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Coronavirus planning update: Decision taking and impacts on five year housing land supply

Paul Brailsford Image

Author

Paul Brailsford

Partner, National Head of Planning & Environment

Mark Harris Image

Author

Mark Harris

Partner

Robert Bruce Image

Author

Robert Bruce

Partner

Stephanie Gozney Image

Author

Stephanie Gozney

Managing Associate

What started as an epidemic limited to China has now become a truly global pandemic. Its effects have been felt throughout many sectors including those impacted by planning law, and below we set out the main changes and issues relating to planning decision-taking that you should be aware of as of 29 June 2020. The situation is constantly changing, and we will aim to provide the most up-to-date information where possible.

Further advice regarding the impact of the Coronavirus outbreak on planning law, and how to prepare for any impact on your business, is offered by the Freeths Planning team. Please contact us should you wish to know more.

Planning Inspectorate decision taking approach during the Coronavirus outbreak

On 26 June the Planning Inspectorate (“PI”) indicated that the Coronavirus outbreak has meant that since the start of lockdown they have issued around 2,100 fewer appeal decisions - this equates to over a third less than they would normally have expected to in “normal” times. This stark reality just goes to emphasise the importance of finding appropriate decision taking approaches. Submission of documentation - The PI is no longer accepting correspondence via post and has requested that new appeals are submitted online. Urgent queries are to be directed via email to the case officer. As we would have expected on 25 June the PI have confirmed, “sending documents via post is causing long delays”. Site visits - Following a previous suspension until mid-May, Inspectors have re-started site visits where safe and appropriate to do so and where social distancing measures can be adhered to. Case officers will be in contact with the relevant parties and authorities to make necessary arrangements. In updated guidance on 28 May the PI noted that this process may take longer than normal and visits may not be arranged in the order of appeal submission. Virtual site visits trial -On 16 April the PI announced that it has started a trial of 'virtual site visits' with a small group of inspectors - currently it only appears to relate to appeals proceeding via written representations. If a case is deemed suitable for inclusion in the pilot and that it can be properly decided on the basis of digital images, a physical visit will not take place and the case will be decided purely on the basis of the written evidence received. As of 28 April, five virtual local advisory visits have taken place during lockdown. This will include inviting the submission of further specific information. The PI will review this approach in a few weeks' time before considering whether to extend the pilot.The use of digital images has already been used in practice, as on 16 April the PI decided a minor appeal regarding the refusal of a lawful development certificate for the construction of a chimney stack, having cancelled the planned physical site visit due to travel restrictions imposed by the Government's response to the Coronavirus outbreak. However, it seems that this outcome was reached due to the fact that sufficient evidence could be sourced and submitted electronically due to the subject of the appeal. It is unlikely that the need for a physical site visit will cease if insufficient alternate evidence exists.Hearings and inquiries - On 28 May the PI confirmed that currently they do not consider that physical events can be undertaken safely for both staff and participants, so for “the foreseeable future” no face-to-face inquires or hearings will be arranged. However, on 26 June, following the Government's announcements that they will relax social distancing distances and the use of indoor spaces in July, the PI indicated that they “are actively looking at options to resume some face-to-face hearings and inquiries”. It appears that the PI are now considering what use of “virtual or a blend of face to face and virtual events may be able to play in the longer term in widening options and access”: the Coronavirus outbreak is not the death-knell of all face-to-face hearings and inquires.First digital pilot hearing - This took place on 11 May and concerned the refusal of outline planning permission for an agricultural-tied cottage. The Inspector was satisfied that “all relevant parties with an interest in the case were able to fully participate”. No third parties were involved. Before the hearing, the Inspector was provided with photographs of the appeal site and at the hearing the Inspector sought the parties' view as to whether a physical site visit was required. The Inspector concluded it was not necessary given “the nature of the determinative issue”. The PI have commented that the hearing went well, although it was time consuming to arrange. It lasted for around 3.5 hours and was conducted over three separate sessions. Noise was noted as the main technical issue. A copy of the decision is here.The PI are making arrangements for at least 10 hearings to be held virtually in June and to re-arrange the vast majority “as soon as possible in the following months”. The PI's long term 6 month goal is to conduct fully virtual casework. We will follow all further developments and update this information accordinglyFirst digital pilot inquiry - As we reported the PI previously announced they are seeking innovative ways to progress case work in a fair, open and impartial way, including looking at facilities such as video conferencing, to ensure everyone including local communities can participate fairly. The PI's 28 May update confirmed that they have been holding “numerous case