We have received a number of queries within the last 48 hours regarding the timescales relating to both the implementation of planning permissions (so they don’t expire), the submission of reserved matters (where submission timings are limited by condition and the deadline for doing so is imminent) and also in relation to the payment of Community Infrastructure Levy (CIL) where it has been recently triggered and/or is related to the two previous points.
Expiry of planning permissions and the requirement to submit reserved matters
It is understood that the RTPI is already in regular contact with the Minister of Housing Communities and Local Government. One of the issues which has arisen is, should planning conditions relating to the timescale for the submission of reserved matters be extended as a result of COVID-19. More news is awaited on this.
Currently, in England, there is no ability to extend the timescale for submission of reserved matters or the timescale for implementation of a planning permission. A new planning application is required (not a section 73). COVID-19 thus presents a significant issue if, for example, social distancing and/or the unavailability of Council officers means the ability to implement a planning permission and/or submit reserved matters cannot be achieved meaning a permission will expire. The expiry dates in relation to implementation of a permission and/or submission of reserved matters should be checked.
Our team is currently attempting to build traction with Government (via media sources and the HBF) in terms of an argument that the timescales associated with implementation and reserved matters should be extended due to COVID-19. It is, of course, of no benefit if a permission expires now as a result of COVID-19. Further disruption and delay will result once it’s over. By way of example, it could further slowdown the delivery of much needed affordable housing if a residential consent expires.
Community Infrastructure Levy (CIL)
CIL in certain circumstances now presents a further immediate cash flow problem for the property industry. The problem can be illustrated in two key scenarios (there may be more).
The first is where CIL has been triggered recently albeit before the major COVID-19 issues and lockdown were foreseen. Those payments may be falling due in the short term which presents a further issue which wasn’t of course there when the liability was triggered.
The second, as a follow on to the above, is where a permission needs to be implemented to save it (in terms of commencement timing conditions). This presents a catch-22. Without new legislation a permission may be lost if the aim is not to trigger CIL. Alternatively, the CIL is triggered, potentially resulting in cash flow consequences. There are no direct exemptions in the CIL Regulations which would cover COVID-19. One potential lifeline is the fact that many of the sanctions for not paying CIL are discretionary meaning the Local Planning Authority (LPA) may choose not to enforce (or delay enforcement until COVID-19 is over). One thing that isn’t discretionary and does apply to late payment is interest on CIL.