COVID-19 implications for law and policy in England

COVID-19 implications for law and policy in England

 

       

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Updated 14 May 2020
 
 

Validation of applications, publicity and consultation

Maintaining continued determination of planning applications is viewed by the Government and many councils as an essential response to the crisis, with a view to the long-term economic recovery of their areas. As such, the vast majority of local planning authorities (LPAs) with which we have been in contact are attempting to keep applications moving; whilst in some instances, planning staff have also been given key worker status.

To avoid any doubt, April’s valedictory letter to Chief Planners from the Government’s then Chief Planner stated that planning applications need to continue to be dealt with in a timely way. Albeit that more recently the Government has acknowledged that some LPAs have redeployed staff to other departments.

Though the picture from council to council is varied, many local authority planners are now able to work remotely from home and officers are continuing to validate applications submitted digitally. Guidance published by MHCLG on 13 May advises that authorities should make clear on their websites that planning applications should be submitted online where possible to allow officers to validate and process applications remotely. Whilst this reflects the general approach taken by the majority of authorities, the guidance also states that measures should also be in place to ensure that paper applications can continue to be validated too. The guidance is clear that planning authorities should prioritise the validation of any COVID-19 related planning applications.

In almost all instances, face to face meetings between all parties in the planning decision-making process have now been cancelled, though many are able to conduct virtual meetings for pre-application discussions and other inquiries. For smaller proposals, comments are provided in writing, as would often usually be the case.
 

Temporary amendments to publicity requirements

 

Essentially, temporary measures now allow local planning authorities (and EIA development applicants) to take alternative reasonable steps to publicise planning applications, such as via social media or other electronic communication, if they cannot discharge the specific requirements for site notices, neighbour notifications or newspaper publicity.  Newspaper publicity should use online newspaper portals in the first instance (perhaps something that should have been in place for some time).  This means that the LPAs who told us that they were unable to meet their statutory requirements in this regard, because the local newspaper in which they publicise applications has temporarily stopped circulation, will now be able meet them, potentially by advertising on an online local newspaper in the first instance.

If a local planning authority is having difficulty in carrying out its publicity requirements it must now look for electronic alternatives.  The Government says that online inspection of documents should be the default position across all planning regimes, and it is actively exploring all options to achieve this. The Communities Secretary said to the Commons on 13 May “We are going to get the planning system going again and bring it into the digital age at the same time”.

Publicity requirements relating to serving notice on neighbours remained, and applications relating to major development, EIA, and listed building consent amongst others were required to be publicised in local newspapers until temporary regulations came into force on 14 May.   The amendments made by the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 apply, until 31 December 2020, to certain applications including those made to local planning authorities for:

  1. planning permission (including planning permission for EIA development and planning permission for development affecting the setting of a listed building or the character or appearance of a conservation area)
  2. listed building consent
  3. variation or discharge of conditions attached to listed building consent

The temporary Regulations amend the Town and Country Planning (Development Management Procedure) (England) Order 2015 (DMPO), the Planning (Listed Buildings and Conservation Areas) Regulations 1990 and the Town and Country Planning (Environmental Impact Assessment) Regulations 2017.  They do not apply only to applications submitted on or after 14 May, so can be used in respect of applications stuck in the system for some time due to publicity requirements.

The temporary regulations provide alternatives where an LPA is required to post a site notice, serve notice on an adjoining owner or occupier, or publicise an application in a local newspaper, but considers it is not reasonably practicable, for reasons connected to the effects of coronavirus.  These alternatives appear to be conditional on an LPA not being able to meet permanent DMPO requirements, which raises some questions given how different LPAs have interpreted the impact of coronavirus on their ability to perform their functions to date.  The LPA must give any notice required for a certain type of application to the extent that it is reasonably practicable to do so – i.e. do as much as it can to meet the requirements of the DMPO - and having done that take reasonable steps to inform “any persons who are likely to have an interest in the application of the website on which requisite notice of the application is published”.

The temporary Regulations say “persons who are likely to have an interest in an application must include the persons who live or work in, or otherwise have a direct connection with, the area in which the proposed development is located”. And the reasonable steps that must be taken “may include use of social media and communication by electronic means and must be proportionate to the scale and impact of the development”. The PPG notes that depending on the scale and impact of the proposed development, people likely to have an interest may include community groups and specific interest groups who may wish to provide representations on the application.

The PPG lists examples of electronic communication, including online newspapers:

in the case of local newspapers that are no longer in circulation, local planning authorities should have regard to the fact that a local newspaper may have an online version that could be used as a form of digital publicity. This will help to ensure that public participation in the planning application process continues during the response to coronavirus and would support local independent news reporting”.

