Many developers are keen to retain planning permission for stalled schemes until the property market recovers. But, according to Tony Johns, a senior property specialist at Berg Legal this is potentially loaded with complications and expense.

In 2004 the Planning and Compulsory Purchase Act reduced the life of planning permission from five years to three, so it effectively removed the possibility of renewing permissions. If a permission expires a new application has to be made; which is not helpful given the number of frozen developments awaiting better times.

Johns commented “Developers applying for fresh permissions face considerable expense and they may also find that planning policies have changed by the time they apply. For example local authorities are starting to adopt local development frameworks (LDFs) so more onerous section 106 obligations may apply.

“Another forthcoming change is the Community Infrastructure Levy. CIL is an alternative form of planning gain payments, with regulations expected shortly for its implementation, and anticipated not to go live until 2012. The effect of CIL is that Councils will once again have to amend their LDFs which will require much resource. This change together with the potential for a large influx of planning applications (if the economy picks up) may lead to further delays all round in obtaining permissions”.

Developers thinking of applying for a variation of the permission will also need to think again. An addition to section 73 of the Town and Country Planning Act 1990 stated that planning permissions must not be granted to the extent that it has the effect of extending the time limit in a previous permission, in which the development must be started. So three years means three years.

However it may be possible to keep existing planning permissions alive until market conditions improve. Johns added “It may be possible to carry out certain works that amount to commencement to save some of those permissions. However, it is likely that either permissions will cease by the time the economy picks up, or there is simply not enough time to get all the necessary approvals before consents are implemented.”

Before taking any action Johns advises developers to examine all the conditions of their permissions, especially any requiring approval of the planning authorities before a development can commence, to ensure they do not encounter unexpected expenses or hurdles.

There is a potential glimmer of hope says Johns “The Department for Communities and Local Government’s announcement that it will “consult” on proposals to reintroduce the five year period.

“This will only be effective if the changes are properly introduced and in a timely way. They may for example decide that either three now means five, so that all permissions are saved, or amend the legislation to allow for applications (but can planning departments cope?) to increase existing permission to five years, in which case developers will have to be far more pro-active”

To discuss how Berg Legal can assist you with these issues, please contact Tony Johns at Tonyj@berg.co.uk. Alternatively you can call Tony on 0161 833 9211.