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Last edited 19 Oct 2020
Design and build: planning permission (design by contractor)
Planning permission is a vitally important part of most projects, often making the difference between proceeding to design or not. Many clients will be unwilling to commit to paying fees for detailed design until they have received planning permission, and on particularly high risk projects, the client may even wish to obtain outline planning permission before committing to any significant expenditure. As a consequence planning permission can be applied for at different stages of the project's development.
The allocation of risk for planning permission is an important consideration on design and build projects. Where the contractor is applying for planning permission, delays in obtaining permission (which the contractor has taken reasonable steps to avoid) may be grounds for an extension of time and claims for loss and expense. Delays may even become grounds for termination if they result in the works being suspended.
 Assessing the type of application
If it is not specified in the employer's requirements, and no previous application has been made by the client, the contractor considers whether to make an outline planning application or detailed planning application.
Where this has not already been done, the contractor considers the likely need for an environmental impact assessment. They may seek a screening decision and or a scoping study from the local planning authority. If necessary, the contractor prepares an environmental impact assessment.
The contractor consults with the local planning authority (and other appropriate statutory consultees) to determine the preferred form of the application, dates of planning committee meetings, committee procedures, possible planning conditions and possible planning obligations (section 106 agreement), the community infrastructure levy and the requirement to undertake an external consultation process.
The contractor considers the cost effects of statutory requirements and other requirements, including possible planning conditions and planning obligations (section 106 agreement) and, if necessary, amends the design.
The contractors consider the extent and nature of the external consultation process that will be undertaken and then begins an external consultation process. The contractor then considers the results of the consultation process and, if necessary, amends the design. If changes are required to the employer's requirements in order to obtain planning permission, this may result in adjustment of the contract sum and a claim for extension of time by the contractor.
 Preparing a planning application
NB: Comments that require change instructions (i.e. they go beyond pointing out inconsistencies between the design and the employer's requirements), must be consented to by the contractor (although this consent may not be unreasonably withheld) and may result in an adjustment to the contract sum and a claim for extension of time.
 Submitting a planning application
The contractor consults with the local planning authority on the progress of the application and likely planning conditions and planning obligations (section 106 agreement). If necessary, the client and contractor respond to questions from the local planning authority and make representations to the planning committee.
On receipt of a decision (or recommendation in the planning officers' report) the client and contractor consider the planning conditions and planning obligations (section 106 agreement) that have been, or are likely to be, imposed and, if necessary, amends the application.
NB: Comments that constitute change instructions require the consent of the contractor (although this consent may not be unreasonably withheld) and may result in an adjustment to the contract sum and a claim for extension of time.
Once received, the contractor passes the planning permission (along with details of any planning conditions or planning obligations) to the client. If necessary, a planning appeal may be made against the planning authority decision.
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