The Government’s Coronavirus (COVID-19): planning update guidance goes further, suggesting that “if local newspapers are not circulating in their area, authorities should seek to use local online news portals in the first instance”.

In terms of proportionality, the PPG says:

“Greater and more frequent publicity would be appropriate where the potential impact of the planning application is expected to generate a large volume of representations. This may be the case, for example, for large scale applications and those applications related to listed buildings, or departures from the local plan, or where there has been a previous application which has attracted interest. Publicity for applications for householder and minor development should be focused on the immediate locality”.

There are no clear examples of how to reach those likely to have an interest in householder and minor development other than by post. It is likely to be easier to demonstrate that those likely to have an interest in a large development have been reached, because if a planning application for a significant development is posted on social media this is likely to generate a reaction that can be recorded, whether or not they are not the same people who might have responded through traditional consultation methods. This may even help to draw out the often silent majority, particularly if the applicant is able to explain the scheme through an animation or images, rather than relying on people viewing the online planning file.

The minimum period for representations which must be given when notice of an application is published in a newspaper or on an LPA website has been extended from 14 days to 21 days (it is still 30 days for EIA development and still 21 days for applications under the Planning (Listed Buildings and Conservation Areas) Regulations 1990).

The explanatory memorandum emphasises that the amendments are not about cutting corners or excluding certain groups. “The views of local people about the potential impact of development in their area helps to ensure that decision-makers have relevant information to allow them to reach a sound decision. It is important that local planning authorities identify and consider all relevant planning issues associated with a proposed development. This instrument gives them more flexibility to meet their publicity requirements”.

While the PPG suggests the alternatives are a flexible option, the Regulations appear to say that taking those alternatives is a requirement in circumstances where the normal approaches are not reasonably practicable.  In this respect, the explanatory memorandum to the amendment regulations says:

The changes could have the potential to reduce access to information, and the ability to make representations, for those people who do not have internet access at home. The effects of coronavirus, including restrictions on movement, have made it practically difficult for these people to access the traditional publicity routes. Accordingly, we consider the measures in this instrument to be justified to ensure the planning system continues to function. The measures are considered to be proportionate and meet a fair balance between the potential impact on the ability of individuals to participate in decision making which may affect them and the wider public interest during the response to coronavirus”.

If this is the correct interpretation, an LPA would have to demonstrate why it had decided that the reasonable steps that it could take would not be sufficient in order for its statutory requirements to be discharged under the temporary arrangements and consequently an application could not progress. Given some LPAs have responded in different ways to what are, ostensibly, the same circumstances, this does raise some questions.

The PPG anticipates that publicity arrangements might be determined on a site by site basis and accordingly officers should record the publicity undertaken, potentially describing it in their report. In practice, it might be that local planning authorities adopt approaches for certain circumstances, in order to avoid inconsistent approaches being taken to sites in similar locations or of similar scales within the same LPA area. Indeed, the PPG also suggests that LPAs update their Statement of Community Involvement to explain approaches to the temporary publicity arrangements.  An applicant should be mindful to establish that a given LPA has attempted to meet permanent DMPO requirements and if those requirements have not been met, ask how an application has been advertised, record the response and consider whether the ‘reasonable steps’ undertaken are robust and as comprehensive as possible.  If the applicant does not consider the approach taken to be robust, this should be raised with the LPA as soon as possible.

The temporary arrangements do not mean that LPAs have to use electronic means only or can elect to do so; it is if they ‘cannot’ discharge their permanent DMPO requirements rather than it being difficult to do so.  We are aware that some LPAs have appointed dedicated staff tasked with posting site notices, however, most are now requiring that applicants post site notices themselves where possible, requesting this is photographed on the day posted, as evidence. As before, notices will need to be displayed on or near the site for at least 21 days.  If systems such as this have been put in place for publicity by LPAs and are working well it might be contrary to the regulations to make changes and, for example, stop posting site notices or sending consultation letters.

It is already not statutorily essential for a consultation to be sent to neighbouring properties (provided a site notice is displayed), but it may be a local requirement in the Council’s Statement of Community Involvement, which it might be prudent to amend in this regard, alongside other amendments to reflect the temporary procedures – subject to considering whether doing both is no longer possible whether undertaking both is a legitimate expectation.

Electronic communications must notify people who are likely to have an interest in the application and indicate where further information about it can be viewed online. This will require a local planning authority to be able to notify ‘people likely to have an interest’ electronically.  The Written Ministerial Statement (WMS) of 13 May says “the Government recognises there are sections of the community with limited or no access to the internet and authorities and developers should take reasonable steps to ensure those without access are involved and consider alternative and creative ways to achieve this where possible. This could for example, include sending out documents by CD or USB stick where this meets the needs of those requesting such documents”.  This is perhaps an unfortunate example, given that there will be few people without internet access who are able to make use a of CD or USB stick. There are better examples in the Planning Practice Guidance:

Examples could include local community newsletters, local radio stations, adverts outside council offices and other public buildings, and the use of community noticeboards at supermarkets and other local centres or a method of publicity which is one of the existing statutory methods of publicity even though it is not required for that particular application”.