conferences with a view for around 10 of these to turn into virtually held inquiries in June” The PI indicates that the “remaining ones [will] be re-arranged at the earliest opportunity”. We consider that this indicates that the PI's adoption, in full, of the findings of the February 2019 Rosewell Independent Review of Planning Appeal Inquiries (please see a link to the Review's report here), which had already brought in significant changes to the inquiry process, is aiding in maintaining progress of casework in this unprecedented time.PI will permanently be able to use more than one procedure - On 22 June 2020 the Government announced that the PI will permanently be given the ability to use more than one procedure - written representations, hearings and inquiries - at the same time when dealing with a planning appeal. The Government indicate that this will “[enable] appeals to happen much faster” and point to a 2019 pilot programme following on from the Rosewell Independent Review referred to above which the Government say “more than halved the time taken for appeal inquiries, from 47 weeks to 23 weeks”.Nationally Significant Infrastructure Projects - Hearings and preliminary meetings are postponed but the PI expects to continue to make good progress with the examination process as this is already primarily a written process, however, the PI “may exercise discretion on any existing deadlines...where circumstances make it difficult for written submissions to be made”. The PI makes clear that they encourage interested parties to continue to have relevant discussions, and to prepare information and written submissions, although they also acknowledge that some organisations are choosing to delay this process. Following the Government's 13 May update the PI have announced that “some 15 hearings [are] to be held virtually in June (and more in July)” via Microsoft Teams. On 26 June the PI announced that three NSIPs had been successfully progressed via virtual events.[ela_accordion][tela_accordion title="A permanent change to Planning Inspectorate decision taking in England"]Previously, at an early stage in the appeal process a determination had to be made about which of a) an inquiry b) a hearing or c) written representations were considered by the Secretary of State to be the “most appropriate”.In the only permanent planning change within the Business and Planning Bill, the Government will change section 319A to enable “such one or more of the [three processes] as appear...appropriate” to the Secretary of State. This hybrid approach will apply, amongst others, to appeals against an LPA's refusal of planning permission, an appeal seeking to modify or discharge affordable housing requirements and appeals against LPA issued enforcement notices.In the Bill's explanatory notes, the Government indicates that the changes are to enable “appeals to progress at a faster pace”. Inspectors will have more flexibility to decide on the scale of cross-examination or investigation via hearing required.The Planning Inspectorate have said they welcome “any measures that build on the Rosewell Recommendations and provide Inspectors with the flexibility to consider all the evidence needed to make a fair and robust decision”. The changes bring England in line with WalesWe will follow with interest to see practically how the Planning Inspectorate implements and uses these changes in England, as there is a huge backlog to clear.This change also will apply to the determination of procedures under the Planning (Listed Buildings and Conservation Areas) Act 1990 and the Planning (Hazardous Substances) Act 1990.[ela_accordion][tela_accordion title="No extension to determination periods"]From validation of a planning application, there is currently a Local Planning Authority (“LPA”) 13 week determination period for applications for major development, a 16 week period for applications subject to an Environmental Impact Assessment and 8 weeks for all other types of development. If necessary, extensions of time can be extended on a case by case basis via agreement between the LPA and the applicant. An applicant could seek to appeal to the Planning Inspectorate on the basis of non-determination if these periods are not met.The Welsh Government has already confirmed that they do not intend to change the determination periods, however, they “acknowledge the timescales will not be met in many cases” and on 13 May the Government confirmed there is also no intention to change the English determination period and “developers should be encouraged to agree extensions of time where necessary”.The Government's 13 May update notes that retaining timescales “means there is still the option to appeal to the Secretary of State on the grounds of non-determination”. In a previous version of this update we suggested that we may see a temporary extension to the statutory time limits in England whilst LPAs adjust to the significant challenges, and changes, caused by the Coronavirus outbreak (i.e. virtual committees, stretched resources and working from home), so LPAs do not need to seek to agree individual extensions of time. However, a slight extension would not have removed the non-determination appeal route option if the relevant legislation for non-determination was updated consistently.[ela_accordion][tela_accordion title="Virtual planning committees"]Pre-Coronavirus, councillors were required to be present at a physical planning committee meeting to decide applications. However, on 4 April 2020 The Local Authorities and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020  came into force to facilitate recent changes to primary legislation which removed this requirement for all meetings required to be held in England and Wales before 7 May 2021. The new regulations provide that local planning authorities can hold meetings remotely so participants no longer need to be in the same place, including:

