Challenges in planning law during COVID-19 - in depth - Gateley
In depth

Challenges in planning law during COVID-19

Gateley Legal

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COVID-19 has had an unprecedented impact worldwide. This article discusses some of the main planning issues arising during the current COVID-19 crisis in the UK.

1. Enabling planning committees to continue

The Coronavirus Bill was fast-tracked through parliament and received Royal Assent on 25th March, making it an Act of Parliament.   

Section 78 of the Bill contains provisions which temporarily enable Councils to hold planning committees and other local authority meetings (including parish council meetings) virtually. The legislation is broadly drafted, applying to different types of local authorities (“LPA”) and to different categories of meetings including annual meetings, cabinet and committee meetings. The regulations are not prescriptive in respect of how the LPA facilitate remote meetings i.e. voting or access to documents. Set out below are some of the main points to be noted:  

  • The LPA need to check their procedural rules allow for virtual meetings and remote voting etc. and amend their rules, if necessary.
  • The LPA has the flexibility to hold meetings at any time and on any day.
  • The LPA should publicise the time and place of meetings on their website.
  • The LPA can decide whether the remote meetings take place via telephone conference, video conference, live webchat or live stream.
  • The basic requirement is that members can be heard, and can hear other members, council officers and the public who are registered to speak.
  • The public only needs to be able to hear the meeting and can only speak if they have registered to speak.
  • To meet the statutory requirement to be “open to the public” the meeting will need to be accessible to the pubic via remote access.
  • The provisions will expire on 7 May 2021.
  • The Local Government Act 1972 (LGA 1972), which requires members of a planning committee to be physically present at the meetings has been replaced by this Bill.

2. Planning appeals

The Planning Inspectorate (“PINS’) issued a statement on 25 March 2020 following the announcement of the national lockdown. Within that statement, it announced the closure of all its offices and that staff has been instructed not to travel for work. This included inspectors who were not to attend site visits, hearings or inquiries. PINS stated that it was still processing Written Representation Appeals and considering alternative measures with respect to the processing of Hearings and Public Inquiries, for example, the use of online or video conferences whilst ensuring fairness for all parties. PINS also mentioned there might be an opportunity to convert some cases to the Written Representation procedure. Submission of appeals must be done online. 

PINS has since published an update on its operations during the coronavirus pandemic. PINS is launching two pilots for remote working. In late April or early May 2020, it will carry out its first pilot testing the effectiveness of holding events using telephone or video conferencing. The second pilot will test ‘virtual site visits’ with a small group of inspectors. If a case is suitable for including in the pilot scheme, the main parties will be contacted, and the case will be decided on the basis of written evidence and digital images alone. In the coming weeks, they will decide if the pilot scheme will be extended.

3. Risk of planning permissions expiring and what to do if S106 and CIL payments are triggered

There is a huge risk in that planning permissions are in danger of expiring as they become incapable of being implemented within their set timeframes. 

Both the Chief Planner’s letter providing guidance on COVID-19 and the Local Government Association Planning Advisory Service have failed to address this important issue.

We eagerly await new legislation or guidance to keep planning permissions alive in respect of the commencement of development and submission of reserved matters, and also on payment or performance of section 106 obligations and the Community Infrastructure Levy (“CIL”). 

Sections 91 and 92 of the Town and Country Planning Act (1990) (“TCPA 1990”) set out the standard timeframes for the commencement of development and reserved matters applications. Section 91 requiring development to begin no later than three years from the grant of planning permission and section 92 specifying that applications for reserved matters approval should be made no later than three years from the grant of planning permission and development to begin no later than two years from the final approval of reserved matters. Local Planning Authority can, of course, set their own timescales.

