Planning matters

We are in uncharted territory as we navigate the challenges of the COVID-19 pandemic: both personally and professionally. The most pressing impacts obviously aren’t related to planning; other than of course the wider business-related concerns that is hitting all sectors of the economy. But in the interests of keeping the development show on the road and ensure the country is ready and able to mount a sustainable recovery, we will need to consider the pandemic effects on planning both now and in the future.

This short blog highlights some of the current and upcoming challenges we face. Obviously, the picture is moving fast so we may update as time goes on. 

Planning revolves around fixed points in time. The date of a planning permission, the date to submit reserved matters, the date a permission expires, the timing to discharge a condition, the timing of a S106 payment. These dates are crucial to how planning functions. Obviously, these are now all up in the air with the current pandemic raising major practical headaches for the development industry, with various housebuilders mothballing sites.

Developers could be unable to implement permissions and have to reapply. They may not be able to submit reserved matters applications in time. The cashflow of companies is a wider business issue but conceivably some developers may not be able to meet certain S106 obligations if they are linked to points in time rather than a stage of development. There could also be complications with complying with relevant conditions; such as those that require certain assessments to be undertaken within prescribed times.

Simon Ricketts blog considers these points in far more detail where he calls for a number of short-term measures such as extending all planning permission time limits and is well worth a read. After the financial crisis of 2008 it took until October 2009 for new powers to be introduced to extend time limits on permissions; let’s hope action is swifter this time round.

Scotland is leading the way on extending planning permissions. The Coronavirus (Scotland) Bill 2020 includes the provisions, which (if enacted), would extend the life of planning permissions and permissions in principle that would have otherwise lapsed during the “emergency period” by a year. There is nothing as yet with regards to England, Wales, or Northern Ireland.

Every LPA works in its own way; but the pandemic has created a real patchwork of planning functionality. The practical realities of home working are proving difficult for many authorities. Each is having to make an assessment of what services it can offer based on its IT systems ability and obviously rapidly changing Government guidance.

On IT, some LPA planning teams have work laptops or can at least remote access in (subject to the reliability of those systems). Here there should be some continuity in terms of planning function (i.e. the ability to progress applications). Others have a far more limited supply of pool laptops and, where these are not available, may only have very basic remote functionality. Some teams have mobile phones, some are able to have calls redirected, but this is not universal. It is likely that as time goes on the IT capability of LPAs will increase, especially with the wider use of services such as Microsoft Teams and Zoom, but it will take time.

Obviously, face to face meetings are off for pre-application meetings and many planning committees have been cancelled or postponed. Some LPAs are already working on emergency powers to enable more delegated decisions: such as RB Windsor & Maidenhead.

But to deal with hiatus with meetings where any sizeable applications or planning decisions must be made, the Government’s emergency Coronavirus legislation includes a provision (section 78) to enable local authority meetings to proceed with people attending, speaking, voting, or otherwise participating without all of the persons, or without any of the persons, being together in the same place.

On plan making, many LPAs appear, for now, to be going ahead but acknowledging there will be some delay. For example, Wokingham BC has given extra time for the submission of representations to its Local Plan Update consultation. Any significant delays to plan making will of course need to be factored in by the Secretary of State, Robert Jenrick, who recently set a deadline of December 2023 for all local plans to be up-to-date.

Overall, the picture is very patchy. If you wish to understand the wider picture as to how LPAs in your area are operating, Lichfields is able to help.

We are continuing to build-up our picture as to LPA functionality. Those with the IT capacity seem to be going ahead ‘business as usual’ in terms of the planning application process (i.e. pre-apps, registering apps, negotiating etc.). Indeed, some are very pro-active; in particular East Riding of Yorkshire. A wider issue we are finding is the ability to start the 21-day consultation period for new applications given planning staff are unable to travel to sites to put up site notices. Obviously, this will delay proceedings.

Committee meetings are still off for now with Council’s still implementing new delegated powers in the meantime. However, committees could start again relatively soon given the Coronavirus Act 2020 includes provision for regulations to be made to allow meetings to occur without members being physically present (i.e. virtual committees).

In a few limited number of cases though some LPAs have had to take drastic action to cope given limited IT and mobile capacity. One example is St Helens Council where staff cannot remote in and the Council is currently buying staff mobile phones. As a result they aren’t accepting new planning applications. Cardiff Council are also not currently registering new applications citing logistical / resourcing / democratic accountability.

