On 23 March 2020 Boris Johnson gave the British people a simple instruction to “stay at home”. To ensure compliance with this we saw the closure of all shops selling non-essential goods, the prevention of gatherings of more than 2 people and the cessation of all social events along with restrictions on our liberty allowing us to leave our homes for only essential specified activities. So in these unprecedented times, with most people working from home, including local authority planners and members of the Planning Inspectorate, what is being done by the planning profession to ensure that decisions continue to be made?
The current position – Local Authority decision making
Local planning authorities have a number of ways in which they can make decisions: planning officers have delegated powers which they can exercise to determine certain applications themselves, generally for non-major development. The majority of our clients’ schemes comprise major development (e.g. 10 dwellings or more; sites over 1ha or 1,000 sqm; or involve waste or minerals development) which are generally reserved for a planning committee. Each local planning authority has its own scheme of delegation which designates the categories of planning application which can be decided under delegated powers. If the categories of decisions that are delegated are to be extended that will necessitate changing the scheme of delegation. As discussed below, this is entirely possible, but does have a number of other ramifications which need to be considered.
Decision taking in the midst of a Pandemic
There are a number of options open to local planning authorities as to how they continue to make decisions in the midst of the current pandemic. A number of Councils are choosing to make amendments to their constitutions to allow heads of service to make decisions that would otherwise be taken by a planning committee. This means that a planning officer will make the decision but on the advice of one or more members of the committee by way of, for example, video conferencing. The Members’ views may be binding depending on the scheme of delegation. In any event the officer making the decision will be expected to give weight to their views and opinions. Whilst this is by no means ideal, it does enable decisions to continue to be made and still allows for the input of members of the planning committee.
Some local planning authority constitutions may already enable this flexibility but others may require urgent amendments. Unfortunately variations to a constitution will usually require a meeting of Full Council which meets the requirements for a quorum, meaning a specific number of members must be present to vote on the proposed amendment. The issue facing local planning authorities in the current climate is that members are not permitted to be gathered in the same room as each other. Schedule 12, Section 39 (1) of the Local Government Act 1972 requires Councillors to be physically present at a meeting when local authority decisions are taken and there is no provision to allow participation or voting by remote means.
However, in response to this the Government has included Section 78 to the Coronavirus Act enacted on 25 March 2020 which allows for this flexibility and it contains a raft of emergency measures to tackle the pandemic and its impacts until 7 May 2021. Section 78 empowers the Secretary of State to make regulations which can relax the existing requirement for council meetings to be help in person.
The secondary legislation – namely The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 (“Regulations”) - came into force on 4 April 2020. This enables local authorities to hold meetings and make committee decisions remotely by amending the Local Government Act 1972 so that being “present” during a Council meeting includes by remote means. The Regulations also include the power to hold and alter the frequency of meetings without notice. This is an encouraging development and it demonstrates the clear message from Government that local authorities should continue to operate their statutory functions even in this current climate, although its success will be entirely reliant on local authorities embracing the use of remote technology or indeed having the technological capacities of doing so.
There is also the “public” element of planning committee meetings to be considered. Many Councils allow the right for applicants and objectors to address the planning committee on issues surrounding an application. It is key that the current circumstances should not preclude members of the public from participating in Council meetings and whilst attendances at meetings at the present time is not possible, members of the public could express their views through relevant social media channels or through the comments pages on the Council’s planning portal and possibly via video links. The Regulations of course now allow press and public attendance through remote means. Authorities may also consider whether to allow interested parties a further opportunity for written representations. All these measures will of course need to be considered against the Council’s Statement of Community Involvement and thought given as to whether this requires updating to cater for the change in consultation process and participation, to avoid criticism or risk of legal challenge.
It is also noteworthy that The Local Government and Police and Crime Commissioner (Coronavirus) (Postponement of Elections and Referendums) (England and Wales) Regulations 2020 came into force on 7 April 2020. These regulations extend upon the postponement of local and mayoral elections under the Coronavirus Act 2020 by also postponing other polls including local authority, mayoral and Greater London Authority by-elections, polls and referendums due to be held, or scheduled, between the period 15 March 2020 and 5 May 2021.
Steve Quartermain (CBE) Chief Planner at the Ministry of Housing Communities and Local Government in his most recent (and final) planning update letter of 24 March 2020 encourages the planning profession “to be pragmatic and continue, as much as possible, to work proactively with applicants and others where necessary agreeing extended periods for making decisions”. Mr Quartermain recognises that whilst face to face events and meetings may no longer be able to take place, he encourages the exploration of technology to ensure that discussions and consultation can still go ahead. He also recognises that there may be circumstances where permitted development prior approval applications are unable to be considered within the deemed consent period and whilst it remains important to prioritise these decisions so important economic activity can continue, the authority can seek to agree an extended approval date with the applicant, and where agreement cannot be reached the authority may need to consider whether a prior approval is refused if the application cannot be considered with the requisite attention.
Planning decisions made by the Planning Inspectorate
The Planning Inspectorate (“PINs”) has published guidance on how it intends to continue to carry outs its duties under the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004 and the Planning Act 2008.
