A well-managed planning process: key to a successful development

It would be an unusual developer who didn’t wish to see their developments delivered in budget and on time. As we explore in this article, one of the key elements in achieving this is through a well-managed planning process, right from the conception of the application through to the discharge of conditions, the implementation of the development and any post-implementation modifications. Paying appropriate attention to these matters can significantly reduce the risk of costly delays, enforcement action and even litigation.

Preparing the application

Starting with the fundamentals, it is important to ensure that the ‘red line’ plan showing the extent of the development site is accurately drawn and the accompanying ownership certificates completed properly. Failure to do so may result in the council refusing to entertain the application or even judicial review proceedings being commenced by objectors in respect of any grant on procedural grounds. It is notoriously difficult to amend the red line once consent has been granted and, even in rare circumstances where an LPA may permit a reduction in area, land ownership issues may limit the mechanisms by which this can be achieved. 

Arrangements should also be put in place to secure all land required to facilitate a development. Land outside of the planning application red line may be required to secure off-site highway works or ecological mitigation. In these circumstances, the owner of the off-site land will be required to enter into a s.106 agreement or similar arrangement to ensure the obligations are enforceable by the LPA. Generally speaking, this must happen ahead of the grant of the planning permission, so failure to secure those interests contractually could lead to a situation where an application is delayed or refused.

Whilst an obvious consideration, the recent case of Choiceplace Properties Ltd v S/S HCLG [2021] EWHC 1070 highlighted the importance of ensuring that application plans are accurately drawn. In this case, an approved street scene drawing incorrectly showed the height of a neighbouring building. A certificate of lawfulness was sought to confirm that the development could be implemented. This was refused by the LPA, a decision which was upheld by the inspector and the courts, who concluded that it would be impossible to lawfully implement the planning permission.

Where applicable, careful consideration must also be given to the structure of the application to maximise the benefits of the exemptions and reliefs to the Community Infrastructure Levy (CIL).

Varying Conditions

Whilst, where possible, efforts should be made to agree appropriate conditions with the local planning authority before the grant of planning permission, there are circumstances where this simply isn’t possible. There are also occasions where circumstances change following the grant of the permission that make it impossible or impractical to comply with the given conditions. In these circumstances, there are routes by which conditions can be removed or varied, however these bring with them a number of issues that it is important to keep in mind.

Section 96A of the Town and Country Planning Act 1990 (the Act) allows for ‘non-material’ amendments (NMAs) to be made to planning permissions. There is no statutory definition of non-material; the Planning Practice Guidance advises that this is because “it will be dependent on the context of the overall scheme – an amendment that is non-material in one context may be material in another”. NMAs have certain benefits; they are quick (28-day determination period), consultation is not normally required, they may be used to vary the description of development (where the amendment is deemed non-material) and a new planning permission is not issued. But there are also problems associated with NMAs; the decision as to whether a proposal is non-material is wholly at the LPA’s discretion, a person may only apply for an NMA over land in which they have an interest and there is no right of appeal against refusal. Nonetheless this a frequently used and convenient tool.

Section 73 of the Act allows for variations of conditions, sometimes also referred to as ‘minor material’ amendments. Applications may be made prior to or following commencement of development. The case of Finney v Welsh Ministers [2019] EWCA Civ. 1868​ confirms that Section 73 applications may only be used to vary a condition and cannot be used to amend the description of development, nor amend or remove a condition in a way that would be incompatible. The grant of a section 73 creates a new planning permission which may require variations to an existing s.106 agreement. 

Discharge of planning conditions

In order to ensure that development can start on site in a timely manner, all those conditions which require information or details to be approved prior to commencement of development (pre-commencement conditions) should be discharged before spades go in the ground. In extreme cases, failure to do so can lead a developer to lose the benefit of a planning permission. Where this is not possible, there are some principles which may get a housebuilder out of a tight spot.

One anomaly, which may save a planning permission which is soon to expire, arises from F.G. Whitley & Sons  v. SSW and Clwyd CC (1992) 64 P. & C.R. 296 where it was held that development commenced prior to discharge of a pre-commencement condition may still be lawful, provided that an application had been submitted to the LPA to discharge that condition prior to the works taking place. Furthermore, it does not matter if approval is issued after the date on which the works took place provided that the works conform to the details submitted. The details submitted, however, do have to be approved; there is no opportunity for a ‘second go’ following refusal by the LPA.

A final word on “slot ins”

Subsequent planning permissions that affect only part of the site are often referred to as “drop in” or “slot in” applications. Much has been written recently about the case of Hillside Parks Ltd v Snowdonia National Park Authority [2020] EWCA Civ. 1440 which has cast significant doubt over the position regarding “slot ins” and in particular raised questions as to the impact these can have on the validity on any existing permissions in place. Given the huge importance of this point, particularly to large, strategic sites, the case has been appealed to the Supreme Court for the final say, scheduled for the 4 July 2022 – watch this space!