The current coronavirus lockdown period is, in many cases, preventing developers from discharging pre-commencement planning conditions, obtaining reserved matters approvals or starting development on site.Developers are therefore facing the very real possibility that, in the absence of compliance with planning permission requirements, their planning permissions will not be lawfully implemented in time to stop those permissions expiring.
Developers are therefore facing the very real possibility that, in the absence of compliance with planning permission requirements, their planning permissions will not be lawfully implemented in time to stop those permissions expiring.
In the light of this it is highly likely that the pressure will be on the government in England (and the Welsh Ministers), to introduce measures soon which prevent planning permissions lapsing during the current lockdown period.
That pressure can only increase following the Scottish Parliament’s decision last week to introduce legislation (Coronavirus (Scotland) Bill), which, once enacted, will extend the life span of unimplemented planning permissions. Those due to expire over the next six months will not now expire for a period of 12 months, beginning with the date that the Coronavirus (Scotland) Act comes into force.
Our colleague and planning partner Fraser Mitchell, has previously reported in detail on this change in Scotland.
Neither the Coronavirus Act 2020 in England, or subsequent Local Authorities (Coronavirus) (Flexibility of Local Authority Meetings) (England) Regulations 2020, address this issue. This is despite the fact that legislation extending the time for implementing planning permissions in England is not new ground and was introduced (as a temporary measure), to mitigate the impact of the financial crisis in 2009.
The reason for these two quite different approaches may be simple.
Current advice from the government in England is that construction sites should continue to remain open where it is safe to do so. Unlike the hospitality industry, which was compelled to close by the Government, any decision to close development sites lies solely with the site developer.
Conversely, on 23 March the first minister of Scotland, Nicola Sturgeon, called for construction sites in Scotland to close. This seemingly leaves developers operating within Scotland with no choice but to close, irrespective of whether their planning permission may lapse. The introduction by the Scottish Government of the extension of time provisions addresses that issue head on.
This still leaves open the question whether it is fair for developers, operating sites in England and Wales, to be penalised if they choose to take a precautionary approach.
We therefore expect this issue to be debated further in the coming days.