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28/04/2020

Legal landscape: How planning law is responding to Covid-19

A balance between rapid response and robust legislating must be struck in responding to emergencies, says Keith Lancaster

Preparing for a crisis is an essential part of any government’s remit, but crises are difficult things to predict. Even in a system as flexible as the UK’s lawmakers are facing a significant challenge keeping up with the pace of change set by the current pandemic. These challenges vary enormously – from repurposing the manufacturing sector through to logistics planning for food supplies – so it is no surprise that the planning system is facing some unique issues too.

We’ve all seen the unprecedented steps taken to establish the new Nightingale Hospitals – field hospitals designed to look after ‘surge’ cases of Covid-19 in key hotspots – that are key to the government’s strategy. Getting such hospitals set up swiftly is critical, but at the first Nightingale Hospital in east London, the application for planning permission had to be made in such a way that despite the hospital commencing operation, the permission was not yet officially determined.

Although it’s extremely unlikely, this leaves the development open to legal challenge – highlighting the challenges the government and local authorities face in balancing immediate necessity with legal process. It’s paramount that these risks are mitigated so vital facilities can be operated safely without facing the uncertainty of legal proceedings.

The good news is that the Welsh Government hasn’t been blind to this and has made pre-emptive changes. On 30 March, it introduced a new permitted development order (2020/367), creating a wide-ranging, but temporary, 12-month permitted development right for ‘Emergency Development by Local Authorities’. It permits “development by a local authority on land owned, leased, occupied or maintained by it” for the purposes of preventing an emergency, mitigating the effects of an emergency, or taking appropriate action in connection with an emergency.

“Even in a system as flexible as the UK’s, lawmakers are facing a significant challenge keeping up with the pace of change set by the current pandemic”

The order has two small but relevant caveats: first, what if the development was not undertaken by a local authority? And second, what if the development was not on local authority ‘controlled’ land?

Assuming that what is or isn’t an emergency is clear enough in practice, the crux of the issue is that under this order a public health body, such as NHS Wales, cannot undertake development in an emergency itself.

Although local authorities have joint responsibility for public health, it is not unimaginable that in these testing times a public health body would wish to, or need to, undertake development urgently.

Wales has adapted quickly and commendably to the situation, but developing regulations at speed is always likely to leave gaps. Of course, the priority is exactly where it needs to be – responding to a need for more critical care units ahead of an increase in pressure on the healthcare sector. It’s also true that a good proportion of facilities are publicly controlled assets covered by the order. However, there is evidence that private facilities have been sought, perhaps because of locational convenience or the debatable belief that they could be converted faster.

If this order is imitated over the border, lessons should be learnt from Wales so the planning system can be as robust as possible in supporting those battling the virus. These orders may not just be useful in pandemics – as the threat posed by climate change grows, the legal response will be important.


In Brief...

  • The law must respond rapidly to emergencies, but this can lead to gaps in legislation 
  • New temporary PD rights in Wales give emergency powers to local authorities 
  • However, public health bodies cannot undertake development themselves

Keith Lancaster is a senior associate with Blake Morgan

Image credit | iStock

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