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Lay of the land: Covid-19

Lay of the land: Covid-19

Harry Bennett 24 Mar 2020
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.  Fixed timescales: Permissions, S106, & Conditions 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. Update (31st March) 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. Local planning authorities: functionality to deal with planning applications and prepare local plans 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. Update (27th March): 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. PINS 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). Update (25th March): 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.  Housing delivery: HDT and 5YHLS 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 52) on the November 2020 HDT results which cover the period 1st April 2019 to 31st 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. Update (1st April): 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. Further reading: 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.”

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Annual Position Statements: The X-Fylde’s
In August last year my blog looked at Annual Position Statements (APS), the updated PPG, and summarised how an LPA can ‘confirm’ (i.e. fix) its five-year housing land supply (5YHLS). The ability to fix a 5YHLS was introduced through the revised NPPF (July 2018) and there two routes to doing this: Confirming the supply through a local plan examination (plans examined under the 2019 Framework only); and Confirming supply post local plan adoption through the APS process (all 'recently adopted' [1] plans). A year and a half since the process was first set out, no authorities have an adopted 2019 Framework Plan (Route 1), or an associated Inspector’s Report so we are yet to see how this is playing out in local plan examinations and appeals. However, we do now have the first authority – Wyre Council - with a fixed supply through the APS process (Route 2). As explained in my previous blog, the APS process has a number of fixed dates and timescales which is about to come around again: the first is 1 April 2020. This blog provides an overview of the first round of the APS process, and considers what this might mean for the next round. APS Process Stage 1: Notifying the Planning Inspectorate (PINS) According to the PPG (68-012) to submit an APS, an LPA must notify PINS by the 1st April of a given year. By 1 April 2019, nine authorities had notified PINS: Boston Borough Council Durham County Council Fylde Borough Council Mid Sussex District Council North Devon Council North Somerset Council Sefton Council Torridge District Council Wyre Council Stage 2: Submission of APS to PINS However, only three authorities went ahead with the APS process and submitted an APS to PINS by 31 July deadline (PPG 68-012). These were: Fylde Borough Council Mid Sussex District Council Wyre Council. Stage 3: The outcomes The guidance (68-012) sets out that PINS are expected to issue a recommendation on an LPA’s submitted APS in October of the same year. However, the three Inspectors reports for Fylde, Mid Sussex, and Wyre were only sent to the relevant authorities in January 2020. There is no official reason for the delay, but it may be due to the pre-election purdah. From reviewing each Inspector’s Report (note there were three Inspectors) we have three very different outcomes:  Mid Sussex District Council: Not confirmed The Council’s attempt to confirm its supply fell at the first fence. Its local plan was not ‘recently adopted’ (NPPF 2019, Footnote 38) so it failed the first stage of the APS examination process (PPG 68-013). This being the case, the Inspector had to conclude the Council’s APS could proceed no further. There was no consideration as to whether the Council undertook satisfactory stakeholder engagement or whether there was sufficient evidence to demonstrate a five-year supply of deliverable sites. One might ask why Mid Sussex bothered to submit its APS but in fairness, the Council had notified PINS in April 2019 of its intention to submit an APS and the relevant planning guidance on this point was only published on 22 July 2019: just over a week before the 31st July APS submission deadline. It had most probably prepared all of its material by then so perhaps felt it had nothing to lose by chancing its arm. Wyre Council: Confirmed Wyre is now the first LPA to have its supply confirmed, surely a point that marks it down in posterity (or perhaps presents a question for inclusion in the planning round of a pub quiz). Its supply is now 5.18 years and will be so until 31 October 2020: this is not a debatable point at the planning application or appeal stage. While it’s not a debatable point, it came perilously close to the edge: a surplus of just 0.18 year’s supply. The Council’s submitted APS contented it could demonstrate 5.69 years, but the Inspector recommended that 313 dwellings in total be removed from ten sites. The Inspector’s report was quite forensic, looking at each of the 39 sites that were disputed during the engagement process, scrutinising the Council’s evidence. Importantly, in accordance with the PPG (68-013) no other material other than that provided by the Council was considered. But Wyre is safe. Its 5YHLS is now confirmed and the Council may now choose to re-confirm its supply this year.  