Planning: Current State of Play – Covid-19 #3 

In the last three days the positive planning related announcements by the Government have started to be followed up by legislation.

By and large local planning authority officers and solicitors are settling into home working and we are generally seeing matters progress albeit more slowly than normal. The Courts are embracing the use of video conferencing to conduct hearings.

This update follows the same format as our previous Law-Now updates from 19 March and 23 March 2020 for ease of reference but we have tried not to duplicate content.

Clearly, the unprecedented situation is still causing significant disruption and uncertainty in the planning system. That said, it feels as though the planning system is in a better position than when we issued the first article in this series two weeks ago on the 19 March. It is hoped that a significant backlog of planning applications awaiting determination can still be avoided.

Government

The Coronavirus Act received Royal Assent on 25 March 2020. Section 78 of the Act allows for regulations to be made to allow persons to attend, speak at, vote in and otherwise participate in, local authority meetings without being physically present. The Act also allows for the regulations to change the requirement to hold local authority meetings. Draft secondary legislation pursuant to the Act has now been released. The draft regulations allow remote participation in, and for the rearranging and cancellation of, local authority meetings. Local planning authorities will be unable to change their committee meeting procedures until the draft secondary legislation becomes law, but it looks as though this important flexibility is now close. It is hoped that local planning authorities will use the flexibility proposed by the Government to conduct committee meetings remotely rather than cancelling them altogether.

Steve Quartermain, the Government’s Chief Planner, wrote to local planning authorities emphasising that the planning system cannot grind to a halt due to the pandemic. He urged local planning authorities to take an innovative approach leveraging all the resources available to them to continue to function. The letter did not mention any 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. We understand that this is still under consideration by the Ministry for Housing Communities & Local Government. We do not yet know whether the proposal is solely in relation to planning permissions granted under the Town and Country Planning Act 1990 or whether equivalent provisions will also apply to Development Consent Orders and Transport and Works Act Orders. The Scottish Government’s emergency coronavirus legislation includes provision to allow planning permissions that are due to lapse in the next six months to have their expiry date extended to the date 12 months from the relevant provisions coming into force. There is also provision to allow the Scottish Ministers to amend these periods. This is a sensible solution and we hope equivalent provision is put in place to protect development elsewhere in the UK.

The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 has been made. This secondary legislation allows restaurants, cafes, drinking establishments and drinking establishments with expanded food provision to provide takeaway food until 23 March 2021. Anyone wishing to make use of this permitted development right must notify the local planning authority that they intend to do so. The temporary change of use to the provision of the takeaway food does not affect the use class which the building had before the change of use. The use of the building will revert to its previous lawful use on 23 March 2021 or sooner, if the takeaway food provision ceases. Landlords and tenants should consider the terms of their leases to ensure that there is sufficient flexibility for such temporary changes of use.

PINs

PINs offices remain closed with staff working from home. All staff, including inspectors have been instructed not to travel for work. This means no site visits will be possible.

Site Visits: following the Government’s lockdown announcement, PINs has cancelled all upcoming site visits with immediate effect.

Appeals: no site visits, hearings or inquiries will take place until further notice. PINs is considering the potential for technological solutions to enable events to proceed whilst ensuring fairness for all parties is maintained and in some cases the inspector might invite written submissions. Understandably, PINs are concerned with issues of procedural fairness and the need to ensure adequate public participation in hearings and inquiries. PINs are soon to start trialling virtual inquiries for a select group of decisions which are considered less complicated. Given that planning appeals are a key part of the planning system, it is hoped that these trials are successful and PINs reach a swift decision on the way forward. We are now close to a situation where both local planning authorities and the Planning Court have adopted technological solutions, but a key part of the overall system, PINs, have not.

NSIPs: all hearings and preliminary meetings are postponed until further notice. As the examination is predominantly a written process, PINs is expecting to make good progress here, but where written representations are not appropriate, the Examining Authority may extend deadlines and amend timetables as required. The six month DCO examination period has been extended for the first time in order to accommodate postponed hearings. The extension is in relation to the A38 improvement scheme and is for five months. Examinations where all hearings had been completed, like the Southampton to London Pipeline Project, look like they will still complete on time.

Local Plan Examinations: Updated guidance has postponed all local plan hearings until further notice. Although PINs is considering whether technological solutions might allow some hearings to go ahead, it has accepted that due to the number of participants, the right to appear before and be heard by an examiner, and the structure of the hearings, this is going to be practically difficult in the majority of cases.

As always, but in these testing times more than ever, there needs to be a balance between delivering much needed development and ensuring public participation and procedural fairness. Hopefully PINs can find a technological solution that balances these needs and progresses their vital casework.

