All sections of society have been disrupted by the COVID-19 pandemic, and the planning system is no exception. The government has, however, been quick to recognise the importance of the role that planning plays in the wider construction industry, and, broadly speaking, planning departments across the country have adapted with speed and pragmatism in difficult circumstances.
As a result, the planning system continues to operate and decisions are still being made. Recent legislative changes and new working practices will nevertheless have implications for developers and we discuss some of these below. What is already clear though is that there will be an increasing need for innovation and flexibility over the coming weeks, which can perhaps only be a positive thing for planning in the longer term.
The Impact on the Planning Application Process
Planning Authorities have been urged by the government’s Chief Planner, Steve Quartermain, to be pragmatic and continue to work proactively during COVID-19. In a letter dated 25 March, Mr Quartermain encouraged authorities to: “explore every opportunity to use technology to ensure that discussions and consultations can go ahead … to ensure the planning system continues to function, especially where this will support the local economy”.
Our experience is that the planning system is continuing to function well and several Planning Authorities have been swift to adopt remote working and we have seen examples of planners taking innovative steps to resolve issues including conducting virtual site visits, telephone and video conference pre-application meetings, and issuing consultation letters via external third parties.
We are aware that the majority of Planning Authorities are temporarily halting site visits, and, as a consequence, a number are requesting the submission of comprehensive application site photographs as part of the application pack as an aid for decision making. We also understand that a number of Planning Authorities are extending the length of public consultations and removing the requirement to submit paper copies of application submissions. We have, however, found that a number of Planning Duty Lines are no longer operating.
The government issued new regulations under section S78(a) of the Coronavirus Act 2020 which came into force on 4 April 2020. These allow authorities to hold remote meetings (including pre-application meetings) via electronic means such as telephone conferencing, video conferencing, live webcasts, and live interactive streaming for a temporary period (to May 2021). The new regulations also include provision for remote planning committees with electronic voting, although authorities have been encouraged to consider delegating committee decisions where appropriate.
One of the first fully virtual planning committees (on Thursday, 9th April) is being hosted by the Royal Borough of Kensington and Chelsea (RBKC). We are also aware of many other Planning Authorities that are currently putting plans into place to enable committees to be held virtually over the coming months.
Impacts on Planning Appeals
In response to the spread of COVID-19, the Planning Inspectorate has temporarily postponed all site visits, hearings, and inquiries. This is likely to affect the time it is taking to deal with appeals. However, the Inspectorate are actively looking into ways to mitigate delays by using technology and other ways to process appeals – including using methods like video conferencing for events, and considering whether there are planning cases which can proceed without a site visit.
Keeping Existing Planning Permissions Alive in the Coming Months
The government’s social distancing measures had an immediate and direct impact on the construction industry with many sites shutting down. The government has since confirmed that construction sites should continue to operate during the pandemic and Site Operating Procedures have been issued accordingly. However, construction activity is anticipated to slow over the coming months and delays in starting work on site could lead to some permissions lapsing.
Any planning permission must be implemented within the specified time (usually 3 years from the date of the permission) to prevent its expiration. While there are certain types of applications that allow for non-material amendments (under Section 96a) to planning applications and variations of planning conditions (Section 73), current legislation does not allow for extensions to time limits to keep permissions alive.
The Government has perhaps missed an opportunity to introduce legislative changes as part of the Coronavirus Bill to allow permissions which are due to expire shortly to be extended. Just such an approach has been taken in Scotland with provisions included in the Coronavirus (Scotland) Bill. These allow the duration of all planning permissions which are due to expire during an ‘emergency period’ of 6 months to be extended, so that the relevant permission or time limit shall not lapse for a period of 12 months from the date those provisions come into force.
There is now pressure on the Government in England to introduce similar measures to those in Scotland, and, indeed, to those temporarily introduced in response to the 2009 financial crisis.
Until such measures are (hopefully) introduced, for any permissions due to expire in the next six months or so, we would recommend considering whether it is possible to commence a development to prevent a planning consent lapsing.
In order to lawfully commence development, it is necessary to satisfy the legal requirements in section 56(4) of the Town and Country Planning Act 1990. Usually, fairly minor works are sufficient to commence a planning permission and Firstplan can advise on the precise nature of any implementation works which may be required.
However, before a permission can be implemented, it is necessary to discharge any pre-commencement conditions. This may prove somewhat more challenging at present because it may not be possible to gather the relevant information required for conditions until ‘normality resumes’ (e.g. the carrying out of noise, transport, or air quality reports). A possible route around this would be to amend the wording of any relevant conditions so that detailed information is not required prior to commencement of the development.
Similarly, if applicants are finding that there are major delays in determining pre-commencement conditions, it may be possible to seek to have a condition ‘deemed’ to be discharged. A number of conditions are exempt from this procedure, and strict requirements need to be followed to obtain a deemed discharge of a condition. Firstplan can provide detailed advice on this matter.
Shops, Pubs and Restaurants – Temporary Permitted Development (PD) Rights
Under the Town and Country Planning Act, (1) 2020 Amendment Order, new PD rights were brought in to allow the temporary change of use of pubs, restaurants and cafes to operate as hot or cold food takeaways under a new Use Class ‘DA’.
Anyone seeking to take advantage of this must notify the Planning Authority and revert to the previous lawful Use Class (A3 or A4) on or before 23 March 2021. It is relevant to note that these rights will not override any existing planning conditions that explicitly prohibit takeaway operations on the site. Firstplan can provide detailed advice on this matter.
The above permitted development rights do not apply to shops. However, the Ministry for Housing, Communities and Local Government issued a written statement in mid-March which outlined that all Local Authorities should take a positive approach in their engagement with food retailers and distributors, as well as the freight industry, to ensure planning controls are not a barrier to food delivery over the period of disruption caused by the COVID-19 pandemic.
Potential Impacts on Draft Local Plans
There are concerns about the implications of COVID-19 on the capacity of Local Authorities to prepare and progress local plans and support neighbourhood planning, particularly concerning public consultation. Planning Authorities have been encouraged to continue to work proactively with their community and other stakeholders to progress plans via electronic means. However, we do expect there will be some adjustments to timetables.
Whilst the last few weeks have seen changes to our lives that none of us could have envisaged, we are encouraged to see that the planning system has started to change and adapt, and is continuing to do so with pragmatism and innovation from both the public and private sectors. We will continue to keep you updated as the situation evolves.
In the meantime, should you require any assistance or further advice on the above or any other planning matter please do not hesitate to contact the Firstplan Team on 020 3096 7000.