Temporary Covid Measures – Planning, Traffic, Local Government: There May Be Trouble Ahead

So friends, here we are, still in the most tedious sequel in the whole franchise: Lockdown 3. Of course, the vaccines will be the eventual way out 💪 this year but can anyone predict how many more months will go by before, in England, we are free from some level of restrictions on our ability to go about our lives?

The planning system has kept going through all of the restrictions of the last ten months, thanks to the determination of local authority staff and councillors, thanks to technology and thanks to the Government in providing for a number of temporary procedural relaxations last Spring. The relaxations were summarised in my 16 May 2020 blog post Stay Alert! A Quick Guide To All Those MHCLG Announcements.

However, there is no reason to be complacent:

⁃ Some temporary measures are due to expire and there is no certainty that they will be extended.

⁃ Covid does not give carte blanche to local authorities to cut corners in their approach to decision making – I deal below with last week’s High Court ruling in relation to Transport for London’s Streetspace plan.

⁃ If initially temporary measures are to be made permanent (rather than just extended to see us through this current saga), that should surely be after careful review and reflection.

I’m going to deal with that last point first. On 16 December 2020 and without prior consultation the Government laid two statutory instruments (Environmental Assessment of Plans and Programmes (Amendment) Regulations 2020 and Infrastructure Planning (Publication and Notification of Applications etc.) (Amendment) Regulations 2020) before Parliament, the effect of which was to make permanent the ability for plan makers and promoters to dispense with making copies of documents physically available for inspection, instead providing them on a website to which consultees are directed, in relation to strategic environmental assessment (i.e. , basically, sustainability appraisals in relation to plans) and in relation to nationally significant infrastructure projects.

As summarised in the explanatory memorandum accompanying the first set of Regulations:

“In addition to publishing documents on a public website, responsible authorities (or the Secretary of State, as the case may be) will now be required to: make available a telephone number for the public to raise enquiries in relation to any documentation published; provide by mail hard copies of any documentation upon request, subject to a reasonable charge and provided it is reasonably practicable to do so given precautions and other measures relating to coronavirus; and provide copies of any documentation by email upon request. Guidance will set out that authorities may also offer electronic copies of documents available on USB flash drive to those with access to a computer but without access to the internet, and that they may wish to consider waiving any charge for hard copies of documents to members of the public who are unable to access the documentation electronically or find it difficult to do so.”

Making these changes permanent without consultation was strongly criticised by the House of Lords Secondary Legislation Scrutiny Committee in its 21 January 2021 report. This is the summary at the beginning of the report:

“These two instruments remove permanently publication and publicity requirements for certain planning matters that were suspended temporarily last year to assist authorities in taking forward relevant plans, programmes and projects during the pandemic. The Ministry of Housing, Communities and Local Government (MHCLG) says that it is not aware of any concerns about the changes and that the move to more digital processes has been broadly welcomed, though support for the changes seems to have come largely from those involved professionally in the planning process.

We regret that there was no formal public consultation, as the changes have the potential to reduce physical access to information and the ability to make representations for the general public and in particular for vulnerable or disadvantaged groups or those with poor or no internet connection, in relation to important infrastructure, housing or other projects that may impact on them. The House may wish to ask the Government to update Parliament on the impact of the changes. The possibility that requesting hard copies of potentially complex planning documents may incur an undefined ‘reasonable charge’ also gives cause for concern. Taken as a whole, these proposals seem likely to increase rather than narrow any gap between the planners and the people whose lives may be affected. We also regret that MHCLG has again used secondary legislation to make significant, permanent changes to planning legislation during the pandemic.”

In the body of the report:

“Asked why the instruments had not been extended, as other measures dealing with the impacts of the pandemic, MHCLG told us that, in addition to moving towards a digital planning system, making the changes permanent:

“avoided some uncertainty about whether it would be possible to make Regulations providing for a further extension of all of these measures in a timely way in due course. This is because the measures are made in part under the powers set out in section 2(2) of the European Communities Act 1972 and these powers were only available until the end of the EU Exit Implementation Period (11pm on 31 December 2020)”.