  • by telephone conferencing;
  • video-conferencing;
  • live webcast; and
  • streaming.

Developers should note that LPAs can move or cancel meetings without giving further notice. In a previous version of this update we noted the lack of Government guidance for LPAs about how best to go about the process when the regulations came into force. As a result many LPAs simply deferred committee dates, which has an unhelpful knock on effect. Previously we referred LPAs to the Planning Officers Society's recommendations. However, the Government has acknowledged the lack of support and in its 13 May guidance clarified that they “are working with the Planning Advisory Service to provide practical advice to local authorities through online guidance and web-based training on how to manage planning committees and continue decision-making during this time and their latest guidance can be found on the Planning Advisory Service website. As part of this work, the Planning Advisory Service will be engaging authorities to learn about their practical experience of virtual planning committees”. We will continue to follow how this new process is practically used. We consider it would create an overall more efficient planning system if LPAs were feasibly able to adopt a consistent approach. Waltham Forest Council's planning committee, for example, has recently granted planning permission for 750 dwellings with committee members meeting in a separate room in accordance with social distancing guidance, and all other participation taking place via Microsoft Teams, making a total of around 60 people taking part. The Royal Borough of Kensington and Chelsea Council held its first virtual meeting on 9 April and Epping and Westminster Council have also confirmed they plan to hold their meetings via video conference. We have also heard that a number of LPAs will be seeking to prioritise planning applications for residential development over other forms of development at their early virtual committees.LPAs and applicants will also need to be alive to the risk of legal challenge to the committee's decisions caused by operating under the new arrangements, and seek to mitigate this risk at all opportunities, including keeping a proper record of what happened at the virtual meeting (which we consider should equally apply to any technological solution used by the PI). We would recommend that LPAs hold internal trial runs based on applications previously determined by the committee pre-Coronavirus.We have heard reports of third parties seeking to sabotage virtual planning committee meetings where inappropriate content has been shared publicly both verbally and visually - a report on what happened at South Somerset District Council's planning committee is here. LPAs need to have a clear approach to deal with this scenario to ensure that the democratic process remains open whilst not being derailed - we would refer to Bassetlaw District Council's approach set out here.

Increased delegated decision making for LPAs?

Local Planning Authorities may also look to change their constitutions and schemes of delegation to enable more decisions to be delegated in this unprecedented time. We would refer LPAs to the Planning Officers Society's recommendations and the Government's 13 May updated guidance that LPAs should also consider using 'urgency powers' within their constitutions to give senior officers delegated authority to make decisions. For example, Manchester City Council's and Liverpool City Council's planning committees have delegated to the respective Council's Chief Executive any planning application, listed building consent and tree preservation order application that would otherwise have been decided by the committee. In addition, Brighton and Hove City Council have selected one Councillor to represent Labour, Conservative and the Green Party to collectively decide urgent applications. On the other hand, Cornwall Council has suspended all committee meetings and delegated all applications to planning officers, with appropriate input from committee members, where site visits have been undertaken - site visits are currently suspended and the Council is “are considering alternative ways of working to protect our staff and our residents”.