The WMS also emphasises the temporary nature of the use of alternative electronic means of reaching interested parties: “As restrictions are eased, planning authorities and others should integrate the range of methods that are available to them into their approaches to ensure all sections of the community are reached as thoroughly as is practically possible”. Perhaps, in future, the annual electoral role registration should include subscribing to be notified of certain planning applications.

One area of particular difficulty that cannot be addressed by Regulations is where an application had already been advertised and consequently letters have been posted to neighbours and consultees, replies may have been sent to the Council offices on paper, but not received by the case officer, who is now working from home.  One hopes that this problem will reduce and that in most cases it is safe for an officer to go to a Council’s offices and scan the representations received.

Consultation expectations of applicants are generally being satisfied through online tools, with dedicated web pages and surveys replacing drop in events, though questions remain over accessibility for those without internet access.

 

Serving notice on owners

The explanatory memorandum to the temporary amendment regulations is clear “This instrument does not remove the requirement that an applicant, who is not the owner of the land, must serve notice on the owner of the land or tenant of an agricultural holding before making an application for planning permission, so they are aware of the proposed application. Similar requirements apply to applicants for listed building consent”.

 

Site visits

As for site visits, some LPAs are visiting particularly significant or contentious sites, although generally, LPAs have been requesting that applicants provide officers with photo or videos of sites where possible.  This approach preceded, but is in line with, the WMS:

Site visits, whether conducted by local authorities, planning inspectors or statutory consultees, are an important part of the process of considering development proposals and plans. Where site visits are required or necessary, they should be undertaken in line with the Government’s guidance on social distancing and safety requirements”.

While it could be argued that not visiting a site would mean that the impact of the development could not be appreciated, site visits are not a statutory requirement.
 

 

Decision making, virtual committees and powers of delegation

Recent guidance confirms the Government is not intending to amend the timescales for determining planning applications, though developers should be encouraged to agree extensions where this is not possible. By retaining the timescales, applicants will still be entitled to appeal to the Secretary of State over non-determination.
            
 
Due to social distancing requirements, most councils have cancelled or postponed upcoming committee meetings that make planning decisions, which will likely lead to some planning decisions being delayed.
 
Under the previous provisions of the Local Government Act 1972, councillors were unable to vote in committee meetings, unless physically present. The necessary legislation is now in force to allow local authority meetings held before 7 May 2021 to be conducted remotely. Councils will need to ensure any procedural changes are in accordance with its local Constitution and Scheme of Delegation.
 
The MHCLG Chief Planner  letter to all LPA Chief Planners states:
 
It is important that authorities continue to provide the best service possible in these stretching times and prioritise decision-making to ensure the planning system continues to function, especially where this will support the local economy”.  It goes on to request that LPAs explore all options available to them."
 
Subsequently, MHCLG has urged planning authorities to make use of the temporary powers rather than deferring Committee dates; it also states they should consider taking advantage of the urgency powers within their constitutions to enable increased delegation to senior officers to determine applications
 
Councils are reacting at varying speeds and in different ways to the COVID-19 lockdown, reflecting differing priorities and capabilities and whether certain Committee level decisions should be made prior to remote committee meetings being possible locally. 
 
Several local planning authorities have been very keen to keep disruption to the minimum, responding early and decisively. Prior to remote committee meetings becoming lawful, several Councils made changes to their scheme of delegation permitting their Chief Executive or equivalent to make decisions in consultation with officers and/or Members (e.g. the Royal Borough of Windsor and Maidenhead Council (RBWM), East Suffolk Council and Manchester City Council) or arranged for a quorum to meet at the Council with others taking part online (for example LB Waltham Forest and Luton Borough Council).
 
Most councils are now exploring the potential for hosting remote committee meetings via webcasting services, made possible since the passing of the Coronavirus Act 2020 and subsequent secondary legislation. And some of the LPAs that gave increased delegated powers to officers said that these powers would be removed when remote decision making by councillors became lawful.
 
Due to the changes, those awaiting decisions may still well experience delays in the process, though applicants and interested parties will still be given the opportunity to participate. Some authorities are encouraging that this is done by written representations, others are allowing parties access to remote meetings and providing time to speak.
 
The Regulations also allow local authorities to hold and alter the frequency and occurrence of meetings without requirement for further notice.
 