Fylde Borough Council: Not Confirmed (To be confirmed?) The Inspector’s recommendation was clear: the Council cannot confirm its supply as it could not demonstrate a 5YHLS. The Council is not happy: it intends to judicially review the Inspector’s conclusion, has updated its APS, and maintains a position that its supply is ‘confirmed’ despite the Inspectors recommendation. The updated APS states: “This final version of the document has been produced following consideration of a draft APS by the Secretary of State. In accordance with paragraph 74 of the National Planning Policy Framework (2019) (The Framework), this final version incorporates the recommendations of the Secretary of State (see Appendix 5) on the delivery on specific sites, where the position could not be agreed during the engagement process. The Council therefore considers that the 5-year supply of deliverable sites is confirmed by this Annual Position Statement, for the period 1st November 2019 to 31st October 2020, in accordance with paragraph 74. The Inspector has gone further and made a reassessment of the housing requirement. For the reasons explained below, the Council does not agree with this reassessment, or with certain recommendations in the Inspector’s APS Report”. The APS Inspector had concluded that in calculating the backlog of supply for the five-year requirement the ‘Sedgefield’ method (preferred method in the PPG 68-031) should be used instead of the ‘Liverpool’ method that had previously been accepted by Fylde’s local plan examining Inspector. This is a marked departure from the conclusions of a Local Plan Inspector and is a point we will explore further. The Inspector also reduced the supply by 120 units by amending the delivery of three sites and deleting an allowance for empty homes. As with Wyre, the Inspector’s report was quite forensic, with a detailed assessment of each aspect of the APS, and material submitted other than by the Council was considered. It was on this basis that the Council could not demonstrate a 5YHLS and its supply was thus not ‘confirmed’. It will be interesting to learn on what grounds Fylde potentially seeks to challenge the Inspector’s analysis and conclusions to the Courts. If indeed any application for judicial review is approved what the outcome could be. We await to see how this matter is dealt with by the Council and inspectors at S78 appeals when determining planning applications for housing development. Will they engage the ‘tilted balance’ given the APS Inspector’s conclusions? One would anticipate that Fylde will not, and that any refusals of planning permission made on this basis may themselves be challenged by the applicant. What does this all mean for the next round? There are some clear headline points for the next round of APSs that will be examined: It may sound obvious, but LPAs must be confident in their 5YHLS case when they submit an APS. With the examination of an APS being exclusively about the question of 5YHLS, examining Inspectors have the opportunity to engage solely with that topic, unencumbered by other planning issues. There is no basis (as often happens at s.78 inquiries) for Inspectors to equivocate or conclude that disputed points on 5YHLS do not need to be resolved because they are not material to the planning balance involved determining the planning application/appeal in question. Quite simply, there is no hiding place. LPAs must ensure that the 5YHLS case is justified in accordance relevant policy and guidance and be confident their case stands based upon the evidence in the APS submission itself. Inspectors will only conclude using what is contained in the written material provided to them. Unlike at public inquiry or examination, there is no opportunity for planning witnesses or barristers to explain or elaborate upon their position on each disputed point. Even with the enlarged 10% buffer for an APS, Council’s intending to confirm will want some resilience in their case: Wyre came very close to not being able to demonstrate a 5YHLS and had its housing supply reduced by over 300 units. Fylde also had 120 units removed from its supply and the major intervention of now having to apply the ‘Sedgefield’ method to calculate its backlog. The chance of failure – based on the focused and forensic nature of the review - as well as the extended timescale this time round, may lead some authorities to conclude it is not worth the risk of having its supply not confirmed. The outcomes of the APS process are very black and white. Arguably, there is some safety by being in the grey area between “confirmed” and not “confirmed” if an authority’s position is marginal. In addition, if an LPA doesn’t have a recently adopted plan it will simply be rejected. This applies to authorities that fail to have their APS confirmed, because by the next APS submission date its local plan will no longer be recently adopted. Finally, for developers/promoters, engagement in the initial APS with the LPA is key. The Inspectors did not consider any evidence that wasn’t submitted with the APS by the LPAs. If you miss the boat on the LPA’s APS engagement process, it is too late to have your views heard.   A further Lichfields blog will follow with some more in-depth thoughts on the Wyre and Fylde APS Inspectors’ conclusions on what constitutes satisfactory engagement, the definition of the five-year requirement, and what constitutes a deliverable site.   [1] A plan adopted between 1 May and 31 October will be considered ‘recently adopted’ until 31 October of the following year; and a plan adopted between 1 November and 30 April will be considered recently adopted until 31 October in the same year (Footnote 38, NPPF 2019). 

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