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14th May 2020

Changes to planning system introduced as part of the Government’s plan to re-start the housing market

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The Housing Secretary has published a series of measures to get the country building homes again, including a number of changes to the planning system. The measures are intended to keep the planning system moving as much as possible during the Covid-19 pandemic, so that it is able to play its full part in the economic recovery to come, at both national and local levels.

Deferred CIL Payments

The current circumstances have highlighted the inflexibility of the Community Infrastructure Levy regulations. The Community Infrastructure Levy (‘CIL’) is a charge on new floorspace authorised by planning permissions. Liability to pay CIL arises on commencement of the development and the standard payment period is 60 days. If the local authority has an instalment policy in place, then CIL is payable in accordance with that policy. Otherwise, there is no ability within the framework of the legislation that permits CIL payments to be deferred.

This will impact considerably on developer cash flows where build out rates have slowed and may lead to viability issues in the longer term. Therefore, the Government has said that they will introduce amendments to the Community Infrastructure Levy Regulations 2010 to enable charging authorities to defer payments, to temporarily disapply late payment interest and to provide a discretion to return interest already charged where they consider it appropriate to do so. However, this will only apply to small and medium size developers with an annual turnover of less than £45m. It also relies on individual authorities to make use of the changes, rather than imposing a general deferral on a national basis.

For larger developers, CIL charging authorities are encouraged to explore existing flexibilities that are available, such as the ability to allow the levy to be paid in instalments. However, any new instalment policy will only apply to chargeable developments (or phases of developments) commencing after the new policy comes into effect. The Government has also encouraged local authorities to exercise their discretion in terms of the enforcement of CIL and the imposition of surcharges.

Similarly, local authorities are encouraged to exercise their discretion when it comes to s106 obligations; where the delivery of a planning obligation, such as a financial contribution, is triggered during this period, local authorities are encouraged to consider whether it would be appropriate to allow the developer to defer delivery and a Deed of Variation can be used to agree these changes.

Flexibility for Publicising Planning Applications

There will also be new temporary regulations allowing local planning authorities flexibility in publicising planning applications if they cannot discharge the specific requirements for site notices, neighbour notifications or newspaper publicity. This is to support timely decision-making and avoid delays to development as a result of the pandemic. The difficulty at the moment is that it is practically more difficult for applicants and local authorities to arrange for paper notices, and it is also less likely that people will see notices due to restrictions on movement. Accordingly, the new provisions will allow the use of social media and other electronic communication. In particular, if local newspapers are not circulating in their area, authorities should seek to use local online news portals. Council mailing lists, Facebook and Twitter, the local authority’s website, weekly press bulletins and informing local neighbourhood and community forums by email are also mentioned in the guidance.

Flexible Construction Site Operating Hours

The Government’s announcement also said that there would be changes allowing builders to agree more flexible construction site working hours with their local council. This is to “make it easier to follow public health guidance onsite and stagger builders’ arrival times, making public transport less busy and so reducing the risk of infection”. Local authorities will be expected to approve requests to extend construction working hours temporarily until 9pm, Monday to Saturday, unless there are very compelling reasons against it.

Most planning permissions will have a condition that limits the hours during which construction work can take place. Developers wishing to amend their conditioned construction working hours are encouraged to contact their local planning authority. They will then say whether they are happy to agree amended working hours informally, or whether a formal application is required. It is suggested that the latter is more appropriate where long or more significant changes to working hours are required, and it is expected that decisions should be issued within 10 days. Applicants are encouraged to consider the potential impacts of their request and put forward plans to manage concerns. Local planning authorities are expected to be supportive of reasonable requests and only reject proposals where there are very compelling reasons, such as the impact on neighbouring businesses or uses which are particularly sensitive to noise dust or vibration.

At the moment, many of these proposals are quite unclear and we can expect to see further details and announcements from the Government over the weeks to come.

For more information regarding these changes and planning law generally, please contact Gemma Dudley on 01223 532747 or click here to email Brendon.