New guidance on validation of applications

On 13 May the Government introduced new guidance “to encourage all planning applications to be made online” and that LPAs should make this clear on their websites and inform local agents. However, LPAs must make arrangements to ensure paper applications are still validated. The guidance makes clear that priority “should continue to be given to the validation of any urgent COVID-19-related applications for planning permission and associated consents, including hazardous substance consents, where statutory consultees if necessary, should be contacted immediately”.

Is it essential to amend that validated planning application which the Council has already consulted on?

Re-consultation may be required to address new material changes to your planning application. Under current circumstances, will the Local Planning Authority still be able to undertake the consultation and receive/review all responses without leaving your application at risk of judicial review? We recommend that you liaise fully with the LPA before submitting new material changes. New temporary regulations, and supporting guidance are being introduced on 14 May regarding revised publicity requirements which “must be proportionate to the scale and nature of the proposed development”. We will shortly provide commentary on the new regulations and supporting guidance.

Coronavirus outbreak impacting five year housing delivery supply"

The Revised National Planning Policy Framework (2019) (“NPPF”) establishes a presumption in favour of sustainable development so that if the development proposal accords with an up-to-date development plan, which includes by way of example an adopted Local Plan, it should be approved without delay.If a Local Planning Authority cannot demonstrate a five year supply of deliverable housing sites (i.e. that the site must be available and in a suitable location for development to take place now and that there should be a realistic prospect that housing will come forward on the site within 5 years) with the appropriate buffer, as required by paragraph 73 of the NPPF, then the “tilted balance” within paragraph 11d of the NPPF will instead apply, meaning that the policies that are most important for determining the application are considered out-of-date and that permission ought to be granted unless:

  • the application of policies in the NPPF that protect areas or assets of particular importance provides a clear reason for refusing the proposed development; or
  • any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, assessed against the policies in the NPPF taken as a whole.

If the “tilted balance” applies, the setting for the decision is more developer-friendly. Failure to demonstrate a five year supply is just one of the reasons why the “tilted balance” will apply. Our team of planning lawyers  and in-house chartered town planning consultants can assist you through this maze. Whether or not sites are considered deliverable is therefore of vital significance for the determination of planning appeals. In a recent planning appeal decision at Land north of Nine Mile Ride, Finchampstead, Berkshire (appeal ref: APP/X0360/W/19/3238048) where the Inquiry had taken place before lockdown, following its close the Inspector asked the main parties whether they wished to comment on any implications that the Coronavirus outbreak may have in terms of their evidence of housing delivery. The Inspector took into account these responses when making their decision and reduced a 5.43 year supply to a 5.2 year supply of deliverable sites directly due to the Coronavirus pandemic, and considered this to be an “optimistic assessment”.The Inspector highlighted that the Coronavirus outbreak had caused the temporary closure of construction sites as well as the hampering of those remaining open, and had had a negative impact on customer confidence which they considered would have an effect on the housing market. In the appeal the Appellant concluded that the effects would be felt for a 3 to 6 month period, which the Inspector considered did “not sound unreasonable”. The Inspector did however note that “it is equally possible that a bounce back will occur once the crisis ends. Indeed, it is reasonable to surmise that housebuilders and their suppliers will be keen to rectify losses if it is possible to do so." If the supply had started as 5.2 years with a similar reduction being made the Inspector would have had to have considered the decision under the “tilted balance”, and may well have resulted in an approval, rather than the refusal. A copy of the decision is here.

Our Planning team can help you navigate the impact of Coronavirus on planning law and your business. Contact Robert Bruce and Stephanie Gozney for planning-related legal enquiries and Paul Brailsford and Mark Harris for planning consultancy enquiries. This update was originally published on 8 April 2020 and was last updated on 29 June 2020.Whilst you are here we would also recommend our additional Coronavirus planning updates:

If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.

 

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.