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“You shall complete your development”

Thu 16 Feb 2017

A previous DCLG report titled "Completion Notices" stated a common reason for a local planning authority to use a completion notice (sometimes referred to as Development Completion Notices) was to improve the visual amenity for a site but were rarely used due to the lengthy timescales associated with the process. Is this about to change?

1.    Current regime

Completion notices (sometimes referred to as Development Completion Notices) (CN) can be used by local planning authorities (LPA) to encourage completion of a development which may have stalled.

A CN operates by withdrawing a planning permission to the extent that it has not been implemented. A CN does not require completion of a development.

A CN must be served by the LPA and then the Secretary of State (SoS) must confirm it before it takes effect.

a.     LPA Service

If the LPA are of the opinion that the development will not be completed within a reasonable period, it has the power under s94 of the Town and Country Planning Act 1990 (the Act) to serve a CN stating that the planning permission for that development will cease to have effect at the expiration of a further period as specified in that notice (the Specified Period). 

The Specified Period cannot be less than 12 months after the CN takes effect.

Any notice must be served on the owner of the land; the occupier of the land; and any other person the LPA thinks will be affected by the notice.

A completion cannot be served until the time limit for commencing the planning permission has expired (be that 3 years or as otherwise specified by a planning condition)

However, a CN will not take effect unless confirmed by the SoS pursuant to s95 of the Act, meaning the Specified Period does not run from the date of service by the LPA.

b.    SoS confirmation

‎A CN will not take effect until it is confirmed by the SoS.

The SoS has the power to substitute the Specified Period for a longer term if it wishes.

Before confirming the CN, the SoS must give all those who were served the CN (including the LPA) the opportunity to be heard. A period of not less than 28 days from the date of service must be given for a hearing to be requested and this will likely be contained in any CN when served.

If the CN is confirmed, the Specified Period (or such other period as decided by the SOS provided it is a minimum of 12 months) will begin and the‎ planning permission will cease to have effect from the expiry of that period. 

Any work carried out prior to the CN taking effect is not affected provided it complies with the planning permission. This means that if the development remains partially built, the LPA cannot require the removal of the partially built development as that remains authorised by the planning permission. Any work carried out after the CN takes effect will not be covered by the planning permission and the LPA can take enforcement action on those works if no new planning permission is obtained.

The confirmation of a CN can be challenged on a point of law under sections 284‎ and 288 of the Act (validity of the SoS decision). Any challenge must be made within 6 weeks of confirmation of the CN.

2.     Government proposals

‎The Government’s White Paper “Fixing our broken housing market” was released on 7 February 2017.

Paragraph 2.42 notes the Government's intention to "simplify and speed up the completion notice process" by making it easier for LPAs to serve CNs and help stimulate development.

In the proposed consultation questions annexed to the White Paper, there are 2 of relevance to CNs which provide an insight into the Government's proposed changes:

(a)   The first is that it proposes to amend legislation to remove the requirement for the SoS to confirm a CN before it can take effect. This removes central government involvement and addresses the issues associated with the length of the process.

(b)  The second is that it wishes to amend legislation to allow an LPA to serve CN before the time limit for commencement a planning permission has expired, but only where works have begun. The reasoning behind this is that it could dissuade developers "making a token start on site purely to keep the permission alive". 

‎Of course the overriding issue that remains is that a CN does not require completion of a development; it simply removes the planning permission after the Specified Period. 

If the Government is trying to ensure delivery of housing (i.e. secure a development from start to finish), the proposed changes do not necessarily prevent partially built sites from being completed as the result of a CN is that once it takes effect, there is no planning permission for the outstanding work if the Developer is unable (for commercial or practical reasons) to complete the development within the Specified Period (i.e. there is still the potential for sites not to be delivered).

 

 

Karen Cooksley
Partner
T. +44(0) 7593 5182

E. kcooksley@wslaw.co.uk

 

Matthew Steinbrecher
Solicitor
T. +44(0) 7593 0374

E. msteinbrecher@wslaw.co.uk


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