Planning for the future

There has been a determined effort by Ministers and much of government to keep the planning system going during the coronavirus crisis.  The ability to carry out development is one of the means of maintaining jobs and restoring the economy as the country comes out of lockdown.

As the lockdown was beginning, the government moved quickly to enable restaurant and pub businesses to keep trading by offering a takeaway service.  Where business activities might conflict with planning conditions, ministers encouraged planning authorities to take a measured approach to enforcement.

Social distancing requirements brought immediate strains on how the planning system could operate.  An early and more general problem was that council meetings have had to be held in person.  The Coronavirus Act 2020 allowed legislation to be put in place for virtual meetings.  The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 followed swiftly, which I analysed here.  Those have been used by a steadily increasing number of local authorities, including for planning committees.  Despite occasional teething problems, these have been working well.

The handling of planning and related applications have faced a number of practical problems, which in turn have caused legal difficulties.

Physical inspection of documents

Various provisions require applications and environmental statements to be deposited for public inspection at an advertised place, usually council offices and sometimes libraries, and the decision cannot be taken until that has been done.  Those facilities might be closed or have public access prevented or discouraged.  The sensible approach was therefore to dispense with the requirement to make documents available for physical inspection with for a temporary period covering the likely Covid-19 social distancing restrictions provided that the information is on a website whose details are advertised.  For planning and listed building consent applications this is achieved by the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 ("the Coronavirus Planning Regulations").

These make amendments to the following provisions:

• Town and Country Planning (Development Management Procedure) (England) Order 2015, article 15(7) (publicity for planning applications), 40 (planning register);
• Planning (Listed Buildings and Conservation Areas) Regulations 1990, reg 5, 5A (publicity for listed building consent and planning applications);
• Town and Country Planning (Environmental Impact Assessment) Regulations 2017, reg 23.

The effect of the changes is that if it is not possible to make documents physically available for inspection because of the coronavirus, then access is satisfied by the material being available on an advertised website.

There remain some areas still to be covered.  There are numerous other Environmental Impact Assessment Regulations which have not yet been amended, although the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 were the first to be changed in April by the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) (Coronavirus) (Amendment) Regulations 2020.

The development consent order regime for nationally significant infrastructure projects requires similar amendments, including to the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009, reg 4.  Those appear to be under consideration as part of a wider package of Covid-19 alterations to those processes see Ministers' Coronavirus (COVID-19): planning update (13^th May).

Making documents physically available is also a characteristic of plan-making processes.  Documents made available in local plan making must be available for inspection at the authority's principal offices, other places they choose and on the authority's website: Town and Country Planning (Local Planning) (England) Regulations 2012, reg 35(1).  It has to be publicised 'where and when' neighbourhood plan proposals may be inspected.[1]  Those provisions should be amended to dispense with the right to physically inspect those documents during the crisis, provided that they are online. Without these amendments critical stages of plan-making would be held up.  The 13^th May update explains that for local plans Ministers are 'actively exploring options to achieve online inspection of documents being the default position'.

Publicity of applications

Publicising planning applications and other schemes has been a mix of site notices, letters to neighbouring properties, local newspaper advertisements and publication on the authority's website.  Lockdown makes some publicity more effective.  With residents staying at home and exercising locally, a site notice in a residential area is more likely to be seen.  Conversely though, a notice on the front of a closed down shop in a desolate town centre will be observed by far fewer people than normal.  Maintaining effective publicity arrangements is essential to be able to progress applications.  Site notices and neighbour notification ought still to be possible, but there are difficulties: for example, some free newspapers are no longer produced in hard copy.

