3. Risk of planning permissions expiring and what to do if S106 and CIL payments are triggered
There is a huge risk in that planning permissions are in danger of expiring as they become incapable of being implemented within their set timeframes.
Both the Chief Planner’s letter providing guidance on COVID-19 and the Local Government Association Planning Advisory Service have failed to address this important issue.
We eagerly await new legislation or guidance to keep planning permissions alive in respect of the commencement of development and submission of reserved matters, and also on payment or performance of section 106 obligations and the Community Infrastructure Levy (“CIL”).
Sections 91 and 92 of the Town and Country Planning Act (1990) (“TCPA 1990”) set out the standard timeframes for the commencement of development and reserved matters applications. Section 91 requiring development to begin no later than three years from the grant of planning permission and section 92 specifying that applications for reserved matters approval should be made no later than three years from the grant of planning permission and development to begin no later than two years from the final approval of reserved matters. Local Planning Authority can, of course, set their own timescales.
It is general knowledge that section 73 of the TCPA 1990 cannot be used to extend time limits in England (section 73(5) of the TCPA 1990) but can be used in Wales. Similarly, section 96A of the TCPA 1990 is only to be used for non-material amendments and extensions to time limits would not constitute a non-material amendment. The current legislation in England does not allow extensions of times and we, therefore, await new legislation. The Scottish Parliament has already allowed a one-year extension to the life of planning permissions through the Coronavirus (Scotland) Act 2020 which would otherwise have lapsed during this “emergency period” (six months).
3.1 Section 106 Obligations and CIL payments triggers
Section 106 triggers for payments are often linked to the timeframe of a development and can only be renegotiated if both parties are willing to do so.
CIL payments are automatically triggered at appropriate timeframes. The CIL Regulations do not allow room for negotiation in this respect.
3.2 Possible solutions
- Commence development with a “material operation” to keep permission alive if it is safe to do so: any work of construction/demolition of a building, digging of a trench to contain foundations, laying out of road or change of use ensuring work is consistent with the plans within planning permission granted.
- Rely on the deemed discharge of conditions, however, there are exceptions which you will need to be aware of.
- Reserved matters applications only need to be submitted within the time limit and not validated.
- Planning obligations can be renegotiated at any point if both parties are willing.
- Discuss a payment plan with the LPA for the CIL payments.