COVID-19: Greater clarity required on the way forward for planning permissions which are due to expire imminently

Due to the current Coronavirus pandemic lockdown and social distancing measures having been imposed, many of us are now working from home. Other than for those very urgent cases (few, if any, which are planning related), the Courts in Northern Ireland are largely closed to the public, and life overall will probably appear to many to have come to a halt. Yet the clock is still ticking on commencement of development for planning permissions. The key issue is if people are to observe the requirements of lockdown, then how can parties with planning permission soon to expire, field sufficient workers to start on sites in order to fulfil the criteria that development has commenced.

The Planning Act (Northern Ireland) 2011 (the “2011 Act”) states that every planning permission granted or deemed to be granted, will be subject to the condition that the development must begin within 5 years of the date on which permission is granted (or such other period as considered appropriate by the Department or council which granted the permission). After the expiry of the time-limit for commencement of development, it is not possible for development to be begun under that permission – in other words the planning permission itself will expire. Furthermore, under the 2011 Act, a planning authority can also require other specified conditions to be discharged before a development can be deemed to have commenced, often referred to as pre-commencement conditions. An example of such a condition would be the requirement for the developer to submit a landscaping scheme for approval to the planning authority, prior to any works or development commencing. Clearly, given the fact that the lockdown requirements may, in all likelihood, prevent the works necessary to comply with and therefore discharge these pre-commencement conditions, it is entirely probable that a situation might arise where a permission could expire “by default” as a result. Whilst section 54 of the 2011 Act does allow for the variation or removal of conditions (including pre-commencement conditions), the section expressly precludes the extension of the life of the permission. All of this assumes that our Councils would be able to progress either condition discharges or indeed section 54 applications – a matter which is far from certain at present with very little consistency in place amongst those Councils.

In an effort to provide clarity as to what should be done in relation to planning permissions nearing the end of the period for commencement of development, on 27 March 2020 the Department for Infrastructure’s (“DFI”) Chief Planner issued advice stating that, should parties submit applications for the renewal of planning permission during this time of crisis, they should be validated, processed and determined as expeditiously as possible by the Councils. However, this approach does not deal with the aforementioned issue with regards to the extent to which Councils are able to progress such applications. In other words, application forms and cheques could potentially be “piling up” in the postal rooms of the Councils, raising issues of how effectively and properly such renewal applications (and indeed any application) is being validated and processed in the normal way. We understand that some Councils have implemented “manual” procedures to attempt to prevent a backlog; however, the lack of consistency needs to be addressed centrally to ensure an effective fallback solution is implemented.

With regards to planning permissions which are due to expire imminently, the Chief Planner also stated in his advice that DFI ‘are continuing to look at other options to address this issue, in conjunction with other jurisdictions, including the potential for legislative change.’ The Coronavirus Act 2020 which came into force on 25 March 2020 extends to all parts of the UK and, to date, no subordinate legislation for Northern Ireland has been introduced with respect to planning and/or the functions of local government (despite there being scope available to do so).

In the Republic of Ireland, on 27 March 2020, the Emergency Measures in the Public Interest (COVID-19) Act 2020 (the “ROI Act”) was signed into law by President Michael D Higgins. Whilst the mechanics of the planning regime in the Republic of Ireland differ to Northern Ireland as regards the requirements for commencement versus completion of development, Part 3 of the ROI Act (which has now been commenced) provides for some flexibility around planning time limits in order to accommodate the practical difficulties being experienced, as a result of the COVID-19 lockdown in that jurisdiction.

Furthermore, we note that Scotland has also sought to provide legislative flexibility by commencing the Coronavirus (Scotland) Act 2020 (the “Scottish Act”) as recently as Monday, 6 April 2020. Section 8 and Schedule 7 of the Scottish Act provide that any planning permission due to expire within six months (as prescribed by the Scottish Act) is to be automatically extended for 12 months to allow for the impact of COVID-19 to be absorbed.

Given the approach both taken and proposed in Scotland and the Republic of Ireland respectively, it would seem both prudent and indeed arguably necessary to draft legislation even in preparatory form which can be commenced to deal with this increasingly significant concern.

For now, any parties with planning permissions nearing the end of the period for commencement of development who are unable to start work on site, or who are unable to discharge specified conditions, will have to follow the advice of DFI and submit applications for renewal of the permissions to the relevant planning authority. We will endeavour to update you as soon as possible on any changes to the current position outlined above in this constantly evolving situation, and will be pleased to provide advice to any party currently unsure of their options.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Planning & Environmental team at Cleaver Fulton Rankin for further advice or information.