Alison Bembenek & James Fennell
05 May 2020
This is the second in a series of blogs about the future of the High Street. The planning industry is talking with a much louder and coordinated voice these days and recent attention has been focussed on the Government’s response to COVID-19 on the planning front. With more announcements almost certainly around the corner this blog provides a round-up of the situation as it stands.
The Government has acted swiftly to introduce new legislation to aid the continuation of local authority decision making, and this is obviously welcomed. Due to provisions in the Local Government Act 1972, councillors are unable to vote in committee meetings, unless physically present. However, section 78 of the new Coronavirus Act 2020 temporarily allows for secondary legislation to be made, enabling remote access to local authority meetings during the current lockdown and to 7 May 2021.
The law now allows meetings to take place with attendees able to participate and vote remotely, however, local technical capabilities differ. Our web-based tool Business as (un) usual, undertaken in conjunction with the Planning Advisory Service, has become the go to resource about how local planning authorities are responding. It demonstrates that many have acted expediently to put alternative arrangements in place. However, many decisions are still set to experience delays in the process whilst technical and procedural details are resolved.
The amendments needed to enable remote planning committees, perhaps shines a spotlight on old-fashioned governance and decision-making system that underpin the planning system. A wider review is needed going forward to make a virtue of the changes that have been thrust upon us but one which ensures local democratic processes are upheld. Recent press reports have shined a light on Manchester City Council – no sooner than then the Council puts new processes in place to ensure important decisions continue to be made concerns are raised about the democratic legitimacy of delegated decision-making on important developments, notably in that story on the new arena proposal next to the Etihad Stadium.
The Government also acted quickly to provide guidance to Chief Planners on the continuity of planning services during the COVID crisis. The situation varies from council to council - most local authority planners are able to work remotely from home and are continuing to hold pre-application discussions remotely but the situation varies. Business as (un)usual gives you the up to date picture.
From a more practical perspective, new temporary permitted development (PD) rights have been introduced by Government to allow change of use from pub/restaurant to hot food takeaway. These regulations introduce Class DA to the Order, a new permitted change of use allowing for A3 restaurant and A4 drinking establishments, to change to takeaway food, including A5 Uses. The new PD right will also cover Class AA drinking establishments with enhanced food provision, as defined within Part 3 of the GPDO. The new PD right will remain in place until the end of 23 March 2021. Those making use of the new PD will need to notify local authorities at any time prior the temporary PD right coming to an end.
The new PD right does not override any conditions that have previously been attached to a permission, such as those restricting the sale of certain goods or services. However, MHCLG’s Chief Planner advised in his planning update newsletter that local planning authorities should use their discretion over “the enforcement of other planning conditions which hinder the effective response to COVID-19.” Again, the flexibility introduced by Government at this time is welcomed.
The Planning Inspectorate (PINS) has postponed the site visits, hearings and inquiries that would normally be undertaken as part of its appeal and Nationally Significant Strategic Infrastructure Project caseload. PINS has announced in its April 2020 statistical release that it expects to hold its “first fully ‘digital’ hearing on 11 May". Further digital hearings and inquiries will be held in May and June “with a view to scaling up digital events further over June/July”. And a way forward is to be sought for postponed cases, by either tradition, digital or a combination of the two.
A trial of ‘virtual site visits’ with a small group of inspectors has started and according to PINS April 2020 statistical release, on 23 April 26 appeals were progressing through the experimental virtual site visit process. A review by PINS has concluded that based on a sample, “up to 25% of appeals may be eligible to proceed without a site visit” and “from a sample of 60 hearing appeals there is a possibility that 10 could proceed by the written representation route”. Again this is welcomed but progress seems a little slow but if its slow but sure and this potentially leads to permanent improvements which speed up the process we must bear with it.
There is a similar situation with the postponement of examination hearings with the consequent effect this is going to have on the timetables for the adoption of Local Plans in the future. Whilst some delay is unavoidable, the potential length of those delays and how the backlog will be dealt with is now starting to become a cause of increasing concern. PINS must give the development industry some reassurance of the likely extent of any backlog that is emerging and how this will be managed in the future.
The quick-fixes introduced show that the Government can respond quickly to help ensure that planning adapts to the difficult circumstances we find ourselves in. The Government must follow the lead of others in bringing forward primary legislation to extend the life of planning permissions due to expire in the next year. Legislation to reduce the impact of CIL payments on developments that cannot be completed and/or occupied is also essential.
Currently, most planning permission expire after 3 years from granting of full planning permission or 2 years from final approval of reserved matters for outline planning permissions, unless longer time periods were granted by the local authority. Many planning permissions due to expire this year could fall away, given the likelihood of delays at every step of the development process.
Where a planning permission has expired, applicants incur significant costs, especially in situations where local circumstances have changed and development proposals may need to comply with different policy requirements. This may result in previously permissioned development not coming forward at all.
In England the usual mechanisms to amend planning permissions under Section 73 and Section 96A of the 1990 Act do not extend to varying any conditions relating to the time limits of the permission.
It seems increasingly likely that primary legislation will be brought forward along the lines promoted by Victoria Hills of the RTPI. Consideration should also be given to permanently removing the restrictions on time extensions, for example by the deletion of section 73(5), introduced in 2005, which does not apply in Wales.
The rigidity of the CIL means that it continues to apply. There are some existing flexibilities around the pursuit of payments by collecting authorities, but, for the moment, developers must follow and comply with all CIL related requirements to avoid surcharges or the loss of exemptions or reliefs.
The Government should act to amend the CIL Regulations. This might include delaying when CIL payments are due and suspending demands for any pending payments. It would be helpful if the amendments consider CIL charges due between the lockdown coming into force and the amendments being made.
Ten years ago Government wouldn’t have concerned itself with planning matters in the midst of a pandemic. It's heartening now that it is doing so and this bodes well for wider planning reform in the future. The current situation merely exacerbates further the need for it to come forward quickly. The future of our town centres must now be front and foremost to this wider planning reform and there is little doubt now that it will be.