In response to the pandemic, in March 2020 Parliament passed the Coronavirus Act 2020; Section 78 of this legislation allowed regulations to be implemented in order to make provisions for, inter alia, virtual local authority meetings via the Local Authorities and Police and Crime Panels (Coronavirus) Regulations 2020 which came into force on the 4th April 2020 and has now recently expired on Thursday 6th May 2021.
From 7th May 2021 Planning Committees can no longer be held online.
The temporary provision has proved crucial in keeping the wheels turning in the planning system during these uncertain times and has also led to technological advancements that otherwise would not have taken place. Significant cost reductions have been reported, as have increased and more diverse participation levels, a key goal of planning. The reduced need to travel in conjunction with flexible working arrangements is no doubt another benefit industry professionals are reluctant to lose. Commentators have, therefore, been highly vocal about not wanting to relinquish these benefits and, importantly, not wanting to slow down the decision-making process within the context of the economic recovery, of which the development industry will play a crucial part.
Nevertheless, despite efforts made by the Local Government Association to highlight the plethora of benefits and to explicitly ask that this flexibility is continued, the Local Government Minister wrote to council leaders on 25th March to warn that the flexibility would be ending soon and that councils should start preparing for in-person meetings, referencing progress made with the vaccine rollout alongside a decline in cases as significantly reducing the risk.
Consequently, local government bodies including the Association of Democratic Services Officers (ADSO), Lawyers in Local Government (LLG) and Hertfordshire County Council brought the legal challenge, endorsed by the Secretary of State, which sought to affirm that the existing legislation (schedule 12 to the Local Government Act 1972) would allow for virtual or hybrid meetings. Nevertheless, despite the judge acknowledging that local authorities have made ‘extensive use’ of the power to hold remote meetings, the judicial review was dismissed on 28th April whereby it was held that the 1972 legislation stipulates that “meetings must take place at a single, specified geographical location; attending a meeting at such a location means physically going to it; and being “present” at such a meeting involves physical presence at that location”. The High Court further ruled that extending this flexibility requires primary legislation. However, according to the Local Government Minister, emergency legislation is not feasible at present, yet the High Court asserted that Parliament should decipher such decisions and not the courts.
In this respect, until 21st June, the date on which all restrictions may be lifted, local authorities are now left in a difficult situation in terms of finding suitable locations which will accommodate social distancing measures. Government guidance has discussed additional options for this interim period equating to delegating decision making to key individuals alongside reducing the number of meetings. However, this could reduce democracy and inevitably lead to delays. Numerous industry representatives have been highly critical of this ‘retrograde’ outcome and have warned of a potential hiatus whereby councils may be likely to postpone most decisions until circumstances are clearer at the end of June. Conversely, others have welcomed the return to previous operations, arguing that in-person communication is key for local cohesion, particularly between councillors.
There is, however, a move towards hybrid forms of democracy; notwithstanding this legal outcome, the government is currently consulting on the ‘Call for Evidence’ until 17th June which seeks to collate widespread experience with remote meetings. What is more, the notion of moving towards more hybrid forms of meeting in England was previously consulted by the government in November 2016 and the Government responded in 2019 to conclude that there would be clear benefits. Indeed, the Lawyers in Local Government Group consulted its members in June of last year to gauge their inclination towards continued remote meetings, of which 88% were supportive. The Planning Inspectorate announced last week that in order to maintain a smooth operation, it is expected that the majority of events will be held virtually for the remainder of the year, albeit the legislation in question for planning committees does not apply to Hearings, Inquiries or meetings held by the Inspectorate. The Planning White Paper, published in August 2020, also proposed a move towards a more digital-approach to planning by increasing the use of technology to enhance engagement and improve the planning progress. The move away from virtual planning committees would appear to be contrary to the spirit of the White Paper.
To this end, given the many difficulties endured over this last year, the benefits from enforced remote working must be built upon and one such way is the flexibility for hybrid forms of planning committee meetings. The claimants are now focused on lobbying government to implement the requisite primary legislation which is regarded as essential in allowing local councils to have autonomy as to how to continue forward. The RPTI have supported the case by emphasising that local democracy is an integral facet of the UK planning system and any effort to further this should be optimised. Given the fact that specific Welsh and Scottish legislation had allowed for remote meetings since 2011 and 2003 respectively, England must surely follow suit and move towards a more hybrid model.
The Judicial Review decision is available at: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1093.html
The Call for Evidence Consultation is available at: https://www.gov.uk/government/consultations/local-authority-remote-meetings-call-for-evidence/local-authority-remote-meetings-call-for-evidence