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27/04/2020

Covid-19: A Q&A with Sarah Fitzpatrick

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Coronavirus is forcing planners, the built environment sector and communities to work and think differently, but what of public engagement and planning permissions that have already been granted? Sarah Fitzpatrick explains.

1. How can local authorities ensure the public have the opportunity to speak like they do in committee 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 which came into force on 4 April 2020 allow for remote vote casting or participation by video or telephone, but it is up local authorities to decide how meetings should be conducted so as to ensure that applicants and objectors still have speaking rights. These could be written submissions only, or delivered via Skype or Teams or Zoom, or read out over the phone.

There will probably be changes to the ability to speak, although this may require changes to some local authorities’ constitutions. I think speaking at committees for many authorities will be changed into written submissions with deadlines relating to when they have to be submitted. These submissions will probably need to be uploaded to the council's portal for planning applications and be accessible to officers and councillors, as well as other members of the public.

Before this, though, local authorities will have to have a very careful think about what goes to committee and what can be decided under delegated authority. Some may be looking at changing their constitution in order to bring more types of application into their scheme of delegation. We know that some local authorities have already moved all applications to delegated determination. There's going to be a decline in applications getting to committee.

2. What danger is there that local authorities will face legal challenges for not consulting with residents and ensuring they know about planning applications?

One of the biggest concerns is ensuring effective public participation in the planning process. It would surprise me if someone didn't challenge at some stage saying they were unable to participate in the process - for example, older or more vulnerable members of society who might be self-isolating and may find it more difficult to access consultations or meetings.

Although the profession will find it reasonably easy to access things remotely and respond on behalf of clients, my concern is that particular demographics of society may be much less able. Ensuring they will not be prejudiced will be the most difficult challenge for local authorities and I think the High Court is likely to be sympathetic to such a challenge if someone is genuinely prejudiced but it will depend on the facts of the case of course. The more controversial the application, the more careful we will have to be that people will be able to participate.

I think local authorities are going to have to be more creative in how they ensure that the public can participate. Previously, they may have just put committee meeting dates and an agenda on their website, and a link through which you could register to speak.

Now they may have to publicise more widely across social media platforms so that as many people as possible know these remote meetings will go ahead and how they can participate. Certainly there have been High Court challenges in the past where people have challenged on the basis that they weren't aware that something was happening and could not participate.

I do think, however, that the current challenges our society is facing will drag local authorities into the 21st century. There may be positives coming out of this in terms of how the world deals with decision making in a digital age.

3. Where do developers stand on the length of time they have to start building out consented developments, applying to vary conditions and discharging conditions, given that now this may not be possible?

There will be a backlog of applications and we'll see longer determination periods for almost everything. Normal timescales for determination are eight, 13 or 16 weeks (depending on the type of application). But I don't think the government will expect local authorities to stick to these determination periods during the coronavirus outbreak.

It may take longer for developers to get pre-commencement conditions discharged, which in turn may put pressure on developers where permissions are about to expire. There is the ability to implement a permission in advance of pre-commencement conditions being discharged, which implementation the courts have said can be lawful if the works undertaken are in accordance with the details submitted and the details are later approved. This can be a risky course of action for developers though.

Another option is for developers to trigger the process for deemed discharge of planning conditions, but it would be worth discussing this with the local authority in advance as the process can lead to refusal. Another option to consider is making a s.73 application to vary pre-commencement conditions so that these are no longer pre-commencement or allow a certain amount of works (demolition for example) to be undertaken before the pre-commencement trigger bites. If a developer has a permission that is about to expire there is always the ability to do a technical implementation of the permission, and to do substantive works at a later date.

The bar is set pretty low in terms of what works can amount to implementation of a permission. Lawful implementation can always be confirmed by  a CLEUD/CLOPUD application at a later date if necessary. Developers considering this option will need to remember that apart from the need to discharge pre-commencement conditions, implementing a planning permission can also trigger s.106 obligations and payment of CIL.

During the last financial crisis - and we can probably draw some parallels with that - the government introduced the 'Greater Flexibility for Planning Permissions' in November 2009, a second edition of which was issued in October 2010. We still have the benefit of some of the statutory amendments that were brought into force (namely s.96A applications and applications for minor material amendments under s.73), but the ability to apply for a new permission to replace one that is due to expire (so giving a longer period to implement the permission) is not something that is still in force. We may see something like this come out of the government again.

At the moment s.73(5) prevents applications (in England) being made to extend time periods for implementation. For new permissions we may see the government either provide guidance to local authorities or legislate that longer periods be given for new permissions to be implemented. I am already negotiating for five year consents where the developer would previously have been happy with three years to implement.

Sarah Fitzpatrick is head of planning at Norton Rose Fulbright

Image credit | Shutterstock and Norton Rose Fulbright

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