News
England planning news, April 2020
16 Apr 2020
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Headline news |
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New and amended legislation in response to COVID-19
As part of its response to the ongoing COVID-19 situation, the Government has announced new legislation to aid the continuation of local authority decision making, alongside new permitted development (PD) rights that enable pubs and restaurants to primarily provide alternative take away services and permit certain emergency development.
Remote access or ‘virtual’ local authority meetings
Prior to the Coronavirus Act 2020 gaining Royal Assent on 25 March, an amendment was made that laid the foundations for local authorities to be able to hold virtual meetings in response to Government requirements on social distancing and the increasing prevalence of self-isolation measures.
Due to provisions in the Local Government Act 1972, councillors are unable to vote in committee meetings, unless physically present, however, section 78 of the Coronavirus Act 2020 temporarily allows for secondary legislation to be made, enabling remote access to local authority meetings during the current lockdown and to 7 May 2021.
The necessary Regulations are now in force and its measures make provision for the conduct of local authority meetings and for public and press access to these meetings.
And while the law allows meetings to take place electronically, local technical capabilities will differ. We discuss some example approaches to decision making during the lockdown, below.
Coronavirus Act 2020The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020
Restaurants and pubs may operate as takeaways and Government insists on flexibility regarding operating hours
Further legislative changes have been introduced by way of amendments to the General Permitted Development Order 2015. The amendment regulations introduce Class DA to the Order, a new permitted change of use allowing for A3 restaurant and A4 drinking establishments, to primarily offer takeaway food (including, but not limited to, changing to use class A5). The new PD right will also apply to Class AA drinking establishments with enhanced food provision, as defined within Part 3 of the GPDO.
At present, the amendments do not override any conditions that have previously been attached to a permission, such as conditions restricting the sale of certain goods and services. However, the Chief Planner has advised in his planning update newsletter (see below) that local planning authorities should use their discretion over “the enforcement of other planning conditions which hinder the effective response to COVID-19.”
And a Written Statement from the Communities Secretary (covered in more detail below) confirms that the Government wishes to relax controls which restrict the time and number of deliveries to shops and supermarkets, stating that local planning authorities (LPAs) should not undertake enforcement action where such planning conditions have been breached.
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”.
The Lichfields Use Classes Order has been updated to reflect the new, temporary PDRs.
The Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020Delivery Restrictions: Written Statement from Communities Secretary Robert JenrickLichfields Guide to the Use Classes Order
New PD right for local authorities and health service providers allows for emergency development
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 8 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:
- preventing an emergency;
- reducing, controlling or mitigating the effects of an emergency; or
- taking other action in connection with an emergency.
An interpretation of emergency 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 5 metres of the boundary of a dwelling-house and new buildings and alterations are restricted to maximum heights.
This is time-limited permitted development right.
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Quotes of the month |
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It is important that local planning 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.
Housing Minister, Rt Hon Christopher Pincher MP, in response to a written question, 25 March 2020
We are asking local planning authorities to take an innovative approach and explore every opportunity to use technology to ensure that discussions and consultations can go ahead. We would encourage councils to consider delegating committee decisions where appropriate. The Government has introduced legislation to allow council committee meetings to be held virtually for a temporary period which we expect will allow planning committees to continue. Be practical, be pragmatic and let's plan for the recovery
Steve Quartermain CBE, Chief Planner, in his final Planning Update newsletter |
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Continuation of planning services during the COVID-19 lockdown
Measures introduced to try to stem the spread of coronavirus have had an immediate impact on the ability of English LPAs to carry out various planning services. Whilst the situation is varied from authority to authority, then Chief Planner Steve Quartermain’s March 2020 planning update newsletter has called on LPAs to take a pragmatic approach and where possible to continue to work proactively with applicants and others.