LB Waltham Forest’s planning meeting om 31st March explained to potential and required participants how to take part; others could view the meeting on YouTube.  Many Councils already live stream their meetings, but prior to 4th April had to cancel their meetings if they could not safely arrange for a quorum to be physically present due to the law regarding virtual meetings not yet being in place.
  

CHANGES TO THE WAY DECISIONS ARE MADE

As noted above, some Councils have delegated decision making to senior officers, either instead of or prior to operating online Committee meetings and we outline a few examples below.
 
In Manchester the Chief Executive can make planning decisions “in consultation with the Director of Planning, Building Control and Licensing and with the Chair and Deputy Chair of the committee when both are available, and either if only one is available” until 26 November 2020.
 
Similarly, at an Extraordinary General Meeting at RB Windsor and Maidenhead (RBWM), elected Members amended their scheme of delegation to give powers to the Managing Director, in a defined emergency:
 
“to make decisions currently delegated to Committees or Panels, in consultation with the relevant senior qualified officer(s), Chairman of the relevant Committee or Panel, and the Principal Lead Opposition Member from each of the Opposition Groups of the relevant Committee or Panel, and others deemed necessary according to the requirements of the decision at hand”.
 
In response to a question from a Councillor regarding what would happen if a large or contentious scheme were proposed, the Managing Director said that delegation might be refused and a Panel meeting called “but this would not happen on a regular basis otherwise it would defeat the point of the delegation”.
 
However, at the same meeting it was resolved that if, in due course, remote meetings became lawful “provided the Council has the technology to ensure this can be provided” meeting would revert to their original schedule.
 
A very similar approach is being taken in East Suffolk, where the Head of Planning and Coastal Management can decide planning applications, in consultation with new Advisory Panels (APs). Committee Reports are sent to new APs consisting of the two Planning Committee Chairmen and Vice Chairmen and a member from an opposition group; there must be at least three councillors in attendance online and ward and town councillors may submit representations.  As at RBWM decisions may be deferred and the approach disbanded once remote meetings are possible.
 
A slightly different approach is decision making in consultation with the Committee and we know of this procedural route at South Downs National Park (for certain decisions), in Dudley and in Cornwall where “Planning applications that would otherwise have been decided at committee will be still be fully considered by the relevant planning committee via correspondence”.
 
Notwithstanding, in Cornwall, the Service Director for Planning and Sustainable Development has significant powers of delegated authority, having been authorised to determine all applications.  They also have the authority to consider where consultation with Councillors is required and, where an application is contentious, that decision should be made by a planning committee. “Senior managers will be ensuring that potential Committee items are kept to an absolute minimum and will seek to resolve issues with the Divisional Member as much as possible”.
 

REMOTE DECISION MAKING: ONLINE COMMITTEE MEETINGS

Remote meetings have now started, and we are aware of a few approaches.
 
  • Meeting held via Zoom with participants invited to register to take part (e.g. Melton BC on 9 April)
  • Meeting held by teleconference with only Councillors taking part (e.g. Royal Borough of Kensington and Chelsea on 9 April – no one had sought to make representation)
  • Meeting held by teleconference with members of the public taking part via written representation (e.g. Westminster)
 
There are also non-decision-making meetings with Councillors continuing to receive decision-making reports, debating them via video conference and communicating their view to another Committee (to meet in due course), the Chief Executive or relevant Director to make a decision (e.g. South Somerset on 9 April and East Suffolk) (interim measures)
 
A South Somerset non-decision-making meeting was disrupted when participants with false names joined its Zoom meeting, contributed distractingly and shared their own (off-topic) images over the top of the presentation to the Committee.  Perhaps in response, those wishing to participate in future meetings must now email to request login details for the meeting; the meeting on 9 April had provided login details within the agenda pack.
 
Bristol City Council will hold a meeting via Zoom on 22 April (its meetings are already streamed) and Birmingham on 23 April. Gateshead Borough Council intends to hold a meeting via MS Teams on 29 April.  Town Councils, such as Hedge End, in Hampshire are running meetings via Zoom too.
 
But many Committees that make planning decisions are still postponed or cancelled while planning authorities decide how to progress.
 
For example, the London Borough of Southwark has decided “more complex and contentious schemes will continue to be dealt with through planning committee and planning sub- committee” and it is exploring how it can conduct meetings online, with hopes for a meeting at the end of April.
 
Preston City Council has cancelled all meetings until the Annual Meeting on 13 May.
 
The Planning Advisory Service and the Planning Officers’ Society have both produced guidance on running online planning committee meetings. The Government has confirmed it is also working with the Planning Advisory Service to deliver online training to support this. 
  

