The Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 have come into force.
These regulations provide additional flexibility over how notice of planning applications is given to the public and change requirements for where application documents are to be made available.
The regulations are designed to help to reduce delays to development and provide much needed clarity to both developers and local planning authorities on how to publicise applications whilst social distancing continues. The regulations apply to England only. The regulations are time limited and will cease to have effect on 31 December 2020.
Whilst helpful, the new arrangements only apply where traditional methods of publicity are not reasonably practicable as a result of the lockdown. There is an element of shutting the door after the horse has bolted here as in our experience many local planning authorities have found ways to work within the usual rules around consultation and site notices during the pandemic and their ability to do so is likely to improve as the country comes out of lockdown. For those authorities it may now be difficult for them to say that those methods are not reasonably practicable and so it awaits to be seen how widely these new temporary rules will actually be used.
The changes apply to the following types of application:
- applications for planning permission made to local planning authorities (including an application for environmental impact assessment (EIA) development accompanied by an environmental statement)
- applications for listed building consent
- applications for variation or discharge of conditions attached to listed building consent
- applications for planning permission affecting the setting of a listed building or the character or appearance of a conservation area made to local planning authorities
- applications made by local planning authorities to the Secretary of State for listed building consent for the demolition, alteration or extension of a listed building
- applications for planning permission or a subsequent application for EIA development which has been made without an environmental statement, where the applicant proposes to submit such a statement
- submission of further information to supplement an environmental statement
The temporary changes set out in the regulations allow for local planning authorities to provide notice of an application via website, provided that they take reasonable steps to inform persons who are likely to have an interest in the application of the website, on which notice of the application can be found where the traditional methods (site notice, notice in a local newspaper or serving notice on adjoining owners or occupiers) are not reasonably practicable due to the effects of coronavirus (including restrictions on movement). Where local planning authorities are able to give notice by a ‘traditional method’ they must do so, rather than relying on use of the website.
The Planning Practice Guidance suggests that the reasonable steps taken to inform persons who are likely to have an interest in the application can include the use of social media and communication by electronic means. The steps taken must be proportionate to the scale and impact of the development.
Communication by electronic means might include:
- using social media such as Facebook and Twitter
- using the local authority’s website
- using local online newspapers
- issuing a weekly press bulletin
- informing local neighbourhood forums and parish/town councils by email
- informing local community, amenity and environmental groups by email
Persons who are likely to have an interest in the application include those who live or work in, or otherwise have a direct connection with, the area in which the proposed development or works are situated. Depending on the scale and impact of the proposed development, these persons may include community groups and specific interest groups (national as well as local in some cases) who may wish to provide representations on the application.
The planning practice guidance suggests that greater and more frequent publicity will be appropriate where the potential impact of the planning application is expected to generate a large volume of representations. The standard time period for the making of comments on a planning application has been extended from 14 to 21 days. The period of 30 days for EIA applications has not been changed.
The regulations have also amended the usual requirements for hard copy planning application documents to be available for inspection. Local planning authorities are now able to make applications available for inspection via the internet, only where physical inspection is not reasonably practicable for reasons related to the effects of coronavirus.
The changes will be of particular interest to applicants for EIA development. Under the EIA regulations, if an applicant submits an environmental statement after the planning application has been submitted, responsibility for publicising the environmental statement falls on the applicant. Applicants also benefit from the additional flexibility outlined above in this scenario. Applicants must certify the reasonable steps taken to publicise the environmental statement. Similarly, if making a hard copy environmental statement available for inspection at a public address is no longer reasonably practicable for reasons related to coronavirus, then the environmental statement can be made available online for inspection.
Whilst the flexibility in the regulations will be helpful in some cases, it has likely come too late for many local planning authorities. Given most local planning authorities have been able to continue consulting on and publicising applications through lockdown using ‘traditional methods’ it will be hard now the restrictions are being lifted for these local planning authorities to now claim that it is now longer reasonably practicable to use these methods. For this reason, the ‘traditional methods’ may well continue to be used in most cases. In this respect, an opportunity to further digitise the planning system has perhaps been missed.
As lockdown begins to be eased, the key question for developers and local planning authorities who make use of the provisions will be how they demonstrate the traditional methods are not reasonably practicable and at what point will it become reasonably practicable to put up site notices and/or make copies of documents available for inspection at a publicised place.
As is always the case where a reasonableness test applies, there is the danger of challenges being brought looking at whether decision has been properly made. In this sense, whilst the flexibility is welcome, there still exists a significant grey area around the new approach and when it can be used.
Proper consultation is at the heart of the planning system and parties will need ensure any decisions to use the new temporary procedures are well supported and evidenced to reduce the risk of successful challenge.