Start it or lose it

We seem to be entering that part of the economic cycle where some projects are stalling, whether because of difficulties with funders or a lack of buyers/occupiers.  With most planning permissions having a three-year lifespan, there’s a danger of losing those hard-fought (and often costly) consents.

The first thing to note is that due to an express prohibition in the legislation it is not possible to extend the lifetime of consents by an application to vary conditions under section 73 of the Town and Country Planning Act.  This hasn’t prevented some people seeking to extend the lifetime of permissions by way of a non-material amendment under section 96A, but that requires the co-operation of the Council and the absence of any third parties looking for reasons to challenge the decision in the courts.               

In most cases the only option is to keep the permission alive by commencing the development – but even that may not be feasible where the permission is in outline, as that will require the submission and approval of reserved matters for the development, which could take many months. 

In order to commence development under a planning permission there are several issues to first consider:

• Have the necessary pre-commencement planning conditions been discharged? If not, have the appropriate consultants been appointed and is there time for them to do the work?
• What liabilities under any section 106 agreement are triggered by commencement?   Is it possible to renegotiate the terms of the agreement to push back when the obligations arise?
• What CIL liability will be triggered?  Again, is it possible to reduce the initial amount of CIL payable by amending the permission to introduce a phasing scheme before the works start?
• What works are necesary to commence the development?   Will demolition works be sufficient?
• How will the works be recorded and should an application be made for a lawful use certificate confirming that the permission has commenced?

Following these steps may not be simple but it will help preserve a planning permission rather than facing the uncertainty and cost of a further planning application.

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