We are not convinced by MHCLG’s explanation. The instruments were laid and came into force before the expiry of relevant powers at the end of the Transition Period, suggesting that MHCLG could have chosen to legislate for a further extension, rather than making the changes permanent. The House may wish to press the Minister for further explanation of the Government’s approach.”

Whilst these specific, initially temporary, publicity relaxations have been made permanent, the wider temporary changes to publicity requirements for planning applications introduced through the Town and Country Planning (Development Management Procedure, Listed Buildings and Environmental Impact Assessment) (England) (Coronavirus) (Amendment) Regulations 2020 and the Town and Country Planning (Local Planning, Development Management, Listed Buildings etc) (England) Regulations 2020 are still due to expire on 30 June 2021 unless extended.

No doubt there will be an extension if it is needed (and let us hope that it isn’t). What is much more worrying is the imminent expiry on 6 May 2021 of the power for local authorities to hold virtual meetings, provided by Regulation 5 of the Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local Authority and Police and Crime Panel Meetings) (England and Wales) Regulations 2020 . The concern is that the basis for this temporary relaxation in local government law is Section 78 of the Coronavirus Act 2020. Sub-section (3) provides:

“The regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.”

MHCLG’s current view is apparently that power to hold virtual meetings cannot be extended without primary legislation to amend section 78 and this may not be possible – see ‘Councillors could be disenfranchised without remote meetings’ (Local Government Chronicle, 21 January 2021).

This could be a real problem and needs to be grappled with now. I would be very pleasantly surprised if normal life has resumed by 6 May to such an extent that everyone is available to attend planning committee and other meetings in the same way as before the pandemic. Let’s be clear, without virtual planning committee meetings, the planning system (at least on any democratic basis, as opposed to wholesale reliance on officers’ delegated powers) would have shut down for the last ten months.

Finally, on the subject of temporary powers and measures:

⁃ the emergency permitted development right for the NHS and local authorities to provide additional temporary health and local authority facilities introduced by the Town and Country Planning (General Permitted Development) (Coronavirus) (England) (Amendment) Order 2020 has been extended to 31 December 2021.

⁃ the additional allowance for temporary use of land expires on 31 December 2021 and the right for a local authority to hold a market for an unlimited number of days expires on 23 March 2022, both introduced by the Town and Country Planning (Permitted Development and Miscellaneous Amendments) (England) (Coronavirus) Regulations 2020 and then extended by the Town and Country Planning (General Permitted Development) (England) (Amendment) Regulations 2020.

⁃ I am not aware of any proposal for any extension of the duration of certain planning permissions and consents beyond that provided for in the Business and Planning Act 2020.

Surely it’s going to take some time and evidence-gathering to work out what the benefits of each of these measures have been, what problems may have arisen and which processes and rights (if any) should now be permanently adopted. For instance, for my part, I see great advantages to the inclusivity that has come with virtual planning committee meetings and indeed appeal inquiries and hearings and I hope that we do not return entirely to old ways. However, we should not be bumped into permanent change without that process of reflection.

The judgment deserves a blog post of its own, but the dangers that arise where decisions are made under the justification of Covid but which have more widespread effects which may not have been properly considered are illustrated starkly by the Streetspace case, R (United Trade Action Group & others) v Transport for London (Lang J, 20 January 2021)

This was a challenge by London taxi drivers to the London Streetspace Plan, the related Interim Guidance to Boroughs and the A10 GLA Roads (Norton Folgate, Bishopsgate and Gracechurch Street, City of London (Temporary Banned Turns and Prohibition of Traffic and Stopping) Order 2020.