Planning Advisory Service, Planning Committee

 

Time limits for implementation                    

Under current planning law, Sections 91 and 92 of the Town and Country Planning Act 1990 stipulate that planning permission in England expires after three 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 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 this has been established under previous case law. 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. 
 
Notwithstanding the open letter from Business Secretary to the UK Construction Sector thanking it for its hugely valued and critical contribution and advising that people working in construction can continue to work, following ‘Site Operating Procedures’, 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.
 
Unfortunately, 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 is possible for a local planning authority to modify a planning permission using section 97 of the Town and Country Act 1990 ‘Power to revoke or modify planning permission or permission in principle’, but such an order must each be approved by the Secretary of State so it somewhat impractical and hardly allows a blanket approach.
 
Many in the development sector, including local government have called for the Government to consider amending the legislation to allow for permissions to automatically be extended, as has been enacted in Scotland. However, this would require amendments to the primary legislation, and as a result would need to be voted upon by Parliament which is not due to resume business until 21 April 2020.
 
We understand that MHCLG is considering options in this regard.
  
 

Reserved Matters and approval of details

  

Reserved matters applications

Section 92 of the Town and Country Planning Act 1990 stipulates that an application for reserved matters approval must be made within three years of the grant of outline planning permission, unless the decision maker gave a longer time limit.
 
Consequently, outline planning permissions could fall away because the time for submission of reserved matters passes during the pandemic. However, given that applications can be submitted electronically this should not pose a significant problem. Difficulties might only arise if there were validation delays and the LPA sought to argue that the application as made was invalid.
 

Pre-commencement conditions

As indicated above, a planning permission will expire if it is not begun or commenced prior to the time limits stated on it. Many planning permissions include pre-commencement conditions that should be discharged prior to works that implement the planning permission starting.
 
If a start is made on site without pre-commencements being discharged or the requirements of the condition met the breach may be considered to go to the heart of the permission, meaning it will fall away.
 
However, this is a very complex area of planning law, so please contact us or seek legal advice if you think there is a risk that your planning permission will expire before details required by a pre-commencement condition are approved.
 

Deemed discharge of conditions

For other conditions the deemed discharge procedure, may assist. For certain planning conditions, this procedure allows a developer to give notice that if an application for approval of details is not determined by a given date it will be deemed to be discharged.
 

Practical approaches

Some authorities have been requesting photos for material samples along with manufacturers specifications in order for conditions requiring materials samples to be submitted, to be discharged.
 
 

Environmental Impact Assessment: publicity requirements for Environmental Statements

The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (the EIA Regulations) have been temporarily amended by Regulations that introduce temporary flexibilities to the publicity requirements for environmental statements for EIA development.
The flexibilities contained within the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 will last until the end of this year and give applicants and local planning authorities (depending on the circumstances) a degree of flexibility as to how the statutory publicity requirements for EIA development are met, where it is not reasonably practicable to comply with one or more of them, for reasons connected to the effects of COVID-19.

Firstly, when an environmental statement and related documents are submitted to a local authority, this can now be delivered to the authority by electronic means and the local authority can send it on to the Secretary of State and consultation bodies by electronic means, removing the need to provide multiple physical copies of documents (an amendment to EIA Regulation 19).

If an applicant submits an environmental statement after a planning application is submitted, Regulation 20 of the EIA Regulations requires the applicant, rather than the local planning authority, to undertake certain publicity. Regulation 20 has been amended, to allow for such applicants to publicise the application by alternative means, where the applicant is not able to notify the public through the posting of a notice at the site or publishing a notice in a local newspaper, because these actions are not considered “reasonably practicable”.

Publicity via site notice or newspaper advertisement should still be the default procedure, with the alternative arrangements only undertaken where this is not been possible due to reasons related to COVID-19 and restrictions on movement.

Where it is deemed not to be reasonably practicable and alternative publicity takes place, the Regulations state that the applicant must “take reasonable steps” to notify those “who are likely to have an interest in a planning application”, such as those who live or work in the area, or otherwise have a direct interest with the area in which the proposed development is located. And the Regulations state that reasonable steps may include use of social media or “other electronic means”.

Planning Practice Guidance lists a number of other potential steps including:
• council mailing lists;
• using social media such as Facebook and Twitter;
• using the local authority’s website;
• using local online newspapers; and
• issuing a weekly press bulletin.

Where the applicant undertakes alternative procedures, the environmental statement must be accompanied by a statement made by or on behalf of the applicant confirming that the certain information has been published in a notice in accordance with the temporary provisions, as well as a statement setting out the steps the applicant has taken to bring the notice to the attention of those likely to have an interest.

