The planning process during the covid-19 crisis

Our hearts go out to anyone affected by the current health crisis, and we are all playing our part whether that be through directly volunteering or just simply working from and staying home.

The challenges for the development industry are relatively unimportant compared to the significance of health, but the trials it faces are beginning to become clear. The situation is fast moving so we thought we would provide some advice for homeowners, landowners, purchasers and developers on this page – we will update it as things develop.

Please click on the drop down text below to find out more on each matter.

Planning Appeals

The Planning Inspectorate (PINS) issued a statement on 25th March stating that its offices were closed with its staff and inspectors instructed not to travel. PINS reported that until the situation changes, there would be no site visits of any kind, no hearings and no inquiries.

PINS were, it was reported, investigating technical solutions to working through the current situation; but it has concerns related to the fairness and transparency of its processes given that hearings and inquiries are public events.

It is understood that written representations’ appeals, given these can be assessed by inspectors in isolation, may still go ahead; though the situation is still unclear.  We have a number of appeals on-going where the written process has come to an end, and site visits have been cancelled.

In practice, some inquiries have been adjourned indefinitely.  Others have been relisted for September, but again the timeline is unclear. If the approach of PINS does not change it can be anticipated there will be a severe backlog later on in the year.

With regard to written representations, appeals that were submitted this year may now be subject to a considerable delay due to PINS’ prohibition on site visits; though it is understood that some appeals may proceed where the matter does not require a site visit – for example with regard to viability assessments.

Concerning economic recovery next year and beyond, if PINS’ reticence to put themselves in a position to deal with their casework continues, there will inevitably be a major backlog that may frustrate a swift recovery. The current position raises serious concerns and is entirely contrary to the Government’s and the courts’ position.  We expect it to change shortly.

We understand PINS intends to try out a small number of cases by remote conferencing. There are no details as yet regarding this pilot, its timescale or review process. With luck, answers will be forthcoming sooner rather than later.

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Five-Year Housing Supply

The obvious delays arising from the current situation raise questions with regard to the ability of Local Authorities to meet their housing supply needs.

One of these questions is whether this will result in Local Authorities seeking a relaxation of the consequences in policy terms of not meeting the five-year housing supply.

At present no information has been released on this topic – we will continue to monitor the situation.

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Local Planning Authorities

S78 of the Coronavirus Act allows LPAs to hold meetings by remote conferencing.  All London LPAs are reported to now be using remote conferencing.

Locally in Gloucestershire, LPAs have transitioned to homeworking with varying degrees of success.  LPAs who were fully engaged with applicants in normal times seem to have more readily adapted to the current situation to carry on business. Likewise, there is a direct correlation with the more ‘difficult to reach’ LPAs now struggling to adapt.

Tewkesbury has its staff working from home but has unfortunately ceased responding to all pre-application enquiries,  its officers are not undertaking any site visits and the council has cancelled all committee meetings.

Gloucester City Council is advising that planning applications should only be submitted via the Planning Portal, but its pre-application service is continuing.  All site visits are cancelled unless essential, and currently committees are suspended.

Cotswold District Council is endeavouring to carry on with business as usual. Applications are being validated and appraised as far as possible with the benefit of submitted material and satellite imagery, and further information if they need it.

Cheltenham Borough Council has adopted a similarly pragmatic approach.  The Council has altered its constitution to allow all planning decisions to be determined by its officers after prior consultation with committee members.

Stroud District Council report that some staff have been redeployed to other departments, and that all meetings and site visits have been cancelled.  Stroud have also requested extensions to planning application deadlines where necessary.

The Forest of Dean District staff are working remotely and electronic applications and pre-application responses will continue to be processed.  Video conferencing for meetings is also being offered.

The Government’s Chief Planner issued a statement on 24th March, and the Government expects LPAs to take an innovative approach to allow the planning system to function using every opportunity to use technology. The message was clear that the wheels need to keep turning. Hopefully we can expect a rethink from councils that do not yet have clear processes in place.

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Keeping Permissions Alive

A number of immediate problems are rearing their heads, none of which have yet been subject to guidance. It is reasonable to think that the next planning related changes will be on these issues, particularly with regard to time limits.

Currently, development must be commenced no later than 3 years from the grant of a permission. For outline permissions, applications for reserved matters must be made no later than 3 years from the grant of permission, and development must begin no later than 2 years from the final approval of reserved matters.  These statutory time limits are to encourage developers to implement permissions, and once issued the time limit of a permission cannot be amended.

This raises obvious challenges in the coming months with staff shortages and site closures associated with a lack of supply chain.  Furthermore, LPAs may begin to struggle to discharge pre-commencement conditions.  The outcome is an increased risk of permissions being lost, and changing the law to counter this threat will take time.

