COVID-19 implications for law and policy in Scotland

Regulations removing the requirement for a public event to be held as part of pre-application consultation, came into force on 24^thApril 2020. Accompanying guidance confirms the suspension will apply where:

 

 

This prominent change is emphasised to be temporary in a 3^rd April letter from the Chief Planner, John McNairney; the letter is clear that the Scottish Government “will expect prospective applicants to replace this requirement for a physical, face-to-face public event with an alternative, online version”.

The COVID-19 pandemic has had far reaching effects on the planning system and the development management process. A joint letter from the Chief Planner and Housing Minister to all Chief Planners provides some clarity over the impact on planning procedures over the coming weeks ahead.

At the end of May, a letter from the Scottish Government to local authorities provided guidance regarding site visits as it is aware of different approaches across Scotland that the ceasing of site visits has prevented determination of applications in some cases.

The letter confirms that while a site visit assists appreciation of a site, it is not a statutory requirement, and suggests alternatives such as local knowledge and photos.  Where a remote assessment is not sufficient or possible, a physical site visit carried out within the scope of physical distancing requirements is an alternative – but not where the assessor or anyone at the site is self-isolating or shielding. It acknowledges that there are similar issues for applicants, for example when needing to access a site to carry out survey work to support and progress their application.

In terms of publicity, temporary powers have been introduced under Schedule 6 to the Coronavirus (Scotland) Act 2020, to enable public bodies to publish documents electronically that would otherwise need to be made available for inspection in a physical location. This will include site notices for planning applications and other consents.

 

The Scottish Government has encouraged authorities to continue to issue hard copies of neighbour notifications, though third parties should be enabled to provide comments and representations electronically.

 

We note that some applications are stuck in limbo; these are applications that were advertised pre-lockdown where written representations were requested but because planning offices are currently un-manned cannot be progressed because any such representations are not available to officers.

 

Edinburgh Council, in a report to the Leadership Advisory Panel (a skype meeting held on 31 March) regarding Planning Contingency Measures, made clear that an inability to meet statutory requirements would mean certain applications would not be determined and that with other authorities it had contacted the Scottish Government to raise concern.  This was prior to the publication of the Chief Planners letter on the 3 April, and the subsequent amendments to legislation.

 

In a statement made on 23 April, Edinburgh City Council confirmed they were now validating online applications, starting with those received in March.  With requirements for site notices, posting of weekly lists in newspapers and depositing of planning and related documents in public libraries temporarily suspended, the Council has advised that copies of documents and weekly lists will instead be available on the Council’s Planning and Building Standards on-line services which will be updated each week.

 

We are aware of other issues causing delay, some of which reflect an emerging picture of very different capabilities within local planning authority administrative teams to work remotely.  Issues include:

 

 

These matters now need attention and we very much hope that Heads of Planning Scotland and Scottish Government will be able to come up with a solution soon.

A recent Factsheet from the Scottish Government has confirmed it does not intend to extend the statutory timescales for determining planning applications, though it acknowledges that it may take longer than normal to process and determine applications. For the purposes of planning performance ratings, the note goes on to state that the Scottish Government will take “a sympathetic approach, recognising the challenges associated with planning authorities carrying out their planning functions at the current time.”

 

For Scottish local authorities remote decision making is already possible. New regulations permit local authorities to exclude the public on health grounds.

 

In addition, a 3 April letter from the Chief Planner confirms “planning authorities already have extensive powers to delegate decisions […] Where authorities require to amend their schemes of delegation under the Planning Act, those will require approval by the Scottish Government; we will process those to approval very quickly”.

 

On 31 March, Edinburgh City Council introduced temporary measures, amending the Council Scheme of Delegation to Officers to allow decisions normally made by Planning Committee or Development Management Sub-Committee, to instead be taken by the Council’s chief planning officer in consultation with the Convener or Vice-Convener or both the Convener and Vice-Convener of either Committee (as appropriate).

 

Subsequently, on 29 April, Edinburgh City Council’s Leadership Advisory Panel agreed to reinstate its Development Management Sub-Committee, with the aim to hold its first reinstated Development Management Sub-committee on 20 May 2020 remotely via web conferencing. Following the recent legislative changes, the Local Review Body (LRB) is no longer required to take place in public, however the Council has stated that once the Development Management Sub-Committee has been established it plans to replicate this format for the Local Review Body. 

At the end of May the Government advised “To ensure maximum transparency and accountability, authorities should aim to broadcast meetings, either live or in recorded form as soon as possible afterwards, for members of the public to have access to observe proceedings”.

Unless already lawfully implemented or a longer duration of permission has been specified, under Scottish planning law planning permissions expire after three years. However, the legislation has now been temporarily amended to allow for time limits to be extended.

 

Schedule 7 of the Coronavirus Act (Scotland) 2020 has introduced new measures to ensures that where a planning permission or planning permission in principle is due to expire during the “emergency period” within the six months of the Act coming into force then the period for implementation will be extended to the end of the “extended period” of 12 months of the Act coming into force.

 

The new provisions ensure that where a planning permission or permission in principle is due to expire during the “emergency period” within the six months of the Act coming into force then the period for implementation will be extended to the end of the “extended period” of 12 months of the Act coming into force.

