Modern Methods of Construction: Pitfalls of the Planning System

The planning system can often be a challenging obstacle for developers to negotiate.  For developers wishing to incorporate modern methods of construction (MMC) into a specific project, the planning system can give rise to additional pitfalls.

MMC includes a wide range of construction methods, from process and productivity improvements to off-site volumetric construction.  The planning system is likely to present more significant issues for off-site forms of MMC.

Where developers intend to use MMC in their project and are considering either acquiring a site with the benefit of planning permission or are intending to secure planning permission themselves, we recommend they engage early with the local planning authority to ensure the authority is supportive of the proposed form of MMC to be used.

Local authorities

Many authorities have in place local planning policies that may be at odds with certain forms of MMC.  For instance, authorities may have in place policies relating to the creation of construction apprenticeships or a requirement for labour to be procured locally.  Such policies may well conflict with certain forms of MMC, such as volumetric construction where the units will be manufactured outside the relevant authority's administrative area. 

Other authorities may have policies that, although not necessarily at odds with MMC, they will need careful consideration as to how (and, indeed, if) they can be incorporated into the construction process, for example policies requiring the use of locally sourced building materials. 

Section 106

Local planning policies will usually be given effect either through the conditions of the planning permission or by securing them as planning obligations in a Section 106 Agreement. 

Planning conditions may require certain details to be approved at various stages of the project, e.g. prior to commencement or prior to occupation.  Where the local planning authority refuses approval, it is possible to appeal; however, doing so will introduce delay and uncertainty.  If the condition itself specifies details that conflict with the proposed form of MMC, then the condition will need to be varied so that the development can be carried out. 

Planning obligations contained in a Section 106 Agreement can be varied by negotiation with the local planning authority.  Where a Section 106 Agreement is at least five years old, it is possible to formally apply for a planning obligation to be varied and, in these circumstances, there is a right of appeal if the authority refuse the application. 

Specialist advice

The specialist lawyers in our Planning & Environment Team can advise you whether a planning permission is "MMC friendly".  Our specialists can also advise you on all aspects of MMC, including issues relating to warranties, contract issues and finance. 

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