How is COVID-19 impacting the planning system, and what are the risks for developers?
Published on 1st Apr 2020
Local planning authorities have been urged to be flexible in light of the current crisis, but with many issues outside of their discretion, developers need to be mindful of deadlines and the risks posed to their projects.
The UK's ongoing response to the spread of COVID-19 (particularly the requirement for social distancing) has had a fundamental impact on the procedures by which local planning authorities (LPAs) determine planning applications.
The Planning Inspectorate (PINS) has now cancelled all previously arranged site visits, suspended all hearings and inquiries, and closed its offices in Bristol and Cardiff.
Current government guidance is encouraging LPAs to use discretionary powers within their gift in an attempt to minimise the effect of COVID-19. However, only certain provisions in planning law are discretionary. Mandatory deadlines and procedures of the planning regime will continue to apply. Whilst government guidance can help LPAs and applicants get a sense of how procedures will be conducted, the legal framework which governs the planning industry has not yet changed.
Developers may be concerned that whilst the lock down period continues, deadlines for securing, approving and commencing planning permissions may be missed, consents may expire and deadlines for appeals or challenges may pass. As developers start to suspend works on site, the potential for enforcement of planning control may also become a risk.
As we await clarification from the government, developers should bear in mind the following:
Preserving planning permissions and commencing development
The absence of staff and working from home policies are likely to cause delays to LPAs processing and determining planning applications and submissions for approvals, including applications for reserved matters approval.
Currently there is no ability for virtual planning committees, although there are plans to do so (see further below). The Chief Planning Officer has said that LPAs should delegate committee decisions where appropriate.
Consequently, delays might impact associated planning permissions. One significant risk is where reserved matters deadlines are looming. The Town and Country Planning Act 1990 prohibits an extension of the deadline for submission of reserved matters, so this is not something over which LPAs have discretion. As a statutory bar, legislation would be needed to allow an extension.
There is also concern that if pre-commencement conditions are not determined and development starts, that start may not be a lawful commencement. If the deadline for commencement subsequently passes before the LPA discharges the conditions, there remains the possibility that the permission lapses without a lawful start on site, and all subsequent development is unlawful. This a point of legal fact and not one that the LPA can waive using its discretion.
Developers may therefore be concerned if they are required to commence development under a planning permission within the next few months but are still waiting for the discharge of a conditions by the LPA.
Developers should not rely on the government's recent guidance to LPAs, which encourages them to adopt a lenient stance when enforcing planning conditions in these circumstances. This flexible approach is likely to apply to limited instances where restraint is necessary for the continuation of essential activities in the context of COVID-19. Such activities include the supply and distribution of food and other vital supplies. Bearing in mind that the government seems to be unclear as to what development amounts to essential services, developers that decide to forge ahead with projects in the belief that they will be shielded from enforcement could be taking a significant risk.
Any applicants concerned with deadlines should contact the relevant LPA and liaise with them to ascertain when the required decisions can be expected. It is a good idea to keep good records of any informal discussions on appropriate steps.
A number of LPAs (and now PINS) have now closed their offices, which poses an issue for parties seeking to make written submissions. Whilst the position varies between LPAs, it is becoming increasingly apparent that submissions sent by post will be subject to significant delays. Any applicants seeking to make urgent submissions should take steps to liaise with the LPA and clarify how they are currently dealing with the ongoing situation.
In respect of Nationally Significant Infrastructure Projects (NSIPs), PINS has updated its guidance (24 March 2020) to state that 'submissions sent by post will be subject to a delay which [they] cannot currently quantify'. Instead, applicants and interested parties are encouraged to make submissions via the project specific webpage and email. If a party has not yet arranged to communicate with PINS via email it should contact the case team promptly to provide consent for electronic communication.
For planning appeals, the PINS is asking that only online submissions are made. The appeals portal can be accessed here and appeals in respect of East Sussex, West Sussex and Kent should be made via the new beta service. It will still be necessary, however, to meet deadlines specified by PINS for submission of documents such as Statements of Case and Statements of Common Ground.
As the planning industry responds to the government's social distancing policy, one of the solutions being put forward by industry professionals is holding virtual inquiries, hearings and committee meetings. LPAs currently do not have the legal authority to utilise virtual solutions as part of these events. As a result, the industry has called for the government to introduce regulations which give LPAs powers to take advantage of virtual solutions in order to keep the pipeline of planning applications moving. The Coronavirus Act 2020 (which came into force on 25 March 2020) has established a framework to bring forward the required powers but LPAs must now await secondary legislation to permit their use. Given the urgency, the announcement of such regulations is likely to be forthcoming.
We also understand that PINS is exploring ways of undertaking some appeals remotely in an attempt to get some hearings heard during the lock down period.
Judicial review and the courts
There have been no changes to the procedures in the Administration (Planning) Court and all deadlines must be adhered to. For the time being, the High Court and the Court of Appeal are only hearing urgent matters remotely. The Royal Courts of Justice remain open to receive applications and submissions and if papers are being lodged it is important to liaise with the Court on practicalities. The six week judicial review period for planning matters therefore still applies. Whilst the Court may be prepared to exercise discretion if an application is made out of time if COVID-19 creates an exceptional circumstance, do not rely on that as a reason not to lodge papers with the Court.