COVID-19 implications for law and policy in Wales

Measures put in place to stem the spread of COVID-19 have had far reaching effects on day to day development management tasks and procedures. Fortunately, two letters from the Planning Directorate to all Heads of Planning have provided some clarity across a broad range of current and planned procedural requirements.

 

For major planning applications that require pre-application consultation to take place before submission, the Welsh Government has now put in place an amendment order which has brought in temporary modifications to allow the statutory pre-application consultation to go ahead. For a temporary emergency period, The Planning Applications (Temporary Modifications and Disapplication)(Wales)(Coronavirus) Order 2020 does not require applicants to make information available for inspection locally. Instead all information must be hosted online. A telephone number must be provided so those without internet access can contact applicants (or presumably their agents) and hard copies of the application documents can be requested. Requests must be made within the 28 day consultation period thereafter the application cannot be submitted for at least 14 days beginning with the day on which the last document is sent. Applicants will need to declare details of any hard copy requests in the pre-application consultation report. Site notices will still need to be erected, and this is permitted under the Coronavirus Regulations. The Welsh Government expects applicants to use social media and online services to widen public engagement at this time. The emergency period ends on 18 September.

 

In terms of submitting the application, with most local authority planners now working from home, planning authorities are currently unable to process paper applications and related documents, as such applicants are requested to submit applications online.

 

LPAs are urged to validate all applications submitted online so as to identify and prioritise applications directly related to responding to COVID-19, such as for new health facilities, as well as those related to maintaining food supplies and telecommunications.

 

The erection of site notices can be carried out in accordance with Coronavirus Regulations but local planning authorities might ask applicants to display the notices on their behalf. The Welsh Government is encouraging authorities to expand the use of direct letters to neighbours and the use of online services to widen public engagement. Some of the onus is placed on local planning authorities to find solutions where administrative tasks are usually undertaken in an office and attention is drawn to the Government’s Digital Service ‘Notify’ system.

 

The Welsh Government considers that a site visit is not always necessary; officers can seek further information, such as photographs and videos, from applicants. However, if this is not possible the Welsh Government has confirmed that site visits are a reasonable excuse to travel but they must be carried out in strict accordance with the Coronavirus Regulations, including the 2 metre physical distancing rule. Officers who have any of the symptoms of coronavirus must not carry out a site visit and an officer must not attend the homes of those with coronavirus symptoms or where the residents of those homes are self-isolating.

    

The Welsh Government does not intend to change the timescales for determination under the DMPWO, though it acknowledges that the current climate may result in delays and timescales not being met. Developers are encouraged to agree extensions of time, though retaining the timescales means they can continue to appeal against non-determination. Furthermore, the Welsh Government is considering temporarily amending the legislation to remove provisions for fee refunds where timescales have not been met.

 

Given their public nature, planning committee meetings in Wales have been cancelled at present. Under provisions of the Local Government Act 1972, councillors are unable to vote in committee meetings, unless physically present, which means all non-delegated decisions could not be made.

 

To overcome this, and following the passing of the Coronavirus Act 2020, the Welsh Government has now made secondary legislation that allows for local authority* meetings to be held wholly remotely.

 

As of 22 April 2020 meetings could be held by remote attendance; the legislation also includes provisions to facilitate public access to remote meetings and to conduct various associated procedures by electronic means. The regulations permit the authority to publish notifications and agendas for such meetings to the public by electronic means only. They also allow remote meetings so long as people who are not in the same place are able to speak to and to be heard by each other - but they are not required to see each other.  The provisions apply “regardless of any provision contained in the standing orders, executive arrangements or any other rules of a local authority”.

 

It remains to be seen whether or not authorities decide to use the new regulations to enable planning committee meetings to go ahead.  We anticipate significant variation across the 22 local planning authorities and 3 national park authorities. The new regulations enable wholly remote meetings held before 1 May 2021.  At that point, only partially remote meetings would be lawful again, subject to local provisions.  The Regulations also permit local authorities to make rules about remote meetings, having regard to any guidance issued by the Welsh Ministers.

 

The provision made in these Regulations applies regardless of any provision contained in the standing orders, executive arrangements or any other rules of a local authority. (2) To the extent that any provision in standing orders, executive arrangements or other rules of a local authority is incompatible with any provision in these Regulations, it has no effect while the provision in these Regulations has effect.

 
We are aware of several Councils in South Wales and the Isle of Anglesey that have extended delegated powers to officers to make planning decisions, albeit that the decision might first be discussed at a remote meeting with some or all planning committee members. Our live tracker provides an overview of the current position, based on our most recent update.

