Members' Interests 2020 SurveyIn the light of the COVID-19 restrictions, we are rethinking our usual programme of face-to-face regional events for 2020-21. A key part of this is gathering ideas and understanding the challenges faced by our members and followers in the course of their work - managing our built and natural heritage.
Please use our short survey to let us know the kind of seminars, formats and information that would help you, so that we can support you in the coming year: https://www.surveymonkey.co.uk/r/C22ZZ7G
Crisis or catalyst? Planning challenges and changes arising from the COVID-19 pandemic
Julia Berry, Consultant Solicitor at Reed Smith explores the issues
The current crisis has presented the planning world with unprecedented challenges; from the logistics of local authority remote decision-making to progressing appeals, implementing planning consents, and meeting CIL and s106 deadlines. Every area has been affected.
Some innovative responses and been swift and welcomed, while others are urgently awaited. Consideration needs to be given not only to the immediate difficulties, but the long-term economic impacts, which will affect the country for years to come.
On a positive note, many local authorities should be congratulated for having dealt rapidly with a huge change to their working practices. Kensington and Chelsea Council, in particular, were up and running within days of the Coronavirus Act enabling councils to hold remote meetings, holding their first virtual committee on 9 April 2020; however some councils have struggled with moving online (and I’m not just referring to the infamous inaugural South Somerset Zoom meeting and its unfortunate trolling). There are, of course, specific requirements which councils need to meet, particularly in relation to public involvement, but planning decisions cannot be unduly delayed and local authorities unable to adapt quickly should be encouraged to rely on emergency powers to delegate decisions where possible. All local authorities will need to adapt rapidly, as long-lasting social distancing measures will make it imperative to establish new ways of conducting the full council meetings required for major and financial decisions, and to ensure proper public involvement in processes, such as development plan examinations in the future.
The speed with which local authorities have largely reacted (and the Planning Court which was up and running with virtual courts admirably quickly) has not been matched by the Planning Inspectorate (PINS), which initially postponed all hearings and enquiries completely, citing concerns about site visits and public involvement, and has only just commenced the first digital pilot hearing on 11 May. With nearly 10,000 open cases (and over 300 appeals submitted in the last three weeks) we hope that the aim to conduct fully digital and hybrid platforms for ‘most’ cases within six months will be achieved, if not surpassed. It is vital that appeal schemes should not be delayed any further, but we have been assured that they are doing their best to work towards an early roll out of these platforms.
Local planning authorities are working with similar problems, but are using technology to overcome them. Applications are still being accepted (with site visits more problematic we are advising applications be submitted with as much digital evidence as possible, and applicants making arrangements for site notices, etc.) and public involvement is being enabled through digital platforms. The Government has said that it does not intend to extend determination timescales, but is has just announced changes to publicity arrangements to give greater flexibility to the existing requirements. It is not yet clear why PINS is being so slow to adopt new measures, and there is great concern as to how they will deal with the backlog of cases already building up, in addition to the delays in the appeal system that we were already experiencing.
An extended pause in development will only serve to escalate the country’s economic crisis.
DEADLINES AND VIABILITY
Scotland has already acted to automatically extend time limits for implementing planning permissions, but no moves have yet been made for a similar measure in England. The Government is under great pressure to introduce an equivalent extension for consents and other relevant deadlines, together with either the reintroduction of an ability to vary time limiting conditions - the withdrawal of which has caused so many practical problems in recent years - or the simplified procedure introduced in the wake of the last global crisis in 2008 to apply for replacement planning consents. There will be unavoidable delays to commencing developments and obtaining pre-commencement condition approvals over the coming months, and a lengthy re-application process will cause difficulties for developers and local authorities alike, and will do nothing to aid the speedy economic recovery which will be needed.
A creative approach to the deemed discharge of conditions may be one way forward. This procedure can currently only be used currently for certain conditions (not EIA development, Grampian conditions or for conditions covering matters such as contaminated land) and notice procedures must be followed strictly, but a wider, more collaborative, use of this procedure could help developers and over-stretched planning authorities.
A mechanism will also be required for the relaxation of time limits for s106 agreements and an ability to review obligations on viability grounds, perhaps by way of the reintroduction, with a wider scope, of section 106BA which enabled developers to reduce or remove section 106 affordable housing obligations on the grounds of viability following the financial crisis. The current Secretary of State, who appears to be pro-development if the recent recovered decisions are anything to go by, must be called upon by the industry to act quickly in this respect. The Government is in listening mode, as evidenced by the speedy reaction to the needs of the food retail sector.
COMMUNITY INFRASTRUCTURE LEVY (CIL)
A large-scale economic downturn will require a re-examination of the CIL regime. Some councils have laudably already announced postponements for currently scheduled payments on stalled developments, but this flexibility should be considered by all councils. The Government has now announced some limited help. We await further details, and any changes will require Parliamentary approval, but it seems that the deferral of payments and the waiver of interest penalties are being considered, but only for developers with an annual turnover of less than £45 million. The Government and local authorities may have to go further and consider further flexibility for payments, changes to tariffs and the application of exceptional circumstances relief or even discounts contingent on development being commenced and progressed within certain timescales, to ensure that it is brought forward quickly and contributes to much needed economic growth.
An unlawful change of use, or a breach of a planning condition, that has been underway continuously for more than 10 years is immune from any planning enforcement, but of course will need proof as to timing. Where the use has stopped because of the current crisis, the trend of recent cases through the courts is that a break in such a use is a question of fact - irrespective of the cause. This could have far-reaching impacts when trying to argue for enforcement immunity in the future, causing difficulties with applications for certificates of lawfulness and in enforcement scenarios.
CATALYST FOR CHANGE?
The importance of our local environment, place-making, air quality and the standard of living conditions has been driven home to us all in the past few weeks. However this may be the time for a radical overhaul of the development system and the introduction of previously largely unpalatable ideas, such as land use zoning. Development will be crucial to the country’s economic recovery and must be a priority for the Government – deregulation may be the way forward, especially now when local authorities have had even more burdens thrust upon them and insufficient resources to deal with them. With a new White Paper on the horizon we might well see the paradigm shift which would have been unthinkable even a few months ago.
Julia Berry, Consultant Solicitor, Planning and Environment Unit, Reed Smith