The Coronavirus Planning Regulations address these issues in a balanced way.  The current statutory publicity has to be followed unless the authority 'is not able to give requisite notice … because it is not reasonably practicable to do so for reasons connected to the effects of coronavirus, including restrictions on movement' (see Town and Country Planning (Development Management Procedure) (England) Order 2015, art 15(7A) as amended by reg 4).  In such cases the authority is required to continue the statutory publicity as far as reasonably practicable, take reasonable steps to inform any persons who are likely to have an interest in the application and to publish notice on their website.  The reasonable steps are in addition to putting notice on the website.  By the DMPO art 15(7D):

"(a)the persons who are likely to have an interest in an application must include the persons who live or work in, or otherwise have a direct connection with, the area in which the proposed development is located; and

(b)the reasonable steps that are taken by the local planning authority—

(i)may include use of social media and communication by electronic means; and

(ii)must be proportionate to the scale and impact of the development."

This requires reasonable, documented, efforts to publicise the application, including social media (TikTok anyone?) and emailing notice out to those who the authority can properly notify (so business and organisational addresses and residents who have consented to be informed).

Similar changes have been made to the Planning (Listed Buildings and Conservation Areas) Regulations 1990 for listed building consent applications (1990 Regulations, reg 5) and planning applications (reg 5A).

Statements of Community Involvement

The Planning Practice Guidance has been revised to encourage local planning authorities to revise their Statements of Community Involvement, if necessary, in response to Covid-19 restrictions: see para 61-076-201200513 to 61-078-201200513. This is particularly significant in the local plan making context where authorities are required to comply with their SCI: Planning and Compulsory Purchase Act 2004, s 19(3).  Generally speaking SCIs promise that authorities will comply with the statutory requirements and involve additional community engagement, particularly for plan making.

Whilst Statements of Community Involvement also apply to the handling of planning applications (Planning and Compulsory Purchase Act 2004, s 18(2)) there is no statutory duty to comply with the SCI for those purposes.  However a promise in an SCI to consult may give rise to a legitimate expectation: R(Majed) v London Borough of Camden [2009] EWCA Civ 1029, [2010] JPL 621.  A legitimate expectation may be departed from for good reason, although the Courts will be astute to ensure that is justified, see, for example, R(Trillium (Prime) Property GP Ltd) v London Borough of Tower Hamlets [2011] EWHC 146 (Admin) and R(Silus Investments Ltd) v London Borough of Hounslow [2015] EWHC 358 (Admin). Authorities ought therefore to review their Statements of Community Involvement to see if temporary changes ought to be made.

The Planning Inspectorate

The Planning Inspectorate deals with around 900 planning applications in appeal hearings or inquiries, in England, each year.  They will be the more substantial appeals.  In 2017/18 permissions for 18,600 dwellings were granted following a planning appeal or call in inquiry.[2]  Other inquiries will deal with enforcement, compulsory purchase and rights of way cases.  Additionally the Inspectorate will deal with about 60 development plans and 20 nationally significant infrastructure projects through an examination process which involves a right to a hearing.

Post-Covid-19 actions by the Inspectorate and the Courts

As the coronavirus crisis intensified the Inspectorate's position was (on 12^th March):[3]

"Because of the likelihood of social contact with multiple parties [hearings and inquiries] will not proceed at the present time.  We are considering whether it might be feasible to utilise technological solutions to enable events to proceed but this is not straightforward given the need to ensure fairness for all parties, especially third parties."

Examination hearings into local plans and infrastructure projects were also postponed, although the written elements of those exercises continued.  Site visits would only take place if unaccompanied and the Inspector could reach the site without using public transport.

Whilst decisions were still being written up for pre-Covid hearings and site visits,[4] halting the completion of future casework caused dismay amongst the development industry, planning professionals and politicians. Whilst the courts and tribunals system had moved major hearings to video or audio before the lockdown was announced on 23^rd March, the Inspectorate held its first virtual hearing on 11^th May.  PINS' announcement on 28^th April that its aim was 'Six months: Develop the capability to conduct fully digital and hybrid events fairly and robustly across all casework areas and for most cases' went down badly.  Ministers intervened.  On 13^th May, the Secretary of State, Robert Jenrick, announced in the House of Commons:[5]

"The planning system, too, must be able to operate safely and efficiently during this time, which means, as with many other sectors, making more use of digital technology. I want the Planning Inspectorate to be at the forefront of this work—it is good to see the inspectorate now undertaking its first virtual hearings. I am asking it to make all hearings virtual within weeks. We are going to get the planning system going again and bring it into the digital age at the same time."