It is general knowledge that section 73 of the TCPA 1990 cannot be used to extend time limits in England (section 73(5) of the TCPA 1990) but can be used in Wales.  Similarly, section 96A of the TCPA 1990 is only to be used for non-material amendments and extensions to time limits would not constitute a non-material amendment. The current legislation in England does not allow extensions of times and we, therefore, await new legislation. The Scottish Parliament has already allowed a one-year extension to the life of planning permissions through the Coronavirus (Scotland) Act 2020 which would otherwise have lapsed during this “emergency period” (six months).

3.1 Section 106 Obligations and CIL payments triggers

Section 106 triggers for payments are often linked to the timeframe of a development and can only be renegotiated if both parties are willing to do so.  

CIL payments are automatically triggered at appropriate timeframes. The CIL Regulations do not allow room for negotiation in this respect.

3.2 Possible solutions 

  • Commence development with a “material operation” to keep permission alive if it is safe to do so: any work of construction/demolition of a building, digging of a trench to contain foundations, laying out of road or change of use ensuring work is consistent with the plans within planning permission granted.
  • Rely on the deemed discharge of conditions, however, there are exceptions which you will need to be aware of. 
  • Reserved matters applications only need to be submitted within the time limit and not validated.
  • Planning obligations can be renegotiated at any point if both parties are willing.
  • Discuss a payment plan with the LPA for the CIL payments.

4. Impact of COVID-19 on Public Rights of Way (“PROW”)

There is concern that increased usage of some PROW may cause the coronavirus to be transmitted via gates, styles etc. to vulnerable people. The questions being asked are whether these PROW should be closed to minimise potential risks of exposure.

Natural England has advised that if people follow the social distancing guidance the risk of catching the virus would be low. Should there be PROW with a large footfall, Natural England suggests landowners consider closing the gates and putting up notices asking the public to use other routes which do not pass through gardens, farmyards or schools.

5. Enforcement

On 13 March 2020 Robert Jenrick MP & Julie James AM’S issued statements urging LPAs not to enforce against breach of delivery restrictions for food and other essential items. This allows essential companies to be able to work through the night if needs be to help feed the nation.

There is no power to extend the enforcement time period. Enforcement is time-sensitive and even in exceptional circumstances, there is no power to extend.  To “stop the clock” an enforcement notice must be issued. Long time periods can be given if difficulties with complying are envisaged. LPAs can rely on “second bite provision” if they wish to use their powers to withdraw an enforcement notice.

An appeal was made against an enforcement notice issued by Shepway District Council for the erection of a dwelling. The compliance period in that notice was 12 months. The appeal was dismissed on 1 April 2020. The Planning Inspector acknowledged the uncertainty arising from the COVID-19 pandemic and stated that the Council have a discretionary power under section 173 of the Town and Country Planning Act to extend compliance period of enforcement notices.

6. New permitted development rights

6.1 Takeaway 

On the 21 March, The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 were issued requiring the immediate closures of restaurants, cafes and drinking establishments.

Secondary legislation was quickly enacted to establish new permitted rights for takeaways. The Town and County Planning (General permitted Development) (England)(Amendment) Order 2020 came into effect on 24 March 2020 and is temporary until 23 Mach 2021. It introduced a new class DA permitted development right within Part 4 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 “The GPDO”).  The new right allows a change of use from either a restaurant, café or drinking establishment with expanded food provisions to a use to provide takeaway food. This includes both hot and cold food. A developer must apply to the LPA if the land and any building within the curtilage is being, or will be, used to provide takeaway food at any time during that period. The previous lawful use will not be lost by implementing the temporary change of use.

6.2    Public health

The GDPO will also allow development by local authorities and certain health service bodies on land owned, leased, occupied or maintained by it for the purposes of preventing, reducing, controlling or mitigating etc. the effects of a public health emergency.

The development permitted is subject to conditions. Notice must be given (as soon as practicably reasonably) and the use of the land should cease by 31 December 2020. The land should be restored to its condition before development took place or as otherwise agreed with the local planning authority and developer.

More information 

If you have any queries about any of the topics in this article or any other planning concerns, please get in touch with the experts listed below.

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