The Order also temporarily removes the requirement that applicants must ensure that hard copies of environmental statements are available for inspection at a named address locally. Instead, applicants will need to ensure that these are available by ‘appropriate alternative means’, including on a website, and take reasonable steps to tell those with a potential interest in the application or appeal that there is a website where they can view the relevant documents.

Furthermore, the 2020 Regulations also address the 2017 Regulations’ publicity requirements related to a relevant authority requiring that an environmental statement application or appeal be supplemented with additional information by the applicant or appellant. These have been amended in a similar way to the temporary arrangements under Regulation 20, as detailed above.

The temporary measures are explained within the PPG on Environmental Impact Assessments and within planning practice guidance on Consultation and pre-decision matters.

The 30 day minimum time period for representations relating to EIA development is unchanged.

 

  

 

 

Planning appeals

Short-term delays are likely for many aspects of the appeals procedure. On the Planning Inspectorate’s (PINS) website, it has noted that timescales have been affected over March, April and part of May 2020 due to measures aimed at slowing the spread of the coronavirus.

It has temporarily stopped published average timescales, stating that they will “not provide meaningful information to customer [sic] on how long a case can take to be decided”, though it aims to resume publishing this data later this summer.

It is continuing to accept appeals lodged through its web-based Appeals Casework Portal (ACP), though is unable to respond to any correspondence via post at present. Its offices in Temple Quay House remain closed and are not able to receive visitors in person.

Inspectors are also inviting parties to consider proceeding with hearings and inquiries through written submissions instead, where appropriate.

Similar procedures are in place for Nationally Strategic Infrastructure Project (NSIP) hearings. Where written submissions are not appropriate, the Examining Authority may exercise discretion on any existing deadlines and will consider amending timetables where needed. 

PINS is investigating how technology might enable it to continue to run planning inquiries and hearings, including the use of video conferencing for events. It held its “first fully ‘digital’ hearing on 11 May". In a Written Ministerial Statement, Robert Jenrick said he expects events to be taking place virtually by mid-June, “other than in exceptional circumstances”, though the Government recognises that in “exceptional circumstances it may not be fair to proceed virtually and that alternative arrangements may be needed.”

At the end of May the Planning Inspectorate (PINS) provided an update on the measures it was taking to progress appeals at the current time.

It anticipates that during June 10 planning hearings, 8 inquiries and 15 Nationally Significant Infrastructure project hearings (associated with four projects) will take place and PINS will reorganise “the vast majority” of hearings. Remaining inquiries will take place “as soon as possible”.

A local plan hearing will also take place in June and a Local Plan examination will be conducted remotely in July.

PINS used the May update to confirm that post COVID-19 face-to-face events will resume.

PINS has also stated that it is exploring how cases can be determined through a hybrid of different procedures and events, with some parties attending in person and others by video or telephone connections. 

After originally postponing all site visits, the Planning Inspectorate has now stated it will commence site visits where safe, whilst considering whether certain cases could proceed without carrying out a visit.  A trial of ‘virtual site visits’ has also been undertaken with a small group of inspectors, 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”.

The April 2020 statistical release from PINS also provides some initial analysis of whether the number of appeals received is dropping. While concluding that it is too early to say, of note: 

“The Planning Inspectorate have continued to make appeal decisions with 1,625 appeal decisions issued between 17th March 2020 and 22nd April 2020. Without the restrictions in place we would have expected to have made between and 1,890 and 2,256 decisions (this is based on the previous 3-months performance)”.

The Government has also stated it is working closely with the Planning Inspectorate and National Infrastructure Planning Association to minimise the impact of current restrictions on the consideration of DCO applications.

In a Statement to the House of Commons on COVID-19 and the housing market, the Communities Secretary said “The planning system, too, must be able to operate safely and efficiently during this time, which means, as with many other sectors, making more use of digital technology. I want the Planning Inspectorate to be at the forefront of this work—it is good to see the inspectorate now undertaking its first virtual hearings. I am asking it to make all hearings virtual within weeks. We are going to get the planning system going again and bring it into the digital age at the same time”.

Moving forward, PINS has stated that it will draw upon the current and emerging practices to guide future changes to policy and process in the longer term.

  
 
 

Planning obligations and the Community Infrastructure Levy (CIL): SMEs to benefit from temporary amendments 

We have previously noted that the inflexibility of CIL meant that it provides certainty in uncertain times (whether wanted or not). 

There are some existing flexibilities around the pursuit of payments by collecting authorities, but, in general, developers must follow and comply all CIL related requirements in order to avoid surcharges or the loss of exemptions or reliefs.

Already, developers of developments not commenced, or phases of development not commenced, can benefit from any new instalment policies introduced by collecting authorities.  There are also discretions around issuing of CIL stop notices (requiring development to stop where CIL has not be paid) and issuing surcharges to people who have not paid CIL.

