Planning: Current State of Play – Covid-19 #4

Although Boris Johnson has suggested that a loosening of the Government’s measures to prevent the spread of Covid-19 is imminent, it is likely that some level of social distancing and homeworking is set to remain in place for the foreseeable future. This means looking ahead, the planning system will need to continue to settle into the ‘new normal’.

Widespread use of technology has meant that, generally, applications and negotiations have been able to progress, albeit with some delays. As stakeholders continue to adapt to the ‘new normal’, we are hopeful delays will become less severe. In some respects, such a crisis can force changes which may otherwise have taken far longer to be adopted, an example being the use of online signature platforms for document execution.

Government

On 4 April, new regulations (known as The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020) came into force which allow LPA committee meetings in England and Wales to take place remotely. These regulations will enable decision-making on applications to continue in spite of social distancing requirements. A number of LPAs have now made use of this provision to hold virtual meetings, including Brent, Westminster and Kensington and Chelsea among others.

In England and Wales, a new permitted development (PD) right has been introduced to allow councils and health authorities to develop land they own, lease or occupy for the purpose of dealing with an emergency. This new PD right is clearly aimed at assisting efforts to combat coronavirus. The PD right came into effect on 9 April. The PD right is time limited meaning the use must cease on or before 31 December 2020. The operational development must be removed and the land restored within 12 months after the permitted use ceases.

MHCLG’s planning practice guidance on neighbourhood plans as been updated. All referendums scheduled up to 5 May will be postponed but examinations, where the examiner considers that oral representations are necessary, may take place remotely. Where LPAs have indicated that a neighbourhood plan will be subject to a referendum, the draft neighbourhood plan may be given significant weight in decision-making.

Action is still awaited on areas of pressing concern to developers such extensions of time for implementation where planning permissions are shortly due to expire and deferral of CIL payments where development timelines have been delayed due to Covid-19.

The government has also published guidance on application of building regulations during the coronavirus outbreak.

PINs

PINs offices are closed with staff working from home. All staff, including inspectors remain instructed not to travel for work.

Site Visits: following the Government’s lockdown announcement, PINs has cancelled all upcoming site visits with immediate effect. PINs is considering on a case by case basis whether it is possible to proceed without a site visit or whether site visits can be conducted virtually.

Appeals: PINs is looking at appeals on a case by case basis to decide the best way forward. PINs is continuing to explore and trial potential technological solutions. The first fully digital hearing is to take place on 11 May. PINs are preparing for additional cases to be heard by digital hearings/ inquiries in May/ early June with a view to scaling up digital events further over June/ July. A student accommodation client is involved in a digital pilot hearing with PINs.

Postponed cases are being assessed to see whether they can be progressed digitally. PINs aims to arrive at a model that will work both during the crisis and afterwards.

NSIPs: all hearings and preliminary meetings remain postponed until further notice. As the examination is predominantly a written process, PINs is expecting to make good progress here, but where written representations are not appropriate, the Examining Authority may extend deadlines and amend timetables as required. Recently, the Secretary of State has extended the examination of the M25 Junction 10/ A3 Wisley Interchange by 2 months due to disruptions caused by Covid-19. Whilst a number of decisions remain subject to substantial delays, it was welcome to see DfT’s statement setting new decision deadlines for transport DCOs on 29 April 2020 including for the Stonehenge scheme and it is positive that decisions are now being made.

Local Plan Examinations: inspectors are continuing to progress the pre and post hearing stages of examinations but there will be delays as it is not currently possible to hold hearings. PINs are liaising with LPAs regarding local examination hearings and inquiries that are upcoming with a view to progressing these where possible (remotely).

Interestingly, there is evidence to suggest that Inspectors are taking into account the impact of Covid-19 in their decision-making. Landmark Chambers barristers acted on an appeal by Wokingham BC. The Inspector dismissed the appeal and took the opportunity to invite representations from the parties about the impact of CV-19 on housing delivery, in particular noting the disruption to the development pipeline was noted. Similarly, Cornerstone Chambers have also reported that, in enforcement appeals involving its barristers, PINS has encouraged councils (or has otherwise decided itself) to extend compliance periods.

High Court

Remote hearings have now become the new normal, although Cornerstone Chambers has have commented that the daily court listings show a marked drop in activity compared to what would usually be anticipated.

On 2 April 2020 a new Practice Direction 51ZA on extension of time limits has been introduced under the Civil Procedure Rules. The effect of this (which will cease on 30 October 2020) is to:

• Allow the parties to agree an extension of time limits of up to 56 days without formally notifying the court (currently this is limited to 28 days) so long as the extension does not put the hearing date at risk;
• Allow the parties, with the agreement of the court (which must consider the impact of CV-19), to extend a time limit by more than 56 days;
• Amend the earlier PD 51Y on remote hearings, to clarify that a person seeking permission to listen to or view a recording of a hearing may do so by request and does not need to apply formally under the CPR.

Practice Direction 32 has also been amended (with effect from 6 April) to provide that all witness statements must now explain how the evidence was conveyed and how the statement was prepared - “face to face, over the telephone, and/or through an interpreter”.

The Planning Liaison judge, Mr Justice Holgate, has shared with representatives of the Planning and Environmental Bar Association (PEBA) some helpful tips for remote hearings.

GLA

City Hall continues to publish a weekly list of planning applications referred to the Mayor for consultation The planning department is continuing to review/receive applications whilst working remotely.

Local authorities

LPAs have been making use of the recent regulations allowing them to host remote planning committee meetings. The Local Government Association has created a guide to assist LPAs in making the transition to virtual planning committee meetings.

Kensington & Chelsea and Westminster councils were amongst the first to hold virtual planning committees and Brent have since followed. A number of LPAs have indicated that they are ready to hold virtual committees: Hackney, Epping, Wandsworth, Richmond. The City of London’s planning committee is scheduled to take place remotely on 14 May 2020.

Generally, now that remote committee regulations are in effect, we are seeing LPAs using a combination of remote committees and delegated powers to determine planning applications.

East Riding of Yorkshire Council is encouraging local residents to make use of public access section of their website to stay up to date on planning applications in their local area, especially where residents are unable to leave the house and may otherwise miss site notices.

Manchester City Council has delegated considerable decision-making power (for up to 8 months) to its chief executive, as reported previously. Manchester are also reportedly considering changes to their planning obligations system so that payments are collected once schemes are completed rather than captured up front to assist development during the pandemic.

Liverpool City Council’s planning portal indicates that it cannot accept applications, representations or objections by post until further notice and directs applicants to the relevant web pages. Otherwise, it are trying to provide as closer service to normal as possible.

Edinburgh City Council is planning to hold the Development Management Sub-committee remotely on 20 May 2020. Until then where possible applications are being determined using delegated powers. Edinburgh also resumed their pre-application advice service on 4 May 2020. For more information on what planning authorities in Scotland are doing click here.

Overall, our experience is that the planning system has made the necessary adjustments to adapt to the ‘new normal.’ Whilst there are still areas where changes are necessary such as deferral of CIL payments and extension of implementation deadlines, significant progress has been made over the course of the last month.