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06 November 2020
Over the last few years we have seen a number of queries arising out of uncertainty and lack of clarity in relation to the timescales for commencement of development under a planning permission in principle ("PPP"), and its associated approval of matters specified in conditions ("AMSC"). The simplification that will be introduced by the Planning (Scotland) Act 2019 (the "2019 Act") is therefore likely to be welcomed by many, but there are important points to note about the provisions in the 2019 Act.
While we wait for the 2019 Act provisions to be brought into force, as well as the transitional arrangements, this article looks at the current law in relation to the duration of PPPs as well as the forthcoming changes.
The law on the duration of PPPs is set out in section 59 of the Town and Country Planning (Scotland) Act 1997 (the "1997 Act"). There are two principal default time limits in section 59 of the 1997 Act which are important to note in relation to PPPs:
Notwithstanding point 1 above, section 59 of the 1997 allows one AMSC application to be submitted following expiry of the 3-year period, provided it is submitted within 6 months of an earlier application or appeal being refused.
A planning authority can, when granting planning permission, issue a direction specifying alternative timescales to those specified at 1 and 2 above. It is open to the planning authority to specify alternative periods for both the submission of AMSCs and the commencement of development thereafter, or they can choose to amend just one of the time periods.
It is not uncommon for planning authorities to make directions extending the above periods when issuing planning permissions for large-scale developments, particularly where they are likely to be developed in phases. Section 59 of the 1997 Act also allows a direction to be issued which specifies different periods for different parts of a development.
It should be noted that the default period for commencing development and any direction issued are not treated as conditions for the purposes of section 42 of the 1997 Act. One of the key effects of this is that any application to vary those timescales will be subject to formal pre-application consultation requirements if the development is a national or major development.
Section 32 of the 2019 Act will amend section 59 of the 1997 Act when it comes into force.
The amended section 59 will require PPPs to be granted subject to a condition that the development must begin no later than the expiry of 5 years beginning with the date of the PPP, or such other period specified in granting the PPP. In the absence of such a condition, the PPP will be deemed to be subject to a condition that the development must commence no later than the expiry of 5 years beginning with the date of the PPP being granted.
There will no longer need to be a period within which AMSC applications must be submitted but decision makers will still have the option to impose such a condition, should they wish to do so.
This move to a straightforward 5-year period in which to commence development will make the position on timescales for implementing PPPs much clearer. However, there are important points to note.
In practice, the overall timescale for commencement of development will, in many cases, become shorter than it is currently under the respective default periods. At the moment, there is a 3-year period in which to submit AMSC applications although it may be some time after the expiry of the 3-year period before the applications are actually approved. There is then a 2-year period from the final approval in which to commence development.
The overall period to commence development will therefore often be greater than 5 years, sometimes significantly so, and that's without considering the additional time allowed currently in the event of an AMSC application or appeal being refused.
While there will not necessarily be a set deadline for submitting AMSC applications, applicants will need to ensure there is sufficient time to secure the necessary AMSC approval(s), discharge any other pre-commencement requirements and commence development within the 5-year period. The timescale could become challenging where, for example, multiple AMSC applications are required, an AMSC appeal is submitted or an AMSC application/appeal is refused.
Developers may therefore wish to consider making a start on AMSC applications earlier than they currently would and/or consider requesting for the default periods to be extended more regularly.
One point to note is that the time period for commencing development will now, or rather again, be in a condition, or deemed condition, meaning that it will be possible to submit an application under section 42 of the 1997 Act to vary the timescale for commencing development. This change is likely to be welcomed by developers as section 42 applications are not currently subject to formal pre-application consultation requirements.
There is no doubt that the changes to be introduced by the 2019 Act will simplify and clarify the issue of when development must commence under a PPP. However, that simplicity comes at a potential cost to developers of a shortened timescale in which to commence development, at least under the default timescales. Developers will also become more dependent on the efficient processing and determination of AMSC applications and appeals, as the timescale for commencement of development is calculated from the original grant of the PPP rather than the determination of any AMSC.
It will therefore be no surprise to see developers requesting that the default timescale is extended when planning permission is being granted or subsequently submitting applications under section 42 of the 1997 to extend the time period in which to commence development.
For further information on this topic please contact Mark McMurray at CMS Cameron McKenna Nabarro Olswang LLP's Glasgow office by telephone (+44 141 222 2200) or email (email@example.com). Alternatively, contact Robin Hutchinson, June Gilles or Keith Campbell at CMS Cameron McKenna Nabarro Olswang LLP's Edinburgh office by telephone (+44 131 228 8000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The CMS Cameron McKenna Nabarro Olswang LLP website can be accessed at cms.law.
This update has been reproduced in its original format from Lexology – www.Lexology.com.
Article co-authored by Megan O'Neill
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