A written Ministerial Statement Covid-19: Planning System and Virtual Working[6] on the same day said 'The Government expect events to be taking place virtually by mid-June, other than in exceptional circumstances.'

Additionally Ministers announced:

"The Planning Inspectorate will be restarting site visits from mid-May. The Government support the Inspectorate's determination to facilitate site visits. It will expect inspectors to use their judgement in deciding if a site visit is necessary or whether alternative approaches are acceptable, taking account of the particular circumstances."

The hearings and inquiries rules are reasonably suitable for these processes.  Some adjustment would be beneficial, as they provide that the hearings take place at a 'place' and give rights to accompanied site visits.  These are made by the Lord Chancellor.  The Ministry of Justice ministers agreed in response to a question from Sir Bob Neill at the Justice Select Committee on 4^th May to assist the Inspectorate by making any necessary rule changes.

Community Infrastructure Levy

The start of development under a phase in a planning permission will be the trigger for the payment of any Community Infrastructure Levy. If projects are then proceeding slowly, or simply being implemented to keep the permission alive, then payments may be due much further ahead of the expected receipts from the project.  Further guidance on CIL, published on 13^th May, encourages authorities to review their instalment policies.  Ministers also propose to amend the CIL regulations to enable authorities to waive interest on late payments.  There is a discretion to amend planning obligations and as to how to enforce them: local planning authorities are being encouraged to exercise their powers reasonably.

Further steps

There is still quite a lot more to be done.  Amendments to the regulations for local plans and nationally significant infrastructure projects will still need to be made.  There are further issues to address.

Deadlines for commencing development under planning permissions

Planning permissions are subject to time limits for starting development (usually three years from the grant of permission), otherwise the permission will expire.  Whilst only very limited works are required to keep a permission alive, the commencement of development will usually trigger obligations to pay the Community Infrastructure Levy and sometimes sums under planning obligations.  Developers might now face a difficult choice between keeping the permission alive at great cost when they might not be able to proceed to build out, or letting the permission expire and make a fresh planning application.  Legislation could be introduced to extend the periods for commencing development by 12 months (say) if they would otherwise expire this year.

Similarly the period for submitting reserved matters applications (providing more details on outline planning permissions) could also be extended.

Deadlines for completing development under change of use permitted development rights

Various permitted development rights for changes of use are subject to deadlines within which the development must be completed: office to residential (Part 3, Class O, GPDO); retail to dwellinghouses (Class M); amusement arcade/casinos to dwellinghouses (Class N); Storage or distribution to dwellinghouses (Class P); light industrial to dwellinghouses (Class PA); agricultural to dwellinghouses (Class Q); agricultural to flexible commercial uses (Class R); agricultural to school/nursery (Class S); business/hotels to school/nursery (Class T); and perhaps of less immediate importance, retail etc to restaurant (Class C).  The deadlines are three years from the prior approval determination relating to details of the change.

Some of these permitted development rights have been removed by article 4 directions preventing further prior approvals to extend the date for completion.  Completing the changes (such as converting offices to flats) may be difficult if the market or finances are uncertain, or workers are ill or self-isolating.

Where completion deadlines are due to expire soon, they could be usefully extended.

[1] Neighbourhood Planning (General) Regulations 2012, reg 16.

[2] Independent Review of Planning Appeal Inquiries (Bridget Rosewell), para 2.10.  The remaining figures are drawn from https://www.gov.uk/government/statistics/planning-inspectorate-statistics

[3] https://www.gov.uk/guidance/coronavirus-covid-19-planning-inspectorate-guidance and links as they were on 12 March 2020. The text has now been superceded.

[4] There was though quite quickly a 15% plus drop in decisions being issued: https://twitter.com/Arrowsmiths_/status/1255477746089803777/photo/1

[5] Hansard, Col 259.

[6] HCWS235.