Government guidance published on 13 May announced that the CIL Regulations will be temporarily amended (soon, but not immediately) to provide flexibility for SMEs with a turnover of less than £45 million by giving authorities more discretion to defer payment for small and medium sized developers without having to impose additional costs, such as surcharges and interest on them.  

The forthcoming amendments will ‘enable’ – not require – collecting authorities to defer payments, temporarily disapply late payment interest and consider returning interest already charged during lockdown prior to the Regulations coming into force.

The emphasis on SME developers rather than all developers is so “small and medium-sized enterprise builders in particular can have a bit of breathing space in the weeks and months ahead, which is a critical lesson learnt from the last downturn in the market”, according to the Communities Secretary’s statement to the House of Commons on 13 May.

The CIL Regulations will not be amended immediately, as Parliamentary approval of both Houses is required, including a debate, so the Government has made clear in its guidance that:

existing flexibilities and the government’s clear intention to legislate should give authorities confidence to use their enforcement powers with discretion and provide some comfort to developers that, where appropriate,​ they will not be charged extra for matters that were outside of their control” (our emphasis).

 

The guidance goes on to set out how collecting authorities should respond:

  • consider making use of the ability to introduce an instalment policy (or amend an existing instalment policy)
  • use their discretion in considering what, if any, enforcement action is appropriate towards SMEs in respect of unpaid CIL liabilities
  • take a positive approach to their engagement with SME developers, to ensure CIL liabilities do not cause undue burdens over the period of disruption caused by the coronavirus
  • note the existing flexibilities around enforcing CIL for larger developers, including flexibilities over the imposition of surcharges. Late payment interest will remain mandatory for large developers where such flexibilities are used

The Government has acknowledged that this means that in some cases, delayed payment would result in mandatory interest charges for developers with a turnover of more than £45 million.  It is not yet clear what happens where liability is shared and one of the parties liable is an SME and one is not.  Distinguishing between a parent company and a subsidiary is not address either, but this may come in the amendment regulations.

We know of CIL officers who would like to take a benevolent view in the current climate and have been in discussions with Government about introducing flexibilities or removing certain requirements.  The measures proposed are unlikely to satisfy these officers or the development sector.

We had hoped that the amendments to the CIL Regulations might include delaying when CIL payments are due and suspending demands for any pending payments, but this is not the case.  We also noted that it would be helpful if the amendments took into account CIL charges due between the lockdown coming into force and the amendments being made – they will do this in terms of interest payments, but only for SMEs.  It is interesting that the Government has decided to give SME developers a leg up at this time.  The general consensus it that they need support, but at present many large developers do too.

S106 planning obligations

The Government does not appear to be proposing any legislation to allow for applications to amend s106 agreements.  The guidance considers deeds of variation to be a sufficient mechanism to agree amendments to the timing of payments or deliverables. The guidance encourages LPAs “to consider whether it would be appropriate to allow the developer to defer delivery. Deferral periods could be time-limited, or linked to the government’s wider legislative approach and the lifting of CIL easements (although in this case we would encourage the use of a back-stop date)”. There would be no right of appeal if the LPA does not agree to changes the timescales in the s106 agreement.

There is no encouragement to review the obligations within s106 agreements, but LPAs are asked to take a pragmatic and proportionate approach to the enforcement of section 106 planning obligations during this period.  Reviewing the scope and nature of obligations might be considered premature (particularly when the ability to conduct viability appraisals to understand the valuation implications of the crisis is so difficult); this might follow if the economy does not recover swiftly and the market does not spring back into shape.

   
 

Permitted Development (PD) rights: prior approval determination periods and time limit conditions

Whilst permitted development rights allow certain works to be undertaken without planning permission, certain classes of PD require prior approval from the local planning authority, as such, applicants may face some of the same issues as those submitting regular planning applications.
 
It is likely that some LPAs will require more time than the standard 56-day determination period for applications for prior approval. The MHCLG Chief Planner letter to LPA Chief Planning Officers encourages councils to be pragmatic and continue, as much as possible, to work proactively with applicants and others, where necessary agreeing extended periods for making decisions. 
 
Parties may wish to agree extensions of time for LPAs to determine decisions under the provisions under Article 7 of the GPDO 2015 rather than refusing applications.
 
Office-to-residential development granted by the prior approval process must be completed within a period of three years starting with the prior approval date.
 
This means that if the development cannot be completed within its three-year window because of the pandemic then it will be lost, even if work has started.  If this situation might apply to you, please contact us or seek legal advice regarding the extent to which works undertaken might be considered to comply with the time limits condition.
 