Finally, we are aware of some planning department staff being re-assigned to ‘key services’. We aren’t sure of how wide spread this is are but if the crisis continues and re-assignment becomes more prevalent this could further reduce LPA planning functionality.

Currently, appeal hearings are not going ahead but some may be downgraded to written representations. There is a suggestion for virtual inquires to take place and PINS has stated “We are actively considering options to use technology to advance our casework and still achieve open, fair and impartial decisions for all parties in the process, including those proposing development and local communities. We have undertaken some small scale tests using technology over the last week and are engaging with key stakeholders across the sector to work through the remaining challenges together.” There are clear practical issues with this relating to how witnesses can be cross examined when working from home. The latter point is currently being considered jointly by Landmark and No5 Chambers. The reality of home working and childcare could prove a bridge too far, but the Courts Service has already facilitated a hearing in the High Court's Planning Court by telephone.

The focus on PINS and appeal proceedings should not distract from the fact that the bigger issue for housing supply will be getting local authority decision making running smoothly – it is here where the bulk of decisions are made.

Local plan examinations – which typically involve a larger number of participants (often up to 30 in one session) – are off for now – time will tell as to whether there is a feasible way of reconvening these during the pandemic or whether they can revert to written hearing statements (given there is no absolute requirement for public hearing sessions open to all representors).

PINS have confirmed that local plan hearings cannot take place and it is unlikely that they will resume soon. They are considering technological solutions but given the constraints (legal / procedural / practical) this might only be an option in a limited number of cases. In all cases, the discretion is with the Inspector. Inspectors though will continue (where possible) pre and post-hearing stages of examinations but accept there will be further delay. 

Finally, we will see a slowdown in housing delivery as building sites pause development. At present, the advice is that construction sites can remain open (subject to social distancing); as confirmed by the Secretary of State. However, various house builders – including Taylor Wimpey, Barratt and Galliard – have confirmed they will close all construction sites and many builders’ merchants that supply them are shutting down voluntarily. Redrow have also noted that they while their building sites are operating (for now), they are expecting an inevitable drop in sales as their customer base isolate and therefore build out rates will be significantly affected. Whether by builders’ own decisions or should a full lockdown come in to effect there could potentially be no housing delivery for months.

Looking down the line, this will scar LPAs delivery figures for years to come both in terms of the Housing Delivery Test and five-year housing land supply (‘5YHLS’).

On the HDT, this will have an effect (albeit only one or two weeks out of three years monitoring period) on the November 2020 HDT results which cover the period 1^st April 2019 to 31^st March 2020. Depending on the extent of hiatus, it is the November 2021 HDT which will see the greatest impact. We might expect some sort of measure to stop LPAs being unduly punished, for example by applying a temporary proportionate reduction in the 75% threshold used for triggering the application of the presumption in favour of sustainable development.

5YHLS could be trickier to navigate. A lack of delivery in a year could result in a shortfall against planning housing requirements that feeds back in to the 5YHLS calculation for future years. There isn’t an immediately obvious way to deal with this point. 5YHLS is binary in its outcome: it exists, or it doesn’t based on the figures.

However, if a shortfall arises from sites that are temporarily halted, those sites begun should be able to be restarted when the restrictions end (they will not have lapsed), provided the Government acts swiftly to extend the time limits on permissions, and Councils continue to process and make positive decisions on current applications, the stock of implementable permissions may grow but still be able to translate into output sufficiently quickly to address the shortfall. LPAs will need to give this close attention when they next update their 5YHLS positions.

Of course, if an LPA did not have a 5YHLS by virtue of Coronavirus impacts or failed its HDT, this reflects that the housing outcome is one where real households have been denied real homes; it is thus appropriate for the planning system to respond by increasing the focus on boosting supply again. Indeed, this could have an economic imperative too.

Yesterday, the Secretary of State for Business, Energy & Industrial Strategy – Alok Sharma – wrote to the construction sector outlining that construction workers can still travel to their place of work to keep sites building. To help ensure safety new working guidelines have been published by the Construction Leadership Council. However, many builders have already taken the decision to mothball sites as noted above.

The UK Govt position that sites should continue building is at complete odds with that of the Scottish Govt where construction activities are currently banned.

The Local Government Association’s Planning Advisory Service has started a useful Q&A for local government planners here. Added to this the Chief Planner Steve Quartermain CBE has published his planning update newsletter that sets out the Government’s view on some of these points; of note, in what is his valedictory letter, he advises “be practical, be pragmatic, and let’s plan for the recovery.”