the law relating to implementation periods becomes increasingly complicated. As noted above, extensions to implementation deadlines under the Regulations take effect automatically. The expiration dates printed on Planning Consents and shown on the public register may not properly reflect how long a beneficiary has to commence development in practice. Confusion could arise if, for example, it is unclear whether or not a Planning Consent has been validly implemented or a time-sensitive suspensive condition has been breached. There could also be implications for calculating appeal and judicial review deadlines.

The easiest way to avoid such confusion would be for planning authorities to require developers to specify in pre-commencement submissions (such as the Notice of Initiation required before development begins) that they intend to rely on an extension under the Regulations. However, there are no legal requirements or practice guidelines to this effect in place at the date of this article, without which there may never be a consistent approach among authorities to showing extensions on the planning register. In light of this, anyone carrying out due diligence is recommended to proceed with caution when considering any Planning Consents granted after 31 March 2018 and expiring before 31 March 2021.

For further information, please contact our Head of Planning, Jacqueline Cook.

Disclaimer 
The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.