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06/04/2020

How to keep planning applications on track during Covid-19

Draft papers / iStock-109842675

It’s not exactly business as usual during the coronavirus lockdown but the planning sector has shown determination and adaptability in its efforts to keep the system working. Alexandra Ground and Katherine Chambers take a look at the adjustments being made to ensure planning applications can still be submitted and assessed

The evolving coronavirus pandemic is having significant impact across the economy, including to the planning and development control system. Not least, remote working and social distancing measures are necessitating new approaches to ‘business as usual’ processes such as local authority planning meetings, while the government’s coronavirus response has also led to a number of important changes to the planning status quo.

Planning applications

For schemes that require planning permission there are the following different elements that all need adjustments in light of the current movement restrictions:

Site Visits

Some Councils, including several London local planning authorities, are encouraging the use of photographs to now be submitted with applications. Use of drones for additional aerial shots that may assist are also being used by some developers.

Site notices

Complications may arise if the planning application requires a display of a site notice. Southwark Council is warning applicants that they themselves might be tasked with displaying the notice. Once on display on a lamppost or street furniture, they are required to take a picture that displays the date the photo was taken and send to the council via email. 

Submissions of documents

To minimise day-to-day contact, many council staff members are working from home. This poses difficulties for those who are sending hard copy applications or correspondence. Many local planning authorities have requested that all documents and applications are to be sent via emails or through the relevant planning portal. For anything sent only by hard copy from the start of March to a local planning authority, it’s best to make contact to check it’s been received and offer to send soft copies. 

Determination of applications

Where possible many local planning authorities are now using delegated powers so an officer can determine the application (whether or not this is possible depends on each authority’s constitution and scheme of delegation). Some authorities have approved changes to allow officers to take more decisions that would otherwise have gone to committee.

For those applications that still need to be determined by committee, the government has introduced temporary legislation under the Local Government Act 1972 to allow council committee meetings to be held virtually. It has been encouraged that councils take innovative approach to ensure there is a continued service.

Some councils, such as Luton, have continued (to date) with committee meetings by having the minimum number of members physically present to be quorate. Those members conducted the meeting by Skype so that others members could listen in and ask questions and take part in the debate but not actually vote. Interested persons who’d registered to speak submitted written notes which were read out.

Other local planning authorities - for example, Manchester - have amended their constitution so that on major applications the chief executive now takes the decision in consultation with the head of planning. 

In light of this, councils such as Richmond Council have now made provisions to ensure that they are filming all meetings live or broadcasting them subsequently on their websites. 

One potential issue with this is that planning committee meetings are usually open to all the public. The new legislation provides for remote access to constitute public access. However, there is no guarantee that all interested parties have an internet connection to watch or listen to live proceedings.

Permitted development schemes

For some permitted development rights, the relevant local authority needs to determine if its prior approval is required. The Ministry of Housing, Communities and Local Government has recognised that, given the circumstances, there might be difficulties for a local planning authority determining whether to grant prior approval in the cases where prior approval is deemed required, within the usual 56 day determination period.

The chief planning officer has written to local authorities stating that in exceptional circumstances they can, if necessary, seek to extend this date (to avoid a deemed consent, which would otherwise happen at the expiry of the relevant determination period).  

Of course, if the applicant does not agree to an extension, the authority is only left with the option to refuse the same if it has not had sufficient time to consider it. Applicants may well be best advised therefore to agree a reasonable extension, as otherwise they may well receive a refusal which would need to be appealed.  In that instance, the applicant may not be able to recover costs if the planning authority has a reasonable explanation as to why the current remote working requirements led to an inability for it to fully consider the application.

Also to be noted is that some new permitted development rights have been added recently. In particular, amendments have been made to permitted development rights to allow a 12-month temporary change of use of pubs/restaurants to takeaways. Not all pubs/restaurants, however, will be able to benefit immediately if there are conditions attached to the relevant planning permission or s106 obligation prohibiting this use; a s73 application will be required to remove/amend that prohibition or a s106 deed of variation, both of which are only likely to be approved if it's considered there's no longer a planning reason for the control. More likely is that an amendment would be approved to grant a temporary relaxation for the duration of the temporary permitted development rights. 

In addition, the ability for businesses to operate as a delivery and takeaway service might not always be allowed under the terms of the lease. Before making this operational change of use, consideration should be given to uses granted and permitted under the current lease.

Planning appeals

The Planning Inspectorate has temporarily paused all appeals proceeding by way of hearing or public inquiry. Interested parties have submitted requests to PINs and the Secretary of State that by using video technology and adapting formats, these should be resumed shortly. 

Written appeals are continuing albeit, one assumes, with some impact on time periods for determination. 

Judicial reviews and High Court challenges

The High Court is continuing to deal with cases via telephone and video and urgent business is being undertaken remotely.  It is expected that time extensions would be given where appropriate for judicial review claims where the usual six-week time limit has not been adhered to due to remote working difficulties.

What about planning permissions due for implementation in the next six months?

A planning permission is usually subject to a condition that requires work to be undertaken within a specific time period. This is usually three years. For some this deadline will fall within the next six months.

For valid implementation of the planning permission, the relevant person must ensure all planning conditions are complied with and carry out certain works to implement it. However, with the government guidelines reducing day-to-day contact it will be difficult for any physical work or new use to be carried out.

The law does not currently provide for extensions of time for planning permission. As things stand, if work is not undertaken within the specific time period then a new planning permission will need to be sought with associated considerable cost and delays. It is hoped that the government and local councils will introduce the necessary amendments allowing extensions of time, such as has been enacted in Scotland where permissions due to lapse in the next six months will be granted an extension.  

What can/should developers be doing in the meantime?

Developers should: 

  1. Check the local planning authority website for procedural changes;
  2. Contact/consult with solicitors for further guidance, such as delegation of powers; and make submissions accordingly on whether the application can lawfully be determined by the local planning authority’s officers;
  3. Where payments are triggered under CIL or s106, contact the local planning authority and try to agree a deferment.

Alex Ground is a partner, and Katherine Chambers a trainee solicitor, with of law firm Russell-Cooke’s planning team.

Photo | iStock

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