The Business Secretary and former Housing Minster, Rt Hon Alok Sharma MP has written an open letter to the UK Construction Sector thanking it for its hugely valued and critical contribution to the resilience of our Nation. Importantly, he also said:
“we know that for many people working in construction their job requires them to travel to their place of work, and they can continue to do so. […] To help ensure that it is safe for you to operate in your workplace, the industry has worked to develop Site Operating Procedures […] I am in regular contact with industry leaders about the developing situation that faces the sector”.
In almost all instances, face to face meetings have now been cancelled, though many LPAs have sufficient IT capabilities in place to enable home working, allowing virtual meetings to take place for pre-application discussions and general inquiries.
It is not clear whether all authorities are still able to validate applications and we are aware of some difficulties in posting site notices and notifying neighbours. The Government has offered little direction or guidance on these particular matters compared to that issued in the devolved administrations – Wales in particular. In some instances, LPAs are requesting that applicants post site notices themselves and provide officers with photographs in place of site visits.
The Planning Update Newsletter acknowledges that it doesn’t cover all matters and says “We are dealing with many questions relating to the planning implications of the current situation, and while we deal with some here, we will write further on other matters as they arise”.
On decision-making, Steve Quartermain’s letter asks LPAs to explore all options available to them. We discuss below examples of how Councils have tried to keep determining planning applications.
With remote local authority committee or decision taking meetings now being lawful, concerns in this regard have been addressed, but it may still be some time before all LPAs are able to hold online meetings for reasons including technical capabilities and concerns regarding accessibility for the general public (see below).
A Written Ministerial Statement has called on LPAs to use discretion on the enforcement of other planning conditions which hinder the effective response to COVID-19.
A Lichfield blog 'Lay of the land: Covid-19' looks at the potential impact of COVID-19 on various elements of planning and development, considering matters such as the housing delivery test, local plan preparation and varying IT capabilities.
And another Lichfields blog ‘hawks v doves’ reviews a recent appeal decision that has taken the impact of the Coronavirus on 5 Year Housing Land supply and considers the implications on housing supply generally and how the development sector might respond.
MHCLG, Chief Planner's planning update newsletterLichfields Planning Matters, Covid-19: Testing times for housing delivery - hawks vs dovesLichfields Planning Matters, Lay of the land: Covid-19Business Secretary, Rt Hon Alok Sharma MP, open letter to the UK Construction Sector
Decision making around the country
Council’s have acted at varying speeds in seeking to keep the planning decision making process going; we discuss a few examples below.
Prior to remote committee meetings becoming legal, 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).
The 31 March LB Waltham Forest meeting 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 4 April would have had to cancel their meetings if they couldn’t safely arrange for a quorum to be physically present due to the law re virtual meetings not being in place, such as in Bristol and Birmingham.
a) 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 RBWM 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, meetings will revert back to the council meeting schedules which were agreed by Council on 26 February 2019 and 25 February 2020”.
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”.
B) Remote decision making: online committee meetings
Remote meetings have now started and there are various approaches; we outline a very few below:
South Somerset Council introduced an interim measure of Councillors continuing to receive decision-making reports, debating them via video conference and communicating their view to the Chief Executive or relevant Director to make a decision. These meetings will continue to be consultative “for a short while, as we get used to the new on-line style of meeting”.
South Somerset Council’s Area South Committee 9 April meeting (not a decision making meeting) gained infamy when participants with false names (of a Bart Simpson calling Moe’s Tavern style) joined its Zoom meeting, contributed distractingly and shared their own images over the top of the presentation to the Committee.
Potentially addressing this, those wishing to participate in South Somerset’s Area West Committee meeting had to email to request login details for the meeting; the meeting on 9 April provided login details within the agenda pack.
On the same evening, Melton Borough Council Planning Committee held a meeting via Zoom with participants invited to register to take part.
Also on 9 April, a Royal Borough of Kensington and Chelsea Planning Applications Committee was held via MS teams and was non-participatory. A councillor said that the meeting “had nearly 200 members of the public at one point. One of our largest audiences for a planning committee. These cases had no residents to support/object”.
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.
City of Westminster’s planning application sub-committees will be shown to an audience, with prior participation in the meeting via Written Representations encouraged; public speaking has been suspended ‘during the pandemic’.