High Court

The Civil Procedure Committee has notified stakeholders the Civil Procedure Rules are likely to be updated soon to allow the Courts to better adapt to the pandemic.

A new Practice Direction 51Y on Video or Audio Hearings in Civil Proceedings has been issued. This direction clarifies how the Court may exercise its discretion to conduct hearings remotely in private, and outlines the steps the court may take to ensure public access to these hearings (by recording them).

HMCTS has released updated guidance to confirm how social distancing can practically be implemented in courts where physical attendance is required. Whilst the Planning Court remains open for essential hearings, we would not generally expect physical attendance to be required at Planning Court hearings, given the provision for remote hearings.

The early signs are that the provisions for remote hearings are working well. Cornerstone Chambers have reported that the Planning Court heard, for one of the first times, a substantive judicial review hearing via Skype on 24 March. Six people dialled in from different locations. Judgement was reserved. This follows a report that a Planning Court judgement was handed down by teleconference last week and that the costs dispute and application to appeal were dealt with on the call.

From a practical perspective, the relevant Court Offices for the filing of applications for judicial review have now closed. All claims must now be lodged electronically. The issue date will be the date that the email to the Court filing the claim is received. However, due to staff shortages at the Court we understand there is a delay in issuing sealed claim forms for service. Court deadlines for issue of claims cannot be, or are very rarely, extended and so must be adhered to regardless of the complications caused by the ongoing pandemic.

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. London local planning authorities are still referring schemes to the Mayor where appropriate but the timescales for decision making are unknown.

The potential issues around implementation of planning permissions raised in our previous update has additional nuances for schemes in London which are subject to an early stage viability review if the permission is not implemented within a specified timeframe (usually 2 years). Whilst there will be logistical difficulties in carrying out a review due to the ongoing disruption, it is possible that the result of the review will be to the developer’s benefit, particularly in the rare scenario the review is not upwards only given the economic uncertainty which is accompanying the pandemic. Developers should therefore carefully consider the terms of their S106 agreements and may wish to insist that reviews take place where possible.

Local authorities

There has been a significant increase in the use of delegated powers to determine planning applications. This is a sensible temporary response to the obvious difficulties in holding planning committee meetings in the present circumstances until the secondary legislation to allow committee meetings to take place remotely comes into force. Manchester City Council have delegated the power to decide planning applications to the council chief executive, the planning committee chairperson, and the deputy chairperson. They will determine applications based on what the director of planning recommends. Similar delegated powers are in place in Brighton, Croydon, Waltham Forest and the East Riding of Yorkshire and many more.

Luton DC held its most recent planning committee virtually (in part). This demonstrates how local planning authorities are adapting to the most recent government advice within the confines of their constitutions. Three councillors physically attended the meeting, to meet quorum requirements, while maintaining social distancing inside the chamber. The meeting was broadcast on Skype allowing other councillors to take part remotely. Applicants submitted written representations, rather than speaking. No members of the public took part in the meeting (none had requested to attend and the applications were generally uncontroversial).

The Local Government Association has issued advice in the form of Q&As for the benefit of council planning departments. The advice emphasises that the development management system cannot be allowed to grind to a halt and identifies areas of difficulty for local planning authorities such as:

• The obstacles to complying with Statements of Community Involvement and local plan/planning application consultations; and
• Site visits will not be going ahead as a matter of course and it is hard for councils to put up site notices.

The Local Government Association is encouraging councils to extend deadlines and publish regular updates to maintain transparency (especially as regards consultation), and to continue dealing with planning applications as best they can.

In response to the difficulty with putting up site notices, some local planning authorities have stated that they will not put up site notices and have asked applicants to do this instead. Whilst this is a sensible solution, there are still difficulties with this approach as in some cases there may be insufficient numbers of people seeing the site notices to constitute adequate publicity of a scheme. It is possible that there may be arguable grounds for challenges to schemes on this basis. A sensible precaution would be to re-display notices once the ‘lock-down’ period is over if the determination timetable allows it.

It is common practice in the planning system for deeds and other planning agreements to be circulated between the various parties until all the signatures are collected and the agreement can be completed. However, in view of the disruption caused by pandemic, we are seeing some willingness by local planning authorities to execute engrossments in counterpart. This may help to avoid delays caused by the pandemic due to remote-working away from offices and potential disruption to delivery services. Although execution in counterparts will not resolve difficulties around physical execution of documents by both developers and local planning authorities, in our recent experience, whilst the process is taking longer than usual, it is still possible for s106 agreements to be completed and planning permissions issued.