 

It also provides that if a planning permission in principle is bound by a time period for submitting an approval of matters application that is due to expire during the first six months of the Act, that time period will also be extended to the end of the “extended period”.

 

A permission would only lapse if the development has not commenced before the end of the 12-month period. These timescales can be amended by Scottish ministers if required.

 

Six months from the start of the emergency period on 7 April is 6 October 2020 and the 12 month extended period ends on 6 April 2021; although provisions actually expire on 30 September 2020, they can be extended by regulations approved via the negative procedure (no debate required).

 

The Act also requires Scottish Ministers to prepare a report every two months from 31 May in order to declare whether the measures in the Act are still necessary.

   

The Coronavirus (Scotland) (No.2) Act 2020 came into force on 27 May, bringing in new provisions that will extend the time limits for Listed Buildings and Conservation Area Consents that would have otherwise lapsed during the emergency period. These are set out under Schedule 4 Part 2 of the Act.

 

The emergency period is defined as the period beginning the day the provisions came into force and ending on 6 October 2020. Consents that would have been due to expire within this period will no longer lapse until 6^th April 2021, unless the consent has already been implemented. Scottish Ministers may extend this period if required. The Coronavirus (Scotland) Act 2020 makes similar provisions to extend the time limits for implementing planning permissions and planning permission in principle as detailed in the above section (Time limits for implementation).

 

Three separate letters from the Chief Planner (one of which jointly signed by the Housing Minister) have stressed the importance of taking a pragmatic approach to enforcement action. This has been to enable essential businesses such as supermarkets and pharmacies to operate effectively in the first instance, whilst also providing more general flexibility to aid the future recovery, without fear of receiving enforcement action where businesses/organisations are in breach of any planning conditions.

Each letter urges local authorities to remember that enforcement is discretionary.

In a letter sent on 11 March, local authorities are asked not to look to take enforcement action against breaches of condition controlling opening or delivery hours where it which would unnecessarily restrict the operation of food stores and other retailers of essential items while there are supply chain issues – while having regard to legal obligations.

A further letter, dated 18 March, says that planning authorities should not take enforcement action against public houses and restaurants who are providing a takeaway service on temporary basis.

This letter also refers to the Chief Planner’s earlier missive regarding enforcement and notes:

“There may be other situations to come, not explicitly catered for within those letters where, in the current period, it will be equally important to take that reasonable and pragmatic view. Other examples might be where temporary developments or changes of use can contribute to the response to COVID-19”. 

Further to this, a letter on 29 May from the Chief Planner stated that local planning authorities should also be supportive of reasonable requests to change the working hours for construction sites, where these are restricted by way of conditions attached to planning permissions.

The 29 May letter states that in most circumstances it will be reasonable to extend working hours from 7am through to 9pm Mondays to Saturdays, and in some instances, depending on the nature of the works and local circumstances, longer operating hours may also be acceptable (up to 24 hours).

This letter goes on to say that in most cases temporary extensions of operating hours should be reached informally without the need for applicants to amend existing permissions.

It also suggests allowing further flexibility for businesses needing to adapt or adjust operations to help recover from the current situation, encouraging local authorities to support solutions that may aid this through temporarily relaxing certain planning controls. Whilst the letter does not provide an exhaustive list of all potential circumstances, examples given include allowing on-street seating for food and drink businesses, and enabling seasonable businesses such as holiday parks and camp sites to operate outside of the periods conditioned by a planning permission.

 

The Directorate of Planning and Environmental Appeals (DPEA) has issued detailed guidance on its approach to planning appeals.

 

Site visits are cancelled and DPEA will consider the appropriateness of alternatives for understanding the site location, such as photographs and virtual technology options on a case by case basis. A sist will be considered if a site visit is determined to be necessary.

 

For existing cases the Reporter will advise the way forward and in future the precise arrangements will depend on the scheme proposed. Regard will be had to ensuring that participants can travel safely if they need to travel to take part.

 

Pre-examination meetings, Hearings and Inquiries will not be held orally where parties are present; they will proceed by written representations, virtual meetings or a combination of both having regard to participants’ access to video conferencing and knowledge of using it and the limitations if a significant number of people are due to participate. Essentially, if a video link proves impossible then proceedings will be delayed.

 

The guidance reminds that virtual presence is not essential at a Hearing and it is not essential at an Inquiry in terms of local participation. It is recognised “that there are potentially significantly greater practical and other challenges in so proceeding [with an inquiry] compared to pre examination meetings and Hearings”.

 

  

The Chief Planner letter of 3rd April notes:

 

“There may be other situations to come, not explicitly catered for within those letters where, in the current period, it will be equally important to take that reasonable and pragmatic view. Other examples might be […] where staged payments fall to be due under the terms of planning agreements in relation to development sites which have temporarily ceased construction work”.

 

New provisions introduced by the Coronavirus (Scotland) Act 2020 allow for the registration or recording of deeds to proceed by electronic means. These also includes applications for section 75 planning obligations.

 

Regulations removing the requirement on a developer to make hard copies of Environmental Impact Assessments available at a physical location and removing the requirement for a public event to be held as part of pre-application consultation, come into force on 24 April 2020.