There are a number of creative solutions however:

  1. A developer could commence development as soon as possible. Parts of the construction industry are still active. In order to commence a development, a ‘material operation’ needs to occur and the test for this is not high.
  2. If it is necessary for conditions to be discharged prior to commencement, use can be made of the deemed discharge of conditions procedure. If the LPA does not respond to an application within specific timeframes, the conditions are deemed to have been discharged.  The process though can be drawn out and thus may not address an immediate problem.
  3. With regard to reserved matters, only the submission of the application is required by the deadline, not the decision itself.
  4. With some applications, it might be possible to submit a S73 planning application to adjust the trigger points for condition compliance so that a material start can be made on site without the need for unnecessary pre-commencement work.

The only really effective solution however is for the Government to change the law.  Notwithstanding the extensive challenges it is facing right now, the Government should be looking into new legislation for separate applications to extend time limits, or even an automatic extension to all permissions set to expire within say the next 6 months.

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S106 Agreements

We can envisage possible problems with developers having to meet ongoing obligations when it is no longer commercially viable to do so.

S106 Agreements are usually triggered by active or positive events.  If such payments have not been triggered it may be possible for a developer to cease work and avoid triggering payments.

However, trigger points may still occur in certain circumstances, particularly with regard to early and late stage viability assessments, and particularly where a developer has not been able to build out as swiftly or with many units as was originally envisaged.

Unfortunately there is no easy solution.  The existing routes to modification and renegotiation are dependent on the consent of all parties.  These routes are not easy, but where viability and deliverability are concerns, particularly where this will impact a 5 year housing land supply, this may be worthy of consideration.

If delivery rates stall, the Government may introduce a mechanism to relax affordable housing policies, as they have done in the past, though this we expect would be a last resort.

Given the potential challenges associated at present with sealing a S106 agreement and the knock on effect of holding up a planning permission, one possible exceptional circumstance solution may be to use a Grampian style negative planning condition, saying that no development is to be commenced until a S106 is executed.

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Community Infrastructure Levy (CIL)

When liable CIL is payable on the commencement of a development and the legislation is strict.  There is an ‘exceptional circumstances’ relief in terms of viability, but the onus is on the applicant to demonstrate this.  Also, a charging authority has the power to change its installment policy.  However neither of these options can be applied retrospectively to triggered payments.  At the moment therefore, the best solution is for developers to try to agree a payment plan over the LPA’s use of enforcement powers where possible.

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Permitted Development Rights

On 24th March the Town and Country Planning (General Permitted Development) (England) (Amendment) Order 2020 came into force for 12 months.

The context for this new legislation is the closure of non-essential shops, and an additional 15 million customers in supermarkets for the week ending 5th March.

The Order inserted a new temporary Class DA in Part 4 of Schedule 2 to the GPDO 2015.

The legislation allows the change of use of Class A3 premises (restaurants and cafes) and A4 premises (drinking establishments) to A5 (takeaways).  Class DA is effective from 10:00 on 24th March until 23rd March 2021.

The developer must notify the local authority but it is not a prior approval process and the requirements for notification are minimal.  We suggest notifying the LPA in writing as soon as you can.

From 23rd March 2021 there will be an automatic cessation of the order and the premises must revert to the previous use.

An important point to note is Class DA does not allow the overriding of conditions on a previous planning permission.  In other words, if an earlier planning permission included a condition expressly prohibiting the use of a premises as a takeaway, the Amendment does not permit it. In addition, the amendment does not deal with any licensing issues.

It is useful to remember that an LPA’s use of enforcement is discretionary.  The Secretary of State, Robert Jenrick emphasised the need for LPAs to take a positive approach to retailers.  Councils should not take enforcement action when not in the public interest; so bear in mind how ‘politically’ welcomed it would be in the current circumstances for a Council to take action against a pub providing takeaway food!  The government recognises the potential for temporarily detrimental impacts on residents arising from the Order, and indicates that were an LPA to take enforcement action, they would need to bear in mind the written ministerial statement and have good reasons to depart from it.

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Our experience of working in the era of Covid-19

We’re a diverse yet close-knit bunch at SFP. While our core expertise is based upon an established bedrock formed of years of town and country planning experience, everyone on the team brings with them additional areas of personal interest. Even with the most intricate and unique of planning questions, a quick tour of the office will normally yield an answer from someone with first-hand experience.

In the lead up to the ‘lockdown’, SFP worked with its IT and telephony partners to ensue systems were and continue to be in place allowing the entire company to be operated remotely. As a result, staff have full remote access to both our systems, and each other.  We are pleased to report that there has been minimal disruption to our ability to service our clients’ and customers’ needs in the manner we hope you are used to.

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