Planning: Current State of Play #2 

The response to Coronavirus (Covid-19) at all levels of government continues to evolve.

There is a real need for flexibility in the planning system to ensure that the impacts of the pandemic are minimised as far as possible. Technology such as video conferencing is already providing solutions to some issues. As always, these solutions need to be carefully considered by all stakeholders, including LPAs, to allow the planning system to continue functioning as efficiently as it can in the circumstances, ensure proper consultation where required and manage judicial review risk.

This update follows the same format as our initial Law-Now article posted on 19 March 2020 for ease of reference but we have tried not to duplicate content.

The Prime Minister’s announcement yesterday evening (23 March) of additional measures to seek to minimise the spread of the virus and assist the NHS will have additional impact and adds further impetus to the need to switch to remote working solutions throughout the system.

Government

The Ministry of Housing Communities and Local Government (“MHCLG”) is considering a potential relaxation of the rules around the making of local authority planning decisions to accommodate remote participation and voting. The use of technology to allow public participation is also being considered. Public participation is a cornerstone of the planning system and we would expect the Government to be very cautious in taking steps which could dilute that principle. A new clause was, however, inserted into the Coronavirus Bill last night. The clause is general in nature and confers power on the Secretary of State to make regulations in relation to specified local authorities. It could be used to remove requirements to hold annual meetings or to allow virtual meetings for example planning committee meetings. It may only be used in relation to meetings taking place before 7 May 2021. The next few days may show how this provision can be used in a planning context and we are monitoring developments.

We also believe that MHCLG is investigating the possibility of an amendment to the General Permitted Development Order 2015 to allow for developers to apply for an extension of time for implementation of planning permissions in order to prevent lapsed consents. This flexibility would be invaluable for developers in these uncertain times and a similar approach was taken in the global financial crisis.

The pandemic could affect implementation of planning permissions in a number of ways:

• physical implementation works may become difficult due to staff shortages in the construction industry;
• implementation may not be commercially viable at this time; and
• local planning authorities may not have the available resource to allow for discharge of pre-commencement planning conditions.

Difficulties with implementing planning permissions (whether potential or current) are already causing issues for some of our clients. This is not just where a permission deadline is looming and there are issues around local authority manpower but also for clients who are in the process of obtaining or providing development financing. Typically, drawdown of funds is linked to milestones such as lawful implementation of the planning permission. Each case needs to be looked at individually, but the potential ramifications and commercial implications will need to be considered by lenders and developers alike. Where local planning authority resource is an issue deemed discharge notices may present a solution. The process is subject to exemptions so will not provide a solution in every situation. This relatively rarely used mechanism may be used more in the coming months.

PINs

PINs has now postponed all planning appeal hearings and inquiries until at least the end of April. As of 24 March 2020 all previously arranged site visits are cancelled with immediate effect. No PINs staff are currently working at the Bristol or Cardiff offices and PINs have asked that parties do not send hard copy appeal forms or evidence by post. Submissions should be made via the online appeals casework portal.

Although it is understood that PINs is considering the feasibility of remote solutions, they have cited “the need to ensure fairness for all parties” as a potential obstacle. In response, barristers at Landmark chambers have outlined a temporary procedure by which the postponed hearings may be dealt with in a manner that ensures fairness.

• This would involve the Inspector identifying the main issues based upon the written material submitted and then holding various remote hearing sessions specific to those issues.
• A final remote hearing session would then be held in which any interested person (whether or not they have made representations) can give representations on the development.
• The hearing sessions could be streamed online.

A combined team of Kings Chambers and No 5 Chambers barristers have also submitted a set of proposals to PINs, PEBA and MHCLG, regarding how video conferencing tools could be used successfully to accommodate planning appeal inquiries.

These potential solutions will need to be assessed and we are following the debate and will provide updates as and when solutions emerge.

High Court

The latest guidance for civil cases (including planning cases) is that remote hearings should be used wherever possible. Hearings requiring the physical presence of parties and their legal representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety. The Court’s guidance has not been updated since the Prime Minister’s announcement yesterday (23 March) so there may be a further move away from hearings with the parties physically present.

The Lord Chancellor has authorised that in certain cases the fee can be waived to adjourn a civil hearing for reasons related to coronavirus. However, where possible the hearing should take place remotely and the application would be expected to explain why this is not possible.

The Planning Court is still accepting the filing of applications for judicial review in the usual way, subject to the usual time limits. There is no suggestion yet that electronic filing will be permitted where it is not already possible but given the Prime Minister’s announcements yesterday evening (23 March) this may need addressing soon.

GLA

The GLA has not yet issued any formal information as to how its planning functions may be affected by the pandemic. We will monitor the position but this is not surprising given the many other pressing priorities the Mayor is addressing in the current circumstances.

Historic England

Historic England’s offices are closed but staff are working from home. This may impact the timeframe in which consultation responses are issued.

Local authorities

Local planning authorities continue to respond to the pandemic in different ways. This is understandable given the lack of clear guidance from the MHCLG to date. With local authorities focusing all of their efforts on the pandemic response, non-critical decisions may be delayed to allow for focus on critical service delivery.

• Westminster has asked that all enquiries be made via email and if required telephone. Site visits requiring face to face contact are also cancelled until further notice and photographic evidence can be submitted in lieu. Face to face meetings and consultations will not go ahead until further notice and online and telephone solutions will be used where possible.
• Edinburgh has taken similar steps with its consultation events relating to the City Plan 2030 cancelled and those planning to attended have been directed to the online consultation platform.
• Manchester’s website indicates council meetings are going ahead as usual but it is inevitable that this will change following the Prime Minister’s announcements yesterday evening (23 March).

Some local planning authorities, such as Windsor and Maidenhead, are now looking to delegate all planning decisions to officer level with all planning committees cancelled. Where officers are available this will help to keep applications moving through the planning system.

Following the Prime Minister’s announcements last night (23 March), it may no longer be possible for Council officers to go into the office to seal hard copy documents such as S106 agreements or other agreements. Whilst e-signing presents a possible solution, this will not be possible in all cases as the existing procedures in place at local planning authorities do not typically allow for it. We understand that several local planning authorities are urgently reviewing their sealing procedures following the recent government advice.

The planning practice guidance already allows a level of flexibility which may be a solution in some cases. In exceptional circumstances a negatively worded condition requiring a planning obligation (i.e. a S106 agreement) to be entered into before certain development can commence may be appropriate where there is clear evidence that the delivery of the development would otherwise be at serious risk. This would allow developers the certainty of an issued planning permission whilst allowing the local planning authorities to ensure the appropriate controls are in place. This is a potential way forward but will need to be assessed on a case by case basis taking into account, amongst other factors, the stage reached in negotiation of the agreement and the availability of delegated powers for the local authority.