As summarised by Lang J:

“The Mayor issued the Plan on 6 May 2020, in response to the COVID 19 pandemic. The Guidance was published by TfL on 15 May 2020. Broadly, the aim of the Plan and the Guidance is to facilitate walking and cycling by providing more dedicated road space for pedestrians and cyclists, and “suppressing” motor vehicle traffic, other than buses.”

“The A10 Order is a traffic management order (“TMO”) made by TfL on 16 July 2020, under section 14(1) of the Road Traffic Regulation Act 1984 (the “RTRA 1984”). It is a temporary measure, due to expire by 15 January 2022 at the latest. It imposes extensive restrictions on motor vehicles, other than buses, along the A10 at Bishopsgate and Gracechurch Street in the City of London, from 7 am to 7 pm on weekdays. There are limited exemptions, but not for taxis.”

The judgment contains a detailed account of the effects of Covid lockdown measures on traffic in the City of London and the traffic measures introduced by the Mayor during the period. The contentious nature of decisions which balance priorities as between the use of streets by through traffic and by communities has been one of the political themes of the pandemic, particularly in London. This judgment is going to be carefully scrutinised by all sides in that particular debate. This is an interesting OnLondon piece about the ruling and its implications, High Court ruling means major rethink for Mayor’s ‘seriously flawed’ Streetspace scheme (OnLondon, 21 January 2021) but here are Lang J’s conclusions:

“278. Ground 1: in making and promulgating the Plan and Guidance, the Mayor and TfL failed to distinguish taxis from “general traffic”. In doing so, they failed to have regard to relevant considerations, namely:

a) the distinct status of taxis as a form of public transport, reflected both in law and policy;

b) the role played by taxis in facilitating accessible public transport for those with mobility impairments.

However, Ground 1 did not succeed in respect of the A10 Order.

279. Ground 2: In making the Plan and Guidance and the A10 Order, TfL and the Mayor failed to have proper regard to the public sector equality duty, pursuant to section 149 of the Equalities Act 2010.

280. Ground 3: The economic benefits which taxi drivers derive from their statutory licences, which entitle them to ply for hire throughout London, are a “possession” within the meaning of A1P1 ECHR [article 1 protocol 1 of the European Convention on Human Rights], and so A1P1 is engaged. However, because of the way in which this challenge was formulated, and insufficient evidence, the Claimants failed to establish an interference with their possessions by control of use.

281. Ground 4: The Plan and Guidance and the A10 Order breached the Claimants’ legitimate expectation to pass and repass on London’s roads, and to use lanes reserved for buses.

282. Ground 5: The treatment of taxis in the Plan and Guidance and the A10 Order was irrational.

283. In my judgment, quashing orders rather than declarations are appropriate because of the nature and extent of the unlawfulness which I have identified, which affects not only taxi drivers, but also their passengers. The Plan, the Guidance and the A10 Order all need to be re-considered by the Defendants and substantially amended in the light of my judgment. To reduce disruption, the Defendants can turn their minds to this task now, on a provisional basis, as there will be a stay and a delay whilst they pursue their appeal. If the appeal is unsuccessful, they can apply for further time (if required) to finalise the proposed revised Plan, Guidance and Order before the quashing orders take effect.”

So, watch this (street)space.

In the meantime, another date that is of course looming is 6 May 2021, local government elections. The Government is not presently intending to delay them again. That was particularly clear from MHCLG minister Luke Hall’s 19 January 2021 letter to Croydon Council (again for an explainer about this – campaigners had been pushing the council for a referendum into whether there should be a directly-elected Mayor for Croydon, which the council had been seeking to delay on Covid grounds – see the OnLondon 19 January 2021 piece Croydon: Government tells council it should hold governance referendum on 6 May (OnLondon, 19 January 2021).

Wouldn’t it be fantastic if things were indeed sufficiently normalised by 6 May 2021?! (But, in small font, what if they are not?).

Simon Ricketts, 23 January 2021

Personal views, et cetera