The current Coronavirus crisis undoubtedly presents significant challenges for the planning system. It is therefore encouraging to see how the public and private sectors have acted quickly this week to ensure the system continues to operate fairly and efficiently, while taking account of prevailing government advice on social distancing.
This article looks at some of the new measures introduced in response to the Coronavirus and the implications for developers in the short and longer term. The message generally is “don’t stop but carry on” with a planning system that is more resilient and equally transparent and accessible.
The Cornonavirus Act 2020 came into force on 25th March. The Act empowers the Secretary of State to make regulations to include remote participation by Councillors and remote voting and for their vote to be binding. The regulations will presumably also allow changes to the speaking rights at meetings – which could impact both the right of members of the public and applicants to speak – the ability to inspect documents and the frequency of meetings. The provisions are temporary and will end on 7 May 2021. The functionality of holding meetings remotely and then making them available for the public shouldn’t be a big leap at all. Some Councils have already successfully trialled virtual meetings and others will follow.
A number of local planning authorities are also making amendments to their constitutions to allow the department heads to take decisions that would otherwise be taken by Committee, partly to overcome the obvious challenges in the short term in training members to take a meeting virtually and getting protocols in place. The Chief Planning Officer has given a fairly strong steer to give local authorities the go ahead to delegate decisions so that a decision – which would otherwise have been taken by a committee – is now made by the Chief Executive / Head of Service, delegating to officers, subject to the approval of the head of the planning committee and /or with the officer being advised in their decision-making by the views of members of the committee obtained remotely. In most cases the officer would be likely to give overwhelming weight to the views of members even if they did not have a formal and binding vote
The Planning Inspectorate (PINS) this week announced the postponement of all local plan, appeal and NSIP hearings and inquiries until further notice, because of the likelihood of social contact with multiple parties. PINS are still processing written representation appeals and are considering technological solutions with respect to the processing of hearings and public inquiries, for example the use of online or video conferences. While this is not straightforward given the need to ensure fairness for all parties, especially third parties, barristers from chambers we work with have joined together to investigate and test suitable technology to allow this to happen without undermining the principle of a fair hearing. The issues are similar to the Planning committees in maintaining visibility, transparency and public participation. A set of proposals have been submitted to PINS and MHCLG for consideration and we expect more guidance shortly. In the meantime, there might be an opportunity to convert some less complex cases to the written representations procedure.
Planning in the courts
The courts have also considered how to respond to the social distancing requirements. The Lord Chief Justice has acknowledged the “urgent need to increase the use of telephone and video technology immediately to hold remotely hearings where possible” and that the courts “immediate aim is to maintain a service to the public, ensure as many hearings in all jurisdictions can proceed and continue to deal with all urgent matters.” Clauses 53 and Schedule 24 of the Coronavirus Act enable greater flexibility in relation to the use of live video and audio links, with appropriate protections, for a temporary period of two years. Nevertheless there will inevitably be delays in the hearing of planning cases including judicial reviews. Given the restrictions, we suspect it is likely that more judicial review applications might be considered, even where they are submitted out of time. Perhaps in the short term the six week deadline for applying for judicial review will be extended temporarily back to the “promptly and in any event three months” that applies to JR cases other than in the planning sector.
Permitted Development Rights
The government has made clear that all pubs, restaurants and cafes should no longer be open for onsite consumption but can remain open to provide a takeaway service. This permitted development right (PDR) came into force on Tuesday 24 March 2020. The pub, restaurant or café will remain in its current use class during this period. The PDR will be time limited to 12 months. Beyond this time, a planning application would be required for continued use as a takeaway.
In summary, much has been achieved in a short space of time and the public and private sector are no doubt doing their best to ensure continued delivery of service despite the lockdown measures that have come into effect this week. It is clear however there are other immediate issues that will also need to be addressed in order to avoid longer-term impacts, some of which we have highlighted below.
Procedures such as site notification and site visits will need to adapt. Not all local authorities have the tools/software needed and they are having to adapt quickly. Applicants could submit photos and videos, to replace site visits at least in the short term. Planning consultants and public affairs consultants we work with are offering alternatives such as email newsletters and virtual online “exhibitions” to replace face-to-face consultation on applications with residents. Local authorities are looking at everything pragmatically to try to overcome perceived hurdles, allowing certain flexibilities and at the same time minimising the risk of challenge later down the line.
There may be some delays in obtaining discharge of planning conditions. This could be problematic where development needs to commence quickly before a planning permission expires and where a start on site is contingent on the discharge of multiple pre-commencement conditions. The same challenge applies to pre-occupation conditions. Regulations may be required to extend the time in which permissions must be implemented to keep permissions alive beyond the end of the crisis.
Section 106 Agreements
Section 106 agreements may include ongoing financial contributions, or planning requirements with a significant financial impact, that may need to be renegotiated to take into account a project standstill. Perhaps we need to reintroduce the section 106BA power which allowed affordable housing obligations to be removed, where these made the scheme unviable. In the event of an affordable housing shortfall, the section 106 agreement might include an early stage viability review mechanism that requires an uplift in affordable housing in the event the scheme economics improve. The trigger for this review is often linked to two years of the date of grant of planning permission in the event that substantial implementation has not happened within that time. Councils should be encouraged to allow a realistic extension to this period of time to reflect the current situation.
While the situation is changing rapidly, it is encouraging to see the innovative approaches being made to ensure that our planning system continues to operate efficiently but fairly. Planning applications need to continue to be dealt with in a timely way to protect the economy and to deliver much needed housing. Clear messaging, flexibility and collaboration will be key and in this time of necessity everyone must recognise the essential role that technology can play, a message very recently endorsed by the outgoing chief planner, Steve Quartermain in advice to all planning authorities.
Article Written by: Louise Wall