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.
Planning Advisory Service, Planning Committee
The response from the Planning Inspectorate: digital pilots and virtual site visits
Planning Inspectorate (PINS) has postponed the site visits, hearings and inquiries that would normally be undertaken as part of its local plan, appeal and Nationally Significant Strategic Infrastructure Project caseload.
However, PINS is considering whether there are feasible technological solutions to enable hearings to proceed. Planning and Environment Bar Association submitted documents to PINS “which suggest a potential way forward towards holding some hearings and simple inquiries remotely”.
Subsequent to this, PINS has announced that it expects to hold its “first digital pilot case either at the end of this month or early next month" and is liaising with the parties.
A trial of ‘virtual site visits’ with a small group of inspectors has started and may be included in the digital pilot case. But critically - given that more than 90 per cent of section 78 appeals are by written representations- the success or otherwise of this trial will confirm whether or not written representations appeals “can be properly decided on the basis of digital images". If the trial is a success “a physical visit will not take place and the case will be decided purely on the basis of the written evidence received". The trial will be reviewed “in a few weeks" before a decision on whether or not to extend the pilot is made.
PINS has confirmed that where possible, it will continue to progress the pre- and post-hearing stages of local plan examinations and has encouraged other parties to continue with discussions through written submissions where it is possible and safe to do so. Inspectors will continue to work through available material, and will issue written questions in order to progress cases where possible.
PINS Guidance on Coronavirus and NSIP events says “Where circumstances make it difficult for written submissions to be made, the Examining Authority may exercise discretion on any existing deadlines and will continue to consider potential changes to timetables in the light of the emerging situation”.
Planning and Environment Bar Association, news and events pagePlanning Inspectorate, Coronavirus (COVID-19) - Planning Inspectorate guidancePlanning Inspectorate Coronavirus (COVID-19) Update 16 April 2020
CIL still applies
One area where there is relative certainty is the Community Infrastructure Levy (CIL): its inflexibility means that it is clear that the Regulations continue to apply.
We know of CIL officers who would like to take a benevolent view in the current climate and are in discussions with Government about introducing flexibilities or removing certain requirements.
There are some existing flexibilities around the pursuit of payments by collecting authorities, but, for the moment, developers must follow and comply all CIL related requirements in order to avoid surcharges or the loss of exemptions or reliefs.
Parliament returns on 21 April and this means it will be possible to amend the CIL Regulations. We hope that this might include delaying when CIL payments are due and suspending demands for any pending payments. It would be helpful if the amendments take into account CIL charges due between the lockdown coming into force and the amendments being made.
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, Decision takingLocal Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020
The Budget and Planning for the Future
The 12 March Budget feels a long time ago, fiscally speaking. However, its planning and development related commitments, as set out in Lichfields Economic Outlook, continue to be relevant.
The Planning White Paper was trailed in the Budget, as was the Planning for the Future Statement that followed in written and oral form the following day. Planning for the Future sets out how the Government’s route to planning reform and significantly increased housing delivery is intended to be achieved.
Our extended blog and timeline review Planning for the Future and consider the potential implications.
Some of the more immediate timescales envisaged by the Statement might have slipped since its publication. While the March 2020 Chief Planners Planning Update Newsletter referred to Planning for the Future and to the “intention to bring forward a bold and ambitious Planning White Paper this Spring” we understand that summer publication is more likely. Permitted development rights for additional storeys (subject to limitations and conditions) are anticipated to be available by the end of June.
Lichfields Matters blog, Planning for the Future and timelineLichfields, Economic Outlook, March 2020HM Government, Budget 2020MHCLG, Planning for the Future, 12 March 2020MHCLG, Chief Planner's planning update newsletter
Environment Bill stalled again
The Environment Bill 2019-2021 had reached Committee Stage, but its progress was stopped when Committees stage was adjourned with the indefinite suspension of the Public Bill Committee.
Progress could resume after Parliament returns on 21 April; the Chair of the Public Bill Committee will set the date.
Bill documents — Environment Bill 2019-21
Annual Housing Position Statements: 2020 intentions to submit
Planning Practice Guidance says:
“Where a local planning authority has a recently adopted plan (as set out in the National Planning Policy Framework) and wishes to confirm their 5 year land supply position through an annual position statement, they will need to advise the Planning Inspectorate of their intention to do so by 1 April each year”.
The Government has advised that six local planning authorities have indicated an intention to submit an APS:
- Fylde Borough Council
- Milton Keynes Council
- South Kesteven District Council
- Stockton on Tees Borough Council
- Sunderland City Council
- Wyre Council
Planning Inspectorate, Housing land supply annual position statements
Government response to ‘The Revitalisation of the High Street’
The Government has responded to the recommendations of an October 2019 report by the British-Irish Parliamentary Assembly on ‘The Revitalisation of the High Street’, which looked at various case studies (including Newcastle-upon-Tyne and Stockton-on-Tees in England).
A key theme is the need for high street investments to complement wider economic strategies, including the Future High Streets Fund, Town Deals/Town Investment Plans and Local Industrial Strategies. The response also highlights the potential role of the High Streets Task Force and need for collaboration between a range of different stakeholders, with Government’s commitment to Business Improvement Districts (BIDS) being very clear. Alongside this, the response reaffirms the role of new housing and other uses (e.g. co-operative work-spaces or tech-hubs) in supporting the regeneration of the high street, as well as emphasising the importance of ‘experience’ in developing an offer than cannot be replicated online.
The Government also responds to the report’s recommendation on tax measures and rejects its proposed vacant site levy.
Although there is little new in the document, and any further measures to support the high street will need to be even more weighty consideration given the current climate, the document provides helpful confirmation of the Government’s direction of travel.
HM Government policy paper, Revitalisation of the high street
Greenhalgh becomes Minister of State and new Shadow Housing Secretary announced
Stephen Greenhalgh has been appointed an unpaid Minister of State jointly at the Ministry of Housing, Communities and Local Government and the Home Office and will be made a life peer.
New Labour leader Sir Keir Starmer has announced his Shadow Cabinet: Rt Hon John Healey MP, Shadow Housing Secretary for many years is now the Shadow Defence Secretary; Thangham Debbonaire MP is the Shadow Housing Secretary and Steve Reed MP is Shadow Communities and Local Government Secretary. Mike Amesbury MP is Shadow Housing and Planning Minister and Kate Hollern MP is Shadow Local Government Minister.
Communities Secretary Robert Jenrick on Twitter re Stephen Greenhalgh appointmentHM Government, Stephen GreenhalghLabour, Shadow Cabinet
West Yorkshire Devolution Deal paper published
The West Yorkshire Devolution Deal, which is still subject to ratification, sets out the proposed terms of a £1.8bn devolution deal between the Government and the local authorities of West Yorkshire and the West Yorkshire Combined Authority.
The proposed deal includes several statutory powers, including spatial plan-making, compulsory purchase and Mayoral Development Corporations. There is also a five-year integrated transport settlement starting in 2022/23, exploring the case for West Yorkshire Mass Transit, and new powers on transport.
The deal is subject to agreement by all partners, and secondary legislation will require Parliamentary approval.
A Lichfields Planning Matters blog provides a summary of some of the key points in the Devolution Deal as well as lessons that can be taken from similar deals in neighbouring Mayoral Authority Areas.
Lichfields Planning Matters, Power to the West Yorkshire PeopleHM Government, West Yorkshire Devolution Deal
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The Lichfields perspective |
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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. The quick fix of introducing permitted development rights to operate a restaurant/pub restaurant as a take-away shows that the Government can respond quickly to ensure that planning adapts to the current circumstances. With Parliament returning by 21 April, England must follow Scotland’s lead in bringing forward primary legislation to extend the life of planning permissions due to expire in the next year. Legislation to reduce the impact of CIL payments on developments that cannot be completed and/or occupied is also essential. |
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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