– By Martha Grekos, Barrister and Director at Martha Grekos Legal Consultancy Limited
The Covid-19 pandemic has meant that the planning system has had to adapt quickly to meet the demands of the ‘new normal”. So what have been the immediate implications for the planning system and what are the potentially longer term changes that may need to take place?
Regulations have been made to change the time, frequency and location of local authority meetings so as to allow for local governance to become virtual.
Across London, there has already been differing responses – a number of local authorities are struggling, many with woefully lacking IT infrastructure to support even basic home-working, and some making decisions to abandon planning decisions all together – postponing all their meetings at least until May. This is slowing down the planning process resulting in inevitable blockages. Others, however, have been able to set up virtual committee meetings and make decisions very quickly – an example is the Royal Borough of Kensington and Chelsea. The hope is that the first local authorities who have embraced virtual meetings will provide best practice to encourage and support the rest.
It is worth noting that public participation still needs to take place and one body, namely Civic Voice, is seeking to ensure that communities are engaged in the planning process from the outset so that the new rules do not make it much harder for communities to share views and that there is proper scrutiny. In addition, local authorities and developers must ensure that this continues so as to remove any chance for judicial review in accusation of lack of public participation. It is unlikely that there will be a ‘one-size-fits-all’ approach, so it will be interesting to motor and review how local planning authorities are adapting and responding to the new legislation.
It is vital that local authorities continue to provide the best service and use innovation to prioritise decision-making to keep the planning system going – especially where it benefits the local and national economy. Local authorities cannot simply put business on hold until further notice and abandon any real democratic scrutiny of their decision-making.
PINS has stated that all examinations, hearing, inquiries and any associated site visits are suspended until further notice but it is actively looking at video conferencing to enable proceedings to continue. PINS is expecting to be holding its first digital pilot case either at the end of April or early May. It is currently in the process of firming up details with the parties concerned and will provide an update on this as soon as practically possible. In the meantime, there will of course be a backlog of cases and new appeals are unlikely to be processed quickly (guidance is currently unclear), though the hope is that alternative measures will be put in place as soon as possible to avoid this happening. Some cases may also be determined by written submissions, although this will only apply where this has been agreed by all parties.
As for the submission of new development consent order applications, given it is unclear how new applications are to be processed, many are deciding not to submit their applications. EDF Energy, for example, has postponed its submission for Sizewell C which was due to be submitted in March under the Nationally Strategic Infrastructure Planning (NSIP) regime. There are, however currently 8 NSIPs in examination. As the Examination process is primarily a written one, PINs are expecting to continue to make good progress. However, hearings and site inspections are postponed. It will be interesting to see if the Examining Authority will exercise discretion on existing deadlines and it remains to be seen whether an examination timeline is extended beyond six months for the first time.
With regards to Local Plan examinations, many are being postponed. Due to the legal right to be heard and the number of people involved, it seems unlikely that technological solutions will work in most cases, although these are being looked into.
The Court Service has also acted quickly to adopt a new pilot Practice Direction which will last until the end of October 2020, change in the Civil Procedure Rules and also the use of more hearings being heard by a single judge, oral hearings being conducted remotely via video link or phone conference, and there is much wider use of paper determinations. Interestingly, the CPR states that the Courts will take into account the impact of the Covid-19 pandemic when considering applications for extensions of time, adjournments or relief from sanction. I suspect that more judicial review applications might be considered, even where they are submitted out of time, and there may be a degree of sympathy for applicants who perhaps have been ill and could not put their application together any earlier. It will be interesting to see if the six week deadline for applying for judicial review will be extended temporarily too (perhaps to 3 months).
It is one thing to be able to acquire a resolution to grant at a virtual committee meeting, but it quite another to finally get a planning consent post a section 106 agreement being negotiated and executed. Naturally, all section 106 agreements will be negotiated via virtual means. In terms of execution, deeds are less straightforward to execute under quarantine conditions due to the requirement of a witness. There is some uncertainty as to whether or not a witness needs to be physically present. It may be that, in the current circumstances, some flexibility as to who witnesses are is required. Equally, it may also potentially be sufficient to witness the execution of a deed if the entire process of signing the document is witnessed via video conferencing. With regards to local authorities, there are no specific provisions in the Local Government Act 1972 which govern the use of a local authority’s seal. However, a local authority’s standing orders frequently require the affixing of its seal to be attested by the chairman, vice-chairman or other elected member, and also by the clerk or his or her deputy. It may be that the individual person required to fix the seal is to be the person responsible for carrying out an electronic sealing of a document, but subject to delegated authority in accordance with a given constitution, it may also be possible to have others undertake the process of electronically sealing documents. Local authorities need to review their standing orders and provide the delegated authority.
Pubs and restaurants can now operate as hot-food takeaways without the need to secure the express grant of planning permission for any change of use. Secondary legislation as a temporary permitted development has allowed this to take place for a period of up to 12 months only. Businesses will be required to tell the local planning authority when the new use begins and ends. However, the sale of alcoholic beverage will still be subject to licencing laws.
