The Business and Planning Bill 2020

The Business and Planning Bill 2020 looks to make significant changes to the licensing and planning regimes in England, in order to support economic recovery and growth as the UK recovers from the disruption caused by COVID-19. The Bill was introduced in the House of Commons on 25 June 2020, and is scheduled for a second reading on 06 July 2020.

Summary

The planning amendments are introduced at Part 3 of the Bill. In summary, the reforms set out temporary changes to the law relating to planning in England, as well as new, permanent provision for certain planning proceedings to be considered by means of more than one procedure. It is intended that the reforms will ensure that the planning system can continue to operate effectively and support the safe construction of new development following the impact of Covid-19.

The main change set out in the Bill is that planning permissions with expiry dates which range from 28 days after the date of enactment of the Bill up until 31 December 2020 will receive an automatic time limit extension to 1 April 2021. Planning permissions which have expired during lockdown (from 23 March 2020 up until the date 28 days after enactment) can also benefit from an extension, provided that they secure additional environmental approval from the local planning authority.

The planning reforms proposed are summarised below:

Modification of conditions relating to construction working hours

These reforms allow developers to apply to the local planning authority to extend working hours temporarily on construction sites. The “fast track” application provisions enable flexibility and will be welcomed by the construction industry, but they also create an additional administrative burden for local authority planning departments, which will be required to scrutinise any application in a 14-day short window of time.

It is not clear whether, in practice, 14 days would be sufficient to assess the amenity impacts of any such proposal. This may give rise to harm to amenity being authorised in circumstances in which the local authority would not normally support such a variation.

• In order to benefit from extended working hours, an application must be submitted electronically and specify a date not less than 14 days later on which the change will take effect.
• It is open to the local planning authority to approve, refuse or amend the modification, and they must do so within 14 days of the application being sent, otherwise the application is deemed to be approved.
• Any temporary extension of hours will cease on 1 April 2021.
• These provisions are scheduled to come into force at the end of 6 days after the Act is passed.

Extension of duration of certain planning permission

This allows automatic extensions to planning permissions which have been granted (or deemed to be granted) in relation to development in England.

Where a planning permission must be commenced between the date that the provision comes into force and 31 December 2020, that deadline is automatically extended to 1 April 2021. Planning permissions which have expired between 23 March 2020 and the date the new provisions take effect can also be reinstated provided additional environmental approval is obtained from the local planning authority (see below).

These provisions have a wide-ranging and variable impact, depending on the wording of the affected condition. In some cases, the extended time limit would not be sufficient to offset the loss of time arising from COVID-19 although it should assist local authorities in reaching their housing targets.

One of the impacts from the extension is that it would increase the administrative burden on both applicants and local planning authorities in the vicinity of the revised deadline date. This will result in a flashpoint for the discharge of planning conditions and other pre-commencement matters prior to 1 April 2021, and an increased level of activity across the board during an already busy time of the year.

• These provisions are scheduled to come into force at the end of the period of 28 days after the Act is passed. 

Additional environmental approval (s93B)

These changes enable a separate time extension for planning permissions which have expired between 23 March 2020 and the date the new provisions take effect, subject to a process of environmental approval. Qualifying permissions are granted an extension to 1 April 2021.

Although great news for developers, the environmental vetting structure would create an additional administrative burden on local planning authorities, who are bound to determine applications within a 28-day period pursuant to a separate and additional process. This process will also require local authorities to consider how to treat older environmental impact assessments, which may in turn require further information to be supplied and considered in detail.

• The additional environmental approval should be granted if (and only if) either:
  • No assessment under the Conservation of Habitats and Species Regulations 2017 is required, or such an assessment has already been carried out (and concluded that the development would not adversely affect the integrity of the relevant site), subject to the local authority being satisfied that the assessment is up to date.  
  • Additional environmental approval cannot be granted subject to conditions; or after 31 December 2020 (unless it relates to an appeal which was started before this date).
• The development is not EIA development, or a “reasoned conclusion” was reached pursuant to the EIA Regulations; or after 31 December 2020 (unless it relates to an appeal which was started before this date).

Extensions in connection with outline planning permission and listed building consent

There are additional proposed changes in relation to outline planning permissions. The proposed changes extend the automatic extension regime to outline planning permissions and applications for listed building consent.

• Outline permissions granted subject to a condition that the development must be begun between the date on which the relevant section of the Bill comes into force and 31 December 2020 and instead subject to a condition requiring this no later than 1 April 2021.
• Similarly, listed building consents which are subject to a condition that the works begin between 23 March 2020 and 31 December 2021 are varied to require this by 1 April 2021.
• Outline permissions benefit from the same additional extension regime in relation to additional environmental approvals outlined above.
• Outline permissions granted subject to a condition that the application for approval of a reserved matter must be made between 23 March 2020 and 31 December 2020, are instead subject to a condition requiring that the application for approval of a reserved matter must be begun no later than 1 April 2021.

Appeals

As a result of this change, the procedural structures which the Planning Inspectorate can utilise in determining an appeal are no longer exclusive; it is now possible for the Planning Inspectorate to implement hybrid procedures, whereby (for example) an appeal can be partially dealt with by written representations and partially by a hearing or inquiry.

This change should result in potentially new flexible approaches on the part of the Planning Inspectorate, which in turn should have the effect of expediting appeal timetables. However, care will need to be taken in ensuring the procedural fairness of mixed/hybrid proceedings, and it remains to be seen precisely how this power will be deployed in practice.