  

Under current planning law, Sections 91 and 92 of the Town and Country Planning Act 1990 stipulate that planning permission in Wales expires after five years from the date permission is granted for full planning permission, unless work on site has commenced on site or the local planning authority has altered the time limits for implementation. For outline planning permission, the development to which the permission relates must be begun within five years of the grant of planning permission or, if later, two years from the final approval of the reserved matters or last reserved matter to be approved, again unless the LPA has conditioned different time limits.
 
Although determining whether work has begun is not always straightforward, case law has established this must be more than de minimis and genuinely linked to the development. Any pre-commencement conditions that go to the heart of the permission will also first need to be complied with before development is lawfully understood to have begun.
 
Many planning permissions due to expire this year are likely to fall away, given the likelihood of delays at each and every step of the development process.
 
New Welsh regulations require employers to take all reasonable measures (explained in guidance) to ensure that a distance of 2 metres is maintained between people on premises, including construction sites. Many construction sites have closed.
 
Where a planning permission has expired, applicants may incur significant costs, not only where resubmissions result in repeat fees, but also in the time and expenses resulting from the preparation of subsequent applications, especially in situations where local circumstances have changed and development proposals may need to comply with different policy requirements. This will likely have wide reaching effects on viability and in some cases may result in previously permissioned development not coming forward at all.
 
Helpfully in Wales there is provision to amend the timescales for implementing the planning permission under Section 73 of the 1990 Act providing the permission has not yet expired. Whilst the LPA cannot revisit the principle of the original decision, in determining any such application the LPA will assess whether there have been any material changes in terms of policy since the original permission was granted. The LPA can grant permission unconditionally or subject to different conditions. The LPA can also refuse. The original planning permission would still be extant until the original expiry date.

 

As part of the COVID-19 response and seeking to ensure that vital that deliveries of food, sanitary and other essential products over the coming weeks can be made as quickly and safely as possible, the Minister for Housing and Local Government, Julie James, has written to all Heads of Planning in Wales regarding potential associated breaches of condition.

 

The Minister notes that some supermarkets, food retailers and distribution centres are subject to planning conditions which restrict night-time and early morning deliveries in order to make the development acceptable to local residents. In this context, she advises:

 

There continues to be significant disruption to the majority of appeals in Wales.

 

All appeals must be made within the statutory deadlines and submitted appeals will be validated as normal. An early letter from the Planning Inspectorate (PINS) suggests that discretion may be used where circumstances mean that all the appeal documents cannot be submitted by the deadline but this should be confirmed with PINS directly before you make any decisions on whether to appeal.

 

PINS says it is progressing appeals as far as possible, but it has also categorised each LPA into one of three approaches or ‘ways of working’, which was updated on 27 May.  Depending on the LPA to which an appeal relates, once validated the appeal will either:

• Start and continue as normal to the event (i.e. site visits, hearings or inquiry) stage;
• Not start if it is a new appeal, but will to progress to event stage it is a case that has already started; or
• Not start if it is a new appeal, with the submission timetable suspended for cases already started

Between the April and May updates six Councils had a change of status: Council areas where appeals are starting where they previously were not are Flintshire, Ceridigion, Neath Port Talbot, Rhondda Cynon Taf and Vale of Glamorgan; appeals in Monmouthshire were starting but now they are not.

Following the 29 April update from the Welsh Government (see above), PINS advised that its officers felt able to start organising unaccompanied site visits where appropriate for us to do so and the health of parties could be protected, in compliance with the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020. 

No hearings or inquiries are being held or being arranged at present.  The Welsh Government has said it is considering whether changes to legislation to allow electronic attendance are needed. While the Planning Inspectorate says it is “actively exploring how holding digital events may work”. Where possible, PINS has converted cases that were due follow the hearing or inquiry route to written representations.

 

  

The Chief Planner in Wales, Neil Hemmington has written to all Chief Planning Officers regarding the potential impact of Coronavirus on Local Development Plan (LDP) preparation. Amongst other things, he notes:

 

 

He goes on to outline bespoke approach for several authorities and says that for LPAs not specifically referred to “exceptional circumstances will have a bearing on the ability to move forward over the forthcoming months”.

 

The letter concludes that:

 

The Welsh Government will take a pragmatic view on the implications delays on plan preparation may have on other legislative requirements, such as the end dates of plans”.

 

Inspectors are anticipated to progress reports on emerging local development plans along the agreed timetable where the examination has progressed beyond the hearing stage.