Whilst some site visits, hearings, inquiries and events have been cancelled or postponed because of the likelihood of social contact between multiple parties, PINs is also considering whether it might be feasible to utilise technological solutions to enable the events to proceed, such as hearings or inquiries by way of video link. This will be by no means straightforward given the need to ensure fairness for all parties especially third parties such as members of the public. In some cases, where appropriate, the Inspector might invite the parties to consider whether the case could be decided on the basis of written representations as opposed to a hearing or an inquiry.
PINs is also being proactive about site visits and where an Inspector is able to travel to a site without using public transport and can access a site in a way that avoids social contact, then the main parties are being invited to consider whether a site visit could be made by the Inspector in an unaccompanied manner. Visits that require an Inspector to be accompanied will not proceed until it is safe to do so. PINs are keeping this guidance under review which could change at short notice and reflect the Government’s wider advice.
In terms of the submission of planning appeals, the Planning Casework Unit (“the PCU”) at MHCLG will be continuing to deal with the usual case load with its staff working from home. All submissions will therefore need to be made electronically as the PCU will not be able to receive or process hard copy correspondence.
The current situation clearly also has an impact on the Local Plan process. Guidance from MHCLG to all local planning authorities is to continue to work proactively with their community and other stakeholders to progress Plans even if adjustments to the Local Plan timetables are required. Examinations are likely to be put on hold for the foreseeable future, although the Planning Advisory Service has made clear that authorities with plans in preparation should not postpone consultation wherever possible, nor postpone submission if a Regulation 19 Plan is ready.
Many planning decisions are the subject of Court proceedings. Where challenges are made they will have to be submitted within the normal time frames. Increasingly electronic submissions seem likely rather than applications being made in paper form. It is understood that the Administrative Court is not dealing with any new business, other than urgent cases.
Hearings of a non-essential nature are also being cancelled or postponed but Courts are generally more used to dealing with witness evidence via video links and telephone hearings. A recent permission application we were dealing with was cancelled only to be reinstated shortly thereafter in order for it to be dealt with via Business Skype. We anticipate the Courts will respond more quickly to the need to use technology to allow for hearings to be dealt with via remote links and we are already aware of the Administrative Court using video technology to deal with judicial review hearings for example.
Other matters arising
A key concern for many in the development sector will be what happens to extant planning permissions which require implementation to keep the permission alive, but which cannot be lawfully commenced due to the Government direction to remain at home. Similarly, there is the issue where a planning permission contains pre-commencement conditions which cannot be discharged by the local planning authority due to the officers being unable to make a decision on the submission, the inability to get such conditions discharged could lead to the planning permission expiring without being implemented. It is worth pointing out that there is a line of cases which confirm that provided that pre-commencement condition details are submitted before a permission lapses, approvals given after expiry would not prejudice lawful implementation. However, it is clearly less than ideal to commence development with uncertainty about condition discharges and there is a risk that details submitted are not subsequently approved in which case the permission could not as a matter of law be lawfully implemented.
Developers and landowners should also consider the use of Section 73 applications for pre-commencement conditions. This could be used to amend such conditions to enable details to be submitted to and approved post-commencement e.g. pre-occupation of the first residential unit.
It may also be appropriate to submit alternative reserved matters details where there are anticipated concerns regarding the acceptability of those details. This could facilitate a greater range of discussions around proposals than would be the case if just one set of details were submitted and that may help to avoid refusals and the risk of permissions lapsing and preventing further reserved matters applications.
Some may recall the provisions introduced by the Labour government in 2009 which allowed an extension of a planning permission if it was granted on or before 1 October 2009 as a response to the 2008 economic recession. This power continued until November 2013 at which point it expired and was not renewed to prevent developers who might have utilised the power to “land bank”. Could this be an avenue which the government may decide to explore once again in the current circumstances?
Could we also see a re-introduction of powers such as Section 106BA, BB and BC introduced by the Growth and Infrastructure Act 2013 into the 1990 Town and Country Planning Act which introduced an application and appeal procedure for the review of planning obligations on planning permission in respect of affordable housing but see these provisions applied to a review of the entirety of obligations in a section 106 agreement?
In addition, can we anticipate a review of the CIL Regulations to ensure that where permissions are implemented, there is not an immediate need to pay CIL? This would be helpful where permissions are implemented to avoid them lapsing but there is little prospect of development continuing or the rate of delivery and unit sales or leases may be impacted by the current uncertainty.
Even in these uncertain and very unsettling times, it is reassuring that the focus of the Government remains on keeping the construction and development industry operating and is working to ensure that after the crisis recedes the backlog of pending permissions is minimised and the sector is able to resume business as usual as soon as possible. However, further legislative reform is necessary to help achieve this in the short term. In addition, the need for applicants and local planning authorities to work together has never been so great to ensure decision making and applications do not unnecessarily stall. Many authorities may be nervous – or indeed resource short – in making amendments to constitutions or decision making processes, which we may assist with. However, it needs to be remembered that if positive decisions are not made this does have an impact, for example, in meeting Government and local authority housing delivery targets and in turn may make demonstrating five years housing land supply and compliance with the Housing Deliver Test challenging.
Please do not hesitate to contact any member of the Howes Percival Planning team if you would like to discuss any of the issues covered in this article further.
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