Secondary legislation, again as temporary permitted development, that allows councils and health providers in England to establish facilities to aid the fight against the coronavirus outbreak also have come into force until 31 December 2020. Buildings that could be changed include conference facilities, such as London’s ExCeL, which has already been transformed into NHS Nightingale. Buildings can be temporarily erected on land that is owned or leased by health service bodies or local authorities, or on their behalf to provide health facilities such as temporary hospitals, coroner facilities, mortuaries and testing units.
The Secretary of State for MHCLG has issued a Written Ministerial Statement urging local authorities to use greater discretion in the enforcement of planning conditions to allow more frequent deliveries of food and other essential items. Temporary disturbance to local residents is to be balanced against the “significant public interest of ensuring local residents have continued access to food, sanitary and other essential goods in their local shops”.
The level of uncertainty and disruptions to cash flow mean that development projects may struggle to remain viable and may have to be delayed or suspended. In the 2008 financial crisis, planning permissions granted on or before 1 October 2009 were allowed to be temporarily extended. Additionally, section 96A Town and Country Planning Act 1990 was introduced for non-material changes to existing planning permissions. As such, we urgently need an equivalent measure reintroduced or an automatic one year extension to all planning permission time limit conditions – the latter of which would require primary legislation to amend the operation of sections 91 and 92 of the Town and Country Planning Act 1990. Section 96A remains available (alongside section 73) to amend planning permissions.
When the 2008 financial crisis hit, section 106A of the Town and Country Planning Act 1990 allowed for a temporary re-negotiation of existing planning agreements where they were no longer viable in their current form. Government should look to reintroduce such or similar measures, especially where financial and non-financial obligations are linked to non-development stages of a project. It may be necessary for the moment to agree matters in writing with a local authority who is amendable and understanding to such circumstances, rather than seek a deed of variation. Quite importantly, amendments (or extensions) to early stage viability review mechanisms may be particularly important in circumstances where consents simply cannot be implemented within the timescales required to avoid triggering such a review. Flexibility in how current section 106 agreements are being drafted is also required.
CIL has been subject to many criticisms – it is complex, inflexible, CIL receipts are not spent in a timely way and it has the potential to stop otherwise viable development happening in the first place. Also, crucially in this current pandemic, developments will not be able to proceed because of the no speedy mechanism allowing CIL rates to react to a dramatic change in land values. As such, local authorities may need to cut CIL rates to help return development to viability or pause introducing CIL charging schedules altogether. The Government needs to consider whether there should be a window within which schemes can commence free from CIL or with a significant deferment of payments. Could instalment policies be introduce or allow for “exceptional circumstances relief” to be applied by all authorities? The legislation would need to change for this to happen (as well as overcoming state aid issues). Ideally I would personally like to see CIL scrapped or changed dramatically, but the Government does not have the capacity at present, or even the appetite, to do something as radical as this.
Trying to undertake any sort of physical survey at the moment such as a wildlife survey for an EIA will be tricky, because these cannot be done online. More importantly, it will be interesting to see what the baseline will be for assessments given that the way the environment is responding is not the usual normal. For instance, air quality is much better than normal, noise levels are different and travel patterns are completely skewed. How will people’s behaviour also change post the Covid-19 pandemic? In addition, under the updated Town and Country Planning (Environmental Impact Assessment) EIA Regulations 2017, the “direct and indirect significant effects” of a proposed development on population and human health must be factored into the overall environmental impact assessment process. This includes looking at issues such as social disturbance, loss of integrity to communities, loss of culture and human well-being. Going forward, a developer’s application may be vulnerable to challenge because it has not considered the effects of the Covid-19 pandemic. Questions are likely to be raised surrounding health impact assessments – submitted as part of an environmental statement – which may include how plans have been designed to minimise the risk of a pandemic. Some best practice guidance would be very much welcomed.
The use of digital / virtual means continue to be used and is not to be seen as a replacement to sending letters or engaging with all in the community. However, there may not be a need at the moment to deposit physical copies of the Environmental Statements in the community given our lockdown requirements and such changes in the law will need to be made.
We will see a slowdown in housing delivery as building sites pause development. This will have an impact on the Housing Delivery Test and the five-year housing land supply. Government needs to consider introducing some sort of measure to stop local planning authorities being unduly punished, for example by applying a temporary proportionate reduction. With regards to the five-year housing land supply, a lack of delivery in a year could result in a shortfall against planning housing requirements that feeds back into the calculation for future years. Local authorities will need to give this close attention when they next update their five-year housing land supply positions.
There will be further changes that will be needed in order to make sure that the planning system continues to operate efficiently and fairly. Of course, this Covid-19 pandemic will lead to some sort of changes and a shake-up of the planning system (even if it is a cultural change in the way planning views and uses technology or more focus on place-making and sustainability), but this is currently overshadowed by the day to day demands caused by the pandemic. Once the pandemic is over and the real normal resumes, the planning system will need to respond by increasing its focus on boosting supply again as this will be an economic imperative.