Article 4 Directions usually come into force with a year of notice, giving a developer time to benefit from the permitted development that the Direction will remove.  It may be that the pandemic prevents the permitted development right being crystallised before the Article 4 Direction comes into force and again please contact us or seek legal advice to discuss this issue.
   
 

New temporary PD rights: Emergency development Local authority and NHS

In response to the current situation, there is an immediate need for new and additional facilities for providing health care facilities, testing centres, coroner facilities, mortuaries, accommodation, and for storage and distribution of food and necessary supplies.
 
To allow this to happen at pace, new permitted development rights have been introduced that will allow for the change of use and adaption of existing buildings as well as new temporary modular buildings.
 
On 8th March, new regulations were introduced, amending the Town and Country Planning (General Permitted Development) (England) Order 2015, introducing a new Class 12 A of Permitted Development (PD) that allows for "Emergency development by a local authority or health service body”.
 
The provisions have considerable scope, permitting the specified bodies to alter or enlarge any existing buildings, or develop land for the purposes of creating a new building for the purposes of:
 
a) preventing an emergency;
b) reducing, controlling or mitigating the effects of an emergency; or
c)taking other action in connection with an emergency.
 
An interpretation of is also provided. This covers anything that “threatens serious damage to human welfare in a place in the United Kingdom”. This could include loss of life, illness or injury, or homelessness, though also stretches to matters that might disrupt telecommunications, transport facilities and the “supply of money, food, water, energy, and fuel”.
 
There are a number of limitations to this PD right for example, no part of the development can be within five metres of the boundary of a dwelling-house and new buildings and emergency alterations are restricted to maximum heights.
 
This is time-limited permitted development right.
 
  
 

New temporary PD Rights: Change of use from pub/restaurant to hot food takeaway

New measures have been introduced to help food and drink businesses continue to operate whilst also helping secure the availability of food, through the introduction of Regulations amending the General Permitted Development Order 2015.
 
New 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.
 
Secretary of Secretary Robert Jenrick MP commented:
 
“These changes will provide vital flexibility to pubs and restaurants and will ensure people are able to safely stay at home while still supporting some of the great local businesses across this country.”
 
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 the first practical opportunity.
 
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, the MHCLG 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.”
 
The Lichfields Guide to the Use Classes Order has been updated to reflect the new, temporary PDRs.

Breach of conditions and COVID-19

A Written Statement from the Communities Secretary confirms that the government wishes to relax controls which restrict the time and number of deliveries to shops and supermarkets, requesting that local planning authorities (LPAs) should not undertake enforcement action where such planning conditions have been breached, having regard to their legal obligations.
 
Local planning authorities should use their discretion over “the enforcement of other planning conditions which hinder the effective response to COVID-19.”
 
The Government has emphasised that this is a short term measure.  The flexibilities required by the Statement will be reviewed once current pressure reduce and it will be withdrawn “once the immediate urgency has subsided”.
  

Neighbourhood planning

The planning practice guidance chapter on neighbourhood planning has a new paragraph explaining how Covid-19 related legislation, policy and guidance affects neighbourhood planning.
 
Essentially the Coronavirus Act 2020 and subsequent Regulations mean referenda scheduled to take place, between 16 March 2020 and 5 May 2021 are postponed until 6 May 2021.
 
The guidance reminds that where a statement has been issued regarding the intention to hold a referendum the plan can be given significant weight, albeit that it continues to advise that weight is a matter for the decision maker. The new guidance also covers examinations and public consultations.
 

MHCLG, Planning Practice Guidance on Neighbourhood Planning, para 107 ID 41-107-20200407MHCLG, Planning Practice Guidance on Neighbourhood Planning, Decision takingLocal Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020

Local plan progress

The Government has made clear that it wants authorities to continue to make progress on emerging Local Plans, reiterating its target of all authorities having up to date Plans in place by 2023. Planning Practice Guidance (PPG) on Plan-making has been updated setting out how local authorities can review and update their Statements of Community Involvement. This states that where “any of the policies in the Statement of Community Involvement cannot be complied with due to current guidance to help combat the spread of coronavirus (COVID-19), the local planning authority is encouraged to undertake an immediate review and update the policies where necessary so that plan-making can continue.”

The PPG states that any temporary amendments should promote effective community engagement “by means which are reasonably practicable”. Various online engagement methods are suggested, including virtual exhibitions, digital consultations, video conferencing, social media, whilst requirements for physical documents to be publicly available for inspection, may be satisfied through online publication.

To ensure accessibility for those without internet access, authorities are advised to consider engaging directly with representative groups, focusing on those in areas specifically affected by proposals, whilst allowing individuals to nominate others to represent their views on their behalf. It also suggests that representations may be made by telephone or in writing where alternatives can not be identified.

 

 

Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116