Coronavirus and the planning system

Below is our rolling article on some of the impacts on the planning process, and the implications of those changes, which have occurred so far.

25th March Update – Please see below a brief summary of the Coronavirus Bill  as it relates to planning.

1. Local Government, Mayoral and Devolved Authority Elections
   1. Section 60 provides that any local government elections that were to be held on 7 May 2020 are to be delayed to the ordinary election day in 2021 (generally the first Thursday in May – in this case 6 May 2021);
   2. Councillors who were stepping down from office at the current elections are to have their term extended by a further year;
   3. Councillors whose terms are extended to 2021 are to have any subsequent term reduced to end in 2024 – thereafter the usual four year cycle will resume;
   4. Likewise, the election for the next Mayor of London, and other elected mayors is to be postponed to 6 May 2021;
   5. The person next serving as Mayor is to serve a three year term, with four year terms resuming thereafter.
   6. Accordingly, terms are to be extended, but overall (assuming re-election at the next election) the length of time spent in office over two terms is unaffected. However, in broader terms, until the regulations provided for by Section 78 (see heading 3 below), it is questionable how much can readily be achieved be elected representatives in local government in any event.
2. Neighbourhood Plans
   1. Section 61 makes provision for secondary legislation which delays neighbourhood plan referenda where:
      1. The original referendum date was in the period 16 March 2020 to 5 May 2021; and
      2. The proposed revised date is no later than 6 May 2021.
   2. These power can be exercised more than once in respect of any proposed referendum, so in theory a referendum can be delayed multiple times as needed under these powers (assuming the necessary secondary legislation is effected by ministers).
3. Planning Committees and Local Authority Meetings
   1. Section 78 allows for regulations to be made which make detailed provisions as to the statutory requirements relating to the holding of local authority meetings (including planning committees and joint committees, the GLA, and National Parks) which are to take place before 7 May 2021, including:
      1. requirements to hold local authority meetings;
      2. the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
      3. the places at which local authority meetings are to be held;
      4. the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
      5. public admission and access to local authority meetings;
      6. the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
   2. Accordingly, the existing arrangements for local authority (including committee meetings) could be significantly amended, and there is seemingly scope for significant amendments including digital meetings as a result of Section 78(2), which expressly relates to the ability to make decisions ‘without all of the persons, or without any of the persons, being together in the same place’
   3. A number of authorities have sought to delegate planning decisions to senior members of the paid service (such as CEOs), however a number have taken the decision to avoid taking such a drastic step, instead seemingly awaiting the regulations which will provide for amendments. However, the date for publication of those regulations remains unknown, and therefore until they have been published matters still remain up in the air.

20th March Update

1. Effects on Planning Appeals (Inquiries and Hearings) – on 18th of March PINS advised that Hearings, Inquiries and site visits would be postponed for the foreseeable future. Whilst other measures are apparently being explored (such as remote conferencing or  a “downgrading” of some matters to a form of written representations) the decision for each appeal will be ultimately for the relevant Inspector, and these solutions may not be appropriate for every appeal. The consequence is that it is likely to cause a backlog of Inquiries and Hearings which will need to be heard once the situation passes and therefore we could look to longer timescales which we saw prior to the Rosewell recommendations being adopted. At present, no issue has been raised in relation to validation as PINS staff are working remotely. However, in practice this could also cause delays in appeals being registered given that it is likely PINS will want to avoid issuing start letters given the uncertainty around when listings can return to normal.
2. GLA Referable Schemes – At present, the latest is that the Mayor and GLA officers intend to have continuity in planning decisions in addition to pre-application meetings, and the change in election timing means that purdah no longer risks interrupting that process. It is not yet known whether Mayoral hearings can still take place and therefore referable schemes may see a delay in decision making. However, in the event that the Government further restrict movement in London we would expect public hearings and events to be postponed.
3. Planning Committees – We are hearing that a number of planning committees are holding their final meeting within the next week and thereafter further committees are suspended. Some planning authorities (for example London Borough of Barnet) are holding no further committees as they must meet in person. Similarly and procedurally, the inability for third parties to be heard at Planning Committee could also be affected in any event (notwithstanding the ability for Members and Officers to attend committee) and therefore we would expect Planning Committees to be adjourned for the foreseeable future. Applications which are not to be taken at committee level can in theory proceed as normal, but this will turn in large part on the availability and ability of officers to continue to process them remotely, particular where, for instance, S106 agreements or deeds of variation are required.

We have heard some suggestions that councils are investigating the ability to delegate planning committee decisions to senior executives (and in particular Chief Executives) in order to prevent decision logjams. It remains to be seen whether this will be a route available to all councils – that will turn on each council’s particular constitution. In addition, this does raise the prospect of JR challenges to decisions made out with the usual processes. We will continue to review the situation and the options and risk mitigation strategies available as a result.

4. Consultation on Planning Applications – Public consultation is obviously limited and it is not yet known how local planning authorities will be able to discharge their statutory duty to consult on planning applications that are received over the next few weeks. There is a clear inability for members of the public to attend Council offices to review hard copy applications (an option which has to be included in any site notice) and this raises issues in respect of procedural fairness and equalities.
5. Progression of Planning Applications and S106 agreements – We understand both officers and lawyers will be working remotely, yet some authorities will clearly not have the infrastructure to do so and the ability to review applications, co-ordinate responses, and arrange for sealing of hard copy documents, will be limited. Similarly, this could affect the discharging of conditions to enable commencement and construction on site.
6. Viability Review Mechanisms in S106 Agreements –The ability to maintain, or start, delivery on-site will affect implementation of planning permissions. We therefore expect extensions to be needed in respect of viability review triggers and the exercising of force majeure clauses within contracts and S106 agreements (if included) so that the period by which substantial implementation is required is extended to avoid the need for affordable housing viability reviews.  It remains to be seen how councils will seek to address the issue of dealing with wholesale amendments to viability reviews for affordable housing reviews and the ability to invoke force majeure clauses (where included) to extend the period, particularly where their ability to enter into deeds of variation is compromised by practical considerations of increasing restrictions on movement and travel.
7. Courts – The situation continues to evolve, with HMCTS offering different guidance depending on the court in question. We understand that court lawyers and judges are working remotely in some instances are still able to consider and determine applications which can be dealt with solely on the papers. The picture is less clear with hearings. Our current understanding is that the intention is that the majority of public law cases (under which planning court cases would fall) are likely to be heard by telephone, but no doubt the situation will continue to evolve and we will continue to monitor it.