In an unprecedented step to attempt to limit the spread of Coronavirus COVID-19 the UK Government announced a lockdown on 23 March. At a stroke life in the UK was profoundly altered in many respects.
In response the planning sector, like most other areas, has had to make significant adjustments to move to new ways of working for the foreseeable future and allow business to continue. This second Knights COVID-19 planning update provides a summary of the evolving situation.
This note follows on from our 25 March planning update and covers the following topics:
- Permitted Development Rights
- Planning Applications and delegation of decisions
- Virtual Planning Committees
- Planning Appeals
- Community Infrastructure Levy
- Section 106 Agreements
- Judicial Review
- Local Plans
- Construction site working hours
A new time limited emergency permitted development (PD) right came into force in England on 9 April 2020 running until 31 December 2020 in order to support health service bodies and local authorities’ in responding to coronavirus. It allows for development on behalf of a local authority or health authority body for the purposes of taking action in connection with an emergency. This PD right requires no application and would allow for example the construction of new hospitals, testing centres, storage and distribution facilities coroner facilities and mortuaries.
Similar regulations came in to force in Wales on 10 April 2020.
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. MHCLG set out on 13 May 2020 that local planning authorities should make clear on their websites that all planning applications are to be made online where ever possible to avoid the need for staff to work in the office and enable the remote processing of planning applications to continue.
Revised guidance was released on 13 May 2020 such that local planning authorities (and applicants for EIA development) now have the flexibility to take alternative reasonable steps to publicise planning applications if they cannot discharge the specific requirements for site notices, neighbour notifications or newspaper publicity. This allows planning authorities to place a greater reliance upon electronic communications and making planning application documents available on line rather than necessarily available for public inspection. Local planning authorities might also ask applicants to display site notices on their behalf. These changes are facilitated by the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 which came in to force on 14 May 2020.
Priority is to be given to the validation of any urgent COVID-19 related applications for planning permission and associated consents.
Both MHCLG in England and the Welsh Government have confirmed that no extension to the 8 and 13 week determination timescales for planning applications as set out in the Development Management Procedure Order 2015 and Development Management Procedure) (Wales) Order 2012 respectively is proposed. As such the option to appeal on the grounds of non-determination remains.
Whilst some delays to planning applications may be encountered, there is no reason why planning applications should not be assembled and submitted. Given the additional time it may take for applications to be processed it makes sense to have your planning applications moving through the system as soon as possible.
The concern however remains that some planning permissions may expire due to difficulties in completing the work necessary to discharge pre-commencement conditions during the lockdown period and potentially also getting contractors on to site to undertake works to begin development (the Scottish government has put in place measures to extend planning permissions that would lapse within the next six months such that they will not expire until April 2021, with ministers having the power, through regulations, to amend the duration of these six-month and one-year periods).
Discharge of pre-commencement conditions after the time limit for implementation can, however, still result in lawful implementation if sufficient works have been undertaken prior to the time limit. Our advice is to commence the discharge process and take advice on the steps necessary for lawful implementation at the earliest opportunity.
New regulations to allow virtual planning committees are now in place. The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 came into force on 4 April 2020. They apply to all local authority meetings up to 7th May 2021. The key provisions concerning virtual planning committees apply solely to England, however the Welsh Government has also put in place secondary legislation that allows for local authority meetings to be held wholly remotely, which came into force on 22 April 2020.
Examples of Councils using such provisions are now found across the country and include Ashford Borough Council, Guildford, Royal Borough of Kensington & Chelsea, Lancaster City Council, Lichfield Council, Newcastle under Lyme Borough and Cheshire West (Knights have recent experience of planning applications determined under this format and secured an approval at one such meeting following a presentation).
Many local planning authorities are also using the ‘urgency powers’ within their constitutions to give senior officers delegated authority to make many decisions. Major planning applications in Manchester City, for example are now delegated to the council chief executive, the chair of the planning committee and the deputy chair and Pembrokeshire County Council for instance have agreed to delegate all planning applications to officers during the COVID-19 outbreak.
In order to limit the spread of COVID-19 the Planning Inspectorate previously announced all planning appeal hearings and inquiries in England and Wales were to be postponed for the time being and that all appeal site visits by Planning Inspectors were suspended.
The Planning Inspectorate however updated on 13 May that appeal site visits will now be undertaken ‘where it is safe to do so’ and consideration is also being given to whether there are cases that can proceed without undertaking a site visit.
In addition, the first fully digital planning appeal hearing took place on Monday 11 May and it is hoped further at least a further 20 examinations, hearings and inquiries will follow during May and June. By learning from preceding cases, the aim is to scale up to larger events involving more parties.
The Planning Inspectorate is also considering a hybrid approach where some parties may attend hearings in person and others linked by video or telephone. In addition, ‘socially distanced’ events are being considered.
Whilst delays for many appeals are still likely, the above changes will go some way to in assisting to address a lengthening queue of planning appeals requiring determination. Given the additional time it may take for planning appeals to be determined it is advisable to have any proposed planning appeal in the system as soon as possible.
It remains the case however that Planning Inspectorate staff are not currently working in their offices until further notice and all planning appeal documentation should be submitted digitally rather than hard copies via the post.
The Community Infrastructure Levy (CIL) Regulations already provide some flexibility for local authorities in England to defer the payment of CIL such as allowing those liable to CIL to pay the charge in instalments rather than one lump sum.
In response to the spread of Coronavirus (COVID-19) and the potential financial issues now faced by many businesses, MHCLG has published guidance in order to encourage local authorities to apply flexibility on CIL payments by introducing new instalment policies for chargeable development that has yet to commence, or apply flexibility on enforcement action for late payment as this is at the discretion of the collecting authority. However, under the current regulations, delaying payment would result, in some cases, in mandatory interest charges for late payment.
The government therefore also proposes to amend the CIL regulations to give authorities more discretion to defer payment for small and medium sized developers without having to impose additional costs on them. The timescale for this change remains to be confirmed and in the meantime CIL charging authorities are encouraged to introduce an instalment policy (or amend an existing instalment policy) and consider flexibility in respect of enforcing against late payment.
There are greater flexibilities within s106 planning obligations than CIL. Deferral periods for payment can be agreed with deeds of variation used to agree these changes. The government is also advising local authorities take a ‘pragmatic and proportionate approach’ to enforcement of section 106 planning obligations during this period.
From current experience, S106 negotiations are otherwise continuing. Sealing/completing the document may be dealt with in an alternative way, for example some local authorities may accept execution by way of counterparts given current circumstances where they would usually not. Additionally, the ‘Mercury signing approach’ to execute a deed is now accepted by the Land Registry following updated guidance issued on Monday 4 May. It is becoming more common for PDF documents to be issued via email for signing, rather than hard copy documents being circulated between parties through the postal system.
As previously advised in our earlier update, proceedings can still be issued; the time limits for issuing claims has not altered and remain short. Our planning lawyers are currently involved in several judicial review cases and report that, whilst there may be some delay following filing, hearings are proceeding remotely, with guidance and good practice continuing to evolve.
Where Local Plans were scheduled for consultation this spring many local planning authorities have postponed consultations due to the impact of the restrictions relating to COVID-19. A particular issue has been meeting the obligations in respect of the forms of consultation prescribed in each local planning authority’s Statement of Community Involvement.
Similarly in respect of Local Plans at or due for examination imminently these are also subject to delay as the Planning Inspectorate previously announced all planning appeal hearings and inquiries in England and Wales are postponed for the time being.
MHCLG has stated that the challenges some local authorities may face in this regard are recognised and are considering ways to address this. New guidance released on 13 May 2020 advises local planning authorities to reassess their Statements of Community Involvement to identify which policies are inconsistent with current guidance on social distancing and that they may revise these, temporarily relaxing requirements on community engagement and the need for physical documents with increased reliance on video conferencing and online consultations.
In addition the Planning Inspectorate is currently trialling the use of virtual hearings, socially distanced hearings and increased use of written submissions which may allow Local Plan examinations to resume in due course.
Knights will continue to liaise with the Councils in respect of Local Plans and monitor any material that is made available or revised dates for the consultations and examinations when announce.
On the 11 May the government published a document entitled ’Our Plan to Rebuild: the UK Government’s COVID-19 recovery strategy’. This makes clear that construction work can be undertaken across England, provided sites are operated safely in line with the ‘COVID-19 Secure’ guidelines.
Longer working hours may however be needed to facilitate social distancing, whilst trying to reduce the impact on construction timescales.
The Written Ministerial Statement by Robert Jenrick of 13 May suggested where more significant changes to working hours were sought, this should be via a variation of condition planning application in the usual way, however LPA’s should “ensure that decisions are issued quickly – with the aim of doing so within 10 working days” and suggests working to 9pm is likely to be appropriate in most cases.
The Written Ministerial Statement also suggested a more informal route, where proposed working hours changes are more limited. It noted that planning enforcement is discretionary and advised that LPAs should take a positive approach to written requests from developers and site operators for greater flexibility. It stated “Where only a short term or modest increase to working hours is required, local planning authorities should, having regard to the reason for the condition and to their legal obligations, not seek to undertake enforcement action”.
We hope that you will find this note helpful given the array of recent changes to planning processes that are likely to be in place for the foreseeable future. Further changes are also anticipated or appear likely to be necessary and further update commentary will be published on this website in due course.
It will be important to see these revised processes quickly embedded nationally and locally. It also seems likely there will be variability in how the new requirements are interpreted and applied in practice.
Our advice is to continue to prepare and submit your planning applications, appeals and legal challenges as far as you possibly can.
All of our team are working from home and it remains very firmly business as usual in terms of our service to you. Our planners and planning lawyers can be contacted via the usual office telephone numbers, mobile numbers and email. We also have available appropriate equipment and platforms to engage remotely with all clients. We will otherwise be pleased to assist you with any issues you may encounter during this period.
In the meantime, if you have any questions or need assistance with any new planning/development projects, then please